1 Wednesday, 17 September 2003
2 [Appeals Judgement]
3 [Open session]
4 --- Upon commencing at 3.05 p.m.
5 THE INTERPRETER: Microphone, please, for the Presiding Judge.
6 [The appellant entered court]
7 JUDGE JORDA: [Interpretation] Mr. Krnojelac, please sit down.
8 Madam Registrar -- yes, please sit down. You can sit down now.
9 Can you hear me? Do sit down.
10 Madam Registrar, could you please call the case number.
11 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honours.
12 This is the case number IT-97-25-A, the Prosecutor versus
13 Milorad Krnojelac.
14 JUDGE JORDA: [Interpretation] Very well. Could the parties please
15 introduce themselves. Could we have the appearances for the Prosecution,
16 first of all, please.
17 MR. CARMONA: Your Honours, my name is Anthony Carmona. I appear
18 on behalf of the Prosecutor. Appearing with me is Ms. Norul Rashid and
19 Ms. Helen Brady. Our case manager, in fact, is Ms. Lourdes Galicia. As a
20 courtesy, I should indicate to you that our lead counsel, Mr. Christopher
21 Staker, in fact, has since left the Office of the Prosecutor. Thank you
22 very much.
23 JUDGE JORDA: [Interpretation] Very well. Thank you.
24 Could we have the appearances for the Defence, please.
25 MR. BAKRAC: [Interpretation] Your Honours, good day. My name is
1 Mihajlo Bakrac and I'm accompanied by my colleague, Miroslav Vasic. We
2 represent the accused, Mr. Krnojelac.
3 JUDGE JORDA: [Interpretation] Very well. Thank you. Can the
4 interpreters hear me now? No problems? I don't hear them. There are no
5 problems for the booth? Very well. Thank you.
6 The appeals -- the Krnojelac Appeals Chamber is holding its public
7 hearing today to pronounce its judgement on the appeal in the case of the
8 Prosecutor versus Milorad Krnojelac.
9 On the 12th of April, 2002, Milorad Krnojelac filed a notice of
10 appeal against the Judgement rendered on the 15th of March, 2002 by Trial
11 Chamber II, composed of judges David Hunt, Florence Mumba, and Liu Daquin,
12 sentencing Krnojelac to a single judgement of seven and a half years in
14 The Trial Chamber found Krnojelac guilty of persecution, as a
15 crime against humanity (based upon imprisonment, living conditions and
16 beatings), both for his individual responsibility and as a superior; for
17 inhumane acts as a crime against humanity (based upon beatings), as a
18 superior; cruel treatment, as a violation of the laws or customs of war
19 (based upon beatings), as a superior; and cruel treatment, as a violation
20 of the laws or customs of war (based upon living conditions), for his
21 individual responsibility.
22 Milorad Krnojelac was acquitted of the following counts:
23 Count 2: Torture, as a violation of the laws or customs of war;
24 count 4: Torture, as a crime against humanity; count 8: Murder, as a
25 violations of the laws or customs of war; count 10: Murder, as a crime
1 against humanity; count 11: Imprisonment, as a crime against humanity;
2 count 13: Inhumane acts, as a crime against humanity (based upon living
4 On the 15th of April, 2002, the Prosecutor also appealed the
5 Judgement and it should be noted that the two parties appealed the
7 The Appeals Chamber will render its findings on each appeal
8 presented, under the understanding that this summary of the Appeals
9 Judgement is in no way the authoritative version.
10 In this respect, I would like to inform you that the written
11 version will be postponed. It will be provided a few hours later. I
12 would just like to point out that one of the parties had filed a request,
13 a very late request, and this has resulted in the fact that the document
14 will be provided to -- at a later date, but towards the end of the day, I
16 The appeal of Milorad Krnojelac.
17 Aside from his ground of appeal relating to the sentence,
18 Milorad Krnojelac presented five grounds of appeal.
19 Reference must first be made to the Prosecutor's submission with
20 regard to various factual issues that the errors alleged by the Defence do
21 not satisfy the standard of review on appeal provided for in the case-law
22 of the Tribunal.
23 The Appeals Chamber recalls that, as opposed to the procedures in
24 force in certain national systems, the appeals procedure provided for
25 under Article 25 of the Statute of the ICTY is corrective by nature and is
1 not therefore an occasion for re-examination de novo. This system of
2 appeal has consequences on the nature of the arguments that a party may
3 legitimately present on appeal and on the general burden of proof which it
4 must satisfy in order for the Appeals Chamber to intervene. With
5 particular regard to the alleged errors of fact, a party alleging this
6 type of error in support of an appeal against a conviction must provide
7 proof firstly that the error was committed, and secondly, that this
8 resulted in a miscarriage of justice. The Appeals Chamber regularly
9 recalled that it does not amend lightly factual findings reached by the
10 Trial Chamber. The Appeals Chamber emphasises that its established
11 case-law sets out that, if a party is not in a position to explain how an
12 alleged error invalidates the decision, it must, as a general rule,
13 refrain from appealing on that point. The Appeals Chamber considers that
14 this principle applies to allegations of both legal and factual errors.
15 Consequently, when a party's arguments have no chance of securing a
16 reversal or review of the impugned decision, the Appeals Chamber may
17 reject them as unlawful grounds from the outset and does not have to
18 examine them on the merits.
19 The Appeals Chamber holds that almost all of the grounds of appeal
20 of the Defence which raise factual errors as such are, in this case,
21 unlawful. Generally, it emerges from the Defence appeal brief that, with
22 the exception of one ground of appeal and the ground relating to the
23 sentence, it puts forward no argument demonstrating the unreasonable
24 nature of the Trial Chamber's findings. It is, in fact, impossible for
25 the Appeals Chamber to identify the error allegedly committed by the Trial
1 Chamber. It appears that the Defence only challenges the Trial Chamber's
2 findings and suggests an alternative assessment of the evidence. However,
3 this simple challenging of the Judgement in no way sufficiently
4 demonstrates the erroneous nature of the Trial Chamber's findings. By not
5 indicating how the Trial Chamber's assessment of the evidence cited is
6 unreasonable and erroneous, the Defence is not assuming the burden of
7 proof associated with allegations of errors of fact.
8 The Appeals Chamber examined the admissibility of each ground of
9 appeal alleging errors of fact and found that the first, third and fourth
10 grounds of appeal of the Defence were unlawful in view of the
11 aforementioned standard of review. The Defence satisfied the burden of
12 proof for the burden of proof for the fifth ground of appeal which alleged
13 an error of fact. The Appeals Chamber therefore examined the merits of
14 the arguments relating to this ground.
15 The second ground of appeal of the Defence, alleging an error by
16 the Trial Chamber on a point of law, was also examined by the Appeals
18 Krnojelac's second ground of appeal which concerned aiding and
19 abetting, persecution (imprisonment and living conditions). This ground
20 of appeal is divided into three main subgrounds.
21 First subground: Krnojelac's acts or omissions and their
22 significance for the commission of the crime of persecution on the basis
23 of imprisonment and living conditions.
