1 Wednesday, 27 September 2006

2 [Judgement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 1.06 p.m.

6 JUDGE ORIE: Mr. Registrar, would you please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-00-39-T, the Prosecutor versus Momcilo Krajisnik.

9 JUDGE ORIE: Thank you, Mr. Registrar.

10 This Trial Chamber is sitting today to deliver its Judgement in

11 the case of the Prosecution versus Momcilo Krajisnik. For the purposes of

12 this hearing, the Chamber will summarise briefly its findings. We

13 emphasise that this is a summary only and that the authoritative account

14 of the Chamber's findings is to be found in the written judgement which

15 will be made available at the end of this session.

16 Mr. Krajisnik stood trial for one count of violations of the laws

17 or customs of war, namely murder, one count of genocide, one count of

18 complicity in genocide, and five counts of crimes against humanity;

19 namely, persecution, extermination, murder, deportation, and forced

20 transfer. He's charged with having committed, planned, instigated,

21 ordered or otherwise aided and abetted the crimes as well as failing to

22 take necessary and reasonable measures to prevent such acts or to punish

23 the perpetrators where he had a duty to do so.

24 The indictment covers 35 municipalities in Bosnia-Herzegovina.

25 The crimes charged are alleged to have been committed in all 35

1 municipalities between the 1st of July, 1991, and 30 December 1992.

2 Mr. Krajisnik was born on the 20th of January, 1945, in Novi Grad

3 municipality in Bosnia-Herzegovina. Mr. Krajisnik studied economics and

4 worked as an economist in various companies in Sarajevo.

5 He first met Radovan Karadzic in 1983. On the 12th of July, 1990,

6 Mr. Krajisnik became a member of the Serbian Democratic Party, the SDS.

7 On 20 September 1990, he was elected deputy to the Bosnia-Herzegovina

8 Assembly and on 20 December 1990, he became President of that Assembly.

9 The Chamber will now spend a few words on the political background

10 of Bosnia and Herzegovina and of the emergent Bosnian Serb Republic.

11 The first multi-party elections in Bosnia-Herzegovina were held on

12 the 18th of November, 1990. The political parties representing the three

13 dominant ethnic groups won the majority of seats, namely the SDS, the

14 Croatian Democratic Union, known as HDZ, and the Party of Democratic

15 Action, which was the main political party of the Bosnian Muslims, known

16 as the SDA. These three parties reached an agreement among themselves on

17 a formula for the distribution of power.

18 Positions in all government organs and public institutions at the

19 central and lower levels were distributed in accordance with party quotas.

20 Nonetheless, mistrust, fear, and resentment grew among the three main

21 ethnic groups in Bosnia-Herzegovina. As a consequence, in early 1991,

22 Bosnian Croats and Bosnian Muslims began organising armed groups. At

23 around the same time, the SDS began actively arming the Serb population.

24 Bosnian Serbs also relied on the Yugoslav People's Army for protection.

25 On 15 October 1991, the Bosnia-Herzegovina Assembly passed a

1 resolution on the sovereignty of Bosnia-Herzegovina, despite strong

2 opposition from the Serb deputies. Ten days later, the SDS formed the

3 Bosnian Serb Assembly with Mr. Krajisnik as President. The Bosnian Serb

4 Assembly began establishing parallel government structures.

5 The Bosnian Serb Assembly adopted a constitution of the Bosnian

6 Serb republic on the 28th of February, 1992. The constitution laid out

7 the structure of the Bosnian Serb republic.

8 The Bosnian Serb government was led by the Prime Minister, who at

9 the relevant time was Branko Djeric. It consisted of 13 ministries.

10 The Bosnian Serb Assembly consisted of 82 deputies, the majority

11 of whom were SDS members. On the 27th of March, 1992, the Assembly

12 created a National Security Council or SNB. Radovan Karadzic was the

13 President of the SNB while Mr. Krajisnik, as President of the Assembly,

14 was an ex officio member. The SNB held joint meetings with the Bosnian

15 Serb government for the purpose of taking decisions on military, political

16 and administrative matters. The SNB also issued instructions to and

17 received reports from local Territorial Defence units and municipal

18 authorities.

19 On the 12th of May, 1992, the Assembly replaced the SNB with a

20 three-member Presidency to function until a president of the Bosnian Serb

21 republic could be elected. Radovan Karadzic, Nikola Koljevic and Biljana

22 Plavsic were appointed to this Presidency. They, in turn, elected

23 Karadzic as the President of the Presidency. The SNB stopped functioning

24 shortly thereafter.

