Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8240

1 Thursday, 19 July 2001

2 [Prosecution and Defence Closing Statements]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.33 a.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: Yes, Your Honour. This is the case number

8 IT-97-25-T, the Prosecutor versus Krnojelac.

9 JUDGE HUNT: Now, before we start, Mr. Bakrac, did you get a

10 message from us that you can't file all of your submissions on a

11 confidential basis?

12 MR. BAKRAC: [Interpretation] Yes, Your Honours. And if it's

13 enough for the record so as not to write a separate brief, I can simply --

14 if I may just suggest that the wording "confidential" be taken off our

15 submission.

16 JUDGE HUNT: So there's nothing in it that you want to remain

17 confidential? I didn't see the name of any of your confidential witnesses

18 there, but have you checked that?

19 MR. BAKRAC: [Interpretation] Yes, Your Honours. We -- we started

20 with confidential information on the first page, and just in case, we kept

21 it confidential, but when we reached the end and we were -- we were

22 lacking time, after that, we verified and we realised that there was

23 nothing confidential in there. So this is why we're now orally proposing

24 that the words -- the word "confidential" be taken off our final brief.

25 We're making an oral submission, if that is enough for Your Honours. I

Page 8241

1 apologise for this.

2 JUDGE HUNT: No. That is perfectly sufficient and thank you very

3 much.

4 Yes. Who is going to start for the Prosecution?

5 MS. KUO: I will, Your Honour.

6 JUDGE HUNT: Ms. Kuo.

7 MS. KUO: Good morning, Your Honours. May it please the Court:

8 During the past eight and a half months, this trial has been about many

9 things, but today it is only about one thing; the accused Milorad

10 Krnojelac and the suffering he caused. I will focus on the role of the

11 accused while my colleague Ms. Uertz-Retzlaff will focus on the crimes

12 that he committed and the sentencing that he deserves.

13 The accused was warden of KP Dom Foca during the crucial takeover

14 of the town by Serb military and civilian forces. This happened from

15 April 1992 until the summer of 1993. With his participation, Foca became

16 an all-Serb town and remained that way practically until this very day.

17 He was in charge of one of the largest prison camps in Eastern Bosnia and

18 Herzegovina where at least 900 non-Serbs, primarily Muslim men, passed

19 through its gates for periods from a day up to two and a half years. The

20 suffering that he caused was immense.

21 It is undisputed that the accused was appointed temporary warden

22 of the KP Dom on the 18th of April, 1992 when Serb forces took over the

23 town after about a week of fighting. The assignment was a wartime

24 assignment by the Ministry of Defence. During this time, everybody

25 received such assignments, from cooks to drivers to nurses and teachers.

Page 8242

1 It was war. And although Foca was securely in Serb hands, fighting

2 continued in the surrounding villages and towns, which fell or were

3 liberated in the coming months, depending on your point of view.

4 The accused claims that he took this assignment reluctantly, but

5 the evidence shows the contrary. He was seen by witnesses before the war

6 rubbing elbows with prominent politicians in Foca. Foca is a small town

7 and such things did not escape notice.

8 While claiming to be just a humble teacher, minding his own

9 business, the accused could not help showing off when asked here in the

10 courtroom about members of the Crisis Staff. He knew them. He knew

11 practically all of these men who ran Foca during the war. He knew where

12 they were born, he knew where they lived, and he knew what they did. He

13 was not as politically naive as he would have us believe.

14 The accused was, at heart, a man who felt that life owed him more,

15 and the war was his chance to get it. Prior wardens had become mayor of

16 Foca. The warden got to attend meetings with the Minister of Justice.

17 The warden had power over prominent citizens in Foca, who came to him, hat

18 in hand, to beg for food or warmth or a chance to see their families.

19 Within the prison camp, the social tables were turned. RJ, a good friend

20 and former colleague of the accused, had to laugh when he was asked on the

21 witness stand whether he and the accused were equals at the KP Dom. "How

22 could we be?" he said. "He was warden and I was a prisoner." As warden,

23 the accused also got to decide who among his staff went to the front and

24 who stayed, while he himself was spared the danger of actual combat.

25 This, Your Honours, was power, and it was power that the accused exercised

Page 8243

1 willingly.

2 Did the accused ever suffer pangs of conscience about seeing his

3 Muslim neighbours locked up at the KP Dom although they had never

4 committed any crimes? Did he ever really feel sorry when he saw his own

5 doctor locked up in filthy conditions and former directors of companies

6 reduced to eating out of garbage cans? The Prosecution cannot claim that

7 he did not feel these things, but his actions betrayed his true intentions

8 and his true attitude, and any momentary pity that he might have felt was

9 clearly shut out by his desire for his own advancement.

10 Let me cite an example up front, and this comes from the testimony

11 of a detainee himself, in a clear and humane way, with no effort to make

12 the accused out to be any worse than he actually was. One day, Muhamed

13 Lisica was working, cutting boards, when the accused walked by. Mr.

14 Lisica said, "Please, I'm hungry. We don't have enough to eat. Please

15 give us more food." And the accused brought him two slices of bread,

16 saying that one was from him and one was from the command. A simple

17 gesture, a small incident. Yet the accused denies even this act of

18 charity. He has to deny it, because otherwise, he would have to admit

19 that he knew that the detainees were suffering, and if he admitted that

20 they were suffering, then he would also have to admit that he was guilty

21 of the crimes. It's a shame. It's a shame that the truth has to be

22 sacrificed in this way for the good of the greater lie.

23 And what was that lie? The accused tried to claim that he had no

24 part in the crimes that occurred right before his nose. He tries to draw

25 a straight line precisely between his own actions and those of a faceless

Page 8244

1 military command. But that line fails in many ways because it does not

2 reflect reality. The accused takes the position that if other people are

3 guilty, then he is not. This is simply not a valid argument. It is true

4 that many people committed crimes in Foca and in the KP Dom, and it is

5 also true that the accused was not the mastermind behind the policy of

6 ethnic terror; however, everyone had a role to play, and the accused

7 played his role exceptionally well.

8 The KP Dom before the war was a civilian institution, but during

9 the war, the inmates were let loose and many ran away. The SDS leadership

10 in Foca decided to turn the KP Dom facility into a prison camp.

11 The accused was the right man for the right job at the right

12 time. The SDS had to make sure that all the institutions were in line

13 with their extremist, nationalist policies, and the accused was a willing

14 instrument.

15 Muslims and other non-Serbs were already being rounded up and

16 taken to the Livade warehouses, which were proving inadequate for what the

17 municipal wartime authorities had in mind. With the accused in place as

18 temporary warden by the 18th of April, 1992, the massive arrests of

19 Muslims could begin.

20 When the accused arrived at the KP Dom, the military had already

21 begun to detain a few Muslims there. The accused admits seeing them and

22 also that he knew that they were being rounded up only because they were

23 Muslims. He tries to claim that he didn't want to be there, that he was

24 also a prisoner. This is pure nonsense and it's insulting to those who

25 were truly detained for him even to make that comparison.

Page 8245

1 The accused could have refused his assignment. He could have

2 accepted a lower position. As an example, Slavisa Prodanovic, a prominent

3 lawyer and judge in Foca, ended up as a common guard at the KP Dom,

4 halfheartedly carrying out his duties. Or the accused could have run

5 away, like the doctor that everyone mentioned who got fed up with the

6 abuse that he saw and simply left because he wanted no part in it. And

7 then there was Veselin Cancar, who was even offered the job as warden by

8 the SDS before the accused, and he refused it. He ended up as

9 quartermaster at the front. Clearly, the alternative was not prosecution

10 or imprisonment or worse. Refusal simply meant a demotion to a lower

11 position, and this was something that the accused could not tolerate.

12 My colleague will discuss in greater detail the horrors that the

13 detainees experienced at the KP Dom. I'll mention here only that the

14 accused knew full well what was happening and took part in it. It was his

15 job and he did it extremely well. He did such a good job that he was

16 given the permanent appointment when the Ministry of Justice finally got

17 around to organising themselves pursuant to the decision regarding all

18 penal and correctional institutions in the Serbian Republic, and that was

19 on the 17th of July, 1992. That is not in dispute. It follows, and it is

20 also clear from the list of employees that was provided as Exhibit P3,

21 that until the 17th of July, 1992, when he was appointed by the Ministry

22 of Justice, the accused was under the auspices of the Ministry of Defence.

23 Indeed, even after the so-called turning over of a part of the KP

24 Dom to the military for their use on the 10th of May, 1992, the job of the

25 accused was exactly the same. The convicted persons and the military

Page 8246

1 detainees came from different sources, but while they were at the KP Dom,

2 they were all under the authority of the accused.

3 The accused said of the clothing that was being worn at this time

4 that it was "all mixed up." One might wear a military shirt with civilian

5 pants or a military jacket with civilian shoes. That was war. And the

6 very same could be said of the institutions in place at the time.

7 Military and civilian were all mixed up. The President of the SDS was

8 also war commander, the President of the Executive Committee in Foca was

9 also a member of the Crisis Staff, and the military had to be informed of

10 civilian employment so that they could locate people if they needed extra

11 deployments. Everything and everyone had to work hand in glove, together,

12 because it was still considered wartime and the Muslims were the enemy.

13 During the first days at the KP Dom, the physical premises, of

14 course, had to be examined and secured and made ready for receiving

15 detainees. But even the accused testified that, given his lack of

16 experience in these matters, others had to help, and indeed they did the

17 bulk of the work. He claimed to know actually very little when questioned

18 about the details. What else was there left for him to do? Well, he says

19 he had to get the economic sections running. Okay, but there were the

20 heads of the metalwork shop, Relja Goljanin, and the head of the farm, the

21 late Novica Mojovic, and the accused admits that they pretty much ran

22 these places, that he stayed out of their affairs, and when he was asked

23 about security measures there, he said he didn't know about them. He

24 didn't know the details.

25 So what else was the accused doing? Well, there were the Serb

Page 8247

1 prisoners. But how many of them were left? Twenty-five. And almost all

2 of them were at the farm where Mojovic was in charge of them. So really,

3 what was there left to keep the accused so busy during this time?

4 The answer is obvious: He was running the entire KP Dom,

5 including the guards, including the Muslim detainees. The guards knew

6 this, and they passed this information along to the detainees. Was this

7 all a game? Were they just pretending in order to fool the detainees?

8 Were they trying to protect the "real" power brokers? The answer is,

9 "No." That kind of speculation is nonsense made up by the accused on the

10 spur of the moment to try to hide his responsibility.

11 Let's consider the evidence. Every time a detainee wanted to

12 complain about living conditions, he was taken by a guard to see the

13 accused. Why? Because the accused was in charge and everyone knew it.

14 It's true that on these occasions he often told the detainees he could do

15 nothing to help them, but was that the truth or was it just a lie in order

16 for him to preserve his position? Sometimes he told the detainees that he

17 would see what he could do, but nothing ever came of it. And certainly he

18 never passed these complaints on to the military command.

19 In America, there's an expression, "The buck stops here," and it

20 means that although everyone wants to blame someone else, ultimately

21 somebody is responsible and somebody has to make a decision. With regard

22 to the living conditions at the KP Dom, the buck stopped with the accused.

23 With regard to the release of detainees, the Prosecution does not

24 contend that the accused had any unilateral power to release them. Even

25 in a normal prison system during peacetime, a warden never has the power

Page 8248












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Page 8249

1 to simply release prisoners. There are procedures in place, and he

2 executes the judgements of judicial organs. But the warden is in charge

3 of ensuring the well-being of the prisoners while they are at the prison,

4 that they are cared for properly, that they serve only the time authorised

5 by the courts, and that they are released safely when the time comes. The

6 Muslim detainees enjoyed none of these safeguards while the accused was

7 warden, whereas the Serb prisoners, and indeed even the Serbs who had

8 violated military rules, all did.

9 The accused knew that Muslim detainees were brought in for

10 indefinite periods of time, to be used while they were at the KP Dom for

11 whatever purposes the military or civilian authorities saw fit.

12 Individual soldiers were allowed in to act out their aggression, to take

13 revenge on former neighbours, to settle old scores, and to retaliate for

14 losses on the battlefield. And this leads me to my next point, the

15 beatings and murders.

16 The evidence supports the contention that people from outside the

17 KP Dom came in and beat and killed detainees. However, they did so with

18 the cooperation of the guards, who were the only ones who had access to

19 the prisoners' quarters. How else could detainees be brought to the

20 administration building to be interrogated, beaten, and at times killed?

21 And the guards could not act on their own because they worked in shifts

22 and there were procedures in place whereby lists were brought in and given

23 to the guard on duty. The guard commander was immediately in charge of

24 the guards, but one step further up the chain of command was the warden

25 himself, and that was the accused. Participating in all these crimes,

Page 8250

1 whether by committing or ordering or planning or aiding and abetting, the

2 accused is directly and individually responsible.

3 The accused claims that he was not guilty because others, like

4 Mitar Rasevic, the guard commander --

5 MR. BAKRAC: [Interpretation] Your Honours, I apologise for

6 interrupting my learned colleague, but we do not have -- we have not had

7 interpretation for the last two minutes.

8 JUDGE HUNT: We'll let the booth sort this one out.

9 THE INTERPRETER: One of the microphones is not functioning. We

10 will continue with the other one.

11 JUDGE HUNT: Okay. What is the last you heard, Mr. Bakrac? I

12 don't know whether you can read it in the English sufficiently, but if

13 not, I'll read it out and you can have it interpreted.

14 MR. BAKRAC: [Interpretation] Your Honours, we will read it. I

15 apologise once again to my colleague for interrupting her. We definitely

16 needed to do so. But as far as the Defence is concerned, she can continue

17 where I interrupted her. I apologise for this.

18 JUDGE HUNT: Are you getting a B/C/S translation now?

19 MR. BAKRAC: [Interpretation] Yes.

20 JUDGE HUNT: Right. You proceed, Ms. Kuo.

21 MS. KUO: Thank you, Your Honour.

22 The accused claims that he was not guilty because others, like

23 Mitar Rasevic, the guard commander, and Savo Todovic, the unofficial

24 deputy warden, committed the crimes. However, the essence of Article 7(3)

25 clearly states: "The fact that any of the acts referred to in the Statute

Page 8251

1 was committed by a subordinate does not relieve his superior of criminal

2 responsibility" if he knew or had reason to know of these acts and did

3 nothing to prevent or punish them. And Rasevic, as well as Todovic, were

4 subordinates of the accused.

5 We know this because, according to the structure of the KP Dom in

6 place before the war, the guard commander was a subordinate of the warden,

7 and that remained so even during the war.

8 With regard to Todovic, the accused himself gave us the best

9 evidence that Todovic was his subordinate. Remember that toward the end

10 of his testimony, the accused, in an effort to shift responsibility away

11 from himself with regard to two especially damaging documents, stated that

12 Todovic probably prepared them, and in any event, Todovic was the one who

13 brought them to him for his signature.

14 Now, you must ask yourselves, Isn't that clear evidence of a

15 superior/subordinate relationship, that the subordinate prepares a

16 document which he himself is not authorised to sign but which he then

17 brings to his superior to sign, to someone who does have the authority?

18 That's logical, that's common sense, and that is reality.

19 The accused describes Todovic doing this not once but twice, in

20 June 1992 and again in November 1992, and this, we contend, is conclusive

21 proof of the true nature of their relationship.

22 The claim that Todovic was in charge of the so-called military

23 part is further undermined by the contents of these two documents

24 themselves, since both of them pertain to military matters. The first one

25 was a request for the laying of landmines and the exchange of weapons, and

Page 8252

1 the second was the list of all men working at the KP Dom who were eligible

2 for military service.

3 Why, one must ask, would Todovic need the accused's signature if

4 he himself were actually in charge of the military part? The answer is

5 clear; it wasn't Todovic who was in charge of the military part. The

6 accused was in charge of the entire KP Dom, of all parts, including the

7 military. He was in charge of all of the KP Dom. Todovic was only his

8 subordinate.

9 Thus all the things that could be attributed to Todovic, the

10 organisation of the work crews, the decisions on punishment, the

11 compilation of exchange lists, the permitting of beatings and even murders

12 on the KP Dom premises, the day-to-day decisions that made life for the

13 detainees miserable, all of these can be attributed to the accused because

14 of their superior/subordinate relationship and the knowledge of the

15 accused that this was happening and his failure to stop it.

16 The detainees themselves naturally had a very limited view of the

17 KP Dom structure and many of them saw Todovic as the obvious face of

18 authority because they had more direct contact with him in their

19 day-to-day life. But this simply reflected the nature of their confined

20 situation rather than a lack of effort on their part to find the truth.

21 All information was gold in the KP Dom, and the detainees hoarded it as

22 much as they could. Their survival and the survival of hope depended on

23 listening, watching, asking, and trying. They tried to reach out, to find

24 out, and in one instance, even to get out. But their world had been

25 reduced to a few windows and a few steps between their rooms and the

Page 8253

1 canteen.