24 Krnojelac states that the Trial Chamber committed an error of law
25 when it found him guilty of aiding and abetting persecution on the basis
1 of imprisonment of non-Serb civilian detainees and living conditions
2 imposed on them without clarifying how he had contributed significantly to
3 the commission of these crimes by their principal perpetrators.
4 The Appeals Chamber examined the substance of this subground,
5 firstly, with regard to imprisonment, and secondly, with regard to the
6 living conditions. The Appeals Chamber considered this subground as a
7 challenge to the reasoning used for the actus reus of aiding and abetting.
8 It recalled as an introductory point that the aider and abettor must, by
9 his acts or omissions, have provided the principal perpetrator with
10 practical assistance, encouragement or moral support which had a
11 substantial effect on the commission of the crime.
12 With regard to imprisonment, the Appeals Chamber states that a
13 reading of the Judgement contradicts Krnojelac's assertion that the Trial
14 Chamber did not specify acts or omissions by which he provided the
15 principal perpetrators of the crime of persecution - based on the
16 imprisonment of the non-Serb civilian detainees practical
17 assistance - with encouragement or moral support which had a substantial
18 effect on the commission of the crime by those perpetrators.
19 With regard to the living conditions the Appeals Chamber stated
20 that, contrary to Krnojelac's assertions, the Trial Chamber did
21 characterise the omission underpinning his conviction as aider and abettor
22 to those who inflicted inhumane living conditions on the non-Serb
24 Second subground: Krnojelac's knowledge that, through his acts or
25 omissions, he was contributing in a significant way to the underlying
1 crimes committed by the principal perpetrators (persecution on the basis
2 of imprisonment and living conditions) and Krnojelac's knowledge of the
3 discriminatory intent of the perpetrators.
4 Contrary to the previous subground, this subground concerns the
5 mens rea and not the actus reus of aiding and abetting persecution.
6 Despite the allegations put forward by the Defence, the Appeals Chamber
7 considered that this subground alleged, in substance, an error of fact
8 rather than an error of law. The Appeals Chamber also examined, firstly,
9 Krnojelac's allegations relating to imprisonment, and secondly, those
10 relating to the living conditions.
11 With regard to the two allegations, the Appeals Chamber indicated
12 that Krnojelac did not demonstrate how the factual findings in question
13 were unreasonable. The Appeals Chamber thus rejects the first claim of
14 the second subground.
15 Third subground: The mens rea of the aider and abettor to an act
16 of persecution.
17 This error of law alleged by Krnojelac raises the question of
18 knowing whether, in establishing the mens rea of the aider and abettor to
19 persecution, it suffices to demonstrate that the person concerned
20 voluntarily provided the principal perpetrator with this practical
21 assistance or encouragement knowing that the principal had discriminatory
22 intent, or whether it is also necessary to demonstrate that the aider and
23 abettor was also driven by such intent.
24 The Appeals Chamber holds that the aider and abettor to
25 persecution, a crime with special intent, must not only have knowledge of
1 the crime whose perpetration he is facilitating, but must also be aware of
2 the discriminatory intent of the perpetrators of the crime. He must not
3 necessarily share that intent but must be aware of the discriminatory
4 context in which the crime is to be committed, and know that his support
5 or encouragement is to have a substantial effect on its commission. The
6 Appeals Chamber points out that this is the very criterion applied by the
7 Trial Chamber in the case in point in paragraphs 489 and 490 of the
9 Consequently, the second ground of appeal of the Defence has been
11 I will now turn to the Krnojelac's fifth ground of appeal, which
12 concerns superior responsibility for beatings inflicted on detainees.
13 Krnojelac maintains that the Trial Chamber erred in finding him
14 guilty as superior, pursuant to Article 7(3) of the Statute, of inhumane
15 acts and cruel treatment on the basis of beatings. He asserts that the
16 Trial Chamber erroneously concluded that he was aware that beatings were
17 being inflicted on the detainees. Krnojelac challenges the three main
18 pieces of evidence on which the Trial Chamber relied in determining
19 whether he had the requisite knowledge.
20 The Appeals Chamber did not consider the arguments presented by
21 Krnojelac in support of this ground of appeal to be convincing. It
22 therefore rejected the arguments relating to this ground of appeal as
23 lacking in merit.
24 The fifth ground of appeal is therefore rejected.
25 We shall now address the appeal of the Prosecutor.
1 The Prosecutor presented seven grounds of appeal. The Appeals
2 Chamber will set out its findings relating to each ground of appeal.
3 First ground of appeal: The Trial Chamber erred in law in
4 defining the responsibility arising from participation in a joint criminal
5 enterprise and in applying this definition to the facts of the case.
6 According to the Prosecutor, had the definition of joint criminal
7 enterprise been applied correctly, Krnojelac would have been found guilty
8 as co-perpetrator and not as aider and abettor to the crimes of
9 persecution (imprisonment and inhumane acts) and cruel treatment (living
10 conditions) on counts 1 and 15 of the indictment.
11 The Appeals Chamber considers that, in establishing the intent to
12 participate in a systemic joint criminal enterprise, the Trial Chamber, by
13 requiring evidence of an agreement on the commission of each of the crimes
14 within the joint enterprise, went beyond the criterion set by the Appeals
15 Chamber in the Tadic case. Since the Trial Chamber's findings showed that
16 the system in place at the KP Dom was meant to subject the non-Serb
17 detainees to inhumane living conditions and ill-treatment on
18 discriminatory grounds, the Trial Chamber had to examine whether or not
19 Krnojelac had knowledge of the system and subscribed thereto, without it
20 needing to be established that he had entered with the guards and
21 soldiers - the principal perpetrators - into an agreement to commit the
22 crimes implicit in the system.
23 The Appeals Chamber holds that the scope of the alleged error
24 depends on the issue of whether applying the criterion set by the Tadic
25 Appeals Judgement, that is, determining intent on the basis of knowledge
1 of the system and adherence thereto, rather than the Trial Chamber's
2 criterion which requires the aforementioned agreement, would have entailed
3 Krnojelac's liability as co-perpetrator and not as a simple aider and
4 abettor. If this is the case, consideration should be given to whether
5 the error in question invalidates the Judgement.
6 By applying the appropriate criterion to the facts of the case and
7 given the factual findings of the Trial Chamber relating to the living
8 conditions constituting inhumane acts, the beatings, torture and
9 imprisonment, the Appeals Chamber concluded that the error committed by
10 the Trial Chamber was an error which invalidated the verdict insofar as
11 the application of that criterion should have led the Trial Chamber to
12 find Krnojelac guilty as a co-perpetrator. The Appeals Chamber considers
13 that the error of law committed by the Trial Chamber was such as to
14 invalidate the Judgement. Consequently, the Appeals Chamber finds
15 Krnojelac guilty as co-perpetrator under counts 1 and 15 for the crime of
16 persecution (imprisonment and inhumane acts) and cruel treatment (on the
17 basis of living conditions imposed). And this as -- guilty as
19 Moreover, the Prosecutor criticises the Trial Chamber for
20 partitioning the forms of conduct, which she believed constituted part of
21 a system, according to the different categories of crimes underpinning the
22 persecution charge.
