1 Thursday, 15 May 2003
2 [Appeal Proceedings]
3 [Open session]
4 --- Upon commencing at 9.03 a.m.
5 JUDGE JORDA: [Interpretation] Madam Registrar, could you please
6 have the accused enter the courtroom.
7 [The appellant entered court]
8 JUDGE JORDA: [Interpretation] Very well. We will resume. Can the
9 interpreters hear me? Very well.
10 Good day to everyone. I will now turn to the Defence, since we
11 will be hearing the Defence now. We'll have a break after an hour and a
12 half -- I don't know who will be starting. You have two and a half hours.
13 We will have a break after an hour and a half. In the name of my
14 colleagues, on behalf of my colleagues, could you concentrate on the
15 essential arguments. I would like to remind you and the Prosecution that
16 we have all your numerous documents, so what is important is that you
17 concentrate on the issues that you consider to be the most important ones.
18 So we are listening to you, Mr. Bakrac.
19 MR. BAKRAC: [Interpretation] Your Honour -- Your Honours, thank
20 you very much. I would first of all like to apologise to the interpreters
21 for what happened yesterday. They were barely able to interpret --
22 [Appeals Chamber confers]
23 JUDGE JORDA: [Interpretation] Yes. My colleagues have pointed
24 this out to me. Are there any other parties in the hearing other than
25 those who were here yesterday? I don't think so. I think we can continue
1 and follow the same order.
2 Yes, Mr. Staker. We have a hearing that has resumed. Yesterday
3 it was suspended. We are continuing with the same parties unless there
4 are any changes. Mr. Staker.
5 MR. STAKER: Your Honour, I would simply for the record note that
6 the Prosecution's case manager for today is Ms. Lourdes Galicia, who is a
7 different case manager to who we had yesterday.
8 JUDGE JORDA: [Interpretation] Very well. That's fine. I'm very
9 glad and I would like to thank my colleagues for pointing this out to me,
10 but I apologise to your colleague for not having noticed her immediately.
11 I hope she will forgive me even if -- when we resume we usually don't have
12 the appearances.
13 So we will resume. We can now start, Mr. Bakrac.
14 MR. BAKRAC: [Interpretation] Your Honour, there haven't been any
15 changes in the very large Defence team, so there is no need for us to
16 introduce ourselves.
17 I really wanted to apologise to the interpreters for what happened
18 yesterday. It was difficult for them to interpret everything that I said.
19 Today I will try and satisfy all three conditions; I will try and state
20 what I consider to be essential without repeating myself, and I will try
21 to do this in a reasonable period of time so that it can be correctly
23 So the first ground of appeal of the Defence is a matter of fact
24 which is of great importance. It concerns the position of Krnojelac, of
25 the accused, the de jure and de facto position in the KPD during the
1 relevant period.
2 When we made this ground of appeal, we did it because we
3 considered that the numerous evidence and the numerous facts that has been
4 presented and their fairly large significance represented a dramatic
5 basis, and on this basis one could claim that not a single reasonable
6 Trial Chamber would be able to reach the conclusion that the accused
7 Krnojelac did have the position as described by the Prosecution -- by the
8 Trial Chamber.
9 Perhaps the Defence in its brief failed to mention this, and that
10 is perhaps due to certain terminological characteristics of the
11 translation. The word "reasonable" which in the mother tongue of the
12 Defence means something that is not rational. So that can also be an
13 offensive term. That is why in our brief we decided to use the term "the
14 errors made by the Trial Chamber," but in our opinion those errors are
15 such that if one uses the language that has been accepted, that has been
16 established in this Tribunal, it is our opinion that the facts had an
17 influence on the Trial Chamber and made them reach a determination on the
18 basis of an erroneous interpretation of facts.
19 So when we say that the Trial Chamber, with regard to this
20 essential basis for determining criminal responsibility, this essential
21 factual basis for determining the accused's responsibility, of course we
22 believe that it is of crucial significance for all the other counts on
23 which the accused has been declared guilty, given that the essence of the
24 discussion with regard to this count is formally and factually concerns
25 the position of the accused. And this position has to be established if
1 we are to be able to establish his criminal responsibility with regard to
2 the counts in the indictment on the basis of which he has been declared
4 The Defence in this first ground of appeal -- the Defence has
5 divided this first ground of appeal into several subgrounds, and I will
6 try to resume this in a very concise way and present arguments for each
8 First of all, we believe that the Trial Chamber concluded
9 erroneously with regard to the unchanged structure in the KPD after the
10 conflict had broken out. And also, it made a mistake with regard to the
11 authority of the warden within the KPD. We believe that, given all the
12 circumstances that the Trial Chamber has dealt with, given all the
13 circumstances of the specific period and the specific location in
14 question, the Defence believes that it would be logical to conclude that
15 the authorities and the functioning of the KPD in peacetime, before the
16 conflict broke out, could not continue after the conflict broke out. In
17 other words, there must have been a change.
18 We believe that the Trial Chamber made a mistake when it decided
19 that it wasn't convinced that the authority of the warden within the KPD
20 had changed in a significant manner after the conflict broke out. And in
21 our written submissions, we have also tried to present all this evidence,
22 all this voluminous evidence, which directly shows this and enables us to
23 establish that the Trial Chamber did not reach a reasonable conclusion
24 when they decided that the authority of the warden did not change, that
25 the authority the warden had was the same.
1 So the arguments of the Trial Chamber that the accused, by the
2 Ministry of Justice on the 17th of June, 1992, was appointed as warden
3 without any restrictions, this conclusion is erroneous and has been
4 considered from a one-sided point of view.
5 The Trial Chamber considered that the accused was appointed by the
6 Ministry of Justice as warden. That is not in dispute. But when he was
7 appointed, and that consisted of just one sentence, there is no specific
8 description of his authorities. And for this reason, the Defence
9 presented other evidence which directly and indirectly determines the
10 scope of his authority and the scope of his duties, the scope of the
11 accused's authority and duties. So there is evidence that the accused was
12 appointed as the KPD warden by the Ministry of Justice. He wasn't
13 appointed by the military authorities. He wasn't appointed by the police
14 authorities. He was appointed by the Ministry of Justice of Republika
16 When we relate this information to what the Trial Chamber found
17 and established in this decision on appointment, the scope of his duties
18 and authority has not been specified. As support for this, the Defence
19 refers to the exhibit of the Prosecution, P2, and Defence Exhibit D85.
20 And I have to admit -- just allow me to digress for a minute.
21 This would also be a response to the question put by Judge Guney yesterday
22 with regard to the positive authority that the accused had, and I think it
23 is my right to explain something with regard to this question and
24 Judge Schomburg's question, to explain something to which the Prosecution
25 provided an explanation in its brief.
1 If we are talking about the document P2 that was obtained by the
2 Prosecution, it quite clearly and unambiguously states -- and that's a
3 report which the warden who came after Milorad Krnojelac forwarded to the
4 Ministry of Justice for the needs of this Tribunal, and there he states
5 that part of the KPD, and he mentions the number of the decision, the date
6 of the decision, part of the KPD that was -- were used earlier on - and
7 they used this term "earlier on," so that means the continuity has been
8 interrupted - the purpose of it was for the detention of those who had
9 been convicted. That included the kitchen and the hospital. And it had
10 been handed over to the commander of the Tactical Group Foca, to the
11 military authorities.
12 What is also important, and this is something stated further on in
13 the text, it states that on the basis of that contract, that agreement,
14 the commander of the Foca Tactical Group designated those who would be
15 responsible for certain duties and tasks. And they had nothing to do with
16 the civilians. They were not related to the civilians who were engaged in
17 work in the KPD. So this document quite clearly shows that there was a
18 sort of duality within the KPD, a sort of division. It says very clearly
19 in this document that it was leased to the military authorities and that
20 the military authorities designated people who would be responsible for
21 certain tasks. And later on, we will rely on other documents to show that
22 this concerns the guards too who were guarding convicted people. And
23 those people appointed by the military authorities were not connected to
24 the civilians who worked in the KPD. So this report shows that in
25 addition to the military personnel, those appointed by the military
1 authorities, there was civilians and there was no connection between the
3 In our belief, this proof is sufficient to show that there was a
4 sort of duality as far as the functioning of KPD is concerned. And the
5 accused mentioned this in his interview before the beginning of the trial,
6 and there is other evidence that supports the claim that this was the
7 reality on the ground.
8 So in order to legally support such a finding, such a position on
9 the part of the Defence, it's important, and I would like to add that this
10 is also a response to a question put yesterday, the question as to how D85
11 exhibit should be valued, this exhibit, Defence Exhibit D85, is a report
12 of the ward -- of the warden to the Ministry of Justice. It's a report
13 about personnel, about the duties that they had, and it is quite possible
14 to reach a certain conclusion as to the scope of the accused's duties, as
15 to the positive authority that the accused had.
16 If this report is analysed, then it is peculiar from the contents
17 of the document that the warden, and the accused signed the report, makes
18 a distinction between the KPD workers who were, first of all, in the
19 report, and this was supported by many witnesses of the Prosecution. It
20 was clearly established that about 27 persons both of Serbian and Muslim
21 nationality were still staying in the KPD, and they were serving their
22 sentences there, but they didn't take advantage of the opportunity to
23 leave the KPD when the conflict broke out.
24 So there were 27 persons who were serving a sentence, serving
25 their sentences, and that was the reason for which the institution had
1 been established. Even before the conflict, it functioned as a KPD in
2 which there were convicted persons serving their sentences. There was
3 still people there who were under the Ministry of Justice.
4 The accused in his interview and other evidence too shows that he
5 was responsible for those persons. The persons were the responsibility of
6 the Ministry of Justice. And the report that the Defence is referring to
7 shows that the accused was responsible because he only mentioned and
8 reported facts about these people, because the other detainees of Muslim
9 nationality were the responsibility of the military authorities. And
10 there is other evidence to support this claim.
11 I will turn to that evidence later on. I won't concentrate on it
12 for a long period of time given the time restrictions, but it has is all
13 been mentioned in the Defence's brief.
14 In addition to this report to the Ministry of Justice which shows
15 who the accused Krnojelac was responsible for, in this document it can
16 also be seen what his other responsibilities were, and that relates to
17 taking care of the KPD property, because the KPD was the property of the
18 Ministry of Justice. The second part of the accused's authority, and that
19 involved taking care of those who were serving their sentences. And we
20 will see in -- this also concerned a semi-open system of serving a
22 His duties also included guarding, taking care of the property
23 that was the property of the Ministry of Justice whose employee he was.
24 In the course of the proceedings, it has also been shown that even
25 before the conflict broke out in the Foca territory, the KPD had an
1 economic unit, the name of which was Drina. This was a significant
2 economic factor in peacetime in that area.
3 Now, we've also seen, on the basis of voluminous evidence that the
4 Defence relies on that one of the task of the accused involved taking care
5 of this property, repairing the damage caused by the shelling of the KPD,
6 and also by animating the Drina Economic Unit which was in fact the only
7 economic unit in wartime conditions which was in a position to feed, to a
8 certain extent at least, the detainees and the people, the inhabitants of
9 the town of Foca.
10 When we analyse this report, it is clear from the report that
11 these detainees, that is to say the people, the persons who were serving
12 their sentence, who were mostly involved in the farm of the KPD which was
13 about six kilometres away from the KPD, and they were in a
14 semi-open -- they had a semi-open system of accommodation, and the accused
15 was also responsible for that farm as an employee of the Ministry of
17 In the report, it is clear that there were six problematic cases
18 within the grounds of the KPD, people who had earlier on been convicted
19 for alcoholism, for drug abuse, and for those reasons, they were not able
20 to be on the farm.
21 Is it possible in wartime conditions when there is a lack of
22 essentials, would it be possible for the accused to organise a special
23 sector or special security for six individuals who were serving their
24 sentence in semi-open conditions? It's quite clear that those six
25 individuals should be detained in the part that is under the command of
1 the military authorities and that they shouldn't have a special security
2 system or special kitchen organised for them. As it states in the report,
3 they were placed in that part because of alcoholism, because of drug
4 abuse, and so on.
5 So with all due respect, this has caused confusion among the
6 Prosecution, and this is why they have stated that there was unified guard
7 system. The Defence thinks that there is a lot of evidence and a lot of
8 testimony that shows that these workers were workers who were sent by the
9 army to the KPD, and the first -- the Trial Chamber's -- the first
10 instance judgement shows that these people spent part of their time
11 standing guard and part of their time -- and another part of the time was
12 spent by going to the front. So they had divided duties. This will be
13 something to support the Defence's claim that the accused was not the
14 superior of these people who were not employed by the Ministry of Justice.
15 They didn't fall under the responsibility, under the command of the
16 accused. They didn't come under his responsibility.
17 The Defence provided other evidence that supports this claim. The
18 letter from the Executive Committee in which they required material for
19 repairs to the roof, for locating vehicles for the KPD, this evidence
20 shows the scope of the accused's duties. It shows what he was involved
21 with in the course of his work, which was from 7.00 to 3.00 p.m. Those
22 are the usual working hours for such a person but not the usual working
23 hours for the commander of a camp in which there were Muslim detainees.
24 By itself, this shows that such a claim, such a position on the part of
25 the Trial Chamber cannot be supported.
1 The Defence also included in its exhibits a number of travel
2 orders in which it states - and they were signed by Krnojelac - it says
3 the warden, the director of the economic unit. And these travel orders --
4 these travel orders also included a description of the duties, of the work
5 carried out by the accused and the reason for which so many trips were
6 made by the accused. And doesn't this show, together with all this other
7 evidence, what the responsibilities of the accused were?
8 So if we compare this to the findings of the Trial Chamber
9 according to which there were no changes to the structure in the KPD and
10 that therefore he was in a position of authority and in a position of
11 responsibility, it is our belief that some other reasonable Trial Chamber
12 would not be able to reach such a conclusion on this basis. These travel
13 orders that the Defence has included in its exhibits come from various
14 periods during his -- during the time Milorad Krnojelac spent in the KPD.
15 In addition to what the Defence claims, we would also like to
16 refer to Exhibit -- the Prosecution Exhibit P3, which included a list of
17 people who had work and obligations to carry out in the KPD. And this
18 list shows - and Prosecution witnesses of Muslim nationality have also
19 mentioned this, Muslim individuals who worked in the KPD earlier on - this
20 shows that until the conflict broke out, the KPD had a warden, had a
21 manager of the economic unit Drina, Milenko Simovic, and Exhibit P3 shows
22 that from August 1993, Radojica Tesovic, who was in May -- who was in the
23 KPD from May, became the director of the Drina Economic Unit. So it is
24 clear according to this list and all the other evidence that during this
25 period from the time when the conflict broke out up until the time that
1 Milorad Krnojelac left the KPD, there was no economic unit.
2 With all this evidence, with all these travel orders, with all the
3 indications in travel orders of his post, manager of the Drina Economic
4 Unit, manager of the enterprise and so on and so forth, shows once again
5 that during the relevant period indicated in the indictment, that is what
6 Milorad Krnojelac was responsible for.
7 I am talking about all this because I think it is absolutely --
8 should be accorded preference for all the other counts of indictment in
9 terms of chains of command and possible other omissions which could see --
10 which speak of a significant support and aid to perpetrators of crimes,
11 because the time, the hours that the accused spends in the penitentiary
12 are of major importance with regard to what the Prosecution spoke about,
13 alarming information, and his liability under counts which the Defence
15 Therefore, for all these reasons, and if we look at it from the
16 point of view of a war conflict in a small and poor locality, it is quite
17 clear that the structure in the penitentiary did not go on unchanged, nor
18 -- or that Milorad Krnojelac at -- in wartime had the same powers as the
19 warden will have in peacetime.
20 We also think that the Chamber erroneously concluded that he
21 accepted the duty of a warden of his own free will. We addressed the
22 nature of his duties and the jobs he carried out, and we, however, also
23 think that the Trial Chamber made a mistake in this instance too.
24 The Trial Chamber, when making this conclusion, speaks of two
25 grounds which make it arrive at that particular conclusion. The first is
1 that there are two persons who refused the job and suffered no
2 consequences whatsoever. They are Radojica Tesovic and Veselin Cancar.