25 Although Mr. Krajisnik was not formally a member of the

1 Presidency, he attended all but possibly one session of the Presidency

2 between May and December 1992. During these sessions, Mr. Krajisnik was

3 not a mere spectator. For example, he was responsible for the economy.

4 Later, he was also responsible for liaising and coordinating with war

5 commissioners who were appointed by the Presidency and were in charge of

6 municipalities. Mr. Krajisnik had a significant input in the Presidency's

7 workings. He conducted himself as a regular member of the Presidency and

8 was accepted as such by the other members. Prime Minister Djeric also

9 attended sessions of the Presidency.

10 The Chamber is satisfied that the Bosnian Serb Presidency operated

11 in fact with five members from its inception on the 12th of May, 1992.

12 The Presidency wielded great power in the Bosnian Serb republic,

13 beyond that of its constitutional powers. For example, the Minister of

14 Interior, Mico Stanisic, and the Minister of Justice, Momcilo Mandic, both

15 reported directly to and took instructions from the Presidency. This in

16 turn led to a weak government. Nevertheless, the government still had

17 significant influence over many issues arising during the conflict, as is

18 explained more fully in the Judgement.

19 The Presidency also controlled the Bosnian Serb army, known as the

20 VRS, which was established by the Assembly on the 12th of May, 1992.

21 Pursuant to the constitution, the President of the Bosnian Serb republic

22 was the Supreme Commander of the VRS. General Ratko Mladic was the

23 commander of the VRS Main Staff. He would consult with the Presidency

24 regularly, and the Presidency would frequently make decisions on military

25 matters.

1 The Presidency also had an extensive contact with municipal

2 authorities, much of which came through Mr. Krajisnik. As President of

3 the Bosnian Serb Assembly, Mr. Krajisnik was in close contact with the

4 Assembly deputies who were also active on the municipal level.

5 The Assembly's composition and operating methods thus ensured that

6 the decision-making process was heavily influenced by SDS policy.

7 Mr. Krajisnik, both as President of the Assembly and as a prominent member

8 of the SDS, played an important role in effecting the SDS influence over

9 the Bosnian Serb Assembly.

10 The Chamber has also heard evidence that expressions of ethnic

11 hatred and scaremongering in the Bosnian Serb Assembly were condoned by

12 Mr. Krajisnik. The transcripts of sessions brought to the attention of

13 the Chamber show that never once during the indictment period did he

14 chastise deputies for insults to other national groups. On occasions, he

15 engaged in this type of language himself. Mr. Krajisnik's authority as

16 President of the Bosnian Serb Assembly made it easy for him to propagate

17 views on ethnic separation.

18 The Chamber will now discuss in some detail the acts which

19 occurred on the ground during this takeover of power in the indictment

20 municipalities.

21 When the independence of Bosnia-Herzegovina was recognised by the

22 international community in early April 1992, Bosnian Serbs began to seize

23 power in the municipalities through the use of force. The Chamber finds

24 that from 18th March 1992 onwards, there was an attack directed against

25 the Bosnian Muslim and Bosnian Croat civilian population living in the 35

1 indictment municipalities. The attack included the wide range of

2 discriminatory measures such as the imposition of curfews, the setting up

3 of barricades and check-points where members of these ethnic groups were

4 regularly stopped and searched, searches of the houses of Muslims and

5 Croats and dismissals from employment.

6 Beginning in April, Serb forces attacked Muslims and Croats living

7 in towns, villages and smaller settlements, most of which were undefended

8 and contained no military targets. Muslims and Croats were mistreated and

9 killed. Men were often arrested and taken to detention centres while

10 women and children were forced to leave their homes and were either

11 detained or forced to leave the municipality. Their homes were then

12 either looted and destroyed by Serb forces or appropriated by Serb

13 authorities. Serb forces also destroyed cultural monuments and sacred

14 sites of importance to the Muslim and Croat populations.

15 The conditions in many detention centres where Muslims and Croats

16 were held were intolerable, without sufficient food, water, medical care

17 and hygiene facilities. The detainees were often beaten and sometimes

18 raped by members of the Serb forces, some of whom were employed as guards,

19 while others were allowed access to detention centres. Many detainees

20 suffered physical and psychological injuries and health problems. Many

21 detainees died as a result. Many detainees were also deliberately killed

22 by member of the paramilitaries, police or other Serb forces.