23 The Appeals Chamber holds, firstly - and referring to the
24 concentration camps of the Second World War - the Appeals Chamber holds,
25 firstly, that although the second category of cases defined by the Tadic
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Appeals Judgement (hereinafter "systemic cases") clearly draws on the
2 Second World War extermination and concentration camp cases, it can be
3 applied to other cases, in particular, to the serious violations of
4 international humanitarian law committed in the territory of the former
5 Yugoslavia since 1991. Even though the perpetrators of the acts tried in
6 the aforementioned concentration camps cases were mostly members of
7 criminal organisations, the Tadic case-law did not hold that an individual
8 had to belong to such an organisation to be deemed a member of the joint
9 criminal enterprise.
10 According to the Tadic Appeals Judgement, what characterises this
11 category of cases - a variant of the first - is the existence of an
12 organised system to achieve a joint criminal purpose. For the requisite
13 intent to be constituted, the accused must have had personal knowledge of
14 the system in question (whether proved by express testimony or inferred
15 from the accused's position of authority) and the intent to further that
16 concerted system. The Prosecutor could then rely on this form of joint
17 criminal enterprise.
18 The Appeals Chamber recalls that it is for the Prosecutor to
19 determine the legal theory which she believes most likely demonstrates
20 that the facts she intends to submit for the Trial Chamber's assessment
21 make it possible to establish the responsibility of the person being
22 prosecuted. To this end, the Prosecutor may additionally or alternatively
23 allege one or more legal theories, under the condition that she does so
24 clearly, soon enough, and in any event in time to put the accused on
25 notice of what precisely he is charged with and in time to allow the
1 Defence to organise its case accordingly.
2 The Appeals Chamber considers well founded the challenge raised by
3 the Prosecutor to the partitioning made by the Trial Chamber. By
4 replacing the Trial Chamber's approach in its context, the Appeals Chamber
5 notes that the Trial Chamber clearly followed the approach taken in the
6 indictment since, for each aspect of the common purpose pleaded by the
7 Prosecutor, it sought to determine whether Krnojelac shared the intent of
8 the principal offenders. According to the Appeals Chamber, such an
9 approach corresponds more closely to the first category of joint criminal
10 enterprise than to the second but does not constitute an error of law,
11 insofar as the Prosecutor did not include in the theory of "systemic"
12 joint criminal enterprise a better suited definition of the common
13 purpose. Therefore, the Appeals Chamber does not discern any error in the
14 approach followed by the Trial Chamber.
15 The issue of what approach seems the most appropriate for
16 determining whether a participant in a "systemic" joint criminal
17 enterprise - be it as a co-perpetrator or an aider and abettor - may be
18 responsible for crimes committed by the principle offenders in a context
19 such as that of the KP Dom is considered one of general importance to the
20 Tribunal's case-law, and the Appeals Chamber therefore examined it,
21 limiting itself to the acts charged as persecution.
22 The Appeals Chamber finds that the most appropriate approach for
23 the Prosecutor in this case would have been to limit the definition of the
24 common purpose within the KP Dom "system" to the commission of those
25 crimes which, having regard for the context and evidence tendered, could
1 be considered beyond all reasonable doubt, common to all the perpetrators.
2 As an alternative at least, the Prosecutor should, thus, have specified
3 the form under which, she thought, the accused's responsibility could be
4 entailed for the crimes which were not clearly part of the joint purpose
5 of the system, as set out. According to the Appeals Chamber, the
6 following approach could have been envisaged:
7 As to the alleged crimes such as the killings which, though
8 committed at the KP Dom, clearly surpassed the system's common purpose:
9 Liability may be imputed to a participant in the system for crimes of this
10 kind committed by another participant if it was foreseeable that such a
11 crime was likely to be committed by one participant or the other and the
12 former willingly took the risk (or was indifferent to it). The Appeals
13 Chamber notes that such was the Prosecutor's case for the killings in her
14 pre-trial brief.
15 With regard to the alleged crimes which, although bringing
16 together several co-perpetrators within the KP Dom, do not appear to
17 constitute, beyond all reasonable doubt, a purpose common to all the
18 participants in the system, they should be addressed, without recourse to
19 the notion of system, as part of a joint criminal enterprise of the first
20 category. The Appeals Chamber holds that the alleged crime of forced
21 labour must be dealt with in this way. A person who had participated in
22 its commission might be considered as a co-perpetrator in a joint criminal
23 enterprise which has as an objective the commission of the crime in
24 question, provided that the person concerned shares the joint intent of
25 the principal perpetrators. Alternatively, the person concerned might be
1 considered an aider and abettor of the crime if he simply had knowledge of
2 the intent of its perpetrators and provided them with assistance which had
3 a substantial effect on the commission of the crime.
4 As far as deportation is concerned, a distinction should be made
5 between the various alleged crimes which fit into a broader plan, such as
6 imprisonment and deportation, on the basis of whether they form part of
7 the common purpose of all the participants in the system and other
8 co-perpetrators outside it or form part of a common purpose shared by only
9 some of the participants in the system and the outsiders. In the first
10 instance, to which the crime of imprisonment is related, the "system"
11 notion can be applied to all of the participants. However, the
12 distinctive nature of the crimes stems from the fact that some of the
13 principal offenders are persons outside of the system in place at the
14 camp - that is, with respect to imprisonment, certain civilian and/or
15 military authorities that ordered the arbitrary arrests and detention at
16 the KP Dom. In the second instance to which the crime of deportation or
17 transfer of some of the non-Serb detainees is related, the crimes in
18 question should be considered without applying the "system" notion. A
19 person who participated in their commission might be considered a
20 co-perpetrator in a joint criminal enterprise, the purpose of which is the
21 commission of the crimes in question, provided that the person concerned
22 shares the joint purpose of the principal perpetrators. Alternatively,
23 the person concerned might be considered an aider and abettor to the
24 crimes if he simply had knowledge of the intent of the principal
25 perpetrators and provided them with assistance which had a substantial
1 effect on the commission of the crime.
2 We shall now address the second ground of appeal. The Prosecutor
3 maintains that the Trial Chamber erred in law when it found that the
4 accused could not be held liable under the third form of joint criminal
5 enterprise. The Trial Chamber erred in law when it required that the
6 indictment refer to an "extended form" of the joint criminal enterprise.
7 The Prosecutor maintains that the Trial Chamber erred in law when
8 it found that the accused could not be held liable under the third form of
9 joint criminal enterprise referred to in the Tadic Appeals Judgement with
10 respect to any of the crimes alleged, unless an "extended" joint criminal
11 enterprise was expressly pleaded in the judgement. The Prosecutor does
12 not request that the Trial Judgement be reversed or revised on this point.
13 She raises this ground of appeal because of its general significance to
14 the case-law of the Tribunal.