3 When speaking about these two persons, we believe that the Trial
4 Chamber should not rely on this type of evidence. First, from the
5 Prosecution's Exhibit P3, we clearly see that from -- that Radojica
6 Tesovic is in the penitentiary as of May 1993 when the warden has already
7 been appointed, and the Prosecution's witness testimony shows that
8 Radojica Tesovic left Foca for Crna Gora with a certain number of persons
9 of Muslim ethnicity. So at the time when people are being assigned to
10 labour obligations, we clearly see that at least one person, Radojica
11 Tesovic, is not in Foca any more.
12 As for the other person, Veselin Cancar, the Trial Chamber draws
13 the conclusion that he refused the job from the statement that he gave to
14 the cantonal court in Sarajevo. The Defence challenges that statement
15 during the proceedings. The Prosecution intended to call that witness for
16 cross-examination as to that fact, however, he refused to do that and so
17 that person was not called here to testify and be cross-examined.
18 The Defence tried since the Criminal Proceedings Act changed, but
19 the new law on Bosnia-Herzegovina took over the SFRY legislation. We
20 tried to see that under that law, the accused had the right to defend
21 himself before the Court and -- because he is not a witness who was sworn
22 in this case and therefore was not bound to speak the truth.
23 The Defence, we admit, did not present a set of Bosnian laws which
24 would be applicable in this case, but nevertheless, we thought we should
25 draw the attention of this Appeals Chamber to this because we are talking
1 about one's act of free will or not as the question which arose is whether
2 on the 16th of April, 1992, the accused Milorad Krnojelac knew that
3 Radojica Tesovic was there, or Veselin Cancar. Did he know that those two
4 individuals refused the offer and suffered no consequences for it?
5 Because it is only on that basis that we can determine or perhaps draw a
6 parallel between an act of his own free will and the acts of free will of
7 those two -- those two other individuals, because the condition that has
8 to be established is that at the time when he was assigned to this labour
9 obligation, that at that time he knew of what we have just spoken about.
10 And finally, if we accept the principle that is propounded by the
11 constitution as to one's free will, then we can also resolve to the same
12 kind of argument. The Defence, therefore, refers to Exhibit -- to an
13 exhibit it produced to show that the labour obligation was practically a
14 combat assignment, a wartime assignment under the conditions of an armed
16 The labour assignment, and I believe this holds true over the
17 majority of countries, is something that is mandatory, something that is
18 compulsory, something which if not obeyed, if not complied with, may lead
19 to imprisonment or detention.
20 The Defence has produced evidence to this effect showing that it
21 was a labour obligation which practically meant -- which was tantamount to
22 a wartime assignment under the conditions of an armed conflict.
23 Likewise, to draw a parallel, that is, this act of free will stand
24 corroborated by the fact that in 1993, the accused requested to go back to
25 his teaching job. And from the point of view of the Defence deems it
1 untenable because one cannot draw a parallel between that particular
2 moment when the armed conflict broke out, when fighting broke out and when
3 you are therefore under a labour obligation as your wartime assignment,
4 and 1993, that is 15 months later, because the circumstances changed.
5 They were bound to. And therefore, it also had to affect the state of
6 mind and one's thinking whether now one could perhaps look for another job
7 without any adverse consequences. And evidently, the accused deemed that
8 that was the case, and he asked to be allowed to go back to his old job,
9 that is, the instruction of mathematics. He's been a maths teacher all
10 his life. And therefore, he is a person of an age of which he is, and at
11 that time, perhaps he was seen as a person who could manage an economic
12 enterprise, an economic unit.
13 So, as far as I'm concerned with regard to this subground of
14 appeal (C) we think the Trial Chamber erred with regard to the chain of
15 command or the hierarchy which reigned in the KP Dom. It has been
16 established beyond a doubt and the first instance judgement also speaks of
17 a contract, a contract whereby the KP Dom was leased. Perhaps that
18 document does not look like an international contract, but it is beyond
19 any doubt a contract between two parties. Were Milorad Krnojelac,
20 anywhere in the chain of command of the military authority, well, in that
21 case he wouldn't have been concluding a contract with a superior
22 commander. He would have been simply issued an order to put a particular
23 part of the KP Dom in the proper service. A contract always means that
24 there are two parties. There are two counterparts. It does not presume a
25 chain of command. And I believe that this is self-explanatory.
1 Alongside all the other evidence showing that the authority or the
2 detained Muslims arrested with the army.
3 When one reads carefully this agreement which is not long, one
4 sees that the military authority is duty-bound to use those facilities, to
5 look after them, and to then return them in -- as they were before after
6 the use. Also, the exhibit of the Prosecution, P2, speaks about the
7 buildings where the detained persons are kept, the kitchen and the
8 infirmary. And this is also important when it comes to determining the
9 responsibility of the accused.
10 To corroborate this conclusion at which the Defence has arrived,
11 we also produced our Exhibit D39, which is applicable to this. This is a
12 report on the prisons within the ministry -- under the Ministry of Justice
13 of the Republika Srpska which says that the district prison in Doboj is
14 faced with an identical situation because the report of the person from
15 the Ministry of Justice, it says that the district prison in Doboj has
16 been ceded to the army for the accommodation of prisoners of war with the
17 clear reference that the security in that prison is in the hands of the
19 So amongst the exhibits we have the report of the Ministry of
20 Justice which refers to the northern part of Bosnia, that his presence in
21 the northern part of Bosnia and where we see that Doboj is yet another
22 establishment where the same principle is applied, that is that part of
23 that penitentiary is leased to the army and the army undertakes to provide
24 the security, that is, guards and all the rest goes with it.
25 Now, in view of the time we have at our disposal and in view of
1 the importance of that particular fact, I'd like to address the statement
2 of a witness for the Prosecution which shows unambiguously that in
3 addition to this formal de jure relationship which we tried to show and
4 which also shows the factual authority, that is, who had the factual
5 authority in the penitentiary.
6 A witness for the Prosecution, FWS-86, in his testimony before the
7 Court, says that the factual authority over the prisoners of war was in
8 the hand of a military group which before that, as part of the
9 Uzice Battalion and subsequently the Livade Company within -- of the
10 technical group of Foca. So the Witness 86 says that in the early days of
11 the conflict when that witness was brought to the KP Dom from Milorad
12 Krnojelac who happened to be there, he asked him to leave the KP Dom for
13 a -- for a while. And the gist of the answer of the witness shows that
14 Milorad Krnojelac was not the one who could decide that, that he had to
15 ask the military commander who was responsible for that and to ask him.
16 And the condition was that Milorad Krnojelac's son should go with that
17 person in order to ensure that he would come back. So this witness also
18 shows who had the factual power. Because if we agree that in peacetime
19 the warden has no authority to either lock people up or let then go, but
20 he does have the authority to allow a prisoner to go somewhere outside the
22 To corroborate this argument, we have another testimony of another
23 witness for the Prosecution, and that is the manager of the Maglic
24 Company, Dzevad Lojo who very clearly and unambiguously said that he had
25 asked, because he had known the accused before the war, that he had asked
1 for a meeting with him. A soldier took him to him, and then the
2 soldier -- during that conversation, a soldier wearing a camouflage
3 uniform entered the office during the conversation, interrupted -- kept
4 interrupting them to make it clear to them that that conversation was not
5 particularly allowed and it had to be ended.
6 Now, my question is which warden, with all the prerogatives of
7 power in peacetime conditions can hypothesise such a situation, that a
8 soldier in military uniform enters the warden's office, butts into the
9 conversation, says that such a conversation is not allowed and makes him
10 interrupt that conversation? If we know what the prerogatives of a warden
11 are, if we know what a warden is, perhaps he's not the person who can
12 detain and set free persons, but surely he is at liberty to talk with
13 persons who are in detention at his prison. Can you imagine a situation
14 where -- when a guard tells the warden that he is not allowed to talk to a
15 detainee and that this conversation is to be cut short? I think that this
16 clearly shows the factual authority or, rather, the absence of the factual
17 authority of Milorad Krnojelac. I think this evidence is quite sufficient
18 to show that he did not have that factual authority.
19 So insofar as the chain of command is concerned, the Trial Chamber
20 erred when it concluded that the chief of guards, Mitar Rasevic and deputy
21 warden Savo Todovic, that they were still accountable to the warden and
22 that the warden still had the powers which he used now and then to launch
23 disciplinary measures against his subordinates who did not treat detainees
25 The Defence wishes to draw the attention to the already mentioned
1 Prosecution's Exhibit P3, and perhaps it was due to a mistake of the Trial
2 Chamber that it was not concluded that Savo Todovic became an assistant
3 deputy of the warden for legal and financial matters in August 1993, that
4 is, this exhibit clearly shows that be it as a deputy or be it as an
5 assistant, but he nevertheless begins to work there in August 1993, even
6 though he is there as of May 1993.
7 The report which was produced by the Prosecution, we see that
8 nobody knows what his position is until August 1993. One assumes that he
9 was in the penitentiary, but he was appointed deputy warden only as late
10 as August when Milorad Krnojelac left the KP Dom.
11 So when we look at this exhibit with all the information, all the
12 data concerning persons who work in the KP Dom and when we juxtapose it
13 with the testimony of a witness who was heard before this Tribunal,
14 Witness Dolas, who explicitly, directly talks about his experience, about
15 his firsthand knowledge about what he saw with his own eyes when he worked
16 in the headquarters of the Hercegovina Corps.
17 So this firsthand eyewitness says that Savo Todovic himself told
18 him on one occasion that he was the commander, that he was the -- that he
19 was Muslim prisoners' commander, the commander of those Muslim detainees
20 who were in the KP Dom. This witness, Radomir Dolas, says how when he
21 worked in the personnel department of the command of the Foca Brigade how
22 he had found a document there and seen a document there clearly showing
23 that General Paprica, the brigade commander, had sent --
24 JUDGE JORDA: [Interpretation] I'm sorry. I wish to remind you
25 that we are not reopening the hearing here. We are not reopening the
1 debate. You should not speak about things that were already discussed
2 before the Chamber. What you have to do is draw certain conclusions. It
3 is perhaps sometimes difficult to draw -- to make the distinction. The
4 Chamber, however, reminded you yesterday about the conditions and what
5 does it mean to work in -- before a Chamber of Appeals, which is not the
6 same as a Trial Chamber. So will you please remember that.
7 MR. BAKRAC: [Interpretation] Thank you, Your Honours. My
8 apologies. I will try. I merely wished to acquaint the Appeals Chamber
9 with the facts by referring to exhibits. But I will try to avoid that in
10 the future.
11 So there is ample evidence which in one way or another points in
12 that direction, and we have already indicated them in our appeal brief.
13 There is ample evidence showing that the accused had no factual authority,
14 not even, we think, the de jure authority, that he was in no way
15 responsible for persons who were kept in that part of the KP Dom or that
16 he had any authority over the prison guards.
17 The Defence also reminds, and of course I'm not going to analyse
18 it in view of what His Honour the President has just said, but the Defence
19 has also produced numerous exhibits showing lists of exchanges, lists for
20 exchange signed by Marko Kovac, showing who will be released, who will be
21 exchanged. There are other orders signed by the commander of the Tactical
22 Group. We also produced evidence to show that this self-same commander of
23 that Tactical Group issued the permits to visit somebody in detention.
24 That is, there is simply no evidence to show the factual authority, the
25 factual authority of the accused Milorad Krnojelac over the persons of
1 Muslim origin. There is absolutely no exhibits to show that he had any
2 effective control or any effective power to do anything in that regard.
3 When we speak about the factual and formal powers of
4 Milorad Krnojelac in the KP Dom, then I think it is necessary, and I'm
5 saying -- I'm not going to go back to that. I merely comment on what
6 we've already extensively shown in our brief, and that is that numerous
7 witnesses of Muslim origin who were detained in the KP Dom and who were
8 called by the Prosecution, they were indirect witnesses. They had the
9 first hand experience. And we heard them use expressions because they
10 tell us about their impressions. And so they say Milorad Krnojelac was
11 just a paper commander, or Milorad Krnojelac was de facto warden. Power
12 over us, the authority over us, was in the hands of Savo Todovic, was in
13 the hands of the military command.
14 No, I'm sorry. I said de facto and I said de jure, that he was
15 the commander merely de jure but that the actual authority over them had
16 the military command, and the military command was responsible for them.
17 So the Defence does not dispute that the accused Milorad Krnojelac
18 had the title of a warden, but I think it did not suffice to allow the
19 Prosecution to establish his factual control or authority over the
20 prisoners of Muslim -- of Muslim ethnicity or over persons who are charged
21 with war crimes as direct perpetrators of crimes.
22 When we talk about persons who are charged as direct perpetrators
23 and who are charged under 7(3) of the -- and -- and for which Milorad
24 Krnojelac is accused under 7(3) as their superior, we do not think
25 that -- we think it is untenable, because any reasonable Tribunal of fact
1 must have been clear that such hierarchy was absent, such chain of command
2 was absent. They must have remembered that those persons, and we have
3 documents to show it, that they were persons who were assigned to
4 particular jobs by the military, and it was the military, the army
5 responsible for those persons. I'm referring to all those who were on
6 guard duty. And of course I'm not going to go back to all the exhibits
7 that we indicated in our brief.
8 Therefore -- so it is a telling fact that Muslim detainees during
9 the case, during the proceedings, pointed out that they lacked
10 information, that they were not fully cognisant of the true state of
11 affairs, and yet nevertheless, on the basis of their own observations,
12 they came to conclusions that Milorad Krnojelac was merely a paper warden
13 and that somebody else was responsible for them. And I should say that
14 this should have been an alarming information for the Trial Chamber,
15 necessitating the establishment of the true state of affairs in a
16 different manner.
17 Your Honours, if -- with your leave, if you have no questions in
18 this regard, I would conclude with this, and, of course, once again I
19 would refer to my appeal brief in which all the evidence and all the
20 exhibits that I've touched upon are addressed in detail.
21 We believe that if we take all this evidence altogether --
22 together and severally, all of this evidence can lead to only one
23 conclusion and one conclusion only, that Milorad Krnojelac is not
24 responsible for what went on in the Foca KP Dom.
25 And now I'd like to move to ground 2 in the appeal brief of the
1 Defence unless you want me to give you some additional explanations.
2 JUDGE SCHOMBURG: I take it that it's your position that no
3 reasonable trier of fact could come to the conclusion that Mr. Krnojelac
4 was in fact the warden, and as you stated, you called him a paper warden.
5 Could you please be so kind and explain what, based on your opinion, what
6 would be the conclusion of a reasonable trier of fact based on the
7 evidence from both sides during trial, what was his real role? Do you
8 dispute he was there for 15 months? And what is, in your opinion, the
9 work or what was the work of the accused when he spent these 15 months in
10 KP Dom? What would you expect from the reasonable trier of fact?
11 MR. BAKRAC: [Interpretation] Your Honours, with all due respect,
12 it is my opinion that it is precisely this entire body of evidence that
13 indicates that the KP Dom, apart from holding Muslim detainees, had
14 certain capacities with an economic function. We have also demonstrated
15 that the KP Dom had under its jurisdiction also 27 persons serving regular
16 prison sentences. I therefore believe that based on this evidence, it
17 would have been reasonable to determine, to find that the accused had no
18 powers or jurisdiction over those other persons precisely because all the
19 evidence and the exhibits that we have referred to.
20 So, it is precisely the evidence that demonstrates that his duty
21 and his function was to manage the economic unit, to manage that economic
22 unit which even before the outbreak of the conflict was an important
23 economic entity in Foca and continued in that role after the conflict
24 broke out. Apart from managing the economic property and the economic
25 unit which was the property of the KP Dom although it was physically
1 leased, that economic unit continued to function and those 27 persons
2 serving their regular prison sentences had been under his jurisdiction
3 even before the outbreak of the conflict, and that was the essence of his
4 duties in the course of those 15 months. I believe the entire body of
5 evidence presents sufficient ground for such a finding.
6 JUDGE SHAHABUDDEEN: Mr. Bakrac, you said, looking at the
7 evidence, that it would have been reasonable for the Trial Chamber to find
8 that your client did not have the authority in question. What my
9 colleague Judge Schomburg put to you was this, that that was not really
10 the question. The question was not whether it was reasonable for the
11 Trial Chamber to find as it did but whether any reasonable Trial Chamber
12 would have found otherwise.
13 Now, take the evidence relating to a soldier telling the warden
14 that he was not allowed to talk to a detainee and that the conversation
15 was to be cut short. Now, you could argue from that that it showed that
16 your client didn't have the authority in question. But was it open to the
17 Trial Chamber to find otherwise? The Trial Chamber might have found that
18 the soldier was not ordering the warden to discontinue the conversation
19 but that the soldier was only reminding the warden of the proper position.
20 What you have to argue is that the latter was not a conclusion which could
21 have been drawn by any reasonable Trial Chamber.