2 The accused and other staff called by the Defence at this trial

3 actually greatly assisted this Trial Chamber to fill in the gaps in terms

4 of the power structure at the KP Dom, and this is true even if one takes

5 into account their obvious attempts to protect the accused.

6 The accused also tries to blame the military command for being

7 really in charge, but remember also that military persons were deferential

8 to the accused's authority. When Marko Kovac, the colonel of the Foca

9 Brigade, came to the KP Dom to meet with the elderly Cengics who were

10 detained there, he had to ask permission of the accused, who granted it

11 and had these detainees brought to him. When Mitar Sipsic, a military

12 person and a member of the Crisis Staff, came with the town baker to ask

13 for the use of the KP Dom bakery, he also didn't just order the accused to

14 allow access. They had to ask permission, and he granted it. All these

15 pieces of evidence fit squarely into the pattern that reflected reality,

16 and that was that the accused was really in charge at the KP Dom.

17 What could the accused have done to help? One obvious answer is

18 that he could have made sure that the distribution of food and other

19 resources at the KP Dom were done equally, regardless of ethnicity. He

20 permitted and arranged visits for his colleague RJ from the outside, and

21 he surely could have done the same for the other detainees who remained

22 separated from their families and in many instances had no idea what had

23 happened to them, but he didn't do that.

24 Regarding the guards, the accused could have ordered the guards to

25 behave decently, or at the very least, made a complaint to outside

Page 8254

1 authorities when they didn't. He explained to us the procedure that one

2 would follow, and he knew it in great detail. And he could have punished

3 the guard Burilo, whom he saw beating Ekrem Zekovic upon his capture. All

4 these things were possible, because when Zoran Sekulovic became warden

5 afterwards, in August 1993, all the detainees noticed an improvement in

6 the guards' behaviour toward them. The warden set the rules and the

7 warden set an example.

8 Furthermore, the accused could have written complaints to the

9 military that soldiers were barging in and abusing detainees. Or he could

10 have ordered a lockdown of the KP Dom at night so that intruders could not

11 come in. There is no record of his ever defending the rights of the

12 detainees against abuse by others, and therefore, the only conclusion must

13 be that he shared in the desire that that abuse occur.

14 Regarding the release and exchange of detainees, the conduct of

15 the wardens both before and after the accused provide some valuable

16 guidance. The former warden, Radojica Tesovic, personally accompanied the

17 remaining Muslim prisoners to Tuzla precisely because he knew that there

18 was some possibility of harm to them during the month of April 1992, when

19 there was fighting in and around Foca, and he knew that he had a duty to

20 see them to safety, and so he personally took it upon himself to ensure

21 their safety. And Zoran Sekulovic also personally accompanied the last

22 group of released Muslim detainees to safety when they were threatened in

23 Miljevina by soldiers. Did the accused ever take such measures to protect

24 the Muslim detainees, the vulnerable persons who had been placed in his

25 care? No. These were all necessary and reasonable measures which he

Page 8255












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Page 8256

1 could have taken but never did.

2 This Trial Chamber should consider that the accused did not act

3 spontaneously in a moment of weakness. Rather, he remained in his

4 position day in and day out for 15 1/2 months, while Muslims were brought

5 in and taken out, while they lost weight and vitality and spirit and

6 sometimes even their lives. The accused has never acknowledged this, let

7 alone expressed any remorse, yet he played a crucial role in perpetuating

8 the system of suffering.

9 The Defence has tried to paint a picture of the accused as an

10 ordinary man with a small role in events beyond his control. The accused

11 himself portrays his life as a series of decrees and obligations in which

12 he had no free will. Yet the evidence shows quite the opposite.

13 The Prosecution does not contend that the accused is a monster.

14 He is a human being. This Tribunal was created to judge individuals, and

15 the Prosecution is not about to strip anyone of his basic humanity, not

16 even the accused. But human beings have choices in their lives, and how

17 they exercise them leads them either to be judged or stand in judgement of

18 others. The conclusion by the expert psychologists that the accused is

19 normal only adds to the enormity of what he did. To use the words of

20 Hannah Arendt, the accused was "terribly, terrifyingly normal."

21 Anyone with a soul has the basic principles of humanitarian law

22 built into them, as the accused himself admits. That he went against

23 those ingrained values and violated those most basic principles anyway,

24 knowing their context and knowing their impact, whether it be for personal

25 gain or social acceptance or pure political conviction, the accused must

Page 8257

1 be held responsible, and we ask the Trial Chamber to find him guilty as

2 charged.

3 My colleague will now address specific crimes and the issue of

4 sentencing.

5 JUDGE HUNT: Before you sit down, though, Ms. Kuo, one of the

6 submissions you made very early in your peroration was that the accused

7 saw this position as warden as a path to power. Was it ever put to him in

8 cross-examination? I don't recall it.

9 MS. KUO: The gist of the -- that particular question was never

10 put to him directly, but the gist of the examination about the benefits

11 that he would get and the power that he would get in contrast to what he

12 had as an ordinary primary school teacher was put to him.

13 JUDGE HUNT: If you've got the reference, could you give it to one

14 of the legal officers at some stage?

15 MS. KUO: Yes, I'll do that, Your Honour. I'm afraid it won't be

16 one question, but it will be a series of questions.

17 JUDGE HUNT: That's all right. If the gist of it was put to him,

18 that's fair enough. I just don't recall that particular line. That's

19 probably my fault. But thank you.

20 Ms. Uertz-Retzlaff.

21 MS. UERTZ-RETZLAFF: Your Honours, at the outset, our submission

22 is that, based on the evidence, there should be no doubt that all counts

23 charged in the indictment are proven beyond reasonable doubt. I will

24 concentrate on only two aspects, and that is the evaluation of the

25 evidence and sentencing.

Page 8258

1 Let me first address the reliability and the credibility of the

2 Prosecution and the Defence witnesses. Throughout the trial, the Defence

3 has questioned the credibility of the Prosecution witnesses. They have,

4 in particular, highlighted inconsistencies between their prior statements

5 and their testimony in court.

6 With regard to memory, everyone knows that memory fades over time,

7 and the events in this case happened eight years ago. The witnesses often

8 did not remember every detail, or indeed, they didn't even remember

9 certain incidents. This sometimes had consequences for the Prosecution

10 case. For example, witnesses, when asked about a particular victim listed

11 in the various schedules, replied quite simply that they did not remember

12 this person or that they did not remember this particular incident. How

13 could they remember every single incident and every single victim in a

14 long nightmare? It is only natural, and the Prosecution accepts that.

15 Therefore, although it was charged in the indictment, there was no

16 evidence of some of the incidents at trial. This is simply a consequence

17 of witnesses being careful and telling the truth in their testimony.

18 But on the other hand, the witnesses were able to remember many,

19 many facts. All of the witnesses could describe the living conditions, in

20 particular, the lack of food and the coldness during winter 1992. All of

21 the witnesses remember the terror and the humiliation and the feeling of

22 hopelessness they suffered, and all of the witnesses remember the

23 suffering of particular victims such as Nurko Nisic, Zulfo Veiz, and

24 Krunoslav Marinovic.

25 You could also see how differences in personality affected the

Page 8259

1 amount of details the witnesses could offer. You will recall how the

2 witnesses 73 and Muhamed Lisica admitted not being good with time

3 sequences, so they could not recall precisely when a certain incident

4 happened, but they knew very well that they did happen. On the other

5 hand, the witness FWS-71 was exceptionally good with names and could

6 therefore clarify a lot of incidents. And Dr. Berberkic had an excellent

7 memory and could be very precise even with the small details. These

8 variations in personality and ability are perfectly human and, we submit,

9 credible.

10 There were times when several witnesses testified about the same

11 incidents but with slight variations. For example, one witness testified

12 that a certain victim was taken to the left wing of the administration

13 building for beatings while others heard the screams coming from the right

14 wing. Despite the fact that many victims were beaten on several occasions

15 and the witnesses may have referred to different incidents, we all know

16 from common experience that we remember what happened to us personally

17 much better than what happened to others and there might be small and

18 minor inconsistencies. However, very often the witnesses did corroborate

19 each other.

20 There is also the very common problem with narrative. We all know

21 from our experience that when we tell a story over and over again, there

22 are variations. Each time, a detail is omitted or added, but it is still

23 a true story.

24 Several witnesses, during their testimony, added observation

25 regarding the accused. They were able to do so because they knew that

Page 8260

1 they were coming to testify in a case against this accused and that

2 therefore concentrated their memory on him and what they saw of him. In

3 addition, during their testimony, they were asked precise and detailed

4 questions about the accused and certain events he was involved in, and we

5 all know that questions trigger memory.

6 As Witness 104 put it during his cross-examination: "Well,

7 perhaps I had forgotten. I really don't know. I can't keep everything in

8 mind. A computer would not be able to keep everything in. So I didn't

9 mention it. But that does not mean that that was not the truth."

10 The Defence has raised the issue that these witnesses were somehow

11 coached. They in particular pointed at the AID who assisted the

12 Prosecution in contacting some of the witnesses and who also took

13 statements when these witnesses were released from the KP Dom. The

14 Prosecution submits that there is not even the slightest hint that the AID

15 or any other organisation coached the witnesses.

16 Likewise, the Defence has hinted that somehow witnesses concocted

17 their stories together. There is absolutely no evidence for such an

18 allegation. Of course the witnesses spoke about the past whenever they

19 met, of course they shared information as to who is missing and when they

20 were last seen, and of course during such conversation, they heard about

21 incidents in the camps that they had not observed themselves, and

22 sometimes during such conversations, they noticed that their memory of the

23 events had been wrong.

24 However, during their testimony, the witnesses clearly indicated

25 what was based on their own observation and what they had heard from

Page 8261

1 others. And witnesses also pointed out that they might have made a

2 mistake in a previous statement.

3 For instance, the Witness FWS-71, during a previous statement, had

4 placed a beating incident in the prison yard in August 1992. He

5 remembered, after having spoken with former detainees, that he was

6 mistaken about the date and that it actually happened in October 1992, and

7 he clarified this matter during his testimony. And because of this

8 clarification, it became obvious during trial that the incidents 5.8 and

9 5.13 in the indictment were actually the same incident.

10 The Defence has complained during trial about the way that Witness

11 FWS-73 answered the questions and how he referred to the Serbs in

12 sometimes general and even insulting terms. This is true; the witness did

13 so. This witness was sometimes very emotional and angry on the stand, but

14 you must ask yourselves how would you feel when you are asked to turn back

15 your mind in time and relive your suffering and the suffering of your

16 fellow detainees? Would some of us not also get angry and upset and

17 express this in one way or the other?

18 But that does not mean that the witness did not tell the truth.

19 Remember how precise he was when answering concrete questions related to

20 concrete incidents. Did the witness not consider all these questions then

21 carefully and actually remember what happened in detail?

22 It also became clear that his anger arising from his trauma was

23 directed towards certain high-ranking SDS politicians whom he believed to

24 be responsible for what happened. His anger was not directed towards the

25 accused. On the contrary, the witness never showed any bias against the

Page 8262












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Page 8263

1 accused. He described that the accused treated him correctly when he

2 worked on the accused's property, and the accused even treated him to

3 brandy.

4 Despite their suffering, the witnesses did not paint all Serbs as

5 evil. Scattered throughout the testimony of exceedingly cruel acts were

6 moments of kindness, and the witnesses told you about it.

7 Dr. Berberkic mentioned the male nurse Gojko Jokanovic who

8 secretly tried to help the detainees. He also mentioned the Serb doctors

9 who came to the KP Dom, tried their best to help within the limits allowed

10 by the KP Dom administration.

11 Witness 69 told you how a Serb bus driver intervened when soldiers

12 were beating the Muslim villagers of Jelac, and he also told you how a

13 Serb civilian stopped the beatings in Brod.

14 Nezir Cengic told you how a Serb female doctor helped him and two

15 other patients when a soldier beat them up in the Foca hospital.

16 Many former detainees, and among them the Witness 73, mentioned

17 specific guards who treated them correctly and helped them. Witnesses

18 were reluctant to give the names of such decent persons, fearing these

19 persons might suffer consequences in Foca even nowadays, and for the same

20 reason, I do not want to highlight these persons either.

21 The witnesses did not harbour prejudice. They did not paint a

22 black and white picture based on ethnic division. They told you in all

23 complexity about human relationships, the possibilities and limitations,

24 and about the choices people with power, like the accused, could and did

25 exercise.

Page 8264

1 The Prosecution exhibit -- the Prosecution witnesses exhibited no

2 bias against the accused. In many instances, the testimony of the

3 accused's involvement cast the accused in a positive light, such as

4 feeding the detainees while they were working on his property, allowing a

5 few detainees to leave the KP Dom to attend to their families, letting

6 some detainees talk to relatives or friends either on the phone or during

7 visits, or protecting them from aggression of Serb soldiers as he did in

8 the case of Ekrem Zekovic and the Witness 120. Such evenhanded treatment

9 of the accused's actions lends credibility to the witnesses' accounts of

10 the accused's role.

11 You could see the witnesses' demeanour and judge from their

12 expressions and body language that they were telling the truth. It should

13 have been obvious to everyone in the courtroom how difficult it was for

14 many witnesses to testify and how painful it still was after so many

15 years.

16 We all remember the Witness 159, one of the few Muslim soldiers

17 detained in the KP Dom. It was physically and psychologically very

18 painful for him to testify, and it was painful to see and to listen to him

19 for those people being in the courtroom seeing this physically and

20 mentally broken man.

21 There was only one reason for the witnesses to point at this

22 accused while speaking in good terms of others, and that is that this

23 accused was responsible for what happened to them and their fellow

24 detainees in the KP Dom.

25 The Defence contests that the crimes charged in the indictment

Page 8265

1 occurred in the KP Dom and that even if they did not [sic] occur, the

2 accused was not responsible. He actually did not even know about the

3 occurrence.

4 Through cross-examination and the testimony of various Defence

5 witnesses, the Defence has attempted to paint the situation in the KP Dom

6 as one of a regular prison for prisoners of war and Serb military

7 prisoners, where all inmates, no matter which ethnicity, were treated

8 equally, where they received adequate means of living, and where nobody

9 mistreated any non-Serb detainee.

10 The Prosecution contends that no credible evidence supports this

11 contention.

12 The Defence witnesses included friends, family members, and former

13 colleagues of the accused from in and outside of the KP Dom. They all

14 admitted a desire to help the accused and refused to offer any balance or

15 critical view of his actions. Furthermore, Defence witnesses held fast to

16 the conclusion that the accused was merely the head of the Drina Economic

17 Unit, without any involvement in the so-called military part of the

18 KP Dom, notwithstanding his undisputed title as the temporary warden or

19 the warden of the KP Dom.

20 The Defence witness testimonies stand in sharp contrast to the

21 testimonies of the Prosecution witnesses not only in regard to the role of

22 the accused. The Defence witnesses who were associated with the KP Dom

23 denied all criminal activity in the KP Dom. This profound difference in

24 the testimonies cannot be accounted for simply by the passage of time or

25 limited scope of observation of certain witnesses. The only conclusion

Page 8266

1 possible is that some of the Defence witnesses lied to this Court.

2 In particular, three witnesses who, as guards, had direct

3 responsibility in supervising the Muslim detainees, did not tell the

4 truth. Their complete denial of crimes occurring in the KP Dom and their

5 description of the KP Dom living conditions as adequate undermines their

6 credibility.

7 Guard Risto Ivanovic, for example, contrary even to some of the

8 Defence witnesses, denied that any of the Muslim detainees suffered severe

9 weight loss. On the contrary, he even claimed that they gained weight

10 while in the KP Dom.

11 Remarkable as well is the fact that all three guards denied being

12 involved or sometimes even knowing certain detainees who testified as

13 Prosecution witnesses about their contacts with just these Defence

14 witnesses during their detention.

15 Miladin Matovic conceded only in cross-examination that he

16 mistreated Ekrem Zekovic when this detainee was recaptured. And Zoran

17 Mijovic, the guard on duty outside the KP Dom prison gates, even denied

18 that he ever saw the arrival of Muslim detainees at the KP Dom.

19 Some of the former KP Dom staff members were neither acquaintances

20 of the accused nor family members, which raises the question: Why did

21 they not tell the truth? Let me remind you of what Risto Ivanovic

22 answered when asked whether he came to help the accused. He said, "I came

23 to help KP Dom," and then he continued, "and Krnojelac, to point out what

24 his duties were, what his work consisted of." That means that Witness

25 Ivanovic came to testify primarily to defend the KP Dom and its staff,

Page 8267

1 including himself. In addition, he testified that he felt sympathy for

2 the predicament the accused is in now. The witness, being a guard of the

3 KP Dom, might fear that he one day may end up in a similar position as the

4 accused and would need help.

5 Witness Ivanovic, as well as the other staff members who

6 testified, were in one way or the other involved in the running of the

7 prison camp. They had a personal interest in denying any hardship and any

8 mistreatment of the non-Serb detainees because they were concerned about

9 their own criminal liability.