23 The Chamber will illustrate the events summarised above through a

24 description of events in the municipality of Zvornik.

25 Zvornik was a municipality with a Muslim majority population. The

1 Serb Crisis Staff mobilised the Serb members of the Territorial Defence in

2 early April 1992. Paramilitary forces, including Arkan's men, Seselj's

3 men, Yellow Wasps and Red Berets began to arrive in the municipality.

4 They had been invited by Branko Grujic, the President of the Crisis Staff.

5 The police in the municipality was divided along ethnic lines. The Serb

6 members of the Zvornik police relocated to Karakaj where the Serb Crisis

7 Staff was located. The Serb police and the paramilitary forces erected

8 barricades throughout the municipality.

9 Serb forces, including members of the police, the Territorial

10 Defence, the Yugoslav People's Army, and paramilitary groups then launched

11 an armed attack against Zvornik town. The Serb civilian population had

12 left town prior to the attack. Zvornik town was taken over by the Serb

13 forces within a day.

14 The Serbian flag was hoisted on top of the main town mosque. Many

15 civilians were killed during the attack and many others fled in fear.

16 After the attack, Arkan's men looted the homes and piled dozens of dead

17 bodies, including the bodies of children, women and elderly persons, on to

18 trucks, more dead bodies lay in the streets.

19 In late April or early May 1992, Serb forces demanded the

20 surrender of the Muslim village of Divic, also located in Zvornik

21 municipality. However, before the deadline for surrender had expired, the

22 Serb forces launched an attack on the town. Approximately a thousand

23 Muslims fled towards nearby village. When some of them later attempted to

24 return, they were turned away by Serb forces. In late May, 400 to 500

25 Muslims from Divic village, including women, children and elderly persons,

1 were forced on to buses by members of the Yellow Wasps and told that they

2 would be taken to Muslim territory. They were released in Crni Vrh and

3 departed on foot.

4 In the beginning of June 1992, Muslim police officers in the

5 Muslim village of Kozluk in Zvornik municipality were forced to surrender

6 their uniforms and weapons to a Serb police officer. Later that month, an

7 attack was launched on the village. A large number of Serb soldiers,

8 Territorial Defence and paramilitary units entered Kozluk in tanks and

9 other military vehicles. Among the Serb forces were Branko Grujic,

10 President of the Zvornik Crisis Staff, and a deputy in the Bosnian Serb

11 Assembly. They informed the Muslim villagers that they had one hour to

12 leave or they would be killed. They also told them that they could not

13 take any personal belongings with them and forced them to sign statements

14 surrendering their property. On the same day, a convoy of vehicles

15 organised by the Serbs transported approximately 1800 persons out of the

16 municipality.

17 In early June, Serbs were seen moving in two villages in Zvornik

18 municipality from which Muslims had been expelled. Most of the 19 Muslim

19 monuments in Zvornik municipality had been damaged or completely destroyed

20 through shelling or by use of explosives during the attacks in April and

21 May 1992.

22 Muslims were placed in detention in several locations in Zvornik

23 and subjected to severe physical, psychological and sexual abuse. In

24 early June, a paramilitary group used spiked metal bars and chains to

25 assault the detainees being held at a facility in the village of Celopek.

1 Some detainees were forced to beat each other, and three were murdered by

2 the guards. The Yellow Wasps paramilitary group killed at least five of

3 the detainees. One man had his ear cut off. Others had their fingers cut

4 off, and at least two men were sexually mutilated.

5 The Karakaj technical school in Zvornik municipality became a

6 detention centre for Muslim men and was guarded by Serb soldiers. Over

7 the course of several days, many of the detainees were severely beaten.

8 About 160 detainees were later removed in small groups and executed by the

9 Serb guards.

10 Incidents like the ones just described also occurred in the other

11 indictment municipalities; namely, Banja Luka, Bijeljina, Bileca,

12 Bosanska Krupa, Bosanski Novi, Bosanski Petrovac, Bratunac, Brcko,

13 Cajnice, Celinac, Doboj, Donji Vakuf, Foca, Gacko, Hadzici, Ilidza,

14 Ilijas, Kljuc, Kalinovik, Kotor Varos, Nevesinje, Novi Grad,

15 Novo Sarajevo, Pale, Prijedor, Prnjavor, Rogatica, Sanski Most, Sokolac,

16 Teslic, Trnovo, Visegrad, Vlasenica, and Vogosca.

17 The Chamber now turns to its legal findings regarding these acts.

18 The Chamber has found that the following crimes committed in the

19 indictment municipalities have been proven beyond a reasonable doubt.