15 The Appeals Chamber notes that, in its decision on the form of the
16 second amended indictment, the Trial Chamber, which was, in particular,
17 seized of a complaint about the lack of precision in paragraph 5.2 of the
18 indictment in question, indicated that, in that indictment, the Prosecutor
19 presented for the first time the theory of common purpose and responded to
20 the question of what exactly was covered by this theory. In so doing, the
21 Trial Chamber set out the three categories of cases referred to in the
22 Tadic Appeals Judgement. In the light of this decision, had she
23 considered that the Trial Chamber had misinterpreted her intentions on
24 this point, it would have been for the Prosecutor to remove any ambiguity
25 in this respect, either by asking the Trial Chamber to reconsider its
1 decision or by requesting leave to amend the indictment. Should the
2 Prosecutor have considered basing her argument on an extended concept of
3 joint criminal enterprise only after the said decision, it would have been
4 for her to request leave to amend the indictment.
5 The Appeals Chamber notes that the Trial Chamber Judgement shows
6 that the Chamber concluded as it did precisely because the Prosecutor did
7 not amend the indictment after the Trial Chamber held, without ambiguity,
8 that the second amended indictment did not consider an extended form of
9 joint criminal enterprise. In view of these circumstances, the Trial
10 Chamber considered that "in the exercise of its discretion," it would be
11 unfair to the accused to allow the Prosecutor to rely on an extended
12 concept of joint criminal enterprise in order to establish his
14 It must be noted that these circumstances give rise to a certain
15 amount of uncertainty for the Defence with regard to the Prosecution case.
16 Consequently, although Krnojelac's closing brief shows that he did not
17 consider the three forms of joint criminal enterprise set out in the Tadic
18 Appeals Judgement before concluding that he had not taken part in a joint
19 criminal enterprise, the Appeals Chamber considers that, in view of the
20 persisting ambiguity about what exactly was the Prosecutor's argument, the
21 Trial Chamber was well founded in refusing, in all fairness, to consider
22 an extended form of responsibility against Krnojelac.
23 This ground of appeal is therefore rejected.
24 Now, let's look into the third ground of appeal. The Trial
25 Chamber erred in fact by concluding that Krnojelac did not know or did not
1 have reason to know that his subordinates were torturing the detainees
2 and, consequently, could not be held responsible pursuant to Article 7(3)
3 of the Statute.
4 The Appeals Chamber recalled the relevant facts accepted by the
5 Trial Chamber. These facts related to: 1) the context of the commission
6 of the beatings and the widespread nature of their commission; 2)
7 Krnojelac's authority over his subordinates as prison warden; and 3) the
8 frequency of the interrogations and punishment inflicted on the detainees.
9 The Appeals Chamber holds that both the external context (that is,
10 the circumstances in which the detention centre was set up) and the
11 internal context (that is, the operation of the centre, in particular, the
12 widespread nature of the beatings and the frequency of the
13 interrogations), together with the facts that Krnojelac witnessed the
14 beatings inflicted on Zekovic, apparently inflicted for the prohibited
15 purpose of punishing him for his escape attempt; that subsequent to this
16 event, at least one other detainee, Witness FWS-73, was victim to acts of
17 torture; and that the Trial Chamber did not accept Krnojelac's declaration
18 that he was not aware of any punishment inflicted on account of Zekovic's
19 escape, meaning that no reasonable trier of fact could fail to conclude
20 that Krnojelac had reason to know that some of the acts were or could have
21 been committed for one of the purposes prohibited by the rules of law
22 relating to torture. Krnojelac had a certain amount of general
23 information alerting him to possible acts constituting torture by his
24 subordinates. Thus, he incurs liability pursuant to Article 7(3) of the
1 It cannot be overly stressed that when superior responsibility is
2 at issue, an accused is not implicated for the crimes of his subordinates
3 but for a failure to carry out his duty as superior, that is, to exercise
4 control. There is no doubt that, given the information he possessed,
5 Krnojelac was in a position to exercise such control, that is, to
6 investigate the possible commission of acts of torture. The Trial Chamber
7 considered moreover that, as regards beatings, he had the authority to
8 prevent the crimes or punish the perpetrators. Considering that no
9 reasonable trier of fact could have arrived at the same factual findings
10 as the Trial Chamber, the Appeals Chamber holds that the Trial Chamber
11 committed an error of fact.
12 As regards whether this error resulted in a miscarriage of
13 justice, the Appeals Chamber adopts the findings of the ICTR Appeals
14 Chamber in the Rutaganda case and considers that when Krnojelac was
15 erroneously acquitted by the Trial Chamber, the latter failed in his duty
16 by not identifying all the requisite legal implications of the evidence
18 We will now examine the fourth ground of appeal of the
19 Prosecution. The Trial Chamber committed an error of fact by concluding
20 that, for the purposes of Article 7(3) of the Statute, Krnojelac did not
21 have sufficient information to put him on notice that his subordinates
22 were involved in the murder of detainees at the KP Dom.
23 The Prosecutor states that, given the factual findings accepted by
24 the Trial Chamber, the only reasonable finding open to the said Chamber
25 was that Krnojelac had sufficient information to put him on notice that
1 his subordinates might be involved in the murder of detainees.
2 As with the previous ground of appeal, the Appeals Chamber
3 recalled the relevant facts accepted by the Trial Chamber with regard to
4 the murders.
5 The Appeals Chamber holds that a certain number of facts
6 constituted sufficiently alarming information to have required Krnojelac
7 to carry out an additional investigation. Being aware of the beatings and
8 the suspicious disappearances and having seen the bullet impacts in the
9 walls, Krnojelac was in a position to reflect that the perpetrators of
10 these beatings were likely to have committed murders. He should, at the
11 very least, have carried out an investigation. The Appeals Chamber
12 considers that no reasonable trier of fact could have reached the factual
13 findings of the Trial Chamber. The Appeals Chamber holds therefore that
14 the Trial Chamber committed an error of fact and that, for the reasons set
15 out above, this resulted in a miscarriage of justice.
16 We will now examine the fifth ground of appeal of the
17 Prosecution. The Trial Chamber erred in fact by concluding that the
18 beatings constituting inhumane acts and cruel treatment were not inflicted
19 on discriminatory grounds and that, therefore, Krnojelac could not be held
20 responsible for persecution as a superior.
21 The Prosecutor submits that the Trial Chamber erred in concluding
22 that the beatings constituting inhumane acts and cruel treatment inflicted
23 by the guards on detainees at the KP Dom were not carried out on
24 discriminatory grounds and that they did not therefore constitute
25 persecution for which Krnojelac could be responsible under Article 7(3) of
1 the Statute.
2 The Appeals Chamber recalls that, in law, persecution as a crime
3 against humanity requires proof of specific intent to discriminate on
4 political, racial or religious grounds and that it falls to the Prosecutor
5 to prove that the acts in question were committed with the requisite
6 discriminatory intent. The Appeals Chamber does not consider that the
7 discriminatory intent of the beatings can be inferred directly from the
8 general discriminatory nature of an attack characterised as a crime
9 against humanity. According to the Appeals Chamber, such a context is not
10 in itself proof of discriminatory intent. The Appeals Chamber does hold,
11 however, that discriminatory intent may be inferred from such a context,
12 provided that, with respect to the facts of the case, there are
13 circumstances surrounding the commission of the acts charged which confirm
14 the existence of such intent. These circumstances may include, for
15 example, the functioning of the prison (in particular, the systematic
16 nature of the crimes committed against a racial or religious group) or the
17 general attitude of the alleged perpetrator of the offence through his
19 In this case, the Trial Chamber indicated that the "detention of
20 non-Serbs in the KP Dom, and the acts or omissions which took place
21 therein, were clearly related to the widespread and systematic attack
22 against the non-Serb civilian population in the Foca municipality." The
23 Appeals Chamber holds that one can infer from this finding that the
24 treatment inflicted on the non-Serb detainees is the result of the
25 aforesaid discriminatory policy, which was the cause of their detention.