10 Let me now address another evidentiary matter; the proof of

11 death. The Prosecution case includes the murder of 28 Muslims and Croat

12 detainees, and the Prosecution was not in a position to present forensic

13 evidence because the bodies of the victims were not found.

14 The circumstantial evidence surrounding the murder of these 28

15 leaves only one logical conclusion, namely, that these victims were killed

16 at the KP Dom. All of these victims were taken out between the 12th and

17 the 28th of June 1992, in several groups. Witnesses saw them being

18 singled out, heard them being beaten, saw or heard in relation to one

19 group of six men that they were shot after the beating, saw bodies being

20 taken out in blankets, heard the roar of a vehicle in front of the KP Dom

21 entrance, saw the car's headlights on the bridge over the Drina River, and

22 heard splashes from the Drina River. Not even one of these detainees

23 taken out was later seen alive, and their relatives are still searching

24 for them.

25 Mr. Amor Masovic gave us the details of these detainees missing

Page 8268

1 from KP Dom and additional documents were among the Prosecution exhibits.

2 In relation to Halim Konjo, number 13 in Schedule C, the accused

3 himself confirmed the fact that the victim was dead. He told Witness RJ

4 this immediately after the killing. His claim that it was a suicide is

5 not supported by any evidence; just the contrary.

6 Juso Dzamalija, number 6 on Schedule C, indeed committed suicide

7 while in the isolation cell. The accused himself confirmed that he is

8 dead.

9 Juso Dzamalija, a elderly man, was severely beaten by guards and

10 soldiers, then placed in solitary confinement with the admonition that

11 they would continue beating him the next day. In the meantime, rather

12 than suffering any further beatings, the victim killed himself.

13 Although suicide was the immediate cause of Mr. Dzamalija's death,

14 the Prosecution contends that the actions of the prison personnel,

15 including the accused, were a substantial cause of his death. Without the

16 brutal beatings and the prospect of more brutal beatings, this victim

17 would not have killed himself. The Prosecution therefore submits that

18 Mr. Dzamalija is a victim of murder.

19 You may remember that during the opening statement on 30th of

20 October, 2000, I had mentioned that, in this particular case, we have to

21 deal with the perpetrator who was on top of the chain of command in the

22 KP Dom hierarchy.

23 JUDGE HUNT: Ms. Uertz-Retzlaff, I'm sorry to interrupt, but have

24 you finished on the Schedule C part of your submissions?

25 MS. UERTZ-RETZLAFF: I start now with the sentencing part, and I

Page 8269












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Page 8270

1 will refer to Schedule C again when I describe the gravity of the

2 offences.

3 JUDGE HUNT: Yes, but this is your opportunity to reply to what

4 the Defence has put.

5 MS. UERTZ-RETZLAFF: I will -- you mean this Nail Hodzic.


7 MS. UERTZ-RETZLAFF: Yes. I will come to this point when I speak

8 about certain people from Schedule C.

9 JUDGE HUNT: I thought that's where you would have done it.

10 That's why I raised it.

11 MS. UERTZ-RETZLAFF: I want to raise it in the context of certain

12 people being killed.

13 JUDGE HUNT: That's all right. You go ahead when you're ready.

14 MS. UERTZ-RETZLAFF: The accused, Milorad Krnojelac, did not dirty

15 his hands. He never physically assaulted a victim directly, and with the

16 exception of the beating of Ekrem Zekovic, he was not present, he was not

17 seen present, when an assault occurred. He was the typical desk

18 perpetrator.

19 Justice always seems to have a problem with the managers behind

20 the evildoers, in particular, with crafting an appropriate sentence so

21 that the International Community and the victims of the crimes see that

22 justice has been done. Being a desk perpetrator, being the commander

23 pulling the strings behind the scenes of atrocities is a rather abstract

24 concept of participation in crimes. This in the past has led to the

25 general perception that the desk perpetrator is less responsible for the

Page 8271

1 crimes and that his participation should therefore be looked upon more

2 mildly. As a consequence, it is often the general perception that the

3 desk perpetrator has to get a lower sentence than the evildoers who

4 directly committed the assaults.

5 The Prosecution submits that such a view would not reflect the

6 accused's criminal conduct in this case. The Prosecution submits that the

7 superior is not less responsible than the subordinate for the offences

8 committed. The gravity of the superior's responsibility does not diminish

9 in any way if he himself abstains from physical participation in beatings

10 and murder.

11 Let me concentrate on the most important aspect in relation to

12 sentencing, that is, the gravity of the offences in this particular case.

13 My colleague, Ms. Kuo, has already mentioned that the accused took part in

14 a widespread and systematic attack on the Muslim and other non-Serb

15 population in Foca and its surroundings. What happened in Foca is part of

16 a much wider attack on the non-Serb population and is part of an organised

17 and planned campaign and policy of the Bosnian Serb leadership to

18 ethnically cleanse various municipalities throughout Bosnia and

19 Herzegovina to achieve an ethnically pure Serb environment.

20 In addition to this, the Prosecution has presented evidence that

21 prison camps, such as the KP Dom, existed throughout Bosnia and

22 Herzegovina and that the accused knew about these other prison camps.

23 Actually, several of the witnesses who testified were transferred to such

24 other prison camps as Kalinovik, Rudo, and Kula.

25 The ultimate aim of an ethnically pure Serb environment was

Page 8272

1 actually achieved in Foca. The ethnically mixed municipality of Foca had

2 ceased to exist. Indeed, so effective and so thorough was this ethnic

3 cleansing in Foca that the town has now the name Srbinje, referring to its

4 new entirely-Serb composition. But not only the non-Serb inhabitants

5 disappeared from Foca; the Muslim culture in Foca was wiped out without a

6 trace.

7 During this trial, you saw photos and videos of the Aladza mosque,

8 the famous symbol of the Muslim culture in Bosnia and Herzegovina. Just

9 as reminder, a photo of the Aladza mosque how it was and no longer can be

10 seen, because it was destroyed, and even the place where it stood doesn't

11 show any ruins any more.

12 The detainees in the KP Dom not only had to remove valuable parts

13 of the ruins of the Aladza mosque, but they had to see the rubble of this

14 famous mosque day in, day out, when they were taken out for forced labour.

15 The accused was part of this campaign of hatred based on ethnic

16 grounds, and he performed a major task in this campaign. He ran the main

17 detention facility in Foca for almost 16 months. In addition, this

18 detention facility was a starting point for the deportation of Muslims and

19 other non-Serb civilians. Indeed, the accused, with his staff, organised

20 the selection of detainees and facilitated their transport.

21 During the time the Prosecution holds the accused responsible,

22 that is, April 1992 until July 1993, more than 900 Muslim and other

23 non-Serb men from Foca and surrounding villages were detained in the KP

24 Dom, most of them for only one reason: their being Muslim, Croat, Roma, or

25 Albanian. Almost all of the detainees were civilians, including mentally

Page 8273

1 handicapped, physically disabled, seriously ill, and very old persons.

2 Among these detainees were intellectuals, journalists, doctors, and

3 patients of the Foca hospital.

4 One of these detainees was Edhem Gradisic, an elderly person

5 handicapped in one leg and one arm and suffering from epilepsy, whose only

6 fault was to be a Muslim. Or Omer Kunovac, a deaf-mute shepherd from

7 Ustikolina, whose only fault was to be a handicapped Muslim. Or Nezir

8 Cengic, a 78-year-old farmer from Miljevina, whose only fault was to be

9 related to a Muslim politician. Or Witness 146, not even an inhabitant of

10 Foca, an elderly man with a serious lung condition whose only fault it was

11 to be a Muslim patient in the Foca hospital when the war started.

12 In determining a penalty for the accused, the specific harm caused

13 to the victims and the families by the accused, both physically and

14 psychologically, is of paramount importance. Throughout the time relevant

15 to the indictment, the detainees suffered inhumane living conditions.

16 They were denied adequate living space, bedding, and clothing. They

17 locked in their cells and after May 1992 had no contact with their

18 families. The hygienic conditions were so inadequate that the detainees

19 got lice. They were fed starvation rations. In the winter 1992, the

20 detainees had no heating. Necessary medical treatment was not provided

21 and any attempts to alleviate their own suffering was punished with

22 isolation cell or beating.

23 Let me just mention a few examples. For instance,

24 Witness FWS-182. He almost died because he was denied the necessary

25 hospital treatment and the proper diet for his ulcer. Muslim detainee

Page 8274

1 Esad Hadzic, with an ulcer perforation, was simply left to bleed to

2 death. Omer Kunovac, the deaf-mute shepherd who had been beaten up

3 because he couldn't answer the questions put to him, was denied urgently

4 needed surgery on the sustained injuries. He was in terrible pain and

5 left to die over an extended period.

6 The non-Serb detainees locked up in the KP Dom prison camp

7 endured, during the regime of the accused, brutal living conditions and

8 extreme abuse. The detainees were subjected to beatings, torture, and

9 murder. Many detainees simply disappeared after being taken away for

10 interrogations or so-called exchanges.

11 The most egregious acts of beatings, torture, and murder occurred

12 during the summer of 1992, in particular, June 1992. Detainees were taken

13 out primarily in the evenings, but also during daytime, from their rooms.

14 They were taken for interrogation to the rooms on the ground floor of the

15 left wing and the right wing of the administration building. By

16 "beatings," I do not just mean slapping, but severe hitting with all

17 sorts of objects and brutal kicks. The Prosecution has produced the

18 Schedules A and B related to such beatings.

19 From Schedule A, 11 incidents are proven beyond reasonable doubt;

20 from Schedule B, 46 incidents. In addition, 17 incidents specified in

21 separate paragraphs in the indictment are proven as well. Altogether,

22 this accused is responsible for 74 incidents of beatings.

23 The Prosecution had also produced Schedule C in relation to the

24 murders in the KP Dom. Twenty-eight murders have been proven beyond

25 reasonable doubt.

Page 8275

1 Let me stress: The Prosecution is not talking about numbers. We

2 are talking about people and their suffering. Let me therefore now

3 address this human face of suffering.

4 The witnesses told us about those who suffered. They gave us a

5 lot of names. For most of the victims, we know only their names and a few

6 of the personal details. We can only show the faces of a very, very few

7 victims. On a board, we have prepared a few photos provided by the

8 relatives or from newspaper or, in one case, of death notice.

9 Ms. Dicklich has put up now this board that we made from the few photos we

10 had. Unfortunately, this is the only position in the courtroom where it

11 can be picked up by the video camera, and therefore I have to ask my

12 apologies for the public in this small booth. They have to face the back

13 of this for a while. But we cannot do it otherwise. While I speak about

14 certain persons, Ms. Dicklich will point at them, and I hope that the

15 camera will then focus on their photo.

16 Salem Bico, a 42-year-old married officer from Foca, is one of the

17 murdered detainees, number 2 of Schedule C. He was taken out on several

18 occasions into the administration building, and each time the other

19 detainees heard his screams and moans. When he returned, the witnesses

20 saw injuries on his head. He did not return on the last time.

21 Kemal Dzelilovic, a 30-year-old high school teacher, a married man

22 and father, is listed under number 7 in Schedule C. He was also taken out

23 several times for beatings, and witnesses saw him return all bruised. The

24 last time he was taken, he was beaten up, choked, kicked, and hit with

25 fists and feet in the so-called telephone room, and then he was shot.

Page 8276












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Page 8277

1 Adil Granov, a 35-year-old engineer, married and father of two

2 small children, was beaten badly on several occasions. He was accused of

3 having had a radio transmitter. Witnesses heard him scream and moan. On

4 the last beating, he did not return. He is number 9 in the schedule.

5 We do not have a photo of Halim Konjo, number 13 of Schedule C.

6 He was taken out for beatings on several occasions, and witnesses heard

7 him cry, "Dear mother, help me." They heard him appeal to his torturer,

8 "Please don't, Zoka." Whoever this Zoka was, he continued to maltreat

9 the victim with hard blows and taunt the victim by saying, "We'll show you

10 how Serbs beat." After the last beating, he was shot.

11 Instead of Halim's photo, we have on the board the photo of his

12 younger brother Halid. Halid was also detained in the KP Dom. He was 35

13 years old. He asked Witness RJ to find out from the warden what happened

14 to his brother, and the warden told RJ what happened. He told RJ that

15 Halim had died. Halid, the man on the photo, was himself murdered that

16 same year. He was taken out of the KP Dom, allegedly for plum picking,

17 however, his body was found in a mass grave near Previla at the front line

18 of Gorazde and he was executed, as could be seen from the wounds.

19 Fuad Mandzo, a builder, listed as number 16 in Schedule C, was 35

20 years old when he died. First, due to a mistake in the name, Salko Mandzo

21 was taken to the administration building instead of Fuad. Salko was

22 beaten badly and cut with a knife. However, his life was spared because

23 the guard commander, Rasevic, discovered the mistake and stopped the

24 beating. Then Fuad was taken, and he was accused of being an SDS [sic]

25 member. He was beaten on several occasions and finally murdered.

Page 8278

1 Nurko Nisic, listed as number 19 in Schedule C, a policeman, was

2 43 years old when he was taken for beatings. All of the witnesses

3 mentioned his suffering. It seems as if this victim suffered the most.

4 He was taken out for the most severe beatings on several occasions.

5 Witness 250 saw him being beaten on one occasion in a corridor on the

6 ground floor of the administration building. He, the Witness 250, and

7 other witnesses, heard him being beaten on other occasions. When the

8 victim passed out from the beatings, the perpetrators poured water over

9 him to wake him up. The witnesses heard the perpetrators ask Nurko Nisic

10 where his rifle and his Croatian flag were. One of them taunted the

11 victim by saying, "Stand up, Nurko. Get up, Nurko. That's no way to

12 defend Bosnia." Several times Nurko Nisic returned to his room, and the

13 witnesses saw that he was black and blue all over his body and he could

14 not walk for days. When he was taken for the last time, witnesses heard

15 him being assaulted because of the injury the soldier Bota received when,

16 on the 20th of June, 1992, a truck with Serb soldiers hit a mine in

17 Tjentiste. The witnesses heard Nurko's cries for help, yet they could not

18 help. The helpless witnesses to Nurko's ordeal heard one of the

19 perpetrators say, "Nurko, die. What are you waiting for? Why don't you

20 die?" Finally, Nurko Nisic died. He was shot. Why was Nurko the target

21 of so much hatred? It is obvious from the victim list police officers

22 were special targets for physical violence in the KP Dom. In addition,

23 Nurko Nisic seems to have been involved in the referendum for an

24 independent Bosnia and Herzegovina. According to a defence Exhibit D15,

25 he was on a Foca municipal election committee in March 1992, and from the

Page 8279

1 date, it can only relate to the referendum. To be involved in this

2 referendum was obviously enough to attract hatred.

3 The Rikalo brothers, on the board, 29-year-old Zaim, 25-year-old

4 Midhat, and 35-year-old Husein, are also among the beaten and murdered

5 detainees. They are listed under 21 to 23 in Schedule C. The witnesses

6 heard their screams and moaning. Dr. Berberkic recognised the voice of

7 his friend Husein, begging the perpetrators to stop beating him; however,

8 the perpetrators did not. They asked the victim about the weapon he

9 allegedly had buried, threatened him with death, and finally, Husein died,

10 as did his brothers.

11 Seval Soro, a 35-year-old electrician, married and a father, was

12 also killed in the same manner. He is number 24 in Schedule C.

13 Kemal Tulek, a 34-year-old married policeman, actually a former

14 guard in the KP Dom, is listed under number 25 in the schedule. He was

15 kept in an isolation cell for a long period. He was beaten on several

16 occasions and witnesses saw him return with injuries. After the last

17 beating, he did not return.

18 38-year-old Dzemal Vahida, a married police officer, father of two

19 children, was also beaten on several occasions, returned with bruises and

20 scars, his jaw broken and his teeth knocked out, and after the last

21 beating, did he not return. He was number 27.

22 Zulfo Veiz, a 42-year-old married police officer, a father of

23 children, is listed as the last victim on Schedule C, he is also one of

24 the victims who experienced the worst abuse and who did not survive the

25 KP Dom. On several occasions he was taken out to the administration

Page 8280

1 building. Witnesses heard his screams and moans and saw him return all

2 black from the beatings, with his eyes swollen shut. During one of the

3 beatings, he obviously fainted, because detainees heard water being poured

4 over him.

5 All these detainees, all these victims that I just mentioned and

6 that were pointed out to you by Ms. Dicklich, were Muslims. However, some

7 detainees belonged to non-Serb minority groups in the Foca KP Dom, and one

8 of them was Krunoslav Marinovic.

9 JUDGE HUNT: Before you go on, they did not have noted on them

10 their exhibit numbers.

11 MS. UERTZ-RETZLAFF: The photos?


13 MS. UERTZ-RETZLAFF: The photos are all in this particular

14 Schedule C map, and they are always on top, on top of the special

15 chapters.