22 MR. BAKRAC: [Interpretation] Your Honours, with all due respect,
23 it is just the opinion of the Defence, and it is subject to your
24 assessment and review. That is why we are here.
25 I believe it would be really illogical and unusual for a simple
1 guard to be reminding in such an insolent, I would say, way a warden about
2 what is and what isn't permitted. I believe it is absolutely illogical
3 under any legal system, and I think that it shows the absolute absence of
4 actual control, actual power or actual superiority over such a person as
5 this soldier.
6 And if you allow me to add, I am not relying on one single
7 exhibit. On the contrary, I have suggested that all the exhibits that I
8 have referred to be viewed in combination. And it was a remark made by
9 the Prosecution, which we accept, that one single exhibit, one single
10 piece of evidence cannot demonstrate the real factual situation. That is
11 why we suggested the entire body of evidence be viewed in its entirety.
12 JUDGE SHAHABUDDEEN: Thank you, Mr. Bakrac.
13 JUDGE JORDA: [Interpretation] Very well. If there are no other
14 questions from my colleagues, we can move on to the second ground of
16 MR. BAKRAC: [Interpretation] The second ground of appeal indicated
17 by the Defence is the individual responsibility of the accused under
18 Article 7(1) of the Statute of this Tribunal for aiding and abetting the
19 crime of persecution as a crime against humanity based upon imprisonment
20 and inhumane acts relating to living conditions.
21 We believe that the Trial Chamber has erred in the application of
22 law and in finding of facts when it found that the accused was
23 individually responsible under Article 7(1) for aiding and abetting
24 persecution as a crime against humanity based on imprisonment and inhumane
25 acts related to living conditions.
1 In its judgement, the Trial Chamber set out conditions for
2 responsibility under Article 7(1) of the Statute and of individual
3 responsibility under Article 7(3) of the Statute. And the Defence would
4 not like to reiterate the standards set out by the Trial Chamber in its
6 We believe that in making this erroneous conclusion, the Trial
7 Chamber mainly relies upon and analyses only one of the essential elements
8 for finding of this crime, that the Trial Chamber namely relies on the
9 fact that the accused Krnojelac, as everyone else in the KP Dom, must have
10 clearly understood that the main perpetrators of detention of Muslims and
11 other non-Serbs had the intention of discriminating against these persons
12 on religious and political grounds.
13 However, the objection of the Defence would be that the Defence --
14 the Trial Chamber does not determine in a clear and unequivocal way that
15 the accused was aware that his acts contribute to the commitment of the
16 criminal act in question. The standard that should be applied, in my
17 opinion, to find responsibility on this count, namely aiding and abetting,
18 requires the existence of acts and omissions which constitute material
19 assistance or support to the perpetrator in the commission of the crime.
20 Also, participation and involvement in all this, in the opinion of
21 the Defence and according to the established standards of this Tribunal, a
22 participant or a supporter, that is the aider or abettor, must have
23 significance influence on the commission of the crime, and his aiding and
24 abetting must be real, actual, and substantial for the commission of the
1 Also, with reference to mens rea for aiding and abetting, it is
2 essential that there be an intention to commit a crime or at least an
3 awareness or a willingness to accept that the commission of the crime
4 could be a possible consequence of one's acts or omissions.
5 We believe that these standards for finding aiding and abetting in
6 this case of the accused Krnojelac have not been determined clearly, and
7 the conditions clearly set out for finding his criminal responsibility on
8 this ground have not been met.
9 So what are the acts and omissions that would have had substantial
10 importance in aiding or abetting the perpetrators? In addition to
11 establishing that, we believe it was essential to clearly establish the
12 intention and willingness to aid and abet the perpetrators. We believe it
13 is particularly necessary for the Trial Chamber to clearly and
14 unequivocally identify the acts and omissions of the accused that
15 significantly contributed to the perpetration of the criminal act upon
16 discriminatory basis. We're speaking about the criminal act of
18 In the case law of this Tribunal, we think that it has been
19 clearly established and accepted that, as far as mens rea is concerned, a
20 certain quality of mind set of the accused has to be more clearly shown.
21 Invoking the case law, we further believe that the appeals judgement in
22 the Kupreskic case established that aiding and abetting the perpetration
23 of the crime of persecution requires one to prove that the accused has
24 committed specific acts required to commit this crime or to support its
25 commission. These acts also must have a significant influence on the
1 commission of the crime of persecution, and the accused must, in addition,
2 be aware that his acts contributed to persecution.
3 In view of this ground of appeal and in view of the responsibility
4 of the accused in aiding and abetting the criminal act of persecution as a
5 crime against humanity, the Trial Chamber has not clearly and
6 unequivocally established the responsibility of the accused, and we
7 believe that a person who has been found in the judgement to lack a
8 discriminatory mindset cannot be found at the same time to be an aider and
9 abettor of discriminatory acts.
10 Thus this begs a certain question. The Defence believes that the
11 judgement of the Trial Chamber does not demonstrate which perpetrators of
12 this crime Milorad Krnojelac significantly influenced by identifying his
13 particular acts and omissions, especially if we bear in mind that even the
14 Trial Chamber accepts that the accused Krnojelac had no participation or
15 involvement in the act of imprisonment itself.
16 Viewed through the --
17 JUDGE JORDA: [Interpretation] Judge Agius has a question.
18 JUDGE AGIUS: Yes. Before you proceed on this particular point,
19 because I think you're not being fair to the judgement of the Trial
20 Chamber. I refer you specifically to paragraphs 318 and 319 of that
21 judgement. The Trial Chamber did make a very clear distinction between
22 certain guards of the KP Dom for whom your client was held to be
23 responsible and other guards which were not under his direct command for
24 whom he was not held to be responsible. And if you refer again to
25 paragraph 318 of the same judgement, you see indicated in four
1 subparagraphs numbered with Roman numbers i to iv -- i to v, the
2 particular reasons on the basis of which the Trial Chamber decided that
3 your client was responsible for having precisely aided and abetted those
4 guards for whom he was responsible as far as the alleged crime of
5 imprisonment is concerned.
6 What you have to do state about that?
7 MR. BAKRAC: [Interpretation] Your Honours, of course I have read
8 the judgement of the Trial Chamber, but in the humble opinion of this
9 Defence counsel and in view of the standards that I have referred to, such
10 findings are in our view insufficient to find the accused guilty of aiding
11 and abetting these crimes precisely because we are talking about the crime
12 of persecution which has a different mens rea to all the other criminal
13 acts where in view of the Defence the aider and abettor must share the
14 mens rea of the perpetrators. The aider and abettor almost shares in the
15 crime itself.
16 It is, as I've already said, the humble opinion of this Defence
17 counsel, and it is precisely speaking about the crime of persecution that
18 these findings are not sufficient for a finding of guilt. Thank you.
19 I would conclude on this note my argumentation on the erroneous
20 finding of guilt of the accused for aiding and abetting the crime of
21 persecution, and in addition to all the other evidence during the trial,
22 the Defence also provided an expert report demonstrating that the general
23 economic conditions in Foca at the time were very poor, very poor indeed.
24 I'm trying not to sound ironical. I respect everything that has been
25 established and the suffering of the victims, but if we look at other
1 camps, it has been established that in this camp three meals a day were
2 provided. Again, I do not wish to sound ironical in the least, but
3 efforts were made to provide a minimum of food and a minimum of hygiene.
4 And we have, I believe, presented evidence that such efforts were indeed
6 So this consciousness, awareness of discriminatory intent related
7 to living conditions is very difficult to prove, and we believe that it
8 has not been proven beyond reasonable doubt that the accused had the mens
9 rea required for a finding of guilt of aiding and abetting persecution,
10 and we believe the finding of the Trial Chamber is erroneous.
11 And if you allow me, I will move on to the third ground of appeal.
12 JUDGE JORDA: [Interpretation] Judge Shahabuddeen.
13 JUDGE SHAHABUDDEEN: I was interested in your proposition that an
14 aider and abettor who shares in the intent of the principal parties almost
15 shares in the crime itself. The point which is preoccupying me is this:
16 Where do you draw the line, then, which separates the aider and abettor
17 from the principal?
18 MR. BAKRAC: [Interpretation] Your Honours, the distinction
19 certainly must exist. When speaking of that, I didn't mean at all that
20 this awareness, the intent and the willingness has to be of a scope that
21 amounts to acceptance of the crime itself, but the Defence reasons with
22 regard to aiding and abetting that if you support, aid somebody and abet
23 them, we -- you have to share somebody's discriminatory intent.
24 The distinction, of course, exists, but this standard for
25 establishing responsibility under Article 7(1) for aiding and abetting
1 must be viewed in a more narrow sense. It must be viewed through the
2 prism of existence of discriminatory nature, discriminatory character of
3 the aider and abettor himself.
4 JUDGE SHAHABUDDEEN: I thank you, Mr. Bakrac.
5 JUDGE JORDA: [Interpretation] You've got five more minutes left,
6 Mr. Bakrac. Would you like us to stop now or would you like to start with
7 your third ground of appeal? As you prefer. I suggest we adjourn now and
8 that we resume in half an hour. All right. Thank you. We are adjourned.
9 --- Recess taken at 10.25 a.m.
10 --- On resuming at 11.04 a.m.
11 JUDGE JORDA: [Interpretation] We shall resume. Could the accused
12 please be led in.
13 Mr. Bakrac, you have another hour, I think. Until noon.
14 MR. BAKRAC: [Interpretation] Your Honour, I will move on to the
15 next ground of appeal. And given that there are a number of points which
16 form the basis of this ground of appeal, as for practical reasons this is
17 how the Defence has presented them, I think we will have sufficient time
18 to present in a concise manner what the position of the Defence is.
19 The Trial Chamber failed to determine that the accused Krnojelac
20 is guilty for the violation of the laws or customs of war based on living
21 conditions both in accordance with responsibility according to 7(1) and in
22 accordance to 7(3) of the Statute as a superior responsible for the acts
23 of his subordinates.
24 So the Trial Chamber determined that the accused was criminally
25 responsible pursuant to 7(1) and 7(3) and to avail itself of its
1 discretionary right to decide which basis of responsibility is more
2 appropriate in order to attribute criminal responsibility to the accused.
3 Thus, the Trial Chamber decided that the accused should be pronounced
4 guilty for aiding and abetting of the main perpetrators, according to 7(1)
5 of the Statute, and they added that his role as superior, the superior of
6 those who were the direct perpetrators, this role would be considered as
7 an aggravating factor in the decision on the appropriate sentence.
8 When we turn to what the standards and what the tests are, the
9 standards that have to be met if one is to decide that we're dealing with
10 a criminal act or criminal responsibility according to 7(1) in terms of
11 aiding and abetting, we believe that the Trial Chamber made a mistake when
12 they decided that the accused was aware of the intent of the main
13 perpetrators and, as warden, he was aware that by failing to act on his
14 knowledge he significantly contributed to the perpetrators continuing to
15 maintain the conditions, the perpetrators who committed cruel acts and
16 inhumane acts. Thus, in this manner he contributed, he encouraged the
17 perpetrators to maintain such living conditions, such cruel conditions.
18 Naturally I don't want to burden the Appeal Chamber and I take
19 into the third comment made with regard to presenting evidence that was
20 presented in the course of the proceedings, so I will just point to the
21 fact that there is evidence on the basis of which one could conclude that
22 the Trial Chamber's findings were not reasonable when they decided on the
23 responsibility of the accused.
24 From the entire body of evidence, it is possible to single out
25 certain evidence that brings into question, that casts down on the
1 findings of the Trial Chamber and shows that there is reasonable doubt
2 that the accused was aware that the inhumane conditions were the result of
3 someone's intent and not because -- not the result of the actual situation
4 during that period and in those circumstances in the territory concerned,
5 and that he was in a position to improve those living conditions or at
6 least he was aware that by failing to act he significantly contributed to
7 the main perpetrators continuing to maintain those living conditions, thus
8 he encouraged the perpetrators to maintain those conditions.
9 I would also like to point out that in the light of these
10 statements, these conclusions, there is evidence that the Defence has
11 pointed out that shows that the conditions in the military part of the
12 prison were established by the representatives of the military
13 authorities, both with regard to accommodation, hygiene, and food for the
15 I would like to refer to what the Defence mentioned in the first
16 ground of appeal with regard to the material, written evidence that can
17 support the position of the Defence.
18 It is quite clear that with regard to the part of the KPD part
19 where the detainees were kept, the military authorities had also been
20 handed over the kitchen and the hospital. And according to Exhibit P2
21 included in the body of evidence by the Prosecution, that this is also
23 If we bear in mind and take into account this entire body of
24 evidence, the conclusion we must inevitably reach is that -- or, rather,
25 the question that one must pose is in such conditions, what could the
1 accused Krnojelac have done? How could he have acted? He did not have
2 the obligation -- according to the evidence we have referred to, he did
3 not have the obligation of undertaking anything with regard to the living
4 conditions of those persons who were in the part of the KPD that was
5 within the grounds and under the command of the military authorities, the
6 military command.
7 If we add to this evidence the finding of the Trial Chamber that
8 the accused Krnojelac did not have discriminatory intent and the evidence
9 that was also included in the body of evidence and which -- which is the
10 psychological report on the accused provided by both the Defence and the
11 Prosecution and by the Prosecution's psychiatrist, if we take all of this
12 into consideration, one can see that the accused Krnojelac has such a
13 personality, such a character that he does not have any such
14 discriminatory intent, which would be the main pre-supposition to claim
15 that there were such crimes based on racial, religious, or racial -- or
16 racial definitions.
17 There is also a series -- there's also a number of pieces of
18 evidence that show that the accused, given his position in the KPD and
19 given the duties he had to perform, although he was not responsible for
20 the living conditions, he attempted to improve those living conditions.
21 And it was established, it seems, that this intention to obtain extra
22 food, we have evidence of Bozidar Drakul and we have Exhibit D107 which
23 shows that when he contacted the International Red Cross with regard to
24 the Serbs who were serving their sentence, he informed them that there
25 were also Muslim detainees in the KPD and requested additional food for
1 them too, additional supplies. And it seems that these facts, instead of
2 improving the position as far as criminal responsibility is concerned of
3 the accused, it seems that these facts have been treated as evidence on
4 the part of the Trial Chamber to show that the accused was responsible for
5 taking action to improve the living conditions of the non-Serb detainees.
6 So with regard to the intention and although he was not obliged to
7 improve the living conditions, with regard to the intention to improve the
8 living conditions, the witness Divljan Lazar referred to in the appeal
9 brief by the Defence, and we have also referred to Exhibit 146, it's
10 Divljan Lazar's diary which he kept as the person responsible for the
11 warehouse in the KPD. It shows that everything that was issued, all the
12 hygienic items and food issued to non-Serbian detainees, it mentions all
13 these items that were issued to non-Serbian detainees.
14 The question is that given these facts, the accused attempted to
15 take action, attempted to perform certain tasks that were not really his
16 responsibility. He attempted to improve the situation, but this has been
17 interpreted as something that shows that he had an obligation to improve
18 conditions and he failed to fulfil these obligations as he should have
19 done as warden responsible for the situation in peacetime, before the
20 conflict broke out.
21 If one takes into consideration that such an intent
22 can -- existed, then with all the evidence, it's not possible to claim
23 that the accused Krnojelac was aware of the situation, if we bear in mind
24 the economic situation, the fact that the accused took items from the KPD
25 warehouse and provided hygienic items and food. And according to one of
1 the Prosecution's witnesses, some of the food produced on the farm was
2 also provided to the KPD.
3 So given these facts, the question one must ask is: Where is one
4 to locate the intent? How can one demonstrate that the accused Krnojelac
5 wanted to facilitate the perpetration of such acts and wanted to
6 contribute to maintaining inhuman living conditions? How can one say that
7 he accepted the maintenance of such conditions? What sort of behaviour
8 are we referring to? How did he significantly aid and abet the principal
9 perpetrators to continue committing such acts?
10 We believe that on the basis of all these facts, on the basis of
11 all the evidence that we have referred to, not a single reasonable Trial
12 Chamber could reach the conclusion that the accused significantly
13 contributed to the maintenance of these living conditions or to the
14 deterioration of such living conditions. By his acts or omissions, they
15 cannot show by his acts or omissions he aided and abetted the main
16 perpetrators to maintain such living conditions.
17 Given time restrictions and the promise I made, I would like to
18 turn to the following ground of appeal, and at the end we will -- we
19 suggest that the decision should be revised on this count 2 and the
20 accused should not be considered responsible on this count.