1 There still need to be circumstances surrounding the commission of the
2 acts charged which confirm this initial inference.
3 In this case, it emerges from the Trial Chamber's findings that,
4 in reality, only the non-Serb detainees were beaten. The Appeals Chamber
5 holds that the differences in the treatment of the Serb and non-Serb
6 detainees cannot reasonably be attributed to the guards' random
7 assignment. This finding confirms the aforesaid inference. Thus, the
8 Appeals Chamber considers that the only reasonable finding to be made on
9 the basis of the relevant facts accepted by the Trial Chamber was that the
10 beatings were inflicted on the non-Serb detainees for political or
11 religious reasons and that, consequently, these unlawful acts were
12 committed with the requisite discriminatory intent. The Appeals Chamber
13 considers that, assuming that the blows inflicted on the non-Serb
14 detainees were meted out to punish them for violation of the rules, the
15 choice of that punishment, if inflicted only on non-Serb detainees, arose
16 from a wish to discriminate against them on religious or political
18 The Prosecutor maintains that Krnojelac should be found guilty of
19 persecution under Article 7(3) of the Statute. The Appeals Chamber
20 recalls that the Trial Chamber acknowledged that Krnojelac freely accepted
21 the position in full knowledge of the fact that non-Serb civilians were
22 being unlawfully detained at the KP Dom on the basis of their ethnicity.
23 Furthermore, Krnojelac accepted that he knew that the non-Serbs were being
24 detained precisely because they were non-Serbs and that none of the
25 procedures in place for legally detained persons were followed at the KP
1 Dom. The Trial Chamber acknowledged that Krnojelac knew that Muslim
2 detainees were being beaten and generally mistreated. He "knew" - I'm
3 quoting from the judgement - "knew about the conditions of the non-Serb
4 detainees, the beatings and other mistreatment to which they were
5 subjected while being detained at the KP Dom, and [...] he knew that the
6 mistreatment which occurred at the KP Dom was part of the attack upon the
7 non-Serb population of Foca town municipality."
8 In view of all the elements set out above, the Appeals Chamber
9 considers that Krnojelac who, as prison warden, retained authority over
10 all detainees in the KP Dom had sufficient information to put him on
11 notice that inhumane acts and cruel treatment were being inflicted on the
12 non-Serb detainees on political or religious grounds. The Appeals Chamber
13 concludes, therefore, that the Trial Chamber committed an error of fact
14 which resulted in a miscarriage of justice.
15 We will now turn to the Prosecution's sixth ground of appeal.
16 The Trial Chamber erred by acquitting Krnojelac on the count of
17 persecutions based on forced labour.
18 In support of this ground of appeal, the Prosecutor submitted that
19 the Trial Chamber erred by finding that there was insufficient evidence to
20 establish the involuntary nature of the labour. She maintained that, in
21 applying the legal test for involuntariness to the facts, the Trial
22 Chamber erroneously determined for eight detainees that the evidence
23 produced was insufficient to conclude that they had been forced to work.
24 Here again, the Appeals Chamber has summed up the relevant facts
25 accepted by the Trial Chamber. We will not go over them again. You will
1 find them in the written judgement.
2 The Appeals Chamber repeats that the living conditions at the KP
3 Dom were clearly deplorable. Of the facts previously summed up, some are
4 especially significant and must be emphasised. The Trial Chamber
5 concluded that within the KP Dom, there was a deliberate policy to feed
6 the non-Serb detainees barely enough for their survival. All non-Serb
7 detainees suffered considerable weight loss ranging from 20 to 40
8 kilogrammes during their detention at the KP Dom. Additionally, the
9 non-Serb detainees were locked up in their rooms for most of the day,
10 being allowed out only to go to the canteen and back. Some, however, were
11 taken out to work knowing that they would receive additional and much
12 needed food if they did. Finally, the non-Serb detainees were subjected
13 to harrowing psychological abuse during their period of detention at the
14 KP Dom. The detainees were exposed to the sounds of people being beaten
15 and tortured over a period of months, in particular in June and July 1992,
16 and they constantly feared that they would be the next to be selected.
17 The Appeals Chamber considers that, in view of the particular detention
18 conditions of the non-Serb detainees at the KP Dom, a reasonable trier of
19 fact should have reached the conclusion that the detainees' general
20 situation negated any possibility of free consent.
21 The Appeals Chamber is satisfied that the detainees worked in
22 order to avoid being beaten or in the hope of obtaining additional food.
23 Those who refused to work did so out of fear, given the disappearance of
24 detainees who had gone outside the KP Dom. The climate of fear made it
25 impossible to express free consent. A detainee cannot be expected to
1 raise an objection, nor can it be held that, for forced labour to be
2 established, a person in a position of authority must threaten to punish a
3 detainee if he refuses to work. The fact that a detainee may have
4 objected is irrelevant if the possibility of objecting is not a real
6 In the view of the Appeals Chamber, the specific circumstances of
7 the KP Dom detainees' life in prison were therefore such as to make free
8 consent impossible. Consequently, the Appeals Chamber sets aside the
9 Trial Chamber's findings in respect of witnesses FWS-249, FWS-144,
10 Rasim Taranin, FWS-66, FWS-198, Ekrem Zekovic, Muhamed Lisica, and FWS-71
11 and reaches the conclusion that these witnesses were forced to work.
12 The Prosecutor secondly contended that if forced labour were to be
13 established the Trial Chamber's findings were sufficient to warrant
14 Krnojelac's conviction for persecutions based on forced labour.
15 On this point, the Appeals Chamber restates that the acts
16 underlying the crime of persecution, whether taken in isolation or in
17 conjunction with others, must constitute a crime of persecution of equal
18 gravity to the crimes enumerated under Article 5 of the Statute. It
19 maintained that, in the case in point, the forced labour must be
20 considered as part of a series of acts comprising unlawful detention and
21 beatings, the cumulative effect of which is of sufficient gravity to
22 amount to a crime of persecution, it being understood that the unlawful
23 detention and beatings were committed on one or more of the discriminatory
24 grounds listed under Article 5 of the Statute. Accordingly, the degree of
25 gravity of the persecution based on these acts amounts to that of the
1 crimes expressly set out under Article 5 of the Statute.