16 JUDGE HUNT: I remember. Exhibit 55, yes.


18 JUDGE HUNT: Yes. Thank you. That's right.

19 MS. UERTZ-RETZLAFF: So one of the non-Serb -- one of the other

20 victims of the KP Dom who was not a Muslim was Krunoslav Marinovic, a

21 Croat TV repairman. He was a target of severe beatings even before he

22 arrived in the KP Dom. He was beaten on his arrest, during his stay in

23 Livade, and finally on several occasions whilst detained in the KP Dom,

24 and he was also killed during the last beating. He is on Schedule C.

25 Let me at this point now briefly address the issue raised by the

Page 8281

1 Defence in paragraph 176 of their final trial brief. The Defence argues

2 that, according to a certificate of the military commander of the Unit

3 5028 of the Bihac army, dated 9 July 1998, Nail Hodzic, number 10 of

4 Schedule C, was not killed in the KP Dom but slain in Foca on 26 June

5 1992, while performing a military task. Indeed such a document exists and

6 was presented by the Prosecution. This certificate was requested by the

7 victim's wife for the purpose of proving his death. It is not known on

8 which information the military commander based this certificate. We do

9 not know why he formulated this just in this way. Maybe he thought it

10 would be a consolation for Mrs. Hodzic to read that her husband had died

11 for the Muslim cause. However, there's also the decision of the Cantonal

12 Court in Sarajevo, dated 3 June 1998, stating that Nail Hodzic was killed

13 on the 26th of June, 1992, in the KP Dom. This decision is based on

14 eyewitness accounts, among them, the account of the Witness 182, who also

15 testified in this Court.

16 According to him and many other witnesses, Nail Hodzic was

17 detained in the KP Dom, taken out several times for beatings, and did not

18 return after the last beating. Witnesses in particular remembered how

19 Nail argued with the guard Boban Pejic when he was taken out of the room.

20 They, in particular, remembered how he tried to refuse to go with the

21 guard, and they saw injuries on him when he returned, and they, in

22 particular, remembered when he waved his last good-bye to his fellow

23 detainees before he was going to die on that particular day.

24 When Nail Hodzic was killed, he was 63 years old. That means he

25 was not a military constrict, as stated in the certificate. He was much

Page 8282

1 too old. He was not performing any military task. He was detained in the

2 KP Dom, as we know from the eyewitnesses. Yes indeed he was slain on the

3 26th of June, 1992, but it happened in the KP Dom. And the reason why he

4 was murdered in the KP Dom becomes clear from the testimonies of the

5 witnesses. Mr. Hodzic's only fault was that he was a member of the SDA

6 party.

7 The suffering of the victims of such beatings and killings is

8 obvious. However, the mental suffering of their relatives should not be

9 forgotten.

10 Remember what Witness FWS-71 told us about Father Cankusic, who

11 saw his sons Abdurahman and Refik being taken for beatings into the

12 administration building and heard their screams. Witness 71 told us how

13 the father could not bear it any more and how he fainted. These two,

14 Abdurahman and Refik, are also on Schedule C and are also among the

15 murdered.

16 We heard the family members of the accused testify how much they

17 miss the accused. Imagine how much the wives and children and parents of

18 the murdered detainees miss their beloved ones. They have not even a

19 grave where they can go. They do not know where the bones are. This

20 question torments not only the relatives of these missing or murdered

21 people. Still, after years, it pains the survivors of the KP Dom.

22 Dr. Berberkic testified about his constant awareness of the fact

23 that several hundred detainees are missing, and we heard Witness 66

24 address the Court as follows: "I would kindly ask the Court to find out

25 where the missing people are. There are so many children who are orphans

Page 8283












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Page 8284

1 nowadays. There are hundreds of them. Even until the present day, they

2 have not found out where these people's bones are. Can we at least bury

3 their bones?"

4 The beatings and killings were visible and audible to the other

5 detainees, and these detainees were forced to endure the sounds of their

6 fellow detainees scream in agony and saw some of them brought back to the

7 cells battered and bloodied, and they saw most of them disappear. These

8 detainees were terrorised and they lived with the constant fear that they

9 would be next.

10 Dr. Berberkic told us how he and other detainees gave farewell

11 letters to other detainees, to deliver it to their families in case they

12 would not come back from interrogation. And Ekrem Zekovic testified that

13 the Croat nurse Mate Ivancic, also one of the murdered, when taken out of

14 his room in the evening, left his watch to a co-detainee to pass it on to

15 his son if he did not survive, and he did not survive.

16 Your Honour, it's 11.00, and I will continue for another, I think,

17 20 minutes.

18 JUDGE HUNT: We will resume at 11.30.

19 --- Recess taken at 11.00 a.m.

20 --- On resuming at 11.32 a.m.

21 JUDGE HUNT: Ms. Uertz-Retzlaff.

22 MS. UERTZ-RETZLAFF: Thank you, Your Honour.

23 Your Honours, before the break I spoke about the mental suffering

24 of the detainees in the KP Dom, and the Prosecution team - the

25 investigation team, actually - came very close to this mental suffering.

Page 8285

1 Remember the investigator, Racine Manas, who told you about the

2 inscription she saw in one of the isolation cells with the last message of

3 a Muslim detainee who thought he was going to die. Just reading it

4 several years later devastated the entire investigation team on the crime

5 scene. Imagine the fear and hopelessness the victim who wrote the message

6 must have felt. You could see this mental suffering in each of the former

7 detainees who testified before this Court. These witnesses were healthy

8 and successful people at the time of their arrest and they came out of the

9 KP Dom psychologically and physically broken, some of them to the present

10 day.

11 Many detainees, especially the long-term detainees, were subjected

12 to forced labour. And I want to stress: Work was not voluntary in the KP

13 Dom. "Arbeit macht frei," "Work makes free," was the cynical motto in one

14 of the German concentration camps during the Second World War. The motto

15 of the KP Dom could have been "Work guarantees your survival." Those who

16 asked to work did so because they needed the additional meal to prevent

17 starvation. Those who asked for work knew that the work group was

18 protected from torture and disappearance. Those who asked to work did it

19 to get out of their locked rooms to get some information and some

20 distraction from their suffering. They asked to work to protect their

21 mental health. However, when the detainees worked, they were forced to

22 work, even the sick and the injured. Even those for whom the doctor had

23 recommended rest were forced to work. Even the intervention of the doctor

24 with the prison authorities did not help. Those who resisted to work were

25 punished through means such as solitary confinement. Some detainees were

Page 8286

1 forced to do dangerous and strenuous work on the front lines, such as

2 digging trenches and driving ahead of Serb soldiers to detect land mines.

3 No one could claim that they did that voluntarily.

4 Having described the events, there can be no doubt that the crimes

5 committed were exceptionally severe. This gravity of the crimes must be

6 the starting point in drafting a sentence for this accused.

7 The other main point for sentencing is the importance of his

8 participation in the crimes. The accused claims that he was not in a

9 position to change the conditions in the KP Dom and he was not in a

10 position to influence the behaviour of the guards or the soldiers towards

11 the detainees. However, the evidence shows a completely different picture

12 of the accused and his possibilities.

13 The witnesses have described the living conditions that prevailed

14 during the time the accused ran the KP Dom, and they also described how

15 the conditions changed drastically in summer 1993, to the better, when the

16 accused was replaced by the new warden. The witnesses testified about the

17 atrocities that were committed while the accused was the camp commander,

18 and they also testified that no atrocities were committed after the new

19 warden had taken over. Indeed, former detainees told us how the behaviour

20 of the guards changed toward the better after the arrival of the new

21 warden, and they also told you how the new warden protected them after the

22 soldiers from Miljevina had intercepted an exchange transport and how the

23 new warden helped them to get to safety.

24 In summer 1993, when the accused left KP Dom, the other KP Dom

25 staff remained the same, in particular, the guards and the commander of

Page 8287

1 the guards. Mr. Todovic, the one who, according to the Defence evidence,

2 was the one responsible for the mistreatment of the detainees, also stayed

3 on. The detainees were the same during Mr. Krnojelac's regime and

4 afterwards, and the war continued all around Foca during Mr. Krnojelac's

5 regime and afterwards.

6 However, the conditions changed dramatically for only one reason:

7 Warden Krnojelac left the KP Dom. No fact shows better how significant

8 the acts of the accused were for the crimes that were committed in the KP

9 Dom between April 1992 and July 1993. The warden made all the

10 difference. The accused was essential for the brutal living conditions

11 and the mistreatment of the non-Serb detainees in the KP Dom. He was

12 crucial for the terror regime that existed throughout his time as warden.

13 The Trial Chamber should consider in aggravation the accused's

14 motive for this conduct. The Prosecution submits that the accused

15 primarily acted out of personal gain and a desire for social and career

16 advancement. Work crews were taken to the house of the accused, they

17 worked there, on his son's apartment and on his son's store during autumn

18 and winter 1992. Being the warden of the KP Dom gave him access to an

19 apartment owned by the KP Dom, although the accused was not a member of

20 the KP Dom housing fund, a precondition for such an apartment. Being the

21 warden brought him the advantage of local government help to rebuild his

22 house. Being the warden helped him to stay away from the front line.

23 Being the warden gave him the respected position in the local society

24 that, according to the experts, he so much desired.

25 Finally, having been the useful servant for the Serb cause bought

Page 8288

1 him a promotion from teacher to school principal in 1994. This complete

2 and unscrupulous selfishness exacerbates the accused's action. Let me

3 tell you: More often, evil is done by acts of selfishness than pure

4 sadism.

5 Circumstances surrounding the victims are also factors that can be

6 considered as aggravating. I have already pointed out the huge number of

7 victims, the amount of atrocities, and the fact that so many were elderly

8 and sick.

9 Another aggravating factor is the fact that the persons detained

10 at the KP Dom, the survivors, that is, suffered lasting consequences.

11 Besides the physical consequences, such as kidney problems, back pain,

12 bone pain, spine pain, the witnesses told us that even after eight years,

13 they experienced fear, anxiety, flashbacks of the events, and nightmares.

14 Witness Zekovic testified that to this day, he remembers the distinctive

15 sound of the infamous metal gate. Witness Berberkic told us that he still

16 feels a sudden fear whenever he sees a police uniform or a pistol. He

17 actually felt it when he saw the guards in this Tribunal.

18 Sadly, the proceedings did not disclose much in the way of

19 legitimate mitigating circumstances. The only circumstances that come to

20 mind are the fact that the accused does not have a prior criminal record,

21 the fact that he was a modest citizen before the war, and the fact that

22 he, in a certain way, cooperated with the Prosecution and gave statements

23 during the pre-trial stage.

24 While the existence of superior orders may be taken as a factor in

25 mitigation, the Prosecution contends that the accused could have avoided

Page 8289












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13 and the English transcripts.













Page 8290

1 the order -- orders by leaving Foca altogether or could have requested a

2 different assignment, as my colleague has already pointed out.

3 The Prosecution further contends that the accused had choices in

4 his execution of the orders. He could have alleviated the suffering of

5 the detainees by improving their living conditions. If he actually had

6 provided equal shares of the food and other supplies to all inmates of the

7 KP Dom as he falsely claims he did, the suffering of the Muslims and other

8 non-Serb detainees would have been considerably less. If he only had

9 ordered the guards to treat the detainees humanely, if he only had

10 restricted the access of soldiers to the KP Dom as it was common before

11 the war, these atrocities would not have been committed. He did none of

12 these, thus indicating that he embraced the orders and their underlying

13 rationale.

14 The accused claims that he would have surrendered to the Tribunal

15 had he been accused in a public indictment, and the Defence argues that

16 this fact should be seen as a mitigating aspect. However, the Trial

17 Chamber should not take these idle words of the accused for granted. From

18 the visits of the investigative team to the KP Dom, it was clear to the

19 people in Foca, including the accused, that the crimes in the KP Dom were

20 investigated and prosecuted, and that the warden would be one of the main

21 targets was also clear to everybody.

22 The fact that the accused received a false ID confirms this, and

23 the fact that the accused had his fake ID on him shows that he did not

24 have the intention to openly face his responsibilities but that he wanted

25 to use all means, including a false ID, to get away from the reach of

Page 8291

1 justice.

2 There are no issues of physical or mental health relevant to

3 sentencing. Both experts who examined the accused regarded him as a

4 normal, average person.

5 The accused's conformist approach to life is not a mitigating

6 factor. On the contrary, the conformist personality who functions in all

7 sorts of evil regimes, in all sorts of positions, is often the pillar of

8 such regimes and the executor of the worst crimes.

9 Remorse is considered a mitigating factor. The accused did not

10 show any sign of remorse at all. On the contrary, he stressed his own

11 suffering during the war, disregarding the suffering of others.

12 When determining the sentence of the accused, prior judgements

13 concerning camp commanders should be taken into account. Most of the

14 prior judgements relate to commanders of the concentration camps of the

15 Second World War. The Prosecution does not want to compare the Foca

16 KP Dom with the concentration camps of World War II, such as Jasenovac,

17 where more than 500.000 or 600.000 Serbs were murdered. This is a

18 completely different dimension of crimes.

19 However, what we can take from these decisions is the fact that in

20 the World War II cases, the camp commanders, no matter if they made their

21 hands bloody or not, got severe sentences. Actually, most of them were

22 sentenced to death.

23 The Trial Chamber is obligated to have recourse to and take into

24 account the practice regarding sentences in the courts in the former

25 Yugoslavia. And according to the relevant Articles 141 and 142 of the

Page 8292

1 Federal Penal Code of the former Yugoslavia, crimes as those we have in

2 the present case would have attracted severe penalties ranging from five

3 years' imprisonment to the death penalty.

4 And the Trial Chamber is obligated to consider the sentences

5 delivered in cases before this Tribunal, and here we have the case of

6 Zlavko Aleksovski, a commander of the Kaonik prison camp in Central Bosnia

7 in which detainees were mistreated, and he was convicted for seven years'

8 imprisonment. However, the Kaonik camp operated only over a period of

9 about ten weeks in 1993, and during the two first weeks, about 400 Muslim

10 detainees were kept there, and in the rest of the time only about a

11 hundred. In both periods, the sick and elderly were released shortly

12 after the arrest, and the findings did not include any killings, and they

13 included only a few cases of beatings.

14 Aleksovski was convicted for one count of outrages against

15 personal dignity under Article 3 of the Statute, for aiding and abetting

16 the creation of psychological terror and not preventing the use of the

17 detainees as human shields and for trench digging. He was not convicted

18 for crimes against humanity, and he was not convicted for murder, torture,

19 cruel treatment or unlawful detention of civilians.

20 The Appeals Chamber imposed a revised sentence of seven years

21 which took into account the mitigating factor of an element of double

22 jeopardy in regard of the course that the proceedings took in this

23 particular case. According to the Appeals Chamber, if not for these

24 considerations, the revised sentence could have been considerably longer.

25 Zdravko Music was convicted as the commander of the Celebici

Page 8293

1 prison camp and was sentenced in the first instance for seven years

2 imprisonment. The Celebici camp in Central Bosnia operated for about

3 seven months. About 320 Serb civilians were detained there. Music's

4 conviction was based, inter alia, on his responsibility for nine killings,

5 six torture incidents, and 11 incidents of cruel treatment.

6 Notwithstanding the fact that Music's conviction was partly

7 quashed on purely legal grounds and remitted back to a reconstituted Trial

8 Chamber for consideration of sentence, the Appeals Chamber made clear that

9 it would have imposed a heavier sentence of about around ten years, and

10 the Appeals Chamber also made clear that, in this case, the element of

11 double jeopardy was also seen as a mitigating factor.

12 From the foregoing examples, it does not automatically follow that

13 the accused should get a similar low sentence. In fact, quite the

14 contrary is true. There is no equalising in evil. Each accused has to be

15 sentenced according to his personal guilt.

16 First and foremost, the gravity of the offences of this accused is

17 much greater than those of Aleksovski and Music and in all possible

18 aspects, such as duration of the offences, number of detainees, and number

19 of victims of killings and atrocities. And we also have the accused's

20 participation in these crimes as both Article 7(1) and Article 7(3)

21 perpetrator. Secondly, the double jeopardy element does not apply in this

22 case here. In addition, the Prosecution draws the Trial Chamber's

23 attention to the set of aggravating and mitigating circumstances in this

24 case, and in particular, the fact that the accused Krnojelac took part in

25 these crimes for personal gain and benefits.

Page 8294

1 In conclusion, the Prosecution respectfully requests that the

2 accused Krnojelac be sentenced to no less than 25 years' imprisonment.

3 Thank you.

4 JUDGE HUNT: Before you sit down, Ms. Uertz-Retzlaff, we have got

5 a few issues arising out of the final submissions that we'd like your

6 assistance on. You may not be able to give it to us now. If you can't,

7 then provided that you supply the Defence with a copy of what you give to

8 us, answers in writing would be sufficient.