21 With your permission, I would now like to move on to the following
22 ground of appeal.
23 JUDGE JORDA: [Interpretation] Yes. Perhaps in general terms, to
24 have a careful look at the judgement on each occasion, because you see
25 your accused was held responsible as an accomplice and as a superior, as
1 an aider and abettor and a superior. And you mentioned all the evidence
2 provided to the Trial Chamber in many paragraphs. I think it starts in
3 paragraph 140 of the judgement, and these are the essential points.
4 Naturally it's an error of fact that you are indicating, but it has a
5 double imputation, a double significance on the part of the Trial Chamber.
6 So please bear in mind what role of the Appeals Chamber is.
7 Thank you. If you have nothing -- if there is nothing else, we
8 can move on to the following point.
9 MR. BAKRAC: [Interpretation] Yes. Thank you, Your Honour. With
10 regard to that comment, I just wanted to say that as far as responsibility
11 on the basis of 7(3) with regard to command responsibility, that remains
12 as it was.
13 As far as the fourth ground of appeal is concerned, we consider
14 that the Trial Chamber failed to establish that -- they made an error when
15 they found that he was responsible in accordance with 7(1) for persecution
16 as a crime against humanity on the basis of beatings according to count 1
17 in the indictment.
18 We don't want to repeat everything on which the Defence has spent
19 a lot of time in order to establish the position of the accused. We think
20 that all the evidence and all the factual errors we have pointed to, we
21 think that this is also significant for this basis, that is to say the
22 possibility for the appropriateness of deeming that Krnojelac, the
23 accused, is responsible for the crimes committed by his subordinates. And
24 the Trial Chamber found that the subordinates were the prison guards who
25 participated directly in the perpetration of these acts.
1 I would also like to emphasise that factual error was made,
2 especially with regard -- especially with regard to establishing the
3 nature of the authority, the nature of the hierarchy within which these
4 prison guards functioned. So we support the ground of appeal number 1
5 with regard to which we used much evidence and the testimony of
6 guard -- of prison guards to show that these guards had been appointed by
7 the military command and they were directly responsible to the military
8 command. They were subordinated to the military command. So each
9 incident, each excessive act committed by prison guards in the KPD is not
10 something for which the accused could be held responsible on the basis of
11 command responsibility.
12 In the judgement of the Trial Chamber, the basis for such a
13 finding is provided by three examples, three examples that -- of which the
14 accused Krnojelac could have been aware. So in addition to these three --
15 in addition to these main objections that the prison guards were not
16 employed by the Ministry of Justice and were not the subordinates of the
17 accused Krnojelac another question we must ask is whether the accused
18 Krnojelac had a sufficient amount of alarming information which would lead
19 him to find out about the perpetration of such criminal acts and which
20 would incite him to launch an investigation into such incidents and into
21 the perpetrators of these acts.
22 So with regard to this ground and with regard to the comment of
23 the President of the Appeals Chamber, I would not like to repeat arguments
24 that we have already made. I would just like to remind you that the
25 Defence yesterday when presenting its case and responding to the
1 Prosecution's brief discussed these three examples that the Trial Chamber
2 took into account when it found that the accused Krnojelac could have
3 known and had reason to know that there were beatings in the KPD, beatings
4 in which the prison guards participated. These are examples that include
5 Ekrem Zekovic. And we have said that this happened at the very end of the
6 accused's term in the KPD.
7 And then in addition to all the other comments we've made in this
8 part of our brief, we have the example of the witness RJ. And as to
9 whether there is evidence that these beatings were carried out on a
10 discriminatory basis, that is something that we have also discussed. In
11 addition, we think that to establish such responsibility it is important
12 to demonstrate the existence of effective control that the accused had
13 over these persons. For this reason, we believe that this finding reached
14 by the Trial Chamber is erroneous and it ought to be changed.
15 If it is not necessary to provide any other information or any
16 other explanations, the Defence would like to move on to the following
17 ground of appeal.
18 JUDGE SHAHABUDDEEN: Mr. Bakrac, you have dwelt on the scope of
19 the appellant's authority, and you have submitted that the prison guards
20 were appointed by the -- I think the military authorities and were not in
21 any sense the subordinates of your client.
22 Did your client have any functions in relation to the prison
23 guards, or alternatively, did the prison guards discharge any duties in
24 relation to your client? I just don't know. I -- I wait on your reply.
25 MR. BAKRAC: [Interpretation] Your Honour, the Defence is only
1 referring to what is part of the facts of the case. We have three or four
2 guards who during the relevant period of time were present in the KPD, and
3 they testified before the Trial Chamber and stated that they had been
4 appointed by the military command of the Foca Tactical Group and that they
5 received orders from the military command and that they spent some time
6 standing guard in the KPD and another part of their time going to the
8 Mile Matovic, one of the guards, also provided documents to this
9 effect, documents in which this is supported. And the Defence has
10 included this among its exhibits. I apologise. I don't want to waste
11 time now to try and find this. In the written brief of the Defence, we
12 have the reference.
13 When the Defence said that not a single reasonable Trial Chamber
14 could reach the conclusion that the accused Krnojelac actually had
15 effective control, the Defence wanted to -- was thinking of all of the
16 evidence, was referring to all evidence, including the evidence presented
17 by the Prosecution. There is not a single piece of evidence that
18 demonstrates that anyone saw or heard the accused Krnojelac issuing orders
19 to the guards within the KPD.
20 So this is the basis on which the Defence claims that the accused
21 did not have command responsibility. In other words, that he was not the
22 superior of these guards.
23 My apologies. The exhibit to which I'm referring, for the record,
24 is D151.
25 May I move on?
1 The Trial Chamber was also wrong when it found guilty the accused
2 Milorad Krnojelac as superior for inhuman acts as a crime against
3 humanity, and cruel treatment as a violation of the laws or customs of war
4 both based on beatings, under Article 7(3).
5 So as in the case of our previous ground for appeal, in the case
6 of this one, the Defence objects to this finding and says that the Trial
7 Chamber relied on three beatings which the Trial Chamber thought that the
8 accused knew or could have known about had he been performing his duties.
9 Now, the objection in which we submit that the chain of command,
10 the hierarchy, or the absence of the duty to prevent or punish prison
11 guards has already been made by the Defence and we don't want to waste any
12 of our precious time to go into it once again.
13 Likewise, in the exhibits, the evidence on the basis of which the
14 Trial Chamber found that fact includes those which the Defence has already
15 pointed out at when it disputed or, rather, challenged the fact that the
16 accused had enough knowledge or that he was in a position that he was
17 aware of these acts and that his position would allow him to initiate
18 action against such persons or to initiate the investigation.
19 With regard to his command responsibility, we think that all the
20 objections that we already pointed out hold true once again as in the
21 previous grounds of appeal. So we merely erred that there is -- there is
22 no subordination, there is no hierarchy there or any kind of effective
23 control chain that would allow him to either investigate acts of those
24 persons or to punish them in the light of the position that Krnojelac
1 I also think that one of the examples on which the Trial Chamber
2 relied on in its judgement and that concerns the beating of Ekrem Zekovic,
3 which happened as he turned up, shows the absence of any form of authority
4 or effective control over these persons.
5 In addition to the objection -- in addition to the comment that
6 the Defence has also tendered into evidence, the decision of the Ministry
7 of Justice relieving the accused of the duty of the warden of the KP Dom
8 as of the 1st of July - and this incident happened on the 9th - we simply
9 think that the Trial Chamber went wrong because the conduct of a guard in
10 the presence -- in front of the accused could be indicative of the fact
11 that he did not have any practical control or that he -- that -- and
12 showed that he did not enjoy any authority in relation to those guards
13 even though perhaps the position might presume it. And we therefore think
14 that this finding of the Trial Chamber was erroneous and that the accused
15 should be acquitted of responsibility under this count of the indictment.
16 And once again, I'm trying to avoid being repetitive.
17 JUDGE JORDA: [Interpretation] Excuse me, Counsel. This is merely
18 the information. Where, in what do you find this contradiction? You talk
19 about the incident with Ekrem Zekovic and you're saying that he was no
20 longer a warden, but when he was a warden, then does it not implicitly
21 mean that he was responsible?
22 So my second question is: Did he conduct an investigation?
23 MR. BAKRAC: [Interpretation] Your Honour, the Defence believes
24 that even when he was the warden he was not -- he did not have that
25 responsibility for reasons that we've already indicated. The Defence
1 mentioned this example merely to support its argument, to corroborate its
2 submissions. In addition to all our submissions that he wasn't really
3 their warden and that he wasn't their superior, we are trying to show with
4 this example of a guard who really couldn't care less that a warden is
5 right next to him and that he is engaged in a punishable act. We think
6 that this shows that in spite of the formal condition which was already
7 seized, that is he was no longer a superior there, he couldn't punish, but
8 the very conduct of that guard on the ground shows that he was aware, that
9 he realised that the accused was not the person who could punish him or
10 who had any such authority, that he was not the person who was his
12 So that shows that even before that -- I'm trying to answer your
13 question -- that even before that, he did not have any instruments at his
14 disposal which would allow him to punish the perpetrators.
15 JUDGE SHAHABUDDEEN: Just to clear my mind, Mr. Bakrac, you're
16 putting your case this way: Apropos of this conversation between the
17 guard and your client, I understand you to be saying that there was no
18 material basis on which the Trial Chamber could find against your
19 proposition that that evidence showed that your client did not have the
20 authority in question, that no reasonable Trial Chamber could interpret
21 the evidence differently, that no reasonable Trial Chamber, for example,
22 could say, "Well, this soldier wasn't giving orders to the warden but was
23 merely reminding the warden of the exact position." You say no reasonable
24 Trial Chamber could have so concluded. Do I understand your case
1 MR. BAKRAC: [Interpretation] Yes, Your Honour. With all due
2 respect, I owe you an explanation. Once again, not in isolation. Of
3 course, that one example isolated from other examples and evidence cannot
4 show that no reasonable tribunal of fact would have decided as it did. I'm
5 simply trying to put together the picture, the whole mosaic of evidence
6 corroborating the Defence's position that all these testimonies and
7 evidence when put together give us a picture which showed that a decision
8 on the responsibility or the existence of the chain of command in the
9 sense in which it was talking existed and that that was why the accused
10 should have been found guilty.
11 May I move on? I -- and our last ground of appeal, ground of
12 appeal of the Defence, is the sentence. I'd like to apologise in advance
13 to the Appeals Chamber for possibly misinterpretation of the discretionary
14 rights of the Appeals Chamber with regard to the decision on the sentence,
15 because perhaps it arises from the characteristics of the legal system
16 that I come from where this kind of objections is possible. So please
17 accept my apologies if I go slightly beyond the scope of the discretionary
18 rights of the Chamber.
19 However, I hope you will allow me to articulate them because I
20 think if we are to be fair to the accused, then perhaps you should hear
21 something which perhaps does not make part of the standard, but the
22 Defence nevertheless believes could help the accused and help you
23 understand the degree of his criminal responsibility or his participation
24 under either 7(1) or aiding and abetting or 7(3), that is crimes that are
25 laid at his door.
1 We, namely, believe that the Trial Chamber found correctly or,
2 rather, showed that the standard in weighing the sentence was an
3 imperative duty, that on the one hand the sentence was meted out in
4 fairness to the circumstances of the accused and the gravity of the crimes
5 that he stands accused of.
6 As for the former, the Defence does not think that the Trial
7 Chamber fully went beyond its discretionary right and disregarded
8 completely quite a number of personal circumstances which would go in
9 favour of the accused. We simply think that some of his personal
10 circumstances and the Defence believes with all due modesty that they
11 should be taken into account when determining the final judgement.
12 We think that these circumstances were not accorded proper weight.
13 It is correct that the Trial Chamber, in its decision, addressed
14 the age of the accused Krnojelac. He is 62 years old and that was taken
15 into account. But we also think, however, that the Trial Chamber could
16 have, when drawing a parallel among three similar cases, omitted when
17 determining the sentence in these three cases, we believe that it omitted
18 to take into account the age. In our case, it is much more advanced and
19 in the other two cases that were used in comparison.
20 It is a fact, if we are talking about personal circumstances, that
21 again in relation to the age, that the numerous family that the accused
22 has, four sons, two of whom are disabled, one lost both his legs, one lost
23 one leg during this unfortunate war in the territory of Foca. And for
24 grandchildren, two or three of whom the accused has never seen because
25 he's been in detention. This should also make up part of the personal
1 circumstances which we believe the Trial Chamber did not sufficiently bear
2 in mind.
3 Personal circumstances also include, in the Defence's opinion a
4 well known fact which is indisputable, and that is that the accused from
5 the beginning of his career has worked as a mathematics teacher with
6 children in the elementary school, and this period of 15 months is the
7 only period when he was placed under labour obligation, that is, under
8 wartime assignment when he was assigned to that post. And he had
9 absolutely no previous experience in that regard.
10 Another thing which we believe should be accorded to your
11 attention is the conduct of the accused. We think that the sentence does
12 not properly reflect the level, the gravity of the criminal conduct of the
14 When we look at all the grounds of criminal liability and the
15 crimes of which he stands accused and the significant contribution, that
16 is all the significance contributions, all that we have said about his
17 contribution to the acts, we think that all this was not properly
18 assessed, properly appraised by the Trial Chamber. The Defence cannot
19 help but think that the criminal gravity of the accused could come back to
20 one sentence which the Trial Chamber said, he decided to act like an
21 ostrich. And we think if the Appeals Chamber decides that the Trial
22 Chamber acted correctly in assessing the criminal liability of the
23 accused, then his overall crime conduct could be -- could come down to
24 that one sentence, that he chose to put his head in the sand.
25 In the body of evidence, you cannot find a single fact proving
1 that during that 15 months time the accused ever cast an ugly look at a
2 detained Muslim or non-Serb let alone used inappropriate vocabulary when
3 addressing such a detainee. Quite the contrary. We have the testimony of
4 a witness for the Prosecution who, even though he lost a son in the KP
5 Dom, said in the court, he said that this accused treated Muslims
7 So when we speak about his overall criminal conduct and its
8 gravity, there I think, of course, and far about it from me to show
9 disrespect for the victims, far be it from me to bring to question his
10 criminal responsibility, if you find he was indeed criminally responsible,
11 we think that one should bear in mind the minimum of participation, that
12 is if he chose to put his head in the sand, that is, his omission to act,
13 we think that if you find him criminally responsible, that omission should
14 be the only criminal responsibility that he could and should be sentenced
16 Under the conditions when the Trial Chamber found that the accused
17 was criminally responsible, I would still think that that decision was
18 inadequate and that it should be reversed.
19 In the decision, in the judgement, the Trial Chamber seized upon
20 its right and drew comparison with similar cases, but the thing that the
21 Prosecution also addressed to this appeal refers to the length of time
22 that the accused spent in the KP Dom. When we talk about two similar
23 cases, Aleksovski and Mucic, we have five, that is seven, that is 15
24 months. You would have a much shorter period of time in the Kvocka case.
25 But what one has to look at, the substance of the matter when weighing up
1 the sentence, is not the duration, is not the length of time but the
2 overall amount of crimes, the number of crimes that happened during that
3 time. Out of respect for the victims and out -- my professional attitude
4 towards other cases, I do not want to compare a camp that existed for four
5 months only, but there you will see more crimes happening than over 15
6 months' time. The length of time should not be a yardstick, a measure.
7 What should be a measure is what happened during the relevant period.
8 I think that it is even aggravating if more crimes happened during
9 a shorter period of type. I think it should be an aggravating
10 circumstance for the one who is found liable for that particular period.
11 And I would like also to add one comment of the Defence with regard to
12 that matter, the length of time. If somebody during 15 months that he
13 spent surrounded by Serbs who are discriminated against, and if he managed
14 not even to cast an ugly look at any one of them, then that, I think,
15 tells us about his nature, about his non-discriminatory nature and about
16 his disagreement with what was going on. And I ask of the Chamber that
17 that 15 months which the Prosecution insists upon, which is also
18 underlined in the judgement, I do ask the Appeals Chamber to appraise it
19 correctly and accept the Defence's explanation.
20 What I have said now, and I hope you won't misunderstand it, you
21 won't take it wrongly, this is merely how the Defence sees it, because
22 we're trying to present to you our viewpoint the way in which we believe
23 should one interpret the length of time that the accused spent in the KP
25 We therefore stand by all our grounds of appeal that we presented
1 in our brief. And if the Appeals Chamber establishes that there is no
2 responsibility under any count, we propose that the accused be acquitted.