20 Extermination as a crime against humanity was committed against Bosnian

21 Muslims and against Bosnian Croats to a lesser degree, in 14 of the

22 indictment municipalities. Murder as a crime against humanity was

23 committed against Bosnian Muslims and Bosnian Croats in 28 of the

24 indictment municipalities.

25 Having qualified all killings as murder or extermination under

1 Article 5 of the Tribunal's Statute, there is no need to make findings

2 under the alternative charge of murder as a war crime.

3 Deportation as a crime against humanity was proven to have been

4 committed against Bosnian Muslims and Bosnian Croats in 17 of the

5 indictment municipalities, and forced transfer as a crime against humanity

6 was committed in 25 of the indictment municipalities.

7 Persecution against Bosnian Muslims and Bosnian Croats as a crime

8 against humanity was committed in all 35 municipalities through the

9 following acts. The imposition of restrictive and discriminatory measures

10 involving the denial of fundamental rights, murder, cruel and inhumane

11 treatment during attacks on towns and villages and within various

12 detention centres, forcible displacement, unlawful detention, forced

13 labour at front lines, appropriation or plunder of private property and

14 destruction of private property and of cultural monuments and sacred

15 sites.

16 With regard to the charge of genocide, the Chamber finds that in

17 spite of evidence of acts perpetrated in the municipalities which

18 constituted the actus reus of genocide, the Chamber has not received

19 sufficient evidence to establish whether the perpetrators had genocidal

20 intent, that is the intent to destroy the Bosnian Muslim or Bosnian Croat

21 ethnic group as such.

22 We shall now deal with the question of Mr. Krajisnik's criminal

23 responsibility for the crimes just enunciated.

24 On the facts of this case, the Chamber finds joint criminal

25 enterprise to be the most appropriate mode of liability. Therefore, other

1 forms of liability charged in the indictment were not further considered.

2 The Chamber is of the opinion that the existence of a joint

3 criminal enterprise does not presume preparatory planning or explicit

4 agreement among its participants. The Chamber finds that the joint

5 criminal enterprise existed throughout the territories of the Bosnian Serb

6 republic. There was a centrally based core component of the group, which

7 included Mr. Krajisnik, Radovan Karadzic, and other Bosnian Serb leaders.

8 The rank and file of the joint criminal enterprise was based in the

9 regions and municipalities of the Bosnian Serb republic and maintained

10 close links with the leadership in the Bosnian Serb capital of Pale.

11 A joint criminal enterprise can exist and its members may be held

12 liable for crimes committed by principal perpetrators in the

13 municipalities who may not have shared the common objective of the joint

14 criminal enterprise. It is sufficient in such cases to show that their

15 acts were procured by the members of the joint criminal enterprise in the

16 implementation of the common objective. The possibility that one or more

17 principal perpetrators were not aware of the joint criminal enterprise or

18 its objectives does not preclude a finding that the joint criminal

19 enterprise committed crimes throughout the indictment municipalities

20 through such principal perpetrators.

21 The common objective of the joint criminal enterprise was to

22 ethnically recompose the territories targeted by the Bosnian Serb

23 leadership by drastically reducing the proportion of Bosnian Muslims and

24 Bosnian Croats through expulsion. The Chamber finds that the crimes of

25 deportation and forced transfer were the original crimes of this common

1 objective. Mr. Krajisnik gave the go-ahead for the expulsion programme to

2 commence during a session of the Bosnian Serb Assembly when he called for,

3 and I quote, "Implementing what we've agreed upon, the ethnic division on

4 the ground."

5 The criminal means of a common criminal objective may be expanded

6 when leading members of the joint criminal enterprise are informed of new

7 types of crime committed pursuant to the implementation of the objective,

8 when they take no effective measures to prevent recurrence of such crimes,

9 and when they persist in the implementation of the common objective. In

10 this case, the members of the joint criminal enterprise are shown to have

11 intended the expansion of means, since implementation of the common

12 objective can no longer be understood to be limited to commission of the

13 original crimes.

14 Whereas in the early stages of the joint criminal enterprise in

15 which Mr. Krajisnik participated, the common objective may have been

16 limited to the crimes of deportation and forced transfer, the evidence

17 shows that the criminal means of the enterprise very soon grew to include

18 other crimes of persecution, as well as murder and extermination. This

19 expanded set of crimes as detailed in the Judgement came to redefine the

20 criminal means through which the joint criminal enterprise's common

21 objective would be achieved during the course of the indictment period.