9 May I take you first to Exhibit D34 of the -- in relation to

10 forced labour? That's the document which you dismiss rather briefly by

11 saying it doesn't apply to the Muslim detainees. I'm not sure why you say

12 that. I think I can guess, but I'd like to have it made clear. That's

13 the document that starts off by saying: "KP Dom is granted permission to

14 impose a work obligation on persons fit for work who are not engaged in

15 Yugoslav army units." That's the first paragraph.

16 Now, perhaps if I put to you what I believe you are trying to say

17 and see if I'm right. Are you saying that that refers only to those

18 persons who could have been engaged in Yugoslav army units? Is that the

19 reason why it doesn't apply to Muslim detainees?

20 MS. UERTZ-RETZLAFF: Yes, Your Honour. From this decision, first

21 of all, about the date. The date 26 April 1992, there was not -- not yet

22 any discussion on forced labour work units, but there was the discussion

23 who works in the KP Dom. That was the time when the former employees from

24 the KP Dom returned to the prison, and we believe, according to this

25 document, that they returned to the KP Dom because of a list that is

Page 8295

1 mentioned here that was provided, and this document refers to the

2 employees and their return and their work obligation.

3 JUDGE HUNT: I'm not sure that I follow what you're saying. Why

4 did this document, this decision, not apply throughout the whole of the

5 accused's tenure as the warden?

6 MS. UERTZ-RETZLAFF: I think this document, from what it says,

7 applies only to the employees. It goes on. It's not -- it's not that it

8 applied only the 26th April, 1992, it applied throughout, but only related

9 to the employees and not to the detainees.

10 JUDGE HUNT: But why do you say that? There's no reference to the

11 word "employees."

12 MS. UERTZ-RETZLAFF: No. That's true, but we speak about the work

13 obligations during a war, and that is the work obligation of the

14 population who is not engaged in the fighting.

15 JUDGE HUNT: Why is this directed then to the KP Dom? What you

16 are saying would apply to everybody.

17 MS. UERTZ-RETZLAFF: Yes. But what we have heard from some of the

18 witnesses is that they had to report to their worker -- to their

19 employer. It was very often the employer who actually decided what a

20 certain person had to do. And we have also these indications from the

21 witnesses that, actually, the KP Dom and the warden had a say in which

22 employee had to come.

23 JUDGE HUNT: Well, I'm not sure that I recall that. If you can

24 give us the reference to the evidence, that would be of some assistance.

25 MS. UERTZ-RETZLAFF: I cannot do it right now, but what we can do,

Page 8296

1 we can submit something in writing.

2 JUDGE HUNT: I think that you should apply your minds to this

3 particular document, because it's not quite as simple as you appeared to

4 think it was at the time of the final submissions.

5 You see, let's assume for the moment that it does apply to the

6 Muslim detainees. If that is so, how would the accused -- how could the

7 accused be responsible as a superior? Because he would have no power to

8 punish.

9 MS. UERTZ-RETZLAFF: The accused will still be the executioner of

10 this order and this decision.

11 JUDGE HUNT: No, no. Let's deal with his responsibility as a

12 superior. If anybody acted under this order and if this order was

13 illegal, then they could not rely upon it in answer to a charge that they

14 were responsible for forced labour. But let's assume for the moment that

15 he is not responsible individually for that but only as a superior. A

16 superior can be responsible only if he has the power to punish or to

17 report for punishment, and yet nobody would be able to punish these people

18 because the local authority, perhaps illegally but nevertheless, gave

19 permission for them to be put to work.

20 Can you give us any answer to that particular conundrum?

21 MS. UERTZ-RETZLAFF: You are right, Your Honour.

22 JUDGE HUNT: Some of our more assiduous of our legal officers have

23 found that Schedule E of your submissions do not include three names that

24 were in the Schedule E in the indictment. I don't know whether that was

25 because you had no case in relation to them or it was just an omission.

Page 8297












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Page 8298

1 MS. UERTZ-RETZLAFF: Your Honour, at first it was just an

2 omission. We actually always -- we sometimes used a schedule with 57

3 names, and the last -- and actually submitted a schedule which was filed

4 with the second amended indictment was the schedule with the 60 names, and

5 we also used this schedule with the 60 names throughout the trial. But

6 when we made this annotated indictment, through an oversight, we used the

7 wrong schedule. But we had meanwhile checked what kind of evidence we got

8 in relation to the three persons that were not on the schedule that we

9 attached, and these were actually the person number 47, number 51, and

10 number 54, and we found out that we do not have enough evidence.

11 Therefore, I did not address the matter.

12 JUDGE HUNT: Thank you very much. When you are dealing with this

13 Exhibit 34, D34, paragraph 2 talks about: Work obligation should be

14 imposed on workers according to the list submitted by KP Dom. Now, have

15 we got any evidence about what that list was?

16 MS. UERTZ-RETZLAFF: We discussed about the list with one of the

17 Defence witnesses, and we could not get any clarification who exactly made

18 the list and what it looked like. It existed, obviously.

19 JUDGE HUNT: Yes, but we don't have any information that we can go

20 on.


22 JUDGE HUNT: Right. Well, now, the next issue that I want to

23 raise with you relates to persecution. I think you have sought to deal

24 with this issue. It is one of the ones we raised in writing beforehand.

25 I think you have sought to deal with it, although not expressly. The

Page 8299

1 question was: Is it part of the Prosecution case that once inside the KP

2 Dom, detainees were selected for the treatment alleged in the indictment

3 on the basis that they were non-Serbs, or on the basis of their religion

4 or politics, rather than merely because they were detained at the KP Dom?

5 Now, perhaps you could express to us what your answer to that question is.

6 MS. UERTZ-RETZLAFF: Our submission is that they were picked out

7 because of their ethnic background.

8 JUDGE HUNT: What about those that were picked out because they

9 had certain skills?

10 MS. UERTZ-RETZLAFF: But only among the Muslims these certain

11 people were picked out and forced to work.

12 JUDGE HUNT: But were there not some Serbs working in the Drina

13 Economic Unit?

14 MS. UERTZ-RETZLAFF: That's true, but they were not forced to

15 work.

16 JUDGE HUNT: Well, that's another issue which you have dealt with

17 in your submissions, and the fact that they got packages, some sort of

18 compensation, I can understand that. But where is the discrimination? If

19 there are people who have got skills, why should they not be selected

20 because they had the skills? You have to establish beyond reasonable

21 doubt that it was for discriminatory purposes.

22 MS. UERTZ-RETZLAFF: Yes, Your Honour, but we were from the point

23 of view that the entire work group was picked as such because they were

24 Muslims.

25 JUDGE HUNT: Even though some were also picked from the Serbs?

Page 8300


2 JUDGE HUNT: All right. Well, I don't think that takes it very

3 much further, but I think --

4 MS. UERTZ-RETZLAFF: The Serb prisoners were -- for them, it was

5 rehabilitation, according to the documents that we had referred to.

6 JUDGE HUNT: That's Exhibit D29.

7 MS. UERTZ-RETZLAFF: I do not recall the numbers.

8 JUDGE HUNT: That's where it says business units may be

9 established in order to reform the inmates. That would appear to be

10 relating to people who have been convicted. I can see your point there.

11 The next issue relates to wrongful imprisonment, whatever the term

12 is.


14 JUDGE HUNT: There was a reference during the

15 cross-examination - or examination, I've forgotten which - of some

16 witnesses to the Geneva Convention obligations.

17 MS. UERTZ-RETZLAFF: Yes, Your Honour.

18 JUDGE HUNT: And it was at my behest, because I had remembered

19 that we had dealt with this in the Celebici judgement. But in this

20 present case, you are not proceeding with the charge under the Geneva

21 Conventions: Are we allowed to take into account those obligations in

22 Geneva Convention IV, to which reference was made?

23 MS. UERTZ-RETZLAFF: Yes, Your Honour, and I actually thought that

24 we --

25 JUDGE HUNT: How is that? You don't deal with this in any detail

Page 8301

1 in your submissions.

2 MS. UERTZ-RETZLAFF: Yes, but we presented the evidence

3 accordingly, and --

4 JUDGE HUNT: I understand that, but how do we take it into

5 account?

6 MS. UERTZ-RETZLAFF: I think there are some -- in the Geneva

7 Conventions, there are the minimum standards of how persons can be

8 detained, and these minimal standards were violated in the KP Dom.

9 JUDGE HUNT: But that's why I'm trying to ask you the question. I

10 haven't got an answer to it. I'm just inquiring. If you have a provision

11 in the Geneva Conventions, and there's no charge that we're dealing with

12 under the -- as a grave breach of the Geneva Conventions, how can we take

13 into account those requirements of the Geneva Conventions?

14 MS. UERTZ-RETZLAFF: I think all these requirements are embraced

15 in Article 3, in Common Article 3.

16 JUDGE HUNT: Common Article 3. But they're not charged under

17 Common Article 3; they're charged under our Article 3.

18 MS. UERTZ-RETZLAFF: Yes, but our Article 3 includes the entire

19 Common Article 3, and we did not argue to this point because we thought it

20 was not in dispute.

21 JUDGE HUNT: Well, I don't know whether it is, but we have to be

22 satisfied that we can take into account the failure to set up, for

23 example, some form of review. It may be that it's part of the customary

24 law. I don't know. But I want to know what the Prosecution case on it

25 is. So you say we take it into account because it's under Common Article

Page 8302

1 3, and our Article 3 incorporates Common Article 3, even though it's not

2 charged as such.

3 MS. UERTZ-RETZLAFF: And we also believe that it is customary

4 law. We did not actually argue it in our brief, but what we could do, we

5 could send an additional submission on this.

6 JUDGE HUNT: Now, part of the Defence case, and a very substantial

7 part of the case on this issue, is that the accused, even if he were

8 warden, had no power to release the prisoners; and in Celebici, that was

9 regarded as of some importance. Now, where do we find him guilty, as an

10 individual responsibility, for failing to release the prisoners, in

11 effect, when he couldn't do it?

12 MS. UERTZ-RETZLAFF: Your Honour, we had pointed out in our brief

13 that, although he was not the person who actually made this decision, he

14 was in a position to influence the decision maker, that is, the military

15 command. He had the possibility --

16 JUDGE HUNT: Power to influence, of course, is not any longer of

17 very much assistance to us after Celebici. That argument was rejected,

18 that the power to influence somebody is not sufficient.

19 MS. UERTZ-RETZLAFF: I have to think about this argument, because

20 we actually -- we agreed that he did not have the power to release them on

21 his own. The power was with the military command. And I must say that I

22 have not thought about --

23 JUDGE HUNT: Well, I can understand that, but we are starting to

24 think along where we're heading, and anything that you can give us,

25 provided you give copies to the Defence, would be of great assistance to

Page 8303

1 us on it.

2 MS. UERTZ-RETZLAFF: At the moment --

3 JUDGE HUNT: I don't know the answer to it either, you see.

4 MS. UERTZ-RETZLAFF: At the moment, I have no answer to this. I

5 would have to consider it carefully.

6 JUDGE HUNT: We would be very grateful to anything you can give us

7 later on. Thank you very much.

8 MS. UERTZ-RETZLAFF: Thank you very much, Your Honour.

9 JUDGE HUNT: Yes, Mr. Bakrac.

10 MR. BAKRAC: [Interpretation] Your Honours, thank you very much.

11 Before I begin with my closing arguments, I would like to bring to your

12 attention, without any intention of criticising the Prosecution or the

13 Registry, but it is a fact that the Defence team was not given the final

14 brief of the Prosecution until Monday at 6.00 p.m. -- 1.00 p.m., I'm

15 sorry. Despite all of our best efforts, I have to say that the

16 Prosecution brief that numbered almost 200 pages. The Defence team tried

17 in these past few days to do what it was instructed to do by the Trial

18 Chamber and not repeat anything that is contained in our final brief but,

19 rather, respond to the Prosecution's closing arguments. I have to tell

20 you in advance that it might take more time responding to the facts and

21 arguments that were contained in the Prosecution's closing arguments.

22 JUDGE HUNT: As to timing, you've got until lunch-time tomorrow.

23 I hope you're not going to take all that time, but you have got more time

24 than they have had. So you do your best and see how we go. I say

25 lunch-time tomorrow because there is a Pre-Trial Conference listed for

Page 8304












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Page 8305

1 after lunch.

2 MR. BAKRAC: [Interpretation] Yes, Your Honours. We were informed

3 of this by Mr. Roberts two days ago. He was kind enough to inform us.

4 And we do keep this on our minds. However, I always try not to take any

5 longer time than I'm allotted. So I stated this just as a cautionary

6 note.

7 In the beginning, I would like to respond to a few matters raised

8 by my learned colleagues from the Prosecution in their final oral closing

9 arguments, and this concerns the role and participation of the accused

10 Milorad Krnojelac in the city and in the area relevant to this indictment.

11 One of the key arguments which was heard here and which can also

12 be seen in the written brief of the Prosecution is that Milorad Krnojelac,

13 when asked about the members of the Crisis Staff, demonstrated that he

14 knew those people and, as was stated in the final brief, that there was

15 quite a high level of familiarity with those people. The Defence is

16 surprised by a conclusion of this nature, and the Defence does not quite

17 comprehend how the Prosecution was able to reach this conclusion about

18 Mr. Krnojelac having a very familiar relationship with these people.

19 The Prosecution, on several occasions, stated and stressed that

20 Foca was a small city, that most of the people living there knew each

21 other. Since the accused was born 60 years ago in the surrounding area of

22 Foca, 12 kilometres away from Foca, and since in the last 30 years he

23 resided there in the very city of Foca, isn't it logical to assume that he

24 should not know [as interpreted] any of the people on that list? Those

25 were the people who gained their position in the Crisis Staff due to the

Page 8306

1 fact that they were prominent members of the community in Foca. So

2 therefore, it is logical and normal for them to be well known and for

3 people to know what their professions were. Now, whether this could be

4 called a high level of familiarity, I wonder. Had the Prosecution tried

5 to ask the same question of any of the witnesses of the Defence, they

6 would have probably obtained the same answer, because it is most likely

7 that most of the witnesses would know people who were members of the

8 Crisis Staff and would know their professions.

9 At the beginning of their closing arguments, the Prosecution, with

10 respect to the position of Milorad Krnojelac, stated - and this was

11 repeated also in the arguments concerning the sentences - so the

12 Prosecution stated that Milorad Krnojelac gained and maintained this

13 position in order to avoid being sent to the front, to spare himself the

14 risk. So does the Prosecution truly believe, and can the Prosecution

15 convince this Trial Chamber, that Milorad Krnojelac shoved his four sons

16 to the front instead of sending himself there and himself tried to remain

17 in town in order to avoid being exposed to any danger? Can anybody

18 believe this to be true, especially in view of the fact that he suffered a

19 tragedy concerning two of his sons? The accused wanted to portray this in

20 a realistic light and he wanted to express his feelings regarding this and

21 how he was able to come to terms with this tragedy. He did not want to

22 demean, as is wrongly presented by the Prosecution, he did not want to

23 demean the suffering of the individuals who were in the KP Dom.

24 In his testimony, Milorad Krnojelac said that it was very

25 difficult for him to listen to and to hear witnesses describe certain

Page 8307

1 crimes that allegedly took place in the KP Dom. Thus he could not be

2 imputed the lack of remorse just because when this came to his own

3 tragedy, to the tragedy, disaster that took place with respect to his son

4 and to his home that was burned, the Prosecution believes it would have

5 been better for him not to have brought this up at all because this turned

6 out to be an aggravating circumstance and is taken against him. By

7 speaking of his own suffering, his own feelings, and his own tragedy, he

8 does not demean and he does not denigrate the suffering of others.

9 One of the key arguments in favour of the thesis that Milorad

10 Krnojelac is guilty of keeping that position, the Prosecution highlights

11 that he was in a position to leave the town of Foca. It is very easy to

12 give an argument of that nature from this perspective, but I plead with

13 this Trial Chamber to, when assessing his ability to leave town, to assess

14 all of those facts from the perspective of time and area that are relevant

15 for making a decision of that nature.

16 The Prosecution mentioned Mr. Slavisa Prodanovic. Well, the

17 Prosecution is well aware of the fact that when the war conflict broke

18 out, Mr. Prodanovic left Foca. However, he did so because he was

19 unable -- however, he was unable to survive elsewhere, so he came back and

20 the army assigned him to the position of a guard in the KP Dom, which is

21 just one additional fact confirming that the military authorities were the

22 one in charge of the security at the KP Dom.

23 Slavisa Prodanovic never worked at the KP Dom before. However,

24 the military sent him there to serve as a guard. So this indeed is an

25 evidence of who was in charge for the security, for guards.

Page 8308

1 We will come back later on to the lightly uttered qualification

2 that Milorad Krnojelac was in a position to leave the town of Foca. I

3 would also like to ask the Prosecution whether they are able to give us an

4 alternative of where was it that Milorad Krnojelac was able to go in a

5 situation where his house had burned down, which was the only property

6 that he ever had, in a situation where he, as a teacher, had a number of

7 loans, had no savings, in a situation where he had no relatives outside of

8 Foca in a liberated area, and in a situation where he had to take numerous

9 family members with him if he were to leave Foca indeed.