3 And if the Appeals Chamber establishes that the Trial Chamber was
4 right under all counts, nevertheless we ask the Appeals Chamber to -- to
5 sentence him to a lighter term because we think that this and the current
6 sentence is too severe.
7 And if you do find him indeed guilty - and we do not think he is -
8 then we hope that he will receive a milder sentence from you.
9 That is all that we wish to stay to the Appeals Chamber at this
11 JUDGE JORDA: [Interpretation] Are there any questions? Well,
12 right. Thank you. You're finished within your time limit.
13 Well, the Judges have decided that the break will be between 12.30
14 and 14.00, so that the Prosecutor, you may start with your reply and we
15 shall make our break at 12.30.
16 MR. STAKER: Thank you, Your Honour. May it please the Chamber.
17 Yesterday the Prosecution presented its arguments in the Prosecution
18 appeal. Today it presents its arguments in response to the Defence
19 appeal. And the Prosecution is now in the somewhat curious position that
20 in this Defence appeal it is defending aspects of the Trial Chamber's
21 judgement that yesterday it sought to challenge in the Prosecution appeal.
22 In particular, yesterday the Prosecution argued that the Trial
23 Chamber erred in holding the appellant individually responsible for
24 certain crimes as an aider and abettor, the Prosecution position being
25 that he should have been held liable for committing those crimes as a
1 participant in a joint criminal enterprise. Today, in response to the
2 Defence appeal, the Prosecution is arguing that the Trial Chamber
3 committed no error in finding the appellant to be an aider and abettor.
4 This situation is not illogical in situations where both parties
5 appeal against a judgement of a Trial Chamber. On the one hand, the
6 Prosecution -- in the Prosecution appeal, the Prosecution is arguing that
7 the Trial Chamber should have gone further than it did in determining the
8 individual criminal responsibility of the appellant. On the other hand,
9 in the Defence appeal, the Prosecution is arguing that it did not commit
10 any error in going at least to the extent that it did.
11 And if the Appeals Chamber did not uphold the Prosecution's first
12 ground of appeal, the Prosecution's submission is that the convictions as
13 an aider and abettor should stand. Thus when in its response now to the
14 Defence appeal the Prosecution argues that there was no error in holding
15 the appellant to be an aider and abettor, the Prosecution is not thereby
16 resiling in any way from the position that it took yesterday. It is
17 simply the case that for the purposes of responding to the Defence appeal,
18 the Prosecution must, for the time being, put its own appeal to one side.
19 Nevertheless, to avoid any confusion or appearance of
20 inconsistency, the Appeals Chamber may be assisted by some introductory
21 submissions on the relationship between the Prosecution appeal and the
22 Prosecution response to the Defence appeal.
23 There is a certain overlap in the arguments in the two appeals.
24 For instance, in relation to his individual criminal liability under
25 Article 7(1) for imprisonment and living conditions, a principal line of
1 argument by the Defence in its second ground of appeal is that the
2 Prosecution has failed to identify specific acts of specific principal
3 offenders and has failed to identify specific acts of the appellant which
4 are said to have aided and abetted those acts by the principal offenders.
5 As a general response to this line of argument, I would recall the
6 submission that I made yesterday. In relation to the unlawful
7 imprisonment, the Prosecution submits that even on the facts as found by
8 the Trial Chamber, it's clear from paragraph 127 of the trial judgement
9 that the Trial Chamber found that this imprisonment was effected by a
10 joint criminal enterprise. As I said yesterday, the Trial Chamber in that
11 paragraph refers to "the joint criminal enterprise" and to "that joint
12 criminal enterprise" and to "the unlawful system." And the only question,
13 in our submission, was whether the appellant was a participant in that
14 joint criminal enterprise or whether he was an aider and abettor to the
15 joint criminal enterprise or whether, as the Defence now submits, he had
16 no criminal liability at all.
17 The Trial Chamber found him to be an aider and abettor, which is
18 to say that he was an aider and abettor to a joint criminal enterprise.
19 The Prosecution submitted in its appeal that he was a participant in the
20 joint criminal enterprise, but as I say, I've put that to one side for
22 For purposes of the Defence appeal, a question is whether in order
23 to convict an accused as an aider and abettor of a joint criminal
24 enterprise, is it necessary to identify specific acts of specific
25 participants in that enterprise that the accused has aided and abetted?
1 And the Prosecution's submission is that in cases of the second category
2 of joint criminal enterprise, that cannot be the case. The second
3 category, as I've said, is the category of systemic joint criminal
4 enterprises in which even the participants may not be aware of each
5 other's identities. What is required is knowledge of the system and of
6 the common plan, design, or purpose which it's intended to give effect.
7 The Prosecution position is that the appellant made a substantial
8 contribution to the system of unlawful confinement by acting as the most
9 senior figure within the prison for 15 months, with the requisite
10 knowledge of the unlawful system and of the contribution that he was
11 thereby making to --
12 THE INTERPRETER: Can you slow down, please.
13 MR. STAKER: The Prosecution's apologies yet again to the
15 It's unnecessary, in the Prosecution's submission, to show that
16 the appellant's acts in some more particular way aided and abetted, say, a
17 particular prison guard to commit a particular act of mistreatment on a
18 particular day.
19 In relation to the inhumane living conditions in the camp, the
20 Trial Chamber made no finding that there was a joint criminal enterprise,
21 although, perhaps significantly, it also made no finding that there was
22 not. The relevant paragraph is paragraph 170.
23 The trial judgement might even be read as implicitly finding that
24 there was a joint criminal enterprise with respect to the inhumane living
25 conditions and found that the appellant was only an aider and abettor to
2 I referred yesterday to a number of paragraphs in the trial
3 judgement, finding that the inhumane conditions were the result of
4 deliberate policies. As I submitted yesterday, it's evident that
5 deliberate policies of the kind found by the Trial Chamber cannot have
6 been the result of the actions of a single person or of a number of
7 different persons acting independently of each other. Such deliberate
8 policies could only be the result of a number of persons acting in concert
9 in a joint enterprise.
10 However, even assuming that the Trial Chamber's judgement cannot
11 be read as making any such finding, and even assuming that it made no
12 finding of a joint criminal enterprise in relation to the imprisonment,
13 it's submitted that if deliberate policies were being implemented in a
14 systematic way by principal offenders to imprison and impose inhumane
15 living conditions on detainees in a prison, the appellant, by discharging
16 his responsibilities as warden and failing to take action to prevent the
17 crimes being committed there, was clearly contributing substantially to
18 the ability of the principal offenders to implement those deliberate
19 policies. There can be no detention without a prison and a prison cannot
20 exist and function without administration, and that important requirement
21 was being provided by the appellant, in the Trial Chamber's findings.
22 Similarly, unless they had been confined in the prison, they could
23 not have been subjected to the deliberate policies of inhumane conditions.
24 On the requirements for aiding and abetting, it has been held in
25 the case law of this Tribunal that it's not necessary that the aider and
1 abettor should know the precise crime that was intended and which in the
2 event was committed, if he's aware that one of a number of crimes will
3 probably be committed and one of those crimes is in fact committed, he has
4 intended to facilitate the commission of that crime and is guilty as an
5 aider and abettor. For that proposition, I would refer to the Furundzija
6 trial judgement, paragraph 246, the Blaskic trial judgement, paragraph
7 287, and the Tuta and Stela trial judgement at paragraph 63 and in the
8 Tadic appeal judgement, paragraph 227(ii), it was held that the principal
9 may not know even of the accomplice's contribution. It's therefore
10 unnecessary to the Prosecution's submission to show that the appellant's
11 acts in some more particular way aided and abetted, say, a pick prison
12 guard to commit a particular act of mistreatment on a particular day.
13 Your Honour Judge Shahabuddeen, during the presentation of the
14 Defence arguments, asked a question at the point of which aiding and
15 abetting becomes participation in the crime itself. We addressed that
16 question yesterday. I won't repeat the Prosecution's submissions, but I
17 would just recall again our submission that there is a difference between
18 motive and intent. And in fact, a person who is contributing
19 significantly to a crime, for instance in a system of mistreatment, the
20 most effective, the most active cog in the machine may in fact be doing
21 what he's doing for motive such as to receive promotion in the system
22 without actually wishing any ill-will on the victims. The intent comes
23 from the intent to participate in the enterprise rather than from the
24 motive of achieving the result of the enterprise.
25 With those introductory comments, the Prosecution would now turn
1 to address the specific grounds of appeal of the Defence in turn. We have
2 provided the Chamber with an order of appearance again. I would first
3 invite the Chamber to call upon my colleague Mr. Carmona to address the
4 Defence's grounds 1 and parts of grounds 3 and grounds 4 which relate to
5 the appellant's position as warden. He would be followed by Ms. Rashid
6 who will address Defence grounds 2 and 3, followed by Ms. Brady who will
7 address grounds 4 and grounds 5, and, finally, I will conclude by
8 presenting the Prosecution's submissions on the Defence ground 6 relating
9 to sentence.
10 I would invite the Presiding Judge to call on my colleague
11 Mr. Carmona.
12 MR. CARMONA: Your Honours, I do take the admonition that was
13 mentioned yesterday with regard to the need to be precise and also, in
14 fact, not to regurgitate facts for the purposes of this appeal and more so
15 for the purposes of this response. But I think it is pertinent to make
16 certain observations with regard to what my learned colleague has said,
17 and in this regard, it is the intention of the Prosecution to respond both
18 globally and specifically as it pertains to the material areas of
19 contention and in terms of the importance to a proper determination of the
20 assessment of the Trial Chamber's judgement.
21 Apart from that, one has to make some preliminary observations,
22 and that is as Kupreskic, as Celebici have both indicated that it is not
23 the prerogative of the Defence to simply regurgitate arguments that are in
24 fact in their final trial briefs without in fact showing more, without
25 showing, for example, that it represents an unreasonable finding and that
1 an unreasonable finding has resulting in an error of fact, resulting in a
2 miscarriage of justice. Because it would have the undesirable effect of
3 not providing the Appeals Chamber with its mandate which is, in fact, one
4 of corrective nature and would result in a de novo hearing and
5 reassessment of facts found by the Trial Chamber.
6 So I take this very broad, this very broad imperative when, for
7 example, I am dealing with the facts.
8 Additionally, I wish to note that as much as, in fact, the Defence
9 has focused on various strands of evidence to illustrate and to support
10 its arguments, that the Prosecution in its brief has always, in fact, held
11 that what is required is an in toto evaluation of the evidence and not a
12 dissemination or, rather, I should say a splitting of individual strands
13 of evidence for the purpose of the exercise of this appeal. I dare say my
14 learned colleague has indeed made a concession this morning that he agrees
15 with, in fact, the appeals to the Prosecution's approach that what that is
16 in fact required is a more broad-based total assessment of the evidence as
17 a whole in, in fact, the evaluation process.
18 It is my intention, however, in dealing with this collective
19 approach to maintain at all times that it is not the responsibility,
20 neither is it in fact the mandate of the Prosecution to address every
21 single microscopic evaluation done in relation to every single strand of
22 evidence. And this is why I indicated that, in fact, we will do it both
23 globally and specifically, contingent on what the need is in the context
24 of the judgement.
25 I will begin by referring specifically to areas -- some of those
1 areas broached by my friend as areas of concern. Specifically, it is the
2 submission of the Prosecution that he has not, in fact, shown that the
3 Trial Chamber was unreasonable in its findings. He indicated very
4 categorically that the position of warden is crucial and critical to an
5 assessment of his client's liability. This particular point was very much
6 in the forefront of the Trial Chamber's mind. In fact, at paragraph 90,
7 at note 278, the Trial Chamber recognised that in its opening salvo, the
8 Defence, in fact, made mention that he was attacking formally and factual
9 the findings with regard to the position of warden in the -- in this
10 particular -- in this particular case. And in so doing, he indicated
11 further that he would in fact bring evidence to illustrate his arguments.
12 I think it is pertinent that I refer to that particular document
13 without going into it extensively yesterday, where attempts were made by
14 the Defence at trial to tender a document dated 11th of January, 2000,
15 from the Ministry of Defence, a certificate which in fact was a summary of
16 data looked at by the said -- the Defence Ministry and which was
17 indicating that the only responsibility of, in fact, Krnojelac, the
18 appellant, was one for the protection of provisions or protection of
19 property at the KP Dom.
20 When, for example, the Trial Chamber raised the issue of
21 weight - not admissibility but weight - he indicated in fact that he would
22 tender documents subsequently to illustrate his point, to confirm his
23 point. And at the end of the day, even though, for example, he was given
24 this opportunity, that certificate was not tendered. There was no request
25 to tender that into evidence, and there was none of those documents that,
1 in fact, he promised forthcoming.
2 It is significant to note that the Prosecution, when it attempted
3 to cross-examine on the particular document that my learned colleagues in
4 fact on the other side indicated that this document is not in evidence.
5 And based on its assessment of the fact they were not able to tender
6 certain material but more specifically based on the affirmative evidence
7 led by the Prosecution that came to the conclusion that the position,
8 authority, and status of Krnojelac was far more than one responsible for
9 safeguarding property.
10 In addition, we have the evidence of FWS-138 who in fact was an in
11 a very peculiar position, unlike most of those detainees, and he in fact
12 gave very pertinent evidence with regard to the maintenance of the
13 structure within the camp pre- and post- the conflict. Because, Your
14 Honours, this particular witness was in fact a guard at the camp
15 pre-conflict, before it became the camp that it was. Ironically, he found
16 himself in the camp as a detainee. So he was in a position to assess and
17 evaluate, and give a level of credence to the whole structure as
18 envisaged, as he knew, as he practiced when he was there before and when
19 he is there now.
20 And the thing is that the Trial Chamber placed a lot of reliance
21 on his observations based on the experience that he had been a former camp
22 guard. And this is, in fact, seen in paragraph 102 at note 302. And in
23 particular with regard to the role of -- the role of Krnojelac in the
24 context of responsibilities vis-a-vis the guards.
25 He said very categorically at T2030 to D2034, the warden had the
12 Blank pages inserted to ensure pagination corresponds between the French and
13 English transcripts. Pages 263 to 271.
1 obligation to report serious beating of an inmate by a guard to the
2 Ministry of Justice. And the bottom line is, at the end of the day, that
3 when you are referring - and I will be doing this extensively - when you
4 are dealing with 7(3) responsibility, we need to consider that a lot of
5 these organisations and defences -- the ministries operating outside the
6 camp were very fluid. The bottom line is in fact there was a state of
7 administrative fluidity in Foca where in fact there was liaising between
8 the defence of Justice, the defence of Defence, the defence of economy.
9 And we must not in fact get into the difficulty of artificially dividing
10 the ministries as if in fact they operated singularly and apart given in
11 fact what was taking place at the time.
12 When one looks, for example, at the Gazette that indicated the
13 appointment of Krnojelac on the 17th of June, 1992, it spoke, for example,
14 that the prison warden was responsible for the internal management of the
15 prison. It also told significantly -- and this is an example of how in
16 fact these organisations were so volatile: It mentions that the security
17 of the prison shall be provided by employees working in institutions, and
18 if necessary - if necessary - employees of MUP, the Ministry of the
19 Interior, and police. So that in fact is it was -- it was a case where,
20 for example, the entire supervisory responsibility was not one that was in
21 fact simply restricted to the guards themselves, again, because of the
22 level of fluidity operating within the system.
23 And this can be gleaned from the Gazette of the 12th to the 17th
24 of May, 1992.
25 Apart from that, apart from these administrative indicators of the
1 relationship among the various ministries, there was evidence also from
2 various witnesses. For example, FWS-214 and FWS-139, who indicated that
3 when they complained to Mitar Rasevic, in fact who was the commander to
4 the guards, with regard to the conditions, the living conditions in the
5 camp, and more significantly, the beatings, he indicated very
6 categorically that in fact you would have to speak to the warden about
8 My learned friend has indicated, has respond -- has made reference
9 to a document P2, and indicates, for example, that this document that was
10 forwarded to the Ministry of Justice as an indicator that, for example,
11 the kitchen and the hospital beds were handed over to the Tactical Foca
12 Group. But the bottom line is in fact that these particular
13 organisations, if I may so call it, the kitchen and the hospital, was
14 responsible for all the detainees in the camp. There was no kind of
15 divisive responsibility.