2 The Appeals Chamber has previously recalled that, in this
3 instance, the Trial Chamber indicated that "the detention of non-Serbs in
4 the KP Dom and the acts or omissions which took place therein, were
5 clearly related to the widespread and systematic attack against the
6 non-Serb civilian population in the Foca municipality." The Appeals
7 Chamber had also previously pointed out that it could be inferred from
8 this backdrop that the treatment meted out upon the non-Serb detainees was
9 the result of the aforementioned discriminatory policy which led to their
10 detention on the condition that, as regards the facts of the case, there
11 were circumstances surrounding the commission of the acts of forced labour
12 which confirm the existence of such intent. In the view of the Appeals
13 Chamber, there is no doubt that, in this instance, the non-Serb prisoners
14 were detained and forced to work on account of their ethnicity. The Trial
15 Chamber underscored that, and I quote "the few Serb convicts who were
16 detained at the KP Dom were kept in a different part of the building from
17 the non-Serbs. They were not mistreated like the non-Serb detainees. The
18 quality and quantity of their food was somewhat better, sometimes
19 including additional servings. They were not beaten or otherwise abused,
20 they were not locked up in their rooms, they were released once they had
21 served their time, they had access to hygienic facilities and enjoyed
22 other benefits which were denied to non-Serb detainees." It is clear that
23 the non-Serb detainees were, on the other hand, subjected to a quite
24 different regime. The overcrowding of the solitary confinement cells in
25 which the detainees were so crammed that they were unable to move around
1 or lie down, the undernourishment and its principal effects in terms of
2 weight loss, the widespread nature of the beatings and mistreatment and
3 the psychological abuse linked to the detention conditions and the
4 mistreatment constitute circumstances particularly indicative of the
5 discriminatory character of the acts of forced labour imposed upon the
6 non-Serb detainees.
7 In the opinion of the Appeals Chamber, the Trial Chamber was
8 misled by its case-by-case approach to each of the acts of forced labour
9 and, consequently, failed to consider all of the circumstances surrounding
10 the commission of the acts - circumstances which, in this instance,
11 confirm that the said acts did indeed fit into the discriminatory context
12 at the KP Dom, as did the unlawful detention and the beatings that were
13 committed. The Appeals Chamber thus finds that, in view of the
14 circumstances, no reasonable trier of fact would have failed to conclude
15 that the acts of forced labour were committed with discriminatory intent.
16 The Appeals Chamber is many in no doubt that the eight detainees
17 forced to work were the victims of persecutions within the meaning of
18 Article 5 of the Statute.
19 With the persecution based on forced labour established, the
20 Appeals Chamber next considered Krnojelac's responsibility for these
22 The Appeals Chamber has previously stated that, in the case in
23 point, the alleged crime of forced labour should be dealt with as forming
24 part of a first category joint criminal enterprise without use being made
25 of the "system" notion, and that the persons who participated in its
1 commission may be viewed as co-perpetrators of a joint criminal enterprise
2 whose purpose was to commit the crime in question or as aiders and
3 abettors thereto depending on whether, as in the first instance, the
4 individual concerned shared the common intent or as in the second merely
5 had knowledge thereof.
6 On this point, the Appeals Chamber takes the view that Krnojelac
7 must not be regarded as a mere aider and abettor but as a co-perpetrator
8 of the crimes of forced labour which were committed. The Appeals Chamber
9 believes that Krnojelac shared the intent to make the non-Serb detainees
10 perform unlawful labour in conditions which the Appeals Chamber found to
11 be such that have it was impossible for them to consent freely to work.
12 The Appeals Chamber holds that the only conclusion which a reasonable
13 trier of fact should have reached is that Krnojelac was guilty as a
14 co-perpetrator of persecutions based on the forced labour of the non-Serb
15 detainees for the following reasons: Krnojelac was aware of the initial
16 decision to use KP Dom detainees to work, he was responsible for all the
17 business units and work sites associated with the prison, and he played a
18 central role in the matter. Moreover, Krnojelac voluntarily accepted the
19 position in full awareness that non-Serb civilians were being illegally
20 detained at the KP Dom because of their ethnicity and he also knew that
21 none of the procedures in place for legally detained persons was ever
22 followed with the non-Serbs at the KP Dom. He exercised final control
23 over the work of detainees in and for the KP Dom. He had regular meetings
24 with the heads of the furniture factory, metal workshop and farm where the
25 detainees worked.
1 It is the Appeals Chamber's opinion that, in light of the
2 foregoing, it is not possible that Krnojelac did not share the intent to
3 use unlawfully detained non-Serbs to work. The Appeals Chamber therefore
4 finds that the Trial Chamber's decision to acquit Krnojelac of the crime
5 of persecution based on forced labour must be reversed and that on the
6 basis of Article 7(1) of the Statute, Krnojelac must be convicted of
7 persecution based on forced labour as a co-perpetrator of the joint
8 criminal enterprise whose purpose was to persecute the non-Serb detainees
9 by exploiting their forced labour.
10 The Appeals Chamber will now turn to the seventh ground of appeal:
11 The Trial Chamber erred by acquitting Krnojelac on the counted of
12 persecutions (deportation).
13 This ground of appeal concerns the Trial Chamber's findings on the
14 first count of the indictment, persecutions based on "deportation and
16 The quotes are particularly important.
17 First of all, I shall look into the persecutions.
18 In support of this ground, the Prosecutor principally argued that
19 the Trial Chamber had erred in the definition of deportation and, to some
20 extent, the definition of expulsion.
21 The Appeals Chamber does not believe that, in the circumstances of
22 this case, the main issue is the definition of these terms. The Appeals
23 Chamber emphasises that, as regards the indictment submitted by the
24 Prosecutor, the subject of the discussions before the Trial Chamber was
25 persecution, and the Appeals Chamber therefore holds that two issues arise
1 out of the Prosecutor's submissions: (A) whether the Trial Chamber
2 correctly construed the allegations of persecution in the indictment; and
3 (B) whether the acts of displacement admitted by the Chamber are such as
4 to possibly constitute crimes underlying persecutions.
5 In the indictment, Krnojelac is charged with persecutions
6 punishable under Article 5(h) of the Statute for acts of deportation and
7 expulsion. He is not separately charged with deportation as a crime
8 against humanity. The Appeals Chamber is of the view that while the
9 wording used in the indictment was not best suited, it did not contain any
10 ambiguity as to the fact that Krnojelac was being prosecuted for having
11 perpetrated the crime of persecution by means of forcible displacements
12 within and across the borders of Bosnia and Herzegovina.
13 The Appeals Chamber is of the view that there is no need to rule
14 on the definition the Trial Chamber gave to the terms "deportation" and
15 "expulsion" either for the purposes of setting aside or upholding that
16 definition. The issue raised in this instance was whether the alleged
17 acts of forcible displacement could constitute a crime of persecution,
18 assuming that they were committed with discriminatory intent. The Appeals
19 Chamber notes that the terms "deportation" and "expulsion" under paragraph
20 5.2(f) of the indictment were clearly used by the Prosecutor as a generic
21 terms embracing all the forms of conduct alleged in this instance to
22 underlie the crime of persecution. No reference was made in the
23 indictment to deportation under Article 5(d) of the Statute. As such,
24 there is no need to define a term which does not appear in the provision
25 on which the indictment relies.