10 So does the Prosecution still believe that Milorad Krnojelac had a

11 choice in this matter?

12 The Defence pointed out the document which demonstrates that the

13 work assignment was equal to a wartime assignment and that it had to be

14 implemented. Otherwise -- I apologise, Your Honours. My microphone was

15 creating disturbances for the interpreters' booth. I hope that this will

16 rectify the matter.

17 JUDGE HUNT: Do you want to use one of the other ones on the

18 table?

19 MR. BAKRAC: [Interpretation] No, Your Honours. From what I

20 understood, the level was too high. It seems that I have inadvertently

21 pressed the volume button.

22 So it is entirely clear, and this stems from the Defence

23 exhibition -- exhibit -- I apologise, Your Honours. I am simply

24 responding, without any prior preparation, to what I heard from my learned

25 colleagues, so this is why I'm unable to give you the exhibit number at

Page 8309

1 this instant. I will do so after the break. However, this piece of

2 evidence shows that this was a legally regulated responsibility,

3 assignment, and from what I remember, Article 2 provides that a work

4 assignment is equal to a wartime assignment, and refusal to implement the

5 work assignment is equal to a desertion, which is punishable through

6 criminal procedures. Your Honours, this is Exhibit number D33/1 and

7 D33/1A.

8 And further to another important matter mentioned by the -- in

9 fact, insisted by the Prosecution in their closing arguments, in the very

10 beginning of their closing arguments were questions put to witnesses and

11 now in the closing argument as well. We heard -- we heard that when -- as

12 soon as Milorad Krnojelac left the KP Dom Foca, there was a turnaround and

13 the good times came. Now, whether the Prosecution intentionally or

14 unintentionally chose to close their eyes in front of an undisputable fact

15 that it was at the very time when Milorad Krnojelac left the KP Dom that

16 the most intensive physical labour that the prisoners were subjected to

17 commenced, which was the physical labour in the Miljevina mine. This

18 labour commenced in September of 1993, when Milorad Krnojelac was not

19 present at the KP Dom, either factually or formally, legally. At that

20 time, Zoran Sekulovic was present at the KP Dom as a director, and

21 Radojica Tesovic as a director of the economic unit.

22 Is it really necessary to remind the Prosecution that this labour

23 in the mine lasted for more than a year, on a daily basis, until the very

24 last day of October of 1994, when the last group of prisoners was

25 exchanged? We heard the witnesses say here that they were practically

Page 8310












12 Blank page inserted to ensure pagination corresponds between the French

13 and the English transcripts.













Page 8311

1 taken to be exchanged from the mine.

2 I will also remind the Prosecution -- this is also contained and

3 highlighted in the closing final brief but not with respect to the

4 specific incident, so it is highlighted that Witness FWS-215 claimed that

5 on the 31st of August of 1993 - so once again at the time when Milorad

6 Krnojelac was no longer at the KP Dom - Savo Todovic punished this

7 witness, this individual, and sent him to a solitary cell for ten days,

8 making him work during the day at the same time. This witness claimed to

9 remember this date very well because it was his wife's birthday, and he

10 was sure that that was that very date.

11 Now, what is it that changed in the punishing procedures and in

12 the procedures forcing the prisoners to work except that the Muslim

13 prisoners were forced to perform even harder menial tasks? We heard a

14 number of witnesses who worked at the mine describe the hard nature of

15 that labour. The witnesses claimed that they worked at the metalwork shop

16 until the day they were exchanged in October of 1994. Witnesses also

17 stated that they worked at the furniture factory as well, almost entirely

18 until the day they were liberated or exchanged. Witnesses also claim to

19 have worked at the farm, economic unit, also until October of 1994.

20 So all of these Muslim prisoners worked on the same jobs,

21 performed the same labour, and even harder labour, in the period when the

22 director of the economic unit was Radojica Tesovic, who was so well

23 praised.

24 So what is it that he did when the Prosecution claims that he had

25 no ethnic prejudice, political or any other kind of prejudices? What is

Page 8312

1 it then that he was able to do to improve the condition of those

2 prisoners? Just like Milorad Krnojelac, this individual was not in a

3 position to do anything more for the prisoners.

4 The fact that Savo Todovic punished people even at the end of

5 August of 1993 further demonstrates that, even in the chain of command and

6 in the hierarchy, nothing had changed when Milorad Krnojelac left.

7 The Defence offered evidence illustrating that even in late 1993

8 and early 1994, military command was still in charge of the military part

9 of the prison through their various orders and decisions.

10 And finally, we should especially stress the fact that during the

11 time when Milorad Krnojelac was the warden or the director of the economic

12 unit, that based on the testimonies, there were between 500 and 600 people

13 at the KP Dom. And then about 30 -- so about 30 workers worked at the

14 economic unit Drina.

15 Defence does not wish either to turn victims into statistics;

16 however, if we analyse the fact that with respect to the total number of

17 imprisoned individuals, this represents a bare 5 per cent, then we should

18 ask ourselves, Can this really be considered forced labour based on racial

19 and religious discrimination? And to this we should add the fact that

20 these were workers of a certain profession, skills that were in deficit,

21 and we should also take into account the fact that the production capacity

22 was indeed much greater. And had they had the intention to use

23 discriminatory policies as a basis for sending people to work, then a much

24 greater number of Muslim prisoners would have been sent to work there. So

25 this is why we need to believe a very logical statement put forward by the

Page 8313

1 accused that, according to his knowledge, those individuals covered only

2 the smallest and the absolutely necessary segments of the KP Dom's

3 functioning, operation.

4 The Prosecution tried to use part of the statement of the accused

5 about his first day at KP Dom in an ironic way, to present it as his

6 mockery of people who were at the KP Dom. I urge you to interpret this

7 sentence in the only possible way it can be interpreted. It was the first

8 night, the night between 18 and 19 April, when Milorad Krnojelac, as he

9 explained, could not go home to sleep there. He said that he felt as if

10 he too was imprisoned. He did not try to equate his position with the

11 position of Muslim detainees who were already detained there. It cannot

12 be in any way construed that this is what he was saying.

13 Also, the Prosecution suggested that refusal to go along could

14 have been exercised, like in the case of Mr. Cancar. We believe that the

15 statement that Mr. Cancar gave to a court in Sarajevo cannot be taken into

16 account, because on the basis of information in possession of the Defence,

17 this case has not been adjudicated even though Mr. Cancar was sentenced to

18 over ten years' imprisonment, and even though that was his sentence, he

19 was set free only a couple of years later, even though the law provides

20 for mandatory detention in any sentences over five years.

21 All this makes us submit to you that this does not rise to the

22 level of evidence, that is, that statement. No one can be denied the

23 right, in the light of this, to refuse something, even under the

24 assumption that he is assuming risk for it. But a decision of a person

25 who does so, who summons up courage to do so, cannot be construed to be a

Page 8314

1 standard or an obligation for anyone to risk the loss of freedom or some

2 graver consequences. By the same token, a person who does not flee when

3 they're attacked cannot be asked to expose himself to punishment or

4 sanction, like in the case of Mr. Cancar. So this also proves that

5 Mr. Krnojelac was not in a position to significantly change his position.

6 In their final arguments, the Prosecution stated that they agreed

7 that Savo Todovic was an unofficial deputy of Mr. Krnojelac. If he was

8 Mr. Krnojelac's unofficial deputy, what was his function in the KP Dom?

9 Why does the Prosecution draw this conclusion that he was an unofficial

10 deputy of Mr. Krnojelac? Does Exhibit P3 point to that? This exhibit

11 does not elucidate the function of Mr. Todovic until August 1993. Maybe

12 it is Mr. Radomir Dolas who said that when he worked in the personnel

13 office, he saw a document appointing Mr. Todovic to this position by the

14 military command. Maybe this is in order to corroborate that statement

15 that this is being used.

16 The evidence, which consisted of two documents that Mr. Todovic

17 drafted and Mr. Krnojelac signed, cannot be proof of subordination. What

18 the military command wanted to do at the KP Dom regarding the blowing up

19 of the furniture factory has to do with the KP Dom property, and it is

20 logical that the signature or approval could have come from the accused

21 himself, but it cannot rise to the level of proof without reasonable doubt

22 about the superior authority of the accused because there is a number of

23 other pieces of evidence that point in the opposite direction.

24 Also, in their oral arguments, the Prosecution said that the

25 Prosecution witnesses who were at the KP Dom could not have known the

Page 8315

1 structure of the KP Dom authority, and therefore their statements which

2 point to Savo Todovic in certain situations as the person responsible and

3 in charge of them at the KP Dom is exactly the proof on who had the actual

4 power. The Defence agrees that these witnesses could not have known the

5 organisation and structure within the KP Dom, but they could feel and

6 distinguish as to who was wielding the actual power, and the Defence will

7 further point out several aspects of that.

8 As regards the military subordination between the military command

9 and Milorad Krnojelac, it is supposedly borne out by the fact that

10 Mr. Marko Kovac asked Mr. Krnojelac whether he could do some work in his

11 office. Can that be interpreted as a relationship of subordination or is

12 it just simply a gesture of just basic decent upbringing that if you show

13 up in somebody's office, to ask whether you can use it or not. If things

14 were the way the Prosecution present them, then we have a situation that

15 in fact Marko Kovac was subordinated to Milorad Krnojelac, because he's

16 asking him whether he can do something.

17 Are then the Prosecution trying to say that the military command

18 had nothing to do with the Muslim detainees at the KP Dom, contrary to all

19 the evidence presented? And I believe that the Prosecution has clearly

20 stated that they accept that the military were in charge of these

21 persons. If the military were in charge, then the way Marko Kovac

22 approached and addressed Mr. Krnojelac would point to the fact that he was

23 superior to him. I think that this theory makes no sense and I think that

24 we also believe that what the Prosecution's argument was in that regard

25 also does not make sense.

Page 8316

1 In a similar way, the Prosecution also offered proof in regard of

2 the KP Dom bakery. From the Prosecution Exhibit P2, we gleaned that this

3 well-praised warden of the KP Dom, the current one, sent a report through

4 the Minister of Justice for the benefit of the Prosecution. This document

5 demonstrates and confirms that a part of the KP Dom had been leased to the

6 military authorities along with the health centre and the kitchen.

7 A little bit later, we will address the division of authority

8 within the KP Dom, but the bakery remained part of the KP Dom property, so

9 it was normal that the military authorities should ask for permission to

10 use it when they did. Had Milorad Krnojelac been subordinate to the

11 military authorities, he would simply be issued an order for the use of

12 the bakery and he would not be asked about it by anyone.

13 Finally, when I spoke about the changes at the KP Dom after the

14 departure of Milorad Krnojelac, that is, the way that the Prosecution is

15 painting this picture, in addition to the fact that the Prosecution do

16 agree that about a hundred persons remained there who continued to work at

17 the same pace as they did when Milorad Krnojelac was there, when there

18 were five to seven hundred detained persons, only demonstrates what the

19 new KP Dom administration did or could do regarding the conditions of

20 detention there.

21 The Defence would like to point out to the Chamber the exhibit

22 which is a report by the ICRC, which shows that as of 23 June 1993 - and

23 this too will be further elaborated by the Defence - based on the

24 permission of the military authorities, the ICRC visited KP Dom on a

25 regular monthly basis. We had a witness here - in fact, witnesses - who

Page 8317

1 said that the conditions improved directly as a consequence of the arrival

2 of the ICRC, and the frequent aid that they started delivering.

3 When there are 500 detainees at the KP Dom, that is, between five

4 and seven hundred, and when you have no help from anywhere, and when you

5 have 100 Muslim detainees there and when you have monthly visits by the

6 ICRC, it is then to be ascribed to some circumstances outside the ones

7 that have just been mentioned.

8 However, apart from the fact that there were still about no more

9 than 100 persons at the KP Dom and the fact that the assistance by the

10 ICRC was coming, the ICRC still was lodging objections as to the food.

11 And from these ICRC documents, one can conclude some -- but not a few --

12 only a few things about the conditions that were prevailing at the KP Dom

13 even during the tenure of Mr. Krnojelac. The first delegation of the ICRC

14 visited on the 23rd of June.

15 Defence will further analyse what the ICRC were -- observed there,

16 and this is the document D138 and 138A, which is the translation.

17 Referring to the final brief of the Prosecution, even though we

18 believe that the Trial Chamber was quite clear that it wasn't very

19 interested in the context of the conflict in the Foca area, the Defence

20 has to turn and deal with some of the assertions and submissions made in

21 the final brief of the Prosecution.

22 In their final brief, the Prosecution refers to P21, referring to

23 the early conflict, that is, the pre-armed conflict, which was the speech

24 of Radovan Karadzic at the Assembly session. And the fact of what he said

25 then was precisely a warning that -- in order to prevent the armed

Page 8318












12 Blank page inserted to ensure pagination corresponds between the French

13 and the English transcripts.













Page 8319

1 conflict and not a forecast of what the Serb community had intended to

2 do.

3 Also, it is not in dispute that the plan of ethnic division was

4 accepted by the European Community - and it is known as the Cutilliero

5 plan - but it was -- it was not accepted by Izetbegovic, and we object to

6 the Prosecution placing this statement in this context.

7 And as regards the local area of Foca, it is not true that the

8 Muslim population tried to arm themselves. They did arm themselves. The

9 Defence has given evidence -- provided documents D4/1, 2, 3, 4, and 5, D5,

10 D6, and D7, D12, D13, D14, D17, D18, D19, D20, and 21 which show and,

11 according to one of the main strategies of the SDA, the first armed units

12 of Muslims known as the Patriotic League, as early as 1 August 1990, were

13 established precisely in the territory of Foca. Also, it is clear from

14 the evidence that Foca was the centre for distribution of weapons by Senad

15 Hasimbasic for the entire Bosnia and Herzegovina.

16 The Defence has also shown through our documents that even though

17 the prosecution is referring to the fact that on the 7th of April the

18 police force was divided between the Serbs and Muslims, that the day prior

19 to that, the Foca Muslim brigade was established, which can be seen from a

20 document provided by the Defence. And the argument that this was

21 pre-dated and that it was actually established later is not true. Also,

22 the Muslim side had heavily artillery at Mount Sukovo, so that it wasn't

23 only the Serb side which had it.

24 The Defence also thought it necessary to very briefly point to

25 these points to the Trial Chamber from the pre-trial brief even though

Page 8320

1 they may not be crucial in establishing the key facts, but they may be of

2 importance in establishing certain facts that are relevant for -- to

3 certain legal issues.

4 JUDGE HUNT: This might be a convenient time, but I should draw

5 your attention to this, Mr. Bakrac: We can't take into account anything

6 in the pre-trial brief that hasn't been established in evidence. If there

7 is something in evidence which you had forewarned us of in the pre-trial

8 brief, we will of course take it into account, but the pre-trial brief

9 itself doesn't amount to evidence.

10 We will resume at 2.30.

11 --- Luncheon recess taken at 1.00 p.m.















Page 8321

1 --- On resuming at 2.34 p.m.

2 JUDGE HUNT: Before you resume, Mr. Bakrac, that request for

3 written material, I think we've got to put a time limit on it. How about

4 midday on Tuesday? Would that be sufficient?

5 MS. UERTZ-RETZLAFF: Yes, Your Honour.

6 JUDGE HUNT: And I am corrected as to what I said when we were

7 discussing this question of Common Article 3. This charge is brought

8 under our Article 5, not Article 3, so you might have to think again about

9 Common Article 3 there.

10 Mr. Bakrac, you were reported just before lunch as saying that the

11 European Union accepted the ethnic division of Bosnia, and you said it was

12 called some particular plan. Now, I think you meant, did you, the

13 Vance-Owen Plan, or is it some other plan you were speaking of? That

14 wasn't the word that is recorded. That's why I wanted to get it

15 straight.

16 MR. BAKRAC: [Interpretation] Your Honours, I had in mind

17 Cutilliero's plan. It was drafted in Lisbon.

18 JUDGE HUNT: That is what you are reported as having said.

19 Anyway, we now know what you are saying. Thank you very much. You

20 proceed.

21 MR. BAKRAC: [Interpretation] Thank you, Your Honours.

22 Just before the break, the Defence touched upon a part of the

23 closing argument of the Prosecution and also a final brief referring to

24 circumstances just before the breakout of the war, which were relevant to

25 this case. The Defence does not wish to refer to that again. We think

Page 8322

1 there is no need for that. But we would just like to say that all of

2 these charges need to be considered in the existing context.