16 Apart from that, when, for example, reference is made to Zoran
17 Zekovic who in fact was the new prison warden who took over from Krnojelac
18 at the end of his stint at the end of July 1993, and in fact he was called
19 upon the Ministry of Justice to indicate exactly the workers who worked
20 from 1992 to 1993, and he refers to Zoran Zekovic as some kind of legal
21 assistant. And they are using this as the basis for saying, for example,
22 that it shows, for example, that the warden in fact didn't have -- didn't
23 have any clout. But what it shows, very matter-of-factly, is that --
24 THE INTERPRETER: Could the counsel slow down, please.
25 MR. CARMONA: My apologies.
1 What it shows is that Todovic was in fact a subordinate -- Savo
2 Todovic was the subordinate to Krnojelac. Yes, I know we have heard about
3 in fact Krnojelac being a paper warden and being a paper tiger, if I may
4 so describe it, but it is the position of the Prosecution, as found by the
5 facts in the Trial Chamber's judgement, that he was not.
6 Mention was made additionally to D85, and it was indicated that
7 this represented the scope of his duties as warden. Again, in fact, this
8 is a document that dealt with the lease agreement, and as much as in fact,
9 for example, this lease agreement is a bone of contention, the arguments
10 raised by my learned friend on the other side is ad idem with his brief,
11 and we have responded in extenso to that argument, and we stand by that,
12 by those arguments.
13 Additionally -- and this is in fact something that in fact we have
14 mentioned in, in fact, our opening salvo with regard to what is the
15 mandate of the Appeals Chamber. My friend has made mention of six
16 individuals who in fact suffered from some drug addiction and who in fact,
17 for example, were placed inside the KP Dom and were somehow in fact placed
18 with the non-Serb detainees, et cetera. The mention of this is coming
19 about for the first time in the appeal. On the record, there is nothing
20 to indicate what this is all about. Apart from that, when one looks at my
21 learned friend's brief, it is just a blanket statement made there, and
22 Kunarac has said very categorically you simply cannot put forward factual
23 matters without showing the relationship of these factual matters to in
24 fact errors of fact resulting with a miscarriage of justice. And if in
25 fact you do this, it will be rejected.
1 Another very important feature with regard to the role, status,
2 and position and power of the individual concerned is that Krnojelac, by
3 his own admission, because much has been said about the Drina Economic
4 Unit, by his own admission when giving evidence admitted that in fact he
5 was a warden and he was also the director of the Drina Economic Unit.
6 Now, if you are giving evidence and you basically in fact categorise your
7 position in the context of two different positions, isn't it an indicator
8 that you do in fact wield authority; that you do wield authority in
9 relation to the Drina Economic Unit and you do wield authority as prison
11 But what is even more significant, and it has to do with regard to
12 the argument that in terms of his responsibilities and his power and
13 control over the guards, is that he also gave evidence that guards, in
14 fact, who were in charge of the Drina Economic Unit were also guards who
15 were also in charge of the non-Serb detainees. And to the extent that in
16 fact that he in fact has a dual type of responsibility, you're talking
17 about two limbs of authority to deal with those guards; limbs of authority
18 to deal with them as prison warden and limbs of authority to deal with
19 them as director of the Drina Economic Unit.
20 But then again, when looking at my friend's argument, he has made
21 heavy weather of the fact that there are a lot of documents that -- of
22 requests from Krnojelac to various ministries, more specifically, the
23 Ministry of the Economy. What in fact my friend in fact does not do,
24 however, is explain how it is, for example, that you are maintaining that
25 you are just simply a prison guard without -- without any kind of decisive
1 function yet you are sending a memo to the War Presidency indicating very
2 categorically that in fact security needs to be beefed up, that in fact
3 that you advise that mines be placed to prevent the detainees from
4 escaping. And the thing about this is that in fact when you send that
5 letter, this is a follow-up letter to the one written on the 1st of June,
6 1992, requesting the same laying of mines within the section of KP Dom.
7 He writes to the Ministry of the Economy indicating that he needed
8 20 tons of oil for the purposes again of production and security. And
9 there is evidence from various witnesses that in fact while these mines
10 were in fact being laid, it was done by soldiers in the presence of
12 And this makes me make the point, that a Trial Chamber does not
13 have the responsibility to articulate every factual finding in its -- and
14 have it put in its judgement. One would expect as reasonable assessor of
15 the Trial Chamber's position that if, for example, they make mention of a
16 particular fact, they make mention of the 20 tons of oil, they make
17 mention of the fact that he wrote to the Ministry of the War Presidency
18 asking for mines, and there is evidence, for example, that he's in the
19 company of soldiers while these mines are being put down, isn't it in
20 fact -- is it not reasonable to conclude that they would have been, in
21 fact, privy and take cognisance of all that evidence?
22 Again, too, when one looks at Exhibit -- Defence Exhibit 83A,
23 Defence Exhibit 39A, these are in fact indicia of the nature and scope of
24 authority that he was in possession of.
25 Now, much -- additional my -- additionally my friend made mention
1 of the fact that Krnojelac he came to work from 7 to 3. There is evidence
2 that, in fact, he came from 7 to 4. There is also evidence that, in fact,
3 he was seen in the evenings. The bottom line is he came to work every
4 single day. The bottom line is that, in fact, the only time when there
5 was some kind of absence or aberration in terms of presence was when he
6 went to see about his son in Belgrade on the 24th of June, 1992, who had,
7 in fact, suffered some terrible wounds, and he was aware for approximately
8 seven days until the 2nd and 3rd of July.
9 In Celebici, Mucic, by virtue of his deportment, absented himself
10 at various times, on various occasions, from the prison, and the Trial
11 Chamber was of the view that this was irrelevant to the whole concept of
12 7(3). More so in the fact that he was there for seven months, and in the
13 case of Krnojelac, you were there for 15.
14 This was referred, in fact, to by arguments in relation to
15 superior responsibility yesterday, and I stand by those by those
16 particular arguments.
17 Now, much has been mentioned also of the appointment of Krnojelac
18 and the voluntariness of that appointment. The Prosecution, in fact, led
19 evidence -- I will close up on this point.
20 JUDGE JORDA: [Interpretation] Perhaps because we'll be moving on
21 to another subject, perhaps we should adjourn and resume at 14.30, at 2.30
22 p.m. The hearing is adjourned.
23 --- Luncheon recess taken at 12.30 p.m.
24 --- On resuming at 2.50 p.m.
25 JUDGE JORDA: [Interpretation] We will now resume the hearing.
1 Have the accused brought in, please.
2 Very well. This time the Court is late. We say so and so do the
3 parties, but we're saying so.
4 All right. Mr. Carmona, you can resume. I can tell you you have
5 an hour. We agree, right? An hour.
6 MR. CARMONA: Yes, indeed.
7 JUDGE JORDA: [Interpretation] I always have to remind you to be on
8 time, but you are on time. There you go. Proceed, please.
9 MR. CARMONA: Your Honours, I just wish -- I just wish to remind
10 the honourable quorum that I am also in fact dealing with ground -- the
11 third ground of appeal, subground 2, and also in fact the fourth ground of
12 appeal, which in fact is subground two also. And they all, of course,
13 relate to his position and role of authority as KP Dom warden. So
14 basically it's almost like a global approach to the particular areas of
16 At the break, in fact, I was just about to mention that the Trial
17 Chamber, according to the appellant, had more or less in fact -- had
18 placed emphasis on the evidence of -- of Tesovic and Veselin Cancar as a
19 basis for saying that the voluntariness of the appointment of Krnojelac
20 was indeed voluntary and, therefore, there was no basis for questioning
22 I dare say, in fact, we have outlined in our arguments in the
23 brief our response to my learned friend's arguments, and we stand by
24 those. Additionally, in relation to the whole issue with regard to
25 Krnojelac indicating that he in fact felt threatened by the appointment,
1 there is in fact no evidence according to -- based on his testimony, there
2 is no evidence that the president -- the president of the Foca Assembly,
3 Mladenovic, president of the Executive Committee of the Municipal Assembly
4 of Foca, had in fact threatened him.
5 In relation to the whole issue of the 1993 change of assignment, I
6 just wish to refer the Chamber, the Appeals Chamber, to paragraph 2.42 --
7 rather, to our brief at large.
8 An area of contention with regard to the nature of the lease
9 agreement, the alleged lease agreement between, in fact, Krnojelac and
10 also in fact the military command, I dare say in fact our position in
11 regard to that lease agreement was that it didn't suffer from the
12 strictures of any type of contractual arrangement but, more specifically,
13 it was a case of a request being made by one body and a decision being
14 made to accommodate that request. I think, in fact, I will refer to
15 paragraph 2.42 of our brief where in fact mention is made of that
16 agreement and our arguments again in relation to this particular area is
17 in fact adequately mapped out in our brief.
18 In addition, much has in fact been made with regard to the
19 appellant's capacity to have effective control. And in paragraph 2.42, we
20 make mention of paragraphs 46 and 47 of the Defence appeal brief where he
21 alleged that from the 17th of April, 1992, until the formal conclusion of
22 the agreement on the 10th of May, 1992, the military exercised factual
23 power over the Muslim detainees in KP Dom, and members of the Uzice
24 Battalion later replaced by members of the Livade company were in charge.
25 The only evidence cited in these paragraphs of the Defence appeal
1 brief is the testimony of Prosecution witness FWS-86, a detainee in the KP
2 Dom, who said that the appellant allowed him to leave the KP Dom but with
3 the permission of the Uzice Battalion that had to be secured.
4 This testimony was, in fact, expressly referred to in the Trial
5 Chamber and is entirely consistent with the Trial Chamber's findings that,
6 and if I may quote, one important ramification of the lease agreement with
7 the military was that it was the military command, and in particular
8 Commander Kovac and not the Ministry of Justice who had the power to make
9 decisions concerning which non-Serbs detainees would be detained in and
10 released from KP Dom. And the Trial Chamber's finding that it was not
11 satisfied that in his position as temporary warden and then warden the
12 accused could unilaterally order or grant the release of any detainee,
13 which is in fact consistent with the evidence.
14 Further, as the Trial Chamber further noted, a warden does not
15 generally have a unilateral power of release and at the KP Dom it was the
16 Ministry of Justice who had the power over the continued detention of
17 convicted Serb detainees and then the accused. They also recognised
18 additionally that in fact the military command also in fact had some kind
19 of sway over in fact non-Serb detainees. It wasn't a case, for example,
20 where they were putting all power and responsibility in the hands of
22 Specific mention is made also of an incident involving Dzevad Lojo
23 to the extent that while he was in fact being interviewed by Krnojelac, a
24 guard came in and interrupted the interview to the extent indicating that
25 in fact, listen, you are taking too much time with this man; finish it.
1 What is significant, and we make mention of this in our brief at
2 2.44, is that -- is that no mention is made of the fact by my learned
3 friend that that witness also testified that the appellant told this
4 person to cease interrupting and to leave him and the witness alone. And
5 this is to be found at T624, line 11, to T626, line 14.
6 So in fact it is no indicator that there was some kind of
7 incursions being made on the capacity of effective control displayed by
8 Krnojelac in this incident. It was a case in fact -- in point where he
9 displayed control, and he told the guard the position to the effect of,
10 listen, don't interrupt me, full stop.
11 I think it may be relevant at this point in time to deal also with
12 the concept of de jure control, because it is the Prosecution's position,
13 and it was in fact the Trial Chamber's position that the accused's de jure
14 power derived from his power -- his position as warden of KP Dom.
15 It is important to note though that that this is not the first
16 time, for example, that questions have been raised with regard to de lege
17 or de facto authority of a individual operating in an environment that is
18 quite fluid. And this is why, for example, the Tribunal's jurisprudence
19 has created a line of criteria we can consider in determining whether in
20 fact the de jure control has in fact been in some way diverted by de facto
21 control from another source. And these factors have in fact been
22 mentioned in -- in various judgements. More specifically in the Kunarac
23 judgement at paragraph 397 and paragraph 399 and the Kordic judgement at
24 418. And they indicated that factors relevant to the finding of effective
25 control of a superior over de facto subordinates may include but are not
1 limited to the capacity to sign orders, the substance of the orders and
2 whether they are acted upon, formal procedures for appointment or office,
3 the position of the accused in the overall institutional, political, and
4 military organisation, the actual tasks performed such as the high public
5 profile of the accused, his overall behaviour towards subordinates and his
7 In dealing with the whole question of high public profile, one may
8 well consider and remember that in fact he did liaise on various occasions
9 with the ICRC, the International Red Cross, with regard to detainees'
10 imprisonment and in terms of the whole question of food.
11 Apart from that, one would appreciate, for example, that in
12 addition, the giving of orders, the exercise of powers generally attached
13 to a military command, the submitting of reports to competent authorities
14 in order to -- for proper measures to be taken, and sanction and power may
15 also be considered. And I think it is an area that in fact we need to
16 appreciate when we speak of sanction and power.
17 The Aleksovski judgement speaks of that very sanction and power
18 and has defined it in paragraph 78 as the possibility of transmitting
19 reports to appropriate authorities suffices once a civilian authority
20 through its position in the hierarchy is expected to report whenever
21 crimes are committed and that in the light of this position, the
22 likelihood that those reports will trigger investigation or disciplinary
23 or criminal measures is extant.
24 So that when one looks at the whole question of sanction and
25 power, we need to be realistic in terms of how it operates. In the same
1 way that a civil servant is able in fact to go to his line and also for
2 example that does not prevent him from going to other line ministers in
3 various ministries. And when you look at, for example, Krnojelac, he did
4 write to the Defence Minister. He did write to the finance ministry. He
5 did write to the War Presidency. So in fact he was quite aware, through
6 his various memoranda in terms of the various requests that he made of
7 them that therein lie the facility for communicating any type of
8 complaints that he had. And in those circumstances, in the light of
9 obviously all the beatings that were going on and being so informed about
10 these beatings by various detainees, he was in a position to do likewise.
11 He wanted food, so what did he do? He in fact sent a memo to, in fact,
12 the Ministry of the Economy. He want the oil for the purposes of
13 security. What did he do? He sent a letter, a memorandum asking for 20
14 tons of oil.
15 So --
16 JUDGE JORDA: [Interpretation] Judge Schomburg would like to ask
17 you a question.
18 JUDGE SCHOMBURG: My apologies, but you're touching just upon a
19 very serious question. I take it that it's the opinion of the Prosecution
20 that it's immaterial whether or not the possible intervention or the
21 attempt to intervene has any chance to be successful. So even if one
22 would regard these ministers, in theory, as members of a joint criminal
23 enterprise, being also responsible for the events there, and it would make
24 no sense at all to alert them in writing because they know what's
25 happening. What would be the sense of intervening by writing? Would it
1 have the preventing effect foreseen under 7(3)?
2 And second, how in the opinion of the Prosecution can a warden
3 punish the persons you mentioned and mentioned in -- primarily in the
4 indictment and in the pre-trial brief?
5 So could I please hear your opinion on this serious question of
6 how is it possible to prevent, and how is it possible to punish, and is it
7 necessary that there is a likelihood or a strong chance that a person
8 succeeds in doing so? If you would do so.
9 MR. CARMONA: Yes, yes. My lead counsel would respond.
10 MR. STAKER: Your Honour, the Prosecution would submit that the
11 answers to these questions lie in the very most fundamental purposes of
12 international humanitarian law, which is to prevent these crimes from
13 happening and to do so by making persons accountable. And that purpose
14 would be defeated if loopholes were made available to allow people to
15 escape accountability by saying, "I had nothing I could effectively do
16 because everybody was in on the crime. Because everybody else was in on
17 the crime that means that I'm not responsible for my part in it."
18 We would submit that a commander has to have a mechanism for
19 preventing or punishing. The mere fact that you are the commander means
20 that you can give orders. If orders are disobeyed, that's another
22 The power to punish, it has been held, may consist of no more than
23 reporting to other authorities who can take the matter further, but we
24 would submit the duty to report is always there. If the matter is reported
25 and those to whom it is reported do nothing, the responsibility may lie
1 there as well. And ultimately, and I believe there is case law at this
2 Tribunal to that effect, if a commander is able to do nothing, the one
3 thing that is always left to the commander is to remove himself or herself
4 from that situation. A commander can always resign that position.
5 It's a similar logic to saying that duress is no defence to crimes
6 involving the taking of human life. If everybody simply refused to do it,
7 if they refused to be a commander, these crimes could not happen.
8 JUDGE SCHOMBURG: Yes. But wouldn't -- just this suggestion, and
9 I know that your comments are based on a line of authorities, but to evade
10 by just stating, "I leave my job because I can't stand any longer," would
11 you regard this as a justification for not having reported and not having
12 punished? Couldn't this be that you correctly mentioned a kind of evasion
13 from responsibility?