1 The Appeals Chamber holds that the Trial Chamber was bound to make
2 a ruling on the material facts alleged and to assess whether these acts
3 constituted persecutions within the meaning of Article 5(h) of the
4 Statute. The Appeals Chamber has examined which acts of displacement may
5 constitute persecutions when perpetrated with the requisite discriminatory
6 intent and whether the acts alleged by the Prosecutor were indeed such as
7 to constitute acts underlying the crime of persecution. The Appeals
8 Chamber considers that the acts of forcible displacement underlying the
9 crime of persecutions punishable under Article 5(h) of the Statute are not
10 restricted to displacements across a national border. The Appeals Chamber
11 believes that the crime of persecutions may take various forms. It may be
12 one of the other acts constitutive of crimes under Article 5 of the
13 Statute or one of the acts constitutive of crimes under the articles of
14 the Statute -- other articles of the Statute. In order for it to be
15 possible for these acts to be viewed as underlying the crime of
16 persecution, they must, separately or cumulatively, be committed with
17 discriminatory intent and constitute a crime of persecution of equal
18 gravity to the other crimes under Article 5 of the Statute. The Appeals
19 Chamber concludes that displacements within a country or across a national
20 border committed on grounds not authorised by international law are crimes
21 punishable in customary international law and that such acts, if committed
22 with the requisite discriminatory intent, do constitute the crime of
23 persecution under Article 5(h) of the Statute. The Appeals Chamber holds
24 that the facts found by the Trial Chamber fall into the category of
25 displacements which may constitute persecutions. The Appeals Chamber
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 notes that by failing to determine whether the alleged acts of forcible
2 displacement constituted persecutions, the Trial Chamber committed an
3 error of law which renders its decision void.
4 The Prosecutor contended that the Trial Chamber made an error of
5 fact when it held that the 35 non-Serb detainees from the KP Dom taken
6 across the border to Montenegro freely chose to be exchanged. She
7 submitted that the Trial Chamber was mistaken in not taking account of the
8 regime of coercion to which the KP Dom detainees were subjected.
9 The Appeals Chamber observes that the living conditions at the KP
10 Dom subjected the non-Serb detainees to a coercive prison regime which was
11 such that they were unable to make a true choice. The Appeals Chamber
12 accordingly concludes that the 35 detainees were subjected to duress and
13 that the Trial Chamber was mistaken in finding that they had freely chosen
14 to be exchanged.
15 The Prosecutor further argued that no Trial Chamber could have
16 reasonably concluded that it had not been shown that the transfer of the
17 35 detainees to Montenegro had been carried out on the requisite
18 discriminatory grounds. The Prosecutor makes general reference back to
19 the arguments pleaded in support of her fifth ground of appeal and,
20 notably, to the climate of systematic violence and discrimination in which
21 the KP Dom detainees lived because of their ethnicity.
22 Given these findings, as well as the discriminatory character of
23 the unlawful imprisonment and the infliction upon the non-Serb detainees
24 at the KP Dom of living conditions as described above, the Appeals Chamber
25 makes the finding that it was unreasonable for the Trial Chamber to
1 conclude that there was no evidence that the transfer of the 35 detainees
2 to Montenegro had been carried out on the requisite discriminatory
3 grounds. The Appeals Chamber considers that the reasoning used in order
4 to establish that the 35 non-Serb detainees were forcibly displaced to
5 Montenegro applies mutatis mutandis to the other displacements found by
6 the Trial Chamber. The same holds for Krnojelac's discriminatory intent.
7 We shall now look at Krnojelac's responsibility. The Prosecutor
8 maintained that the Trial Chamber erred when it held that Krnojelac was
9 not responsible for the displacement of detainees within Bosnia and
10 Herzegovina with which he was charged under count 1, persecution, and that
11 the acquittal should be reversed. In addition, she contended that the
12 Trial Chamber erred by finding Krnojelac not guilty pursuant to Article
13 7(1) of the Statute of the transfer of the 35 non-Serb detainees to
14 Montenegro and of other non-Serb detainees to other locations in Bosnia
15 and Herzegovina.
16 The Appeals Chamber is satisfied that the KP Dom administration
17 carried out the orders of the military authorities and that the KP Dom
18 guards handed over the detainees for transfer. It is not, however,
19 satisfied that Krnojelac had the power to influence which detainees were
20 to be displaced. There is evidence that Krnojelac tried, without success,
21 to assist Witness RJ, who wanted to be exchanged, and that he believed he
22 was assisting him to gain security and rejoin his family. The Prosecutor
23 further submitted that Krnojelac "knew that the transport of detainees was
24 problematic and that he had reason to ensure the safety of the detainees
25 after they left the compound." The Appeals Chamber considers that
1 Krnojelac was aware of the consequences of the transport of the detainees
2 but that he played no role therein.
3 This notwithstanding, Krnojelac is criminally and individually
4 responsible for the exchanges which formed part of the joint criminal
5 enterprise in which he personally played a role in the ultimate aim of
6 achieving the forcible displacement of the detainees under his control at
7 the KP Dom. As a result, it need not be proven that he personally took
8 part in drawing up the lists. The "exchanges" began in the summer of 1992
9 and continued until March 1993, at least. As already stated, the Appeals
10 Chamber is satisfied that the non-Serb detainees were taken out of the KP
11 Dom with discriminatory intent. According to his own testimony, Krnojelac
12 knew that the detainees were being taken out of the KP Dom. Furthermore,
13 the Trial Chamber established that, by virtue of his position as warden of
14 the KP Dom, Krnojelac knew that the non-Serb detainees were being
15 unlawfully detained on account of their ethnicity. In his capacity as
16 warden, Krnojelac authorised the KP Dom personnel to hand over non-Serb
17 detainees. He encouraged such departures by allowing them to
18 continue. Without the unlawful imprisonment, it would not have been
19 possible to continue with the exchanges. The Appeals Chamber is satisfied
20 that Krnojelac shared the intent of the principal perpetrators of the
21 joint criminal enterprise whose purpose was to take the non-Serb detainees
22 out of the KP Dom.
23 The Appeals Chamber therefore considers that Krnojelac is
24 responsible as a co-perpetrator for persecutions which took the form of
25 forcible displacements, as alleged by the Prosecutor under deportation and
2 Let's now turn to the sentence.
3 In the present case, both parties raised grounds of appeal
4 relating to the seven-and-a-half-year sentence imposed by the Trial
5 Chamber. The Appeals Chamber has examined the various grounds of appeal
6 by applying the standard of review for alleged errors as settled in its
8 The Appeals Chamber dismissed all of the grounds of appeal raised
9 by the parties with the exception of one of the Prosecutor's grounds.
10 The Prosecutor challenged the weight which the Trial Chamber gave
11 in mitigation of sentence to the cooperation provided to the Tribunal and
12 Prosecution by the Defence, and not Krnojelac. According to the
13 Prosecutor, the efficient and cooperative conduct of Defence counsel
14 cannot be a mitigating factor warranting a reduced sentence for the
15 accused any more than the inefficient or uncooperative conduct of counsel
16 may be considered an aggravating factor warranting an increased sentence.