3 It is undisputable, and we heard from many witnesses here, that

4 the Party of Democratic Action was the first one to be established in

5 Bosnia-Herzegovina and in Foca itself. After that, we also heard that

6 this party was the first one to organise a rally which was attended by a

7 hundred thousand people, after which the rally of the Serbian Democratic

8 Party was organised, and this other rally drew only 10.000 people. We

9 also said that the municipality which was divided along ethnic lines on a

10 50/50 proportion, this was one of the largest municipalities in

11 Bosnia-Herzegovina, numbering 40.000 inhabitants. And in view of these

12 facts, it is really alarming that Foca, a small town of 20.000

13 inhabitants, all of a sudden draws a hundred thousand supporters of a

14 nationally oriented political party which has a nationally oriented

15 platform.

16 I don't think we need to comment on this any further, but I think

17 there is a need to add that immediately after this rally, a rally of the

18 SDS, Serbian Democratic Party, was staged, and as I said, the second rally

19 attracted only 10.000 people, which is ten times less than the first

20 rally. And I think that this will be relevant when assessing some of the

21 charges against the accused.

22 I also believe that we need to highlight that numerous witnesses,

23 both witnesses for the Prosecution FWS-120 and Defence witness Milomir

24 Mihajlovic, they stated that together with soldiers of the Muslim

25 nationality, a large number of civilians left Foca and headed towards

Page 8323

1 Ustikolina. A smaller number of Muslim inhabitants remained in Foca, and

2 the Prosecution claims that the Serbian authorities intended to expel

3 these people from Foca. The Defence team cannot agree with this statement

4 of the Prosecution, because it is completely illogical that people who are

5 supposed to be a subject of ethnic cleansing and ethnic deportation are

6 not given permission to leave the town. If the ethnic deportation is a

7 purpose on its own, then why would they be needing permits? However, we

8 heard from numerous witnesses of the Prosecution that they put in requests

9 to be allowed to leave Foca.

10 Document D40, which was introduced by the Defence, this document

11 points to the fact that in the first month, the Muslims who persistently

12 asked for permission to leave Foca were denied this permission. Document

13 D40 illustrates that due to an increasing number of requests and pressure

14 exerted upon authorities and in accordance, in agreement with the

15 Commissioner for Bosnia and Herzegovina, it was decided that all of these

16 people should be allowed to leave the town, to leave Foca, and that they

17 should be provided security measures and measures needed to secure their

18 property and obtain transportation for them.

19 When this is analysed together with the Defence Exhibit D41, which

20 was signed by the Secretary of the Party of Democratic Action, Hasan

21 Cengic and which pertains to deportation of Muslims from Trebinje, then

22 this clearly illustrates what was the goal of the SDA party. We can see

23 that this was an instruction for the remaining Muslims to leave the

24 municipality, and in fact, the intention was to force them, by the very

25 SDA members, to leave the town.

Page 8324












12 Blank page inserted to ensure pagination corresponds between the French

13 and the English transcripts.













Page 8325

1 A similar situation existed in Foca, which was testified to by

2 Witness Dzevad S. Lojo, and this can be found in the transcript, pages

3 2434 to 2435 -- sorry, 2634 to 2635, and apparently there was an

4 instruction issued by the Party of Democratic Action for the remaining

5 citizens to leave Foca.

6 Clearly, all of this was intended to portray that there was an

7 ethnic cleansing committed by one people against the other.

8 The Defence can agree with the statement that, due to the war

9 situation, the conditions in Foca were indeed poor, because in Foca and

10 around Foca, some 20 kilometres away from Foca, there was a front line and

11 Foca was surrounded. Not only we can agree with such a statement, but we

12 in fact believe that the expert witness on economic affairs that was

13 brought here by the Defence testified to the very difficult situation in

14 Foca. We were able to see that the payment of balance was not

15 functioning, that there was not enough food, food supplies in the stores,

16 and that there was a -- a curfew in force due to the security reasons.

17 Defence Exhibits D44 and D43 illustrate that due to these very

18 security reasons, the freedom of movement was limited for Serbs as well

19 and that the curfew was in force -- was enforced against Serbs as well.

20 Witness of the Prosecution, RJ, in his testimony stated that his

21 director told him he was not obligated to come to school due to security

22 reasons.

23 And finally, a number of Prosecution witnesses claimed, namely

24 Taranin Juso, and husband of Witness 33, they claim that they were

25 released from the KP Dom into town. Therefore, they were not deported.

Page 8326

1 They were not sent elsewhere. They were not exchanged. They were simply

2 set free and allowed to go back to their homes from the KP Dom.

3 In their final written brief, as well as today during closing

4 arguments, the Prosecution stated that the apartments and the stores were

5 taken over. The Prosecution, in their closing argument, further mentioned

6 Milorad Krnojelac, and in their final written brief there mentioned the

7 son of Milorad Krnojelac.

8 When we're talking about the taking over of a shop by

9 Mr. Krnojelac's son, we believe that the claims of the Prosecution are

10 groundless. This witness, in his testimony before this Trial Chamber,

11 very firmly stated that he applied to be awarded lease of this shop in

12 1994. There was a competition organised by the military authorities [as

13 interpreted] for military veterans who were handicapped to apply to be

14 awarded the lease of certain shops. This shop used to belong to the

15 Slovenia company called Planika.

16 Your Honour, the transcript reflects that "military authorities"

17 organised this competition. Seventy-fourth page, third line, reflect that

18 it was -- this tender was ordered by "military authorities" when, in fact,

19 it was order by the municipal authorities.

20 JUDGE HUNT: Thank you.

21 MR. BAKRAC: [Interpretation] Therefore, the claim of the

22 Prosecution that this store belongs to Saja Sahinpasic is groundless.

23 Furthermore, this issue could have been cleared in the rebuttal stage.

24 However, it was not, and we believe that the Prosecution did not prove

25 beyond a reasonable doubt that this store belonged to a Muslim

Page 8327

1 individual.

2 As far as the apartment of Milorad Krnojelac is concerned,

3 Prosecution also claimed that he was awarded this apartment because of his

4 position, his role, and the significance of his position in the KP Dom. I

5 would like to remind that a witness, Bozo Drakul, came to testify before

6 this Tribunal. He is an administrative worker, a bookkeeper for the

7 KP Dom, who was awarded an apartment that used to belong to a Muslim

8 person before Milorad Krnojelac. Now, whether he also used his position

9 or abused his position to gain this apartment is questionable.

10 The Defence cleared this issue with a number of witnesses and

11 showed that these apartments were not owned by these individuals. They

12 were simply given the right to use these apartments whereas, in fact, the

13 true owners of the apartments were the companies where these individuals

14 worked.

15 In addition to that, the deserted apartments were only temporarily

16 awarded to refugees and to people who had lost their property in fire, for

17 a temporary use. And let me underline this: It was simply a temporary

18 use.

19 If the Prosecution intended to seriously deal with this issue,

20 then the Prosecution could have acquired the evidence from the municipal

21 authorities in Foca that would show how many thousands or hundreds of

22 deserted apartments was temporarily awarded to homeless people or

23 refugees, displaced persons. Therefore, this claim of the Prosecution

24 that the apartment was gained as a reward for the position and the role of

25 Milorad Krnojelac is groundless.

Page 8328

1 In their final written brief, the Prosecution stated that after

2 the war conflict ended, the Muslim individuals had to turn over -- or, in

3 fact, their weapons that they owned were confiscated. It is entirely

4 normal that the weapons are confiscated in a situation where the war

5 conflict between two ethnic groups is going on, because the permit to

6 carry weapons that they perhaps had had been issued in peacetime.

7 In their final written brief, the Prosecution also states that

8 Serb soldiers in Foca addressed or called Muslim inhabitants by a

9 derogatory term, "balija." A certain number of witnesses, the most

10 colourful of whom was Witness 73 -- so a number of witnesses in referring

11 to Serbs before this Tribunal frequently used the term "Chetniks."

12 Concerning this, an attempt to discredit or to impeach the witness for the

13 Defence, Zarko Vukovic, using this very principle, by taking out of

14 context a single word and portraying it as a sign of nationalism, was

15 wrongly interpreted by the Prosecution. Defence wishes to state that

16 Zarko Vukovic used this term only once, on one single occasion, to denote

17 persons who had committed massacre in the Serbian village Josanica when 77

18 Serb women and children were killed.

19 Dzevad S. Lojo, witness for the Prosecution, corroborated by his

20 testimony this incident. So this was one single occasion when Zarko

21 Vukovic, in describing this group of people who had committed this heinous

22 crime used the term "Ustasha," and this cannot discredit everything that

23 this witness said about his own beliefs and beliefs of the accused.

24 The Defence has to observe that the statement of the Prosecution

25 contained in their final written brief, claiming that it is true that the

Page 8329

1 wife of the accused is Croat but that the identity of the accused's family

2 is predominantly Serb, sounds a bit illogical. The Defence wonders why is

3 it that the Prosecution is highlighting or bringing to attention a

4 national identity of a family which is multinational. The accused, while

5 giving his testimony, or his son, Bozidar, in his testimony, did not talk

6 about this at all.

7 Further evidence of the fact that ethnic or national issues were

8 not discussed as a family is contained in the testimony of the accused's

9 wife, who confirmed this, as [redacted] who testified

10 here under pseudonyms C and D. In order to corroborate this completely,

11 in our view, groundless claim, the Prosecution took a sentence out of

12 context, a sentence from the testimony of Bozidar Krnojelac, and said that

13 this witness had stated that he came home when the mother celebrated her

14 Christmas. However, this witness, in fact, said that he came home from

15 the hospital on the occasion of a special lunch given on Christmas Day,

16 and Christmas was celebrated every year in that family.

17 In order to show ethnic bias of the Krnojelac family, the

18 Prosecution stated that the sons Bozidar and Spomenko volunteered to be

19 watch guards by the water tower when they came to Cerezluk after the war

20 had broken out. This was supposed to show that they were ready and

21 prepared to participate in a war conflict against another ethnic group.

22 However, neither of them - and this applies to other sons of the

23 accused - took part, active part, in the conflict after it broke out on

24 the 8th of April of 1992. This is clear. If they had indeed such an

25 ethnic bias, they would be present in the first front lines from the very

Page 8330

1 first day. Guarding water tower in a neighbourhood of Foca cannot be

2 considered as an active military operation against the enemy. This is

3 simply a passive act of protection.

4 The explanation given by Bozidar Krnojelac during his testimony

5 about his participation in this incident is completely logical. Since two

6 brothers were already guarding the water tower where Bozidar and Spomenko

7 had found refuge, then it was unacceptable for them to hide in the

8 basement instead of guarding the water tower, which was a passive

9 protection and not an active participation in the aggression. So this

10 cannot be interpreted as supporting the then current policy and

11 warmongering. Since the sons were of an age subject to mobilisation,

12 their mobilisation which ensued later on could not be considered as their

13 voluntary act. Therefore, all of these allegations cannot support the

14 intention of the Prosecution to portray the accused and his sons, his

15 family, as someone who supported the current policy and the war option.

16 As far as the role of the accused Milorad Krnojelac as a reserve

17 officer in the Territorial Defence, the Prosecution mention two of their

18 witnesses, FWS-71 and Witness Avdic, who allegedly in 1991 saw the accused

19 in a military exercise of the Territorial Defence. Witness 71 even

20 claimed that the accused was in the command structure of the Territorial

21 Defence of Foca. However, the Defence submitted evidence, Exhibit D74,

22 which pertains to this very period of time in 1989. Since the Territorial

23 Defence staff is elected for a period of four years, then it can be

24 gleaned from this document whether Milorad Krnojelac was a part of the

25 Territorial Defence structure at all. This document shows the members of

Page 8331

1 the staff of the Territorial Defence from the commander to the secretary,

2 and therefore this exhibit clearly shows that Milorad Krnojelac did not

3 participate, was not a member of this staff. Therefore, the Prosecution's

4 claim that the accused maintained his position first in the JNA and later

5 in the army of Republika Srpska is groundless. This refers to the time

6 relevant to this indictment. There is simply no evidence that supports

7 this claim. It is illogical that the Prosecution witnesses who apparently

8 claim to have seen the accused during this military exercise in 1990,

9 apparently wearing a uniform with rank insignia, when on the other hand,

10 we also had witnesses who saw the accused at the KP Dom wearing a military

11 uniform without any rank insignia.

12 If the Prosecution's claim were true, that he remained involved as

13 an officer of the JNA, of the army of Republika Srpska, then that uniform

14 in which some witnesses had seen him should have had some insignia, rank

15 insignia. Therefore, this evidence in fact supports what Milorad

16 Krnojelac stated in his testimony about the clothes he wore when in

17 KP Dom.

18 The effect that has been established beyond doubt was that Milorad

19 Krnojelac was wearing uniforms or pieces of uniform without any insignia

20 and supports Bozo Drakul, Miladin Matovic, Dolas Radomir, and other

21 witnesses' statements, supported by these statements, and also it is

22 supported by the P546 exhibit. This is a list, who had work duty in the

23 KP Dom, including those who were in the administration of KP Dom and those

24 who were detached there by the military, and the heading itself says that

25 this was a list of the able-bodied men. It is also clear from this

Page 8332












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Page 8333

1 document that its purpose was to obtain a monetary supplement because of

2 the hardship at the time and because of the irregular salary payments,

3 salaries that were otherwise very low to begin with. The document is

4 dated 23/11/92, and refers to the month of October when all the men listed

5 there had spent 31 days at the front.

6 Had this been -- had any other purpose, that means that in the

7 month of October, there would have been no personnel at the KP Dom. Also,

8 Mr. Krnojelac, at that time, was an employee of the Ministry of Justice,

9 which does not preclude his military duty but cannot make him a member

10 or -- member of the Ministry of Defence.

11 Also, it has been suggested that his membership in the Communist

12 League of Yugoslavia was also his way of going up the ladder, and this is

13 then used to make a parallel to his subsequent career. This is again

14 unfounded. If we take into account that Milorad Krnojelac was a member of

15 the Communist Party of Yugoslavia for 20 years without having achieved any

16 benefits from it, therefore his motive in joining the party had no such

17 goals in mind. He was a teacher, remained a teacher, and within his local

18 party structure, he stayed a simple member throughout that period.

19 The Defence provided sufficient explanation about the structure

20 and organisation of the Communist Party in its written brief, and we will

21 not elaborate on that. But today we heard, and this is something that

22 is -- that has been repeated several times, that he joined the party in

23 order to advance his career and that it should be interpreted as his -- a

24 character trait, that it is part of his conformist character. However,

25 both witnesses, both expert witnesses, said that conformism cannot be

Page 8334

1 viewed as an isolated character trait, but also that conformism presumes

2 that a person who was a member of one party for 20 years also does not

3 shift his allegiances that easily and moves to another party. However,

4 this was ignored by the Prosecution and went on to speculate about the

5 motives of his joining the Serbian Democratic Party. Even though the

6 Defence has offered material proof that the accused was never a member of

7 the SDS, the Prosecution again reaches for its assumptions to various

8 statements of witnesses who had no firsthand knowledge about his

9 membership in the SDS, but they themselves resort to speculation and

10 assumptions.

11 FW-138 and FW-139, to which the Prosecution referred to

12 corroborate their contention that Mr. Krnojelac was a member of the SDS,

13 are in conflict or in discrepancy as to his presence at the stadium at

14 Foca during a political rally. For instance, FW-138 says he saw the

15 accused in front of the stage during that rally, whereas the Witness 139

16 remembers him on the stage where he can only recollect Radovan Karadzic

17 and Milorad Krnojelac and no other person present there. To make it even

18 more ironic, this witness saw the accused on the stage in -- on that stage

19 either in 1988 or 1989, that is, during the time before the establishment

20 of the SDS. If we add to that that neither of the two witnesses, in their

21 statements given previously to the ICTY investigators, mention this fact,

22 it is clear that the membership of the SDS of this accused cannot be

23 considered proven.

24 The explanation of the Prosecution that it is logical that these

25 witnesses, after nine years, these witnesses are -- remember things simply

Page 8335

1 because they were asked things in the courtroom about Krnojelac are

2 unfounded. They were specifically asked whether they -- they were

3 specifically asked about Milorad Krnojelac. Had they been asked

4 specifically that, they would have had to -- they would have had to have

5 recalled it when they were originally asked about it.

6 Also, Witness FW-71, in his statements given previously to ICTY

7 investigators, never mentioned that he ever saw him -- that he saw the

8 accused in front of the Ribarski restaurant with other ranking officials

9 of the SDS. True, in his oral testimony, he never said that he saw them

10 arriving together at the restaurant, but that he only saw them together

11 once on the staircase of the restaurant. When asked why he did not say

12 that previously in his statements, this witness replied that he had seen

13 the arrival of vehicles in front of the restaurant Ribarski and that he

14 also saw that Maksimovic, Ostojic, Stanic, Ivanovic, and Jokanovic getting

15 out of the car but not the accused Milorad Krnojelac.