14 MR. STAKER: Your Honour, we would submit, no. It's a bit like
15 asking: Is a commander relieved of responsibility if they had alarming
16 information and yet undertook no inquiry because they felt the inquiry
17 would turn nothing up, because they knew the perpetrators were so good at
18 hiding things?
19 There is -- it's speculative to ask what might have happened if
20 the duty had been fulfilled. Even if the person to whom this matter is
21 reported one believes will do nothing, it's impossible to know what might
22 happen. It may be that outside organisations or NGOs would somehow find
23 out about it and bring pressure to bear. But to simply say, "I can sit
24 back and do nothing notwithstanding I have a legal obligation to do
25 nothing because I deem that anything I tried to do would be ineffective,
1 therefore, I don't even need to try," our submission is that is contrary
2 to the very fundamental purpose of international humanitarian law.
3 JUDGE SCHOMBURG: Thank you very much for this additional
5 MR. CARMONA: I'm much obliged. So that when one looks at the
6 powers of in fact Krnojelac in his capacity as warden, we see certain
7 things emanating. For example, Defence witnesses Milan Pavlovic and
8 Miroslav Krsmanovic testify that they were transferred from the army units
9 to the KP Dom due to the interventions by the accused and Misun Jokanovic.
10 And this in fact relates to the Exhibit P3 which is attached -- which in
11 fact is attached to the arguments as laid out by my learned friend.
12 There were various documents signed by the warden that illustrate
13 in fact his position of authority. Apart from various documents where in
14 fact he actually had the stamp of Acting Warden, Temporary Warden, there
15 were also situations where, in his requests for landmines, which in fact
16 is Exhibit P445, the accused complained that the number of guards were
17 inadequate to guard the prison population of 488, which included 470
18 Muslim detainees, 10 Serb detainees, and 8 convicted persons from before
19 the war.
20 And the reason stated in request was that there was information of
21 an attempt to escape, and it is confirmed by the Prosecution witness
22 FWS-172, which stated -- who stated that in the morning of June 1992,
23 Mitar Rasevic told detainees that he believed that an escape was being
24 planned. And, of course, this wasn't the first time that the appellant in
25 fact had been making a request.
1 So you see a meeting of the minds, an ad idem, because one would
2 see a relationship between Rasevic indicating very categorically that,
3 listen, I am aware of escape plans. And in the same vein you hear about
4 requests being made for additional landmines for the purpose of
5 pre-empting such attempts.
6 When one looks at in fact the Exhibit D39, a document in fact
7 raised by my learned friend as a contentious one with regard to a request
8 made by a letter written by, in fact, Krnojelac in relation to relocating
9 the prison from Bilece to Foca. What in fact this document indicates,
10 though, is that he stated that in order to implement the order of the
11 Hercegovina Corps commander and transfer the detainees, the security
12 should be improved. So what in fact was happening is he was in fact
13 requesting more security in the KP Dom.
14 When one looks further at P446, another exhibit, it further shows
15 the scope of the accused's de jure power over the whole of the KP Dom.
16 The document prepared by Savo Todovic and signed by the accused on the
17 23rd of November, 1992 as warden, concerns lists of men liable for
18 military service, members of the Foca KPD unit, and refers to 50 names of
19 which the accused appears as name number one with the rank of captain
20 first class. Savo Todovic and Mitar Rasevic in fact appear as names
21 number two and three respectively. And what is significant is that on
22 that particular list, all the men on that list except the accused are
23 listed as soldiers, yet he's captain. And the point made by the
24 Prosecution and accepted, in the compound he had the highest military rank
25 among the staff at the KP Dom.
1 The record is replete with evidence of, in fact, Krnojelac's
2 integral role in the entire system. Many witnesses spoke about the way he
3 dressed, the way in fact he carried himself. They spoke about in fact
4 that he took part in a drill with a backpack in what appeared to be an
5 alert for a drill. And this is to be found in FWS-69's statement, T4130
6 to 4131.
7 Apart from that, even in relation to the incident involving FWS-86
8 where, in fact, FWS-86 was speaking specifically in relation to an
9 argument that arose as a result of the intervention of in fact Krnojelac
10 when attempts were made by the Uzice Corps to remove two detainees from
11 the camp. And it is significant to read exactly -- to state what in fact
12 he said.
13 He said, for example, FWS-86, at T1469 to 1473, that during the
14 said meeting - in other words, the accused -- FWS observed a heated
15 argument between the accused and a commander from the Uzice Corps
16 involving the removal of two detainees. The accused said, "I am
17 responsible here inside the KP Dom" and refused to let anyone take out
18 detainees unless he received a written confirmation giving full signatures
19 and full names. Apart from that, he gave authorisation for FWS-86 to
20 leave KP Dom to check on his elderly uncle although he had to do so with
21 the acquiescence of the commander of the Uzice Corps.
22 He was the one responsible for hiring his son as his bodyguard in
23 the camp.
24 So when in fact you look at the role of in fact the appellant, it
25 is patent that in fact he did display not only de jure -- did display well
1 de jure powers with regard to how in fact the camp operated, specifically
2 in the area of release.
3 I wish to refer the Court to Exhibit D67, Ekrem Zekovic, T3606,
4 release 6th of October 1994, where on the 15th of May, 1992, the accused
5 filed a request for the release of Enes Zekovic to the Foca Crisis Staff.
6 And on the 13th of July, 1992, he notified the Foca Tactical Group of
7 request for release of Ismet Pasovic and Sadik Demirovic. He also had a
8 telephone number of the Crisis Staff and gave it to Fikret Abdic in
9 relation to securing the release of RJ.
10 So that even when one goes further and looks at the whole issue
11 with regard to the beatings, more particularly concerning the attempted
12 escape of Ekrem Zekovic, much has been said that Ekrem Zekovic incident
13 comes at the end of his tenure, that in fact it took place on the 9th of
14 July, some three weeks before he left the camp. But I must remind this
15 Honourable Chamber that this particular incident, in fact, came subsequent
16 to he being informed of two suspicious deaths in the camp - the death of
17 Dzamilija, the death of Konjo - and you're talking about in fact a
18 particular factual matter that is in fact on a higher plane than one
19 simply being beating. You're talking about two suspicious deaths. So
20 that even as far as back as 1992, notwithstanding in fact he's leaving
21 when the Ekrem Zekovic matter in fact is experienced by him, even then he
22 would have been put on effective notice and he would have had the
23 responsibility, based on inquiry notice and based on actual knowledge with
24 regard to beatings that of course RJ mentioned to him, to do the needful.
25 Another piece of startling information in terms of the capacity that lied
1 therein to arrest the situation.
2 When, for example, the new warden came on, that is Zoran
3 Sekulovic, at the end of July 1992, FWS-182 testified that conditions got
4 drastically better. He testified that the attitude of the guards changed
5 significantly when the accused was no longer the warden of KP Dom. The
6 witness described the guards as much softer. So that one obviously
7 recognises that that particular residual power, if you may describe it as
8 that, that was there all the time was simply exercisable by in fact the
9 new warden.
10 Apart from that, there is -- there is again evidence in the record
11 that the accused admits that he had morning meetings on a daily basis with
12 heads of the business section. Detainees would see him walking around KP
13 Dom and in his office with Mitar Rasevic and Savo Todovic. Witness
14 FWS-250 saw the accused having breakfast regularly at the canteen with
15 Savo Todovic and Mitar Rasevic. Now, these may in fact appear to be
16 evidence simpliciter, and in those circumstances one would anticipate that
17 it's quite reasonable that a Trial Chamber wouldn't mention all these
18 little facets of evidence, but at the end of the day, on the totality of
19 the evidence, on the cumulative evidence, they came to the conclusion that
20 in fact that he was responsible under 7(3).
21 Again, I have mentioned in my initial arguments yesterday in
22 relation to the conduct of Burilo who in fact had a notorious reputation
23 before the camp, during the camp, which notorious reputation was acted out
24 in front of the appellant. Yet the appellant in fact -- there is no
25 indication that he made any report considering that matter. And this
1 whole question about retroactive investigation, does it mean for example
2 that because a commander in fact hears about an incident three weeks
3 before he leaves that in fact he is, in fact, in no way responsible or he
4 is in no way put on inquiry notice to do the wherewithal.
5 The bottom line is in relation to Krnojelac, there was a very
6 definitive area that in fact he could have addressed directly or
7 indirectly. He in fact had the position of the de jure prison warden. He
8 specifically in fact dichotomised his responsibility in the context of
9 director of the Drina Economic Unit and prison warden. To the extent that
10 he did so he was quite aware that there were two areas of responsibility.
11 And the thing -- the bottom line is that in fact the Trial Chamber
12 recognised that he didn't have all-encompassing power over all the guards
13 because they recognised it in the judgement. They mentioned it. But at
14 the bottom line is at the end of the day in fact there was more than
15 sufficient information for him to be put on inquiry, to do the needful,
16 which in fact was not done.
17 When one looks at the plethora of evidence in relation to
18 beatings, the chain of information that came his way from RJ, from
19 FWS-183, FWS-186, from FWS-66, various witnesses who in fact felt the
20 brunt of in fact the system, and he did absolutely nothing.
21 The Trial Chamber, in fact, found that he kept his head in the
22 sand. But what the evidence illustrates here very categorically is that
23 he was no ostrich, that in fact he had powers, powers in fact which were
24 exercisable. He had lines of authority to which he in fact he could have
25 addressed complaints, which he didn't. And more significantly, as a
1 superior, he was responsible for his subordinates, guards who, for
2 example, were both common in the Drina Economic Unit and also in fact in
3 the military section.
4 When one considers, for example, before I complete, I just wish to
5 indicate, for example, that the accused himself confirmed that he provided
6 the internal rules to the Ministry of Justice at a meeting when such rules
7 were requested. So that in fact he in fact invoked rules previously in
8 fact -- previously there to be part and parcel of in fact the system then.
9 And what in fact it tends to show is to support the continuity between the
10 organisation of the KP Dom before and during the war.
11 In passing, I should add that there were many instances, two in
12 particular where in fact Savo Todovic had to in fact get his signature to
13 send documents on to higher authority. So that there was in fact
14 subsisting this hierarchical relationship and this provided the mechanism
15 for control which regrettably in fact was never invoked.
16 Without more, this essentially, in fact, are the submissions. I
17 wish to indicate that we are also adopting in toto our arguments in the
18 brief as it relates to the particular areas of concern. And if in fact
19 the learned Tribunal -- yes.
20 JUDGE GUNEY: [Interpretation] Mr. Carmona, you referred to the
21 powers and assignments of the accused as the KP Dom warden. Particularly,
22 you refer to the powers and assignments that he had or residual powers
23 that he might have had and those powers -- residual powers he might have
24 exercised. Relating of course to the non-Serbs and the Muslims, could you
25 tell us, what were his powers? What were his authorities that he did have
1 and that he didn't use for reasons that were well-founded or not
2 well-founded? Could you give us some information on that point? Thank
3 you very much.
4 MR. CARMONA: Well, in relation to -- in relation to his powers,
5 he was a repository of perennial complaints from various prisoners. When
6 one considers, for example, how prisoners came to make complaints to him,
7 they would first in fact have to report it to a guard who would bring
8 them -- bring that particular individual to the office, who subsequently
9 in fact would bring that individual into his office.
10 As much as in fact for example he said in fact he couldn't do
11 much, there were many instances where in fact, for example, attempts were
12 made by him to in fact do certain things with regard to food rations.
13 Apart from that, there were certain specific guards who in fact belonged
14 both to the Drina Economic Unit and belonged in fact to guards who also in
15 fact were in charge of the non-Serbs. And this was by an admission by him
16 in evidence. To the extent that these guards -- he was -- he was the
17 warden, he would have in fact been in charge of those individuals.
18 Apart from that, some of the guards who were there were formerly
19 guards in KP Dom who were brought back by virtue of a decree into work
20 assignments. So, apart from the fact that these particular individuals
21 belonged to -- belonged to the regime before and were there still is an
22 indication in fact that he did have control. And when one considers that
23 a directive came to him to be in charge of the internal conditions of the
24 place coupled with the fact that when guards attempted to remove detainees
25 he was quite adamant, as I mentioned just a moment ago that he ought not
1 to be removed without the proper accreditation, if I may so describe it,
2 all of this is an indicator that he in fact did have control over these
4 And if I may refer also to paragraphs 105 to 106 in the judgement
5 and paragraph 103 also.
6 JUDGE GUNEY: [Interpretation] Mr. Carmona, could you give us one
7 or two examples which would show that the accused was unable to make use
8 of his powers and responsibilities and the constraints that he experienced
9 afterwards following the division of the KP Dom into military and civilian
11 MR. CARMONA: When one -- when one looks at the evidence in
12 relation to RJ, who in fact the Court relied on tremendously, RJ in fact
13 had made various complaints to him with regard to beatings that were going
14 on, beatings that he in fact would have been quite aware of by virtue of
15 where in fact his office was.
16 Apart from that when one looks at in fact the Defence Exhibit 29
17 Official Gazette order which spoke of the internal runnings of the
18 particular prison, mention is made particularly of the fact that apart
19 from the workers employed at that institution being there that they would
20 have gotten the assistance of in fact the employees of the Ministry of
21 Interior police and MUP, so that as much as in fact he may have in fact
22 been in a position of some -- of some doubt at times, he very well knew
23 that there were in fact mechanisms which enabled prison authorities to
24 deal with situations like that.
25 Because you will remember, when he was confronted with the death
1 of Konjo by the nurse and the nurse mentioned for example that an
2 investigation committee had come in to deal with the situation he accepted
3 it and didn't pursue it. So obviously he was aware that there were indeed
4 mechanisms in the system to deal with situations of abuse. FWS-138, a
5 guard who worked before and during that incident, before the camp and who
6 in fact was a detainee, spoke of in fact lines of communication between
7 the various organisations that were still subsistent even during the said
8 conflict. Albeit not identical, but certainly there.
9 Even further, that really there was no division. There was one
10 structure. When you look at, for example, how in fact -- when people were
11 injured, how they were fed together albeit at various times, how they were
12 housed together, albeit in different rooms, they were essentially one
14 The only limitation, though, with regard to Krnojelac, however,
15 was in the area of release. And in any -- in any ordinary organisation,
16 whether in fact it is one that is democratically run or situations like
17 that, very often a prison warden doesn't really have powers of release.
18 He has powers of recommendation, as in fact was done in this particular
20 JUDGE JORDA: [Interpretation] Judge Schomburg.
21 JUDGE SCHOMBURG: Thank you, Mr. President. A fundamental
22 question which goes in both directions and covers both appeals, and it
23 might serve maybe as a kind of judicial hint. The question for me, and
24 please assist me with this, is the following: We are now in the
25 situation, and you impressively discussed the question and described the
1 superior responsibility, but we are faced with the situation that the
2 Prosecution has pleaded in the first instance 7(1), 7(3) responsibility.
3 In the second instance we have some acquittals and we -- some convictions
4 are contested by the Defence, and in both situations, the Prosecution is
5 pleading now merely 7(3) responsibility.
6 My procedural question is: What is your opinion? Would it be for
7 the Appeals Chamber? Would there be a possibility to come to the
8 conclusion that in fact there is a 7(1) responsibility and a 7(3)
9 responsibility or merely a 7(1) responsibility based on the fact that you
10 are now pleading merely 7(3)?
11 MR. CARMONA: Yes. I think in fact -- this is a question that my
12 lead counsel will respond to since in fact he has dealt with it before.
13 MR. STAKER: Your Honour, can I clarify if I've correctly
14 understood the question. Is the question that if 7(1) and 7(3) were both
15 charged and the Trial Chamber acquitted on both and the Prosecution is now
16 only appealing on 7(3) but that the Appeals Chamber thought that the
17 correct characterisation of the facts when the law is correctly applied to
18 them would be Article 7(1) responsibility, whether the Appeals Chamber
19 would have a discretion to make such a finding notwithstanding that this
20 was not expressly the ground of appeal?
21 Your Honour, if that is the express question, I have to concede
22 that I've not come to court prepared to argue that, and if that is an
23 important question, I would request leave to file something in writing on
24 it. And perhaps the Defence would want an opportunity to respond to that
25 since I suspect that my colleague for the Defence may also not have come
1 to court today prepared to argue that question, which is an important one.
2 JUDGE SCHOMBURG: Yes. In fact, and, therefore, I emphasise it's
3 a question directed to both parties because the same to a certain extent
4 might be a question.