22 The evidence does not show that at any time during the indictment

23 period the crime of genocide formed part of the common objective of the

24 joint criminal enterprise on which Mr. Krajisnik is shown on the evidence

25 to have participated, nor that Mr. Krajisnik had the specific intent

1 necessary for genocide. The evidence also does not support the conclusion

2 that Mr. Krajisnik was complicit in genocide.

3 In the Chamber's view, Mr. Krajisnik's overall contribution to the

4 joint criminal enterprise was to help establish and perpetuate the SDS

5 party and state structures that were instrumental to the commission of the

6 crimes. He also deployed his political skills both locally and

7 internationally to facilitate the implementation of the joint criminal

8 enterprise's common objective through the crimes envisaged by that

9 objective. Mr. Krajisnik knew about and intended the mass detention and

10 expulsion of civilians. He had the power to intervene but he was not

11 concerned with the predicament of detained and expelled persons.

12 Mr. Krajisnik wanted the Muslim and Croat populations moved out of Bosnian

13 Serb territories in large numbers and accepted that a heavy price of

14 suffering, death and destruction was necessary to achieve Serb domination

15 and a viable statehood.

16 Therefore, the Chamber finds that Mr. Krajisnik is guilty of

17 commission of the aforementioned crimes through his participation in a

18 joint criminal enterprise.

19 We now come to the sentencing considerations.

20 The Prosecution has requested that Mr. Krajisnik be sentenced to

21 imprisonment for life for the crimes he has committed. In determining the

22 appropriate sentence, the Chamber has assessed the seriousness of

23 Mr. Krajisnik's overall criminal conduct. In this regard, the parties'

24 submissions, as well as other relevant factors, as explained in the

25 Judgement, have been considered.

1 Immense suffering was inflicted upon the victims in this case, and

2 the consequences that the crimes have had on the Muslim and Croat ethnic

3 groups in Bosnia-Herzegovina are profound. The crimes were committed over

4 a long period of time, often through brutal methods with hatred and

5 appalling lack of concern.

6 Mr. Krajisnik's role in the commission of the crimes was crucial.

7 His positions within the Bosnian Serb leadership gave him the authority to

8 facilitate the military, police and paramilitary groups to implement the

9 objective of the joint criminal enterprise. Mr. Krajisnik had a duty to

10 tend to the well being of the entire population as well as a duty to

11 uphold law and order. The population residing in the territory of the

12 Bosnian Serb republic was entitled to expect that the person of

13 Mr. Krajisnik's authority would work to prevent or punish crimes instead

14 of taking part in their commission.

15 The Chamber finds that the following individual circumstances of

16 Mr. Krajisnik should be accorded some, although very slight, weight in

17 mitigation. His lack of prior convictions, his good conduct during

18 detention, his relatively long time in detention before his trial began,

19 his efforts, although limited, during the indictment period, to provide

20 help to non-Serb individuals, and his age and family situation.

21 Mr. Krajisnik, would you please stand?

22 [The accused stands up]

23 For the reasons summarised above, this Chamber, having considered

24 all of the evidence and the arguments of the parties, the Statute and the

25 Rules, and based upon the factual and legal findings as determined in the

1 Judgement, decides as follows.

2 You are found not guilty and therefore acquitted of Counts 1 and 2

3 of the indictment; namely, genocide and complicity in genocide with the

4 intends to destroy, in part, the Bosnian Muslims and Bosnian Croats.

5 You are also found not guilty of Count 6 of the indictment;

6 namely, murder as a violation of the laws or customs of war.

7 The Chamber finds you guilty on the following counts: Count 3,

8 persecution as a crime against humanity; Count 4, extermination as a crime

9 against humanity; Count 5, murder as a crime against humanity; Count 7,

10 deportation as a crime against humanity; and Count 8, forced transfer as

11 an inhumane act as a crime against humanity.

12 Your responsibility for the above crimes is pursuant to

13 Article 7(1) of the Tribunal's Statute.

14 For your role in these crimes, we sentence you, Mr. Krajisnik, to

15 a single sentence of 27 years of imprisonment. You are entitled to credit

16 for the period of time you've been in custody. You were arrested on the

17 3rd of April, 2000, and are therefore entitled to credit of 2.369 days.

18 The Chamber stands adjourned.

19 --- Whereupon the hearing adjourned at 1.43 p.m.

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