16 If these witness statements that were pointed out by the

17 Prosecution were true, a potential meeting of the accused with Maksimovic

18 and others in front of a restaurant or his possible presence at the

19 political rally could not a priori be construed to mean that he was a

20 member of a party nor would it imply his support of it. In fact, the

21 ethnic Muslim participants at the rally were certainly not members of the

22 SDS, nor were they supporters of its policies.

23 In an attempt to corroborate -- to link Milorad Krnojelac with the

24 SDS party, Zarko Vukovic's testimony is again misinterpreted. In the

25 transcript, pages 6782 to 6783, the Prosecution contends that this witness

Page 8336

1 asserted that Milorad Krnojelac was occasionally in the company of

2 Maksimovic and Ostojic.

3 If you look at the transcript, the Defence says that this

4 contention of the Prosecution is not true. This witness stated that so

5 far as he knew, Milorad Krnojelac was not in their company and even

6 excludes such a possibility. It is in transcript 6783, on lines 7 and 8.

7 Finally, Prosecution Witnesses FW-71, 86, and 111 gave evidence

8 about the SDS rally and the people who participated in it but said that

9 they did not see Milorad Krnojelac in any SDS-sponsored event. Further,

10 as a proof of the support of the SDS policies or the nationalist bias of

11 the Krnojelac family and his sons, the Prosecution points out to the

12 testimony of FW-86, that from early 1991 until late 1992, he heard a

13 nationalist song being sung in the cafe owned by the -- one of Krnojelac's

14 sons, which was located in the basement of their family house. According

15 to this witness, this cafe was patronised mostly by ethnic Serbs.

16 The vacillation of this witness when he said that he heard about

17 these songs from neighbours and that it was possible that they were coming

18 from another restaurant next door to the one of Krnojelac's son points to

19 the uncertainty of evidence provided by this witness. And just before

20 saying this, this same witness stated that Milorad Krnojelac and his

21 family were perceived by their Muslim neighbours in Donje Polje as a

22 peaceful, quiet, and decent family. This is in transcript, page 1493.

23 In addition, this witness stated that the cafe was also patronised

24 by the young Muslim men until the very outbreak of hostilities, and it

25 would be absurd to deny that.

Page 8337

1 There are other Defence witnesses who decisively said that no

2 nationalist songs were sang at that cafe and that until the outbreak of

3 hostilities, the cafe was patronised by the Muslim population as well.

4 And finally, from a letter of a Muslim detainee who had worked on

5 the repairs of Milorad Krnojelac's house and which was read into the

6 transcript partially, by decision of the Chamber, this letter and this

7 person demonstrate clearly that this Cafe Gong was his favourite cafe

8 before the war and that it was his wish to go straight back there after

9 the war and have coffee with the accused's son. This is transcript 7387.

10 Would this witness who was detained in KP Dom wish to associate himself

11 with such nationalists who were the owners of this cafe? I think the

12 answer is clear.

13 The Prosecution also contended that many witnesses concluded

14 logically that a person with -- only a person with strong nationalist

15 views could have become a warden of the KP Dom in wartime, and again

16 referring to Witness RJ, who was surprised to see Milorad Krnojelac in

17 this position, having known him as a person who was never a nationalist,

18 who had a number of friends among ethnic Muslims and Croats, who was not a

19 member of any party other than the communist party and who, in his words,

20 never changed in KP Dom while warden either.

21 In addition to everything else he said, he expressed his surprise

22 to see him there because he thought that only a person close to SDS could

23 be in this kind of position. The very fact of the appointment of Radojica

24 Tesovic as the manager of the Economic Unit named Drina, confirms the fact

25 that even a person who is not either in the structure or in the leadership

Page 8338

1 of SDS could have been appointed to this position.

2 If we apply the standard beyond reasonable doubt, we believe that

3 the participation of Milorad Krnojelac in the Serb Democratic Party has

4 not been proven. Zarko Vukovic, as a colleague and close friend of the

5 accused, should certainly have known what his political positions were or

6 his potential participation in political rallies. Zarko Vukovic is a

7 person who maintained a friendship with RJ, the Prosecution witness, and

8 RJ still considers him a friend because of the absence of nationalist bias

9 on his part and his non-participation in any nationalist-based parties.

10 The Defence has to point out that it finds the contention of the

11 Prosecution ironic that an ethnic Croat who Milorad Krnojelac married over

12 30 years ago and with whom he had four children was nothing but a detour

13 from his otherwise nationalist views. Even the testimony of the accused's

14 wife and son and Witnesses C and D about the harmony within that marriage

15 could have prevented the Prosecution from pursuing this argument. Also,

16 Mr. Krnojelac offered assistance to two Muslim women, but the Prosecution

17 chooses to interpret it as another kind of aberration from his habitual

18 pattern of behaviour. The Defence is surprised at this approach and this

19 interpretation of the assistance that we have established that

20 Mr. Krnojelac was providing to people during that period. What would be

21 the motive for him to then move away from his otherwise nationalist

22 attitude? What would be his motive for helping these two women?

23 Now to the evidence of competence over the ethnic Muslim persons

24 detained and the role of the Serb soldiers who are the offenders. The

25 Prosecution has nothing else left but to contend that this was a unified

Page 8339












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Page 8340

1 institution with a single warden who symbolised or who unified the

2 civilian and the military jurisdiction. The Defence would like to point

3 out that the division between the civilian and the military components was

4 clearly visible and defined during the relevant period, and there is a

5 number of documents to support that. We would like to point out to the

6 documents that refer to the functioning of authority in the area in the

7 state of war or in the state of imminent threat of war.

8 In a document dated 1 May 1992, signed by the then prime minister

9 of the Republika Srpska, it is said that in the wartime situation a Crisis

10 Staff takes over all the competencies of municipal assemblies when they

11 are not able to meet. The Crisis Staff consists of several members who

12 are each tasked with a specific task. Document 26, which is a decision on

13 the establishment of war presidencies, dated 31 May 1992, which was

14 adopted and confirmed by the president of Republika Srpska, Dr. Radovan

15 Karadzic, in paragraph 1, it says:

16 "In the territories of Serb municipalities in which the assembly

17 and the Executive Board are not able to exercise their duties, war

18 presidencies shall be established."

19 These documents point to the continuity and explain document 34 of

20 26 April 1992, which is entitled the "Executive Board of the Municipality

21 of Foca" and is signed by the president of the executive board.

22 From 1 May 1992, the authorities of the municipality government is

23 taken over by the Crisis Staff, and after 31 May 1992, it is taken over by

24 the War Presidency.

25 This perhaps would be an opportune moment to use this very

Page 8341

1 exhibit, D34, to point out that this is a document that shows that

2 Radojica Mladjenovic was the one who made decisions concerning the KP Dom,

3 as the President of the Executive Board. This document corroborates the

4 testimony of the accused as to who and how appointed him temporary

5 warden. If we analyse these documents, then it becomes clear, and if we

6 have in mind the set-up of the municipal authorities, it becomes clear

7 that the municipal authorities are organised along the same lines as the

8 assembly and the cabinet of the Republic.

9 Therefore, the Executive Board of the Municipal Assembly is, in

10 fact, the government or the cabinet of the municipality. Just as the

11 cabinet has its Ministries, the Executive Board of the municipality has

12 its Secretariats which are, in fact, similar to Ministries. All

13 organised, established states have a Ministry of Defence in their

14 government, which is in charge of military issues.

15 The Defence can agree that the Prime Minister could be considered

16 responsible for the work of Ministries which are under him, but, however,

17 we cannot agree that an employee of or an officer of one Ministry can be

18 held responsible for actions of an employee of another Ministry. It is

19 also clear that they cannot be considered as being part of the same

20 hierarchy.

21 Therefore, it is clear that in the relevant period of time in

22 Foca, in a situation of war, in a war conflict, there must have been a

23 contact and a relationship between military and civilian authorities.

24 It is clear that military structure is or was partially in a

25 situation to participate to an extent in governing. However, that doesn't

Page 8342

1 mean that there was a unity of civilian and military authorities and that

2 there was no difference between them.

3 Paragraph 222 of the final brief of the Prosecution states that

4 Miro Stanic, on the 18th of June of 1992, signed a document, D40, in his

5 capacity as President of the War Presidency, despite the fact that the

6 heading says "War Committee." And in the area where Miro Stanic put his

7 signature, there is a wording, "President of the War Committee," or "War

8 Office."

9 If we analyse whom this document was addressed to, we can see

10 that, in addition to the operative staff, it was also addressed to the

11 Executive Board of the Foca municipality. Therefore, this man was not the

12 president of the War Presidency but the president of a war committee, and

13 he addressed or forwarded this letter to the Executive Board of the

14 Municipal Assembly.

15 If we were to analyse the evidence provided by the Prosecution and

16 by the Defence and tendered by the Prosecution and by the Defence

17 concerning the leasing out of certain parts of the KP Dom, then it becomes

18 completely clear that there are two separate parts here. In the heading

19 of the request to lease out the KP Dom, there is a title "Tactic Group of

20 Foca," and in the decision on leasing out KP Dom, there is a clear text

21 "Serb municipality of Foca." It is stated there that the military

22 command, as an entity using the premises, has the obligation to maintain

23 the premises and to return them in the condition they were found in

24 initially.

25 This strict delineation is also reflected by the Prosecution

Page 8343

1 Exhibit P1 and 2, in which the then warden refers to a contract on leasing

2 out premises. Not only the facilities in which prisoners were kept, but

3 also the kitchen and the health station.

4 Objections raised by the Prosecution in their final brief, stating

5 that there was no physical separation of the two parts of the prison,

6 should be viewed in light of the claims of the Defence that this was not

7 true. There were only about 20 sentenced individuals in one part of the

8 prison, most of whom were in the economic unit, whereas only about six or

9 seven remained within the KP Dom compound.

10 THE INTERPRETER: Not the "economic unit" but the "farm." The

11 interpreter apologises.

12 MR. BAKRAC: [Interpretation] Now, under those circumstances, was

13 there a need to divide the company for the benefit of just six of these

14 sentenced individuals or to build a new kitchen or a new health station

15 and do all this in a situation where there was a war going on and there

16 was a huge economic crisis?

17 If we were to follow this kind of logic, then we could conclude

18 that administrative staff of the KP Dom was also in prison because they

19 were fed in the same kitchen as prisoners. These two parts of the prison

20 were delineated in a formal and legal way, not in a physical way. They

21 were also delineated in the sense of -- separated in the sense of

22 subordination.

23 So this very formal and legal and factual separation of

24 jurisdiction and responsibility is a key principle for determining the

25 responsibility of the accused pursuant to charges 7 and 3 of the -- 7.3 of

Page 8344

1 the indictment. The separation of the military and civil authorities can

2 be seen through the Exhibit D39, in which the accused, as a warden of the

3 KP Dom, in the last paragraph, directs Herzegovina Corps to -- in order to

4 transfer the military prison from Bileca, had to obtain the approval of

5 the Ministry of Justice beforehand and conclude a contract on the leasing

6 of premises.

7 If there were unity of the civil and military authorities, would

8 the accused then direct the military command wishing to lease additional

9 space and move the transfer from Bileca to obtain a permit from the

10 Ministry of Justice and enter into a legal contract with them? Just a

11 plain order would have been sufficient for this.

12 The Defence would also like to state in our closing argument that

13 document D107 has an error in translation, that the accused, in his letter

14 sent to the Foca garrison, said that he had kept individuals of Muslim

15 ethnicity in the KP Dom despite the fact that the original -- in fact, the

16 original and the B/C/S states that these people are housed in the KP Dom

17 or located in the KP Dom.

18 JUDGE HUNT: I'm not sure that I understand the correction you're

19 seeking to make. The English translation in 107A says "holds." I don't

20 know whether that is different to "keeps," the Muslim detainees, but it

21 lumps both the Muslim detainees and the Serbian offenders together.

22 MR. BAKRAC: [Interpretation] Yes, Your Honours. I can see now

23 that the B/C/S version says the following: "Since based on the contract

24 on leasing premises of the KP Dom for housing detained individuals, there

25 are Muslim detainees here and Serb offenders, members of the Republika

Page 8345

1 Srpska army, and we request that you provide the following food supplies

2 for these individuals."

3 The Defence made a mistake. I was rushing, so I took it that this

4 translation in fact said that he "kept," whereas the original in the B/C/S

5 says that the detained individuals are located or housed in the KP Dom.

6 The Defence believes that in addition to absence of participation

7 and hierarchy in the military structure that was in charge of guarding war

8 prisoners of Muslim ethnicity, the Prosecution failed to show beyond the

9 reasonable doubt even the authority of Milorad Krnojelac in this part of

10 the KP Dom which is relevant for the indictment.

11 The Prosecution refers to the statements of the witnesses which

12 contradict the statements of Defence witnesses mentioned in the Defence's

13 final brief, and this very fact points to the absence of authority of

14 Milorad Krnojelac with respect to these individuals.

15 Witnesses highlighted by the Defence, who, as we have already

16 said, were not in a position to know the exact structure of

17 responsibilities and authority in the KP Dom, testified about things that

18 they were in a position to observe. All of these witnesses noticed the

19 authoritative position of Savo Todovic, who had authority over their

20 fates. Nobody saw that kind of an authority on the part of the accused.

21 Statements to the effect that the accused was the de jure warden

22 when Savo Todovic was the factual warden, or statements to the effect

23 Milorad Krnojelac was the warden only on paper, whereas Savo Todovic was

24 the one who was really in power, and all other statements reflect the

25 absence of any kind of authority of Milorad Krnojelac with respect to

Page 8346

1 these individuals.

2 The absence of authority and the relationship of superiority, also

3 with respect to the guards, and in KP Dom, the relationship of superiority

4 and subordination, this is reflected through the statements of witnesses

5 who came on behalf of the Prosecution and on behalf of the Defence. The

6 Prosecution frequently referred to the testimony of Dr. Berberkic, who in

7 cross-examination was asked about the authority of Milorad Krnojelac, or

8 rather, was asked whether it was true that in his statement given to the

9 OTP, he stated that he had personally heard from Mitar Rasevic that he, as

10 a guard commander, directly answered to the military command.

11 This witness, in his statement given to the OTP, also stated that

12 the military command was in charge of them, as well as certain Commander

13 Kovac. The transcript reflects, and the Trial Chamber also observed this,

14 that when this witness tried to deny knowing about Commander Kovac, he

15 himself, without anybody mentioning this or asking him, replied or called

16 this man Colonel Kovac, which illustrates he was familiar with the rank.

17 Finally, this witness, when asked whether he stated to the OTP

18 that another prisoner personally had told him that the list of 12

19 prisoners, which needed to be hidden from the ICRC, was signed by Marko

20 Kovac, commander of the Tactical Group, and that this witness saw this

21 personally.

22 So when asked this, Witness Berberkic, very unconvincingly, tried

23 evading answering this question, because the Defence asked him whether a

24 radio amateur Kovac could have signed it. The witness said, "I don't

25 know, but I know that this other prisoner told me that the list had been

Page 8347

1 signed by Marko Kovac."

2 Therefore, this fact that even a witness who had been imprisoned

3 was able to gain information from a certain source, information on the

4 line of command, together with all the material evidence submitted by the

5 Defence, show that Milorad Krnojelac was not part of the structure of

6 authorities who were in charge of the military part of the prison and in

7 charge of the Muslim detainees, nor the Serb members of the Serbian army

8 who had committed a crime. This absence of authority, this absence of

9 relationship of superiority and subordination with respect to the

10 individuals who were in charge of this military part of the prison

11 entirely exclude the possibility for the accused to order, issue an order

12 or punish someone. He had no capability of doing this, either in the

13 hierarchical sense or in the sense of authority. Milorad Krnojelac did

14 not have factual authority, either over Muslim detainees or guards, which

15 can clearly be seen from the Exhibit D139. This exhibit illustrates that

16 the decision on the work obligation issued to guard Matovic was issued by

17 the Ministry of Defence, that is to say, the military command.

18 Your Honours, I apologise. I quoted the number of the document

19 wrongly. It is not D139; it is D151.

20 Therefore, the Defence submits that Milorad Krnojelac cannot be

21 held responsible for any of the crimes which are attributed to him in the

22 counts of the indictment pursuant to Article 7.3 of the International

23 Tribunal Statute. The Defence, in its final written brief, furthered this

24 claim by numerous evidence, both material as well as witness statements,

25 which we do not wish to repeat here.

Page 8348

1 Your Honours, my learned colleague Vasic will continue with

2 respect to other counts of the indictment, but in view of the fact that

3 it's almost 4.00, perhaps it would be best if he continued tomorrow

4 morning.

5 JUDGE HUNT: That would be a good idea. As to equality of arms,

6 you've already had more time than the Prosecution had, but we're not going

7 to stop you from doing that. Have you got some idea, though, how long you

8 are likely to be tomorrow morning?

9 MR. BAKRAC: [Interpretation] Your Honours, I will discuss this

10 with my colleague, but we hope to finish before the morning break.

11 JUDGE HUNT: That's all right. Very well, then. We will adjourn

12 now and resume at 9.30 in the morning.

13 --- Whereupon the hearing adjourned at 3.58 p.m.,

14 to be reconvened on Friday, the 20th day of

15 July, 2001, at 9.30 a.m.