17 The Appeals Chamber finds that the conduct described in the
18 contested paragraph of the judgement is the normal conduct that any
19 counsel should adopt before a Trial Chamber. The Appeals Chamber
20 therefore considers that the Trial Chamber committed an error by giving
21 credit to the accused for the conduct of his counsel. The Appeals Chamber
22 concludes that the commission of this error means, as previously
23 indicated, that the conduct of counsel for Krnojelac must not be taken
24 into consideration in determining the sentence imposed on the basis of the
25 new convictions on appeal.
1 The Appeals Chamber shall now determine the sentence having regard
2 for the new convictions pronounced on appeal. The Prosecutor requested
3 that, if the Appeals Chamber reversed one or more of the acquittals, the
4 sentence be increased commensurably. She submitted that it was possible
5 for the Appeals Chamber to revise the sentence itself rather than remit
6 the matter to the Trial Chamber. This assertion was not contested by
7 Krnojelac and is accepted by the Appeals Chamber.
8 Having given due consideration to the gravity of the crimes and
9 Krnojelac's responsibility as established by the Trial Chamber and taking
10 into account Krnojelac's responsibility established on the basis of the
11 new convictions on appeals, the Appeals Chamber has revised the sentence
12 in the exercise of its discretion and in the light of the mitigating and
13 aggravating circumstances taken into consideration.
14 Mr. Krnojelac, I shall ask you now to stand so that you can hear
15 the disposition that will be read out.
16 The Appeals Chamber, pursuant to Article 25 of the Statute and
17 Rules 117 and 118 of the Rules, noting the respective written submissions
18 of the parties and the arguments they presented at the hearing of 14 and
19 15 May 2003, sitting in open session, allows the Prosecutor's first ground
20 of appeal and sets aside Krnojelac's convictions as an aider and abettor
21 to the persecutions (crime against humanity, for imprisonment and inhumane
22 acts) and cruel treatment (violations of the laws or customs
23 of war for the living conditions imposed) under counts 1 and 15 of the
24 indictment pursuant to Article 7(1) of the Statute;
25 Allows the Prosecutor's third ground of appeal and reverses
1 Krnojelac's acquittal on counts 2 and 4 of the indictment (torture as a
2 crime against humanity and violations of the laws or customs of war)
3 pursuant to Article 7(3) of the Statute;
4 Allows the Prosecutor's fourth ground of appeal and reverses
5 Krnojelac's acquittal on counts 8 and 10 of the indictment (murder as a
6 crime against humanity and murder as a violation of the laws or customs
7 of war) pursuant to Article 7(3) of the Statute;
8 Allows the Prosecutor's fifth ground of appeal for the revision of
9 Krnojelac's conviction on count 1 of the indictment (persecution as a
10 crime against humanity) pursuant to Article 7(3) of the Statute so that it
11 encompasses a number of beatings;
12 Allows the Prosecutor's sixth ground of appeal and reverses
13 Krnojelac's acquittal on count 1 of the indictment (persecution as a crime
14 against humanity) based on the forced labour imposed upon the non-Serb
16 Allows the Prosecutor's seventh ground of appeal and reverses
17 Krnojelac's acquittal on count 1 of the indictment (persecution as a crime
18 against humanity) based on the deportation and expulsion of non-Serb
20 Dismisses the Prosecutor's second ground of appeal on the form of
21 the indictment;
22 Dismisses all of the grounds of appeal raised by Krnojelac;
23 Finds Krnojelac guilty of counts 1 and 15 of the indictment as a
24 co-perpetrator of persecution, a crime against humanity (imprisonment and
25 inhumane acts) and of cruel treatment, a violation of the laws or customs
1 of war (for the living conditions imposed), pursuant to Article 7(1) of
2 the Statute;
3 Finds Krnojelac guilty of counts 2 and 4 of the indictment
4 (torture as a crime against humanity and violations of the laws or customs
5 of war) pursuant to Article 7(3) of the Statute based on the following
6 facts: paragraph 5.21 (for FWS-73), paragraph 5.23 (except for FWS-03),
7 paragraph 5.27 (for Nurko Nisic and Zulfo Veiz), 5.28 and 5.29 (for Aziz
8 Sahinovic) of the indictment and facts described under points B4, B14,
9 B22, B31, B52 and B57 of the List C of the indictment;
10 Finds Krnojelac guilty of counts 8 and 10 of the indictment
11 (murder as a crime against humanity and murder as violations of the laws
12 or customs of war) pursuant to Article 7(3) of the Statute;
13 Revises Krnojelac's conviction under count 1 of the indictment
14 (persecutions as a crime against humanity) pursuant to Article 7(3) so
15 that it encompasses the beatings described in paragraphs 5.9, 5.16, 5.18,
16 5.20, 5.21 (for FWS-110, FWS-144, Muhamed Lisica and several
17 over unidentified detainees), 5.27 (for Salem Bico) and 5.29 (for Vahida
18 Dzemal, Enes Uzunovic and Elvedin Cedic) of the indictment, and in the
19 facts corresponding to the numbers A2, A7, A10, A12, B15, B17, B18, B19,
20 B20, B21, B25, B26, B28, B30, B33, B34, B37, B45, B46, B48, B51, and B59
21 of List C of the indictment;
22 Finds Krnojelac guilty of count 1 of the indictment as a
23 co-perpetrator of the crime against humanity of persecutions (forced
24 labour, deportation, and expulsion) pursuant to Article 7(1) of the
1 Sets aside all of the convictions entered under count 5 of the
2 indictment (inhumane acts as crimes against humanity) pursuant to Article
3 7(3) of the Statute and the convictions entered under count 7 of the
4 indictment (cruel treatment as a violation of the laws or customs of war)
5 pursuant to Article 7(3) of the Statute based on the following facts:
6 paragraph 5.21 (for FWS-73), 5.23, 5.27 (for Nurko Nisic and Zulfo Veiz),
7 5.28 and 5.29 (for Aziz Sahinovic) of the indictment and facts described
8 under points B4, B14, B22, B31, B52, and B57 of List C of the indictment;
9 Dismisses the sentencing appeals entered by Krnojelac and the
10 Prosecutor (with the exception of the ground of appeal allowed in
11 paragraph 262 of this judgement) and determines a new sentence, having
12 regard for Krnojelac's responsibility established on the basis of the new
13 convictions on appeal and in the exercise of its discretion;
14 Sentences Krnojelac to 15 years' imprisonment to run as of this
15 day, subject to credit being given under Rule 101(C) of the Rules for the
16 period Krnojelac has already spent in detention, that is, from 15 June
17 1998 to the present day.
18 This Appeals Judgement has been drafted in English and in French,
19 The English being authoritative, in the presence of Judge Wolfgang
20 Schomburg, Judge Mohamed Shahabuddeen, Judge Mehmet Guney, Judge Carmel
21 Agius, and I, myself. I would like to state that Judges Shahabuddeen
22 have -- the Judges Schomburg and Shahabuddeen each append a separate
23 opinion to the Appeals Judgement.
24 Done this 17th day of September, 2003, at The Hague.
25 --- Whereupon the Appeals Judgement at 4.19 p.m.