5 I don't know whether at the end of the day in fact it will be a
6 question, but also in cases where, for example, the Defence is contesting
7 now the judgement of first instance and primarily you are relying now on
8 the 7(3) responsibility even though the pleading in the first instance in
9 the indictment was a 7(1) and a 7(3) responsibility. So the question goes
10 in both directions.
11 MR. STAKER: As I say, Your Honour, I think if that were a
12 question that arose at this stage, the appropriate course would be to take
13 it on notice and to submit something in writing. The Prosecution, as I
14 say, hasn't come prepared to argue this, but even if I were to take it
15 extemporaneously, I'm not sure that my colleagues of the Defence would be
16 prepared to argue it.
17 JUDGE SCHOMBURG: Thank you. We might probably come back to this
18 later. Thank you.
19 THE INTERPRETER: Your microphone, Counsel.
20 MR. CARMONA: It is now my esteemed pleasure to introduce my
21 colleague Ms. Rashid who in fact will be dealing with the second ground of
22 appeal, individual responsibility for persecution, imprisonment and living
23 conditions, rather in terms of the response -- sorry. The response.
24 Thank you.
25 MS. RASHID: May it please the Court. Your Honour, I will be
1 responding to the appellant's second ground of appeal. I don't plan to
2 respond to all the arguments that he has raised simply because most of the
3 arguments have been adequately, comprehensively responded to in the
4 Prosecution response brief. I will take about five minutes, though, to
5 respond very briefly to one of the legal errors that learned counsel has
6 raised, and that relates to the mens rea of an aider and abettor for the
7 crime of persecution.
8 Your Honour, the appellant has argued that in order for the
9 appellant to be liable as an aider and abettor for the crime of
10 persecution, the aider and abettor must share the same discriminatory
11 intent of the perpetrator committing the crime of persecution.
12 The Trial Chamber in the judgement in this case has held that as a
13 matter of law, to find the appellant guilty of aiding and abetting the
14 persecution of the non-Serb detainees, the Prosecution had to establish
15 that the appellant had knowledge that the principal offenders intended to
16 commit the underlying crimes constituting persecution, and that by their
17 acts they intended to discriminate against the non-Serb detainees and
18 that, with that knowledge, he made a substantial contribution to the
19 commission of the discriminatory acts committed by the principal
21 The Prosecution agrees with the Trial Chamber's legal finding. In
22 his argument, the Prosecution notes that he has not referred to a single
23 authority except he cited today the Kupreskic Trial Chamber or Appeals
24 Chamber's judgement - I'm not clear on that one - in support of his
1 The accused -- sorry, Your Honour. The appellant's assertion is
2 in any case unsupported by the prevailing Tribunal jurisprudence. The
3 appellant has essentially considered that for all other crimes apart from
4 persecution, the aider and abettor need not share the requisite mens rea.
5 No reasons have been offered, either in his appeal brief or at today's
6 hearing, as to why the crime of persecution should be treated any
7 differently in the context of individual responsibility.
8 Your Honour, we have referred to the -- all the relevant cases
9 that we could find in our response brief supporting our submissions that
10 there is clear jurisprudence both at trial and at the appeals level in
11 support of the Trial Chamber's legal finding on the mens rea of an aider
12 and abettor on the crime of persecution. More pertinently, I must point
13 out that this issue has been resolved by the Appeals Chamber, by at least
14 three Appeals Chambers, and no cogent reasons have been advanced as to why
15 this Appeals Chamber should revisit the issue or reconsider its previous
17 I need only refer Your Honour to the Aleksovski appeal judgement,
18 which followed the Furundzija appeal judgement at paragraph 162. I must
19 point out the Kvocka trial judgement, which has acknowledged that the
20 requisite mens rea of an aider and abettor of persecution as a special
21 intent crime is broader.
22 In the context of persecution, it was held that the aider and
23 abettor of persecution must not only have knowledge of the crime that he's
24 assisting or facilitating, but he must also be aware of the -- that the
25 crimes were being committed -- sorry, with a discriminatory intent. So he
1 must be aware of all the elements of the crime. He does not have to share
2 this intent. All he needs to do is that he must be aware of the broader
3 discriminatory contacts and know that his acts of assistance or
4 encouragement have a significant effect on the commission of the crimes.
5 The Kvocka Trial Chamber highlighted the importance of drawing a
6 distinction between the mens rea of an aider and abettor and a
7 co-perpetrator. It says that there is no need for a shared intent because
8 if intent was shared this might elevate a secondary, that is an accomplice
9 or an aider and abettor to the status of a co-perpetrator and this might
10 dilute the distinction that the Appeals Chamber in Tadic has set out
11 between participating in a joint criminal enterprise and aiding and
13 So it is important to maintain that distinction.
14 Now, learned counsel has today referred to the Kupreskic appeal
15 judgement or trial judgement in support of his assertion. The only
16 relevant finding that we could find referring to the elements for aiding
17 and abetting is the one set out in the Kupreskic Trial Chamber's legal
18 findings on this issue which was cited by the Appeals Chamber in its
19 judgement. That's at paragraph 254, and it is in fact set out in our
20 response brief in support of the Prosecution's argument. In fact, the
21 Appeals Chamber adopted the Trial Chamber's finding that for an aider and
22 abettor, he must only know that the acts performed by him assisted the
23 commission of the persecutory act by others. So it doesn't support the
24 Defence assertion at all.
25 That is my submission, Your Honour. The rest of the arguments
1 raised by the Defence has been adequately responded to. If I could be of
2 any assist -- assistance I would be more than happy to do so.
3 Then it is for me to introduce my colleague Ms. Helen Brady and
4 she will be addressing the Court on the fourth and the fifth grounds of
5 the appeal raised by the appellant. Thank you, Your Honours.
6 MS. BRADY: Good afternoon, Your Honours. That introduction was a
7 more lengthy one than I will probably be in my response, because indeed on
8 grounds four and five which concern his Article 7(3) responsibility for
9 beatings, both as inhumane acts and cruel treatment and persecutory
10 beatings, most of these issues have already been dealt with in a very
11 substantial way by my colleague Mr. Carmona this morning as well as we've
12 extensively addressed these in our submissions yesterday when we were
13 speaking of superior responsibility for torture.
14 Clearly, there is an overlapping of issues here with the earlier
15 issues relating to the first ground of appeal in particular.
16 Today, Mr. Bakrac has mentioned two issues common to both grounds.
17 The first is in relation to his knowledge about the beatings. All I need
18 to say, I think, on that is that we have responded in great detail to the
19 points raised in chapter 6 of our response brief, and we've also made a
20 lot of submissions on this yesterday when I spoke on both the -- in the
21 submissions on appeal and also in our reply. So I won't elaborate on
22 those submissions. I think everything I have said on the subject needs to
23 be said there.
24 The other issue he referred to in relation to these two grounds is
25 really that he was not a superior to the guards and so he can't bear 7(3)
1 responsibility. And again, Mr. Carmona has extensively addressed this
2 ground concerning his effective authority for 7(3) and shown that the
3 Trial Chamber has made no error by concluding that Krnojelac was in this
4 hierarchical relationship with the guards. And not only was he a de jure
5 or legal superior, but he also had real powers over them sufficient for
6 having a real or material ability to take steps to prevent or punish.
7 There's nothing I need add to this except just to re-emphasise the
8 need to take, just as the Trial Chamber did on this issue, and setting out
9 its findings in ten very extensive pages with extensive footnotes citing
10 the evidence that one needs to take a holistic approach to the evidence.
11 In particular, paragraphs 102 to 103 and 318 of the judgement. And this
12 analysis is certainly -- one cannot say, it is not one that no reasonable
13 Trial Chamber could in fact have made.
14 And in fact, I would just make one more point on this, and that's
15 that the Trial Chamber's rigour in applying the test for effective control
16 can be seen when it deals with the situation of the other people who were
17 beating the detainees, those who were coming in, the military police, the
18 interrogators, those who were coming in from outside. And there you will
19 recall that the Trial Chamber found he wasn't in this hierarchical
20 relationship, so he didn't bear 7(3) responsibility for their actions,
21 only in relation to the actions of the guards and the actions of the
22 guards in allowing them, permitting them into the camp and participating
23 with them in those crimes. And I think that shows a rigour and certainty
24 of analysis.
25 Your Honours, that's all I'll say. All other aspects raised in
1 his appeal brief are responded to in our written submissions in chapters 5
2 and 6 of the Prosecution response brief.
3 If there are any questions, otherwise, I will be happy to
4 introduce the final speaker, the senior appeals counsel Mr. Staker who
5 will be addressing on sentence and concluding remarks. Thank you.
6 MR. STAKER: May it please the Chamber. The sentencing appeal can
7 be dealt with very briefly. The standard of review in an appeal against
8 sentence has been addressed in paragraph 9.2 of the Prosecution appeal
9 brief and paragraph 11 of the Prosecution response brief. The case law on
10 this is well known. The sentencing appeal is not a de novo hearing. It
11 is not an opportunity for the party to rehearse the sentencing arguments
12 that were presented before the Trial Chamber.
13 What is necessary is to show that the Trial Chamber went outside
14 its quite considerable discretion in matters of sentencing, that the error
15 in sentencing was discernible, discernible being the test word used in the
16 case law generally, or that there was an error of law in that the Trial
17 Chamber took into account a matter which it was legally not entitled to
18 take into account or that it refused to consider a matter that it was
19 legally obliged to consider.
20 In our submission, everything said by my colleague for the Defence
21 today in the sentencing appeal has already been said in the Defence appeal
22 brief and has already been responded to in the Prosecution response brief.
23 The Prosecution's submission is at the end of the day the various
24 matters referred to by my colleague for the Defence were all taken into
25 account by the Trial Chamber in one way or another. It hasn't been shown
1 that there has been a discernible error in sentencing or that the
2 sentencing discretion has been exceeded. And indeed, if I understand my
3 colleague for the Defence, this was in fact conceded by him if the
4 transcript reflects correctly what was said, it says that the Defence does
5 not think that the trial fully went beyond its discretionary right but
6 that he wanted to raise certain sentencing factors in any event.
7 Our submission is that that nonetheless does not satisfy the test
8 for an appeal against sentence in this jurisdiction.
9 The one matter that was raised which I believe is new was the
10 argument that it may make a difference whether a number of crimes were
11 committed within a short space of time or a long space of time. That's a
12 matter I don't intend to go into. I think that's a matter that might be
13 looked at either way by a Trial Chamber. I don't think there's any doubt
14 that in this case the Trial Chamber was aware of the period in question
15 and that it was aware of the scale of the crimes that were committed, and
16 there's no suggestion that it didn't give it appropriate consideration in
17 one way or the other.
18 That -- with that, I conclude my submissions on the sentencing
20 I would just proceed then to make a few concluding comments before
21 ending the Prosecution submissions in response.
22 JUDGE JORDA: [Interpretation] Mr. Staker, excuse me. I want to
23 ask you a question. When you talk about sentence, do you believe that
24 your position in respect of asking for review upwards, in respect of
25 whether the -- at the state -- status of the case when you began the
1 appeal and the point where this discussion began, at some point in your
2 office did you consider the sentence in respect of all the different
3 sentences that have been pronounced at this Tribunal? There have been
4 several, quite a few. Some were more spectacular than others. I would
5 like to know what is the position of the OTP in respect of sentences. Did
6 you understand my question?
7 MR. STAKER: I believe I've understood your question, Your Honour.
8 I think the established law is that every sentence has to be
9 individualised and that sentences imposed in other cases are a matter that
10 can be looked at, bearing in mind, however, that each case has its own
11 unique features. It's not possible to say that we have in this case a
12 camp commander, therefore, the starting point is so many years, or that
13 this person is convicted of three murders, therefore, the starting point
14 is another case that involved a person who was convicted of three murders.
15 In almost every case before this Tribunal, accused will be charged
16 on multiple counts for acts that may be categorised as various different
17 kinds of crimes, convicted on some, acquitted on others on different
18 bases, whether it's superior responsibility, direct responsibility, aiding
19 and abetting, and the personal circumstances will always vary
20 considerably. So the starting point is not to draw strict comparisons
21 with sentence imposed on other particular accused in other particular
23 JUDGE JORDA: [Interpretation] Judge Shahabuddeen. Thank you,
24 Mr. Staker.
25 JUDGE SHAHABUDDEEN: Mr. Staker, it used to be the position in one
1 jurisdiction that I know of that the Court is not overly concerned with
2 previous cases and previous sentences passed in those cases, but I think
3 the view has changed latterly in the opposite direction, that, well, the
4 courts must respond to the public conscience, and the public conscience
5 does not sit too easily with glaring discrepancies in sentencing and is
6 not too easily appeased by intellectualised arguments as to the peculiar
7 circumstances of one case having to be individualised and so on.
8 There is, therefore, a movement in the direction, as I perceive
9 it, of establishing some kind of tariff. I think this is what the
10 President had in mind. We bear in mind very much what you have wisely
11 said about the need for individualising sentences and taking the
12 circumstances of each case into consideration, but at the end of the day,
13 is there a movement now in response to an appreciation of the dictates of
14 the public conscience to establish a kind of tariff.
15 MR. STAKER: Your Honour, the answer to that question, I think, is
16 that any kind of tariff in a national system would normally be provided by
17 a legislature. If in the Tribunal we do not have a legislature that could
18 do that, it would be provided by the judiciary. And I do recall that in
19 earlier sentencing appeals, if I remember correctly, the Prosecution did
20 make a submission that gross discrepancies in sentencing would be a matter
21 of concern, noted that in a national system normally some guidance is
22 given for a start from the fact that most different kinds of crimes have
23 different maximum sentences. Murder has a different maximum sentence
24 under international law and every other system than grievous bodily harm
25 or theft, whereas in the legal system of the Tribunal, every crime has a
1 maximum sentence of life imprisonment.
2 My recollection is that decision in the case in which this
3 submission was made was nonetheless that in this legal system, every
4 sentence is individualised and yet the Appeals Chamber at that stage
5 considered it inappropriate to provide more detailed guidelines. It may
6 be that that is a question that could be reopened. I would submit merely
7 that the submission I've just made is one that follows the existing case
9 JUDGE JORDA: [Interpretation] If there are no other questions, you
10 can complete your comments, Mr. Staker.
11 MR. STAKER: Thank you, Your Honour. My concluding comment is
12 just this: That the Defence appeal in this case is based largely on
13 alleged errors of fact and that the standard of review in an appeal
14 alleging errors of fact is well settled in the case law of the Tribunal.
15 Members of the Bench have referred to it in the course of this appeal, and
16 it's been addressed in the Prosecution response brief in Chapter 1.
17 And the point that I would wish to emphasise in concluding is that
18 the applicable test in an appeal alleging errors of fact is whether the
19 decision of the Trial Chamber is one which no reasonable trier of fact
20 could have come to on the evidence before it. And the situation is that
21 for every finding of fact made in the trial judgement, there was evidence.
22 In this case, there was a lot of evidence. There was a lot of evidence
23 referred to in the trial judgement, and there was no doubt much evidence
24 that was before the Trial Chamber that was not expressly referred to in
25 the trial judgement.
1 Now, I notice the Defence approach in this appeal is to refer to
2 and to rely on the evidence that is inconsistent with the findings of the
3 trial judgement, and we submit that that is not the correct approach. In
4 any case before this Tribunal where there is large amounts of evidence,
5 there will always be conflicting evidence. I doubt that any judgement is
6 ever given -- it's probably the case in national courts as well: A
7 judgement will not be given that is 100 per cent consistent with every
8 item of evidence that was before the Court. The Court has to weigh
9 conflicting evidence and come to its own conclusion.
10 So simply pointing to evidence that is inconsistent with what the
11 Trial Chamber found is not sufficient to establish that no reasonable
12 trier of fact could have come to that conclusion. Indeed, we would submit
13 that in an appeal alleging an error of fact, the focus is not on the
14 evidence that was inconsistent with the Trial Chamber's findings, the
15 focus must be on the evidence that supported the Trial Chamber's findings.
16 One has to look at the evidence that the Trial Chamber relied upon in
17 reaching its decision. And an error of fact may be established if it's
18 found that there was no evidence at all for the conclusion it reached or
19 if it's found that the evidence that the Trial Chamber relied on was such
20 that no reasonable Trial Chamber could have accepted it as credible, or
21 relied upon it, or if it's shown that no reasonable Trial Chamber could
22 have drawn the inference of fact from that evidence that the Trial Chamber
23 did, or that the evidence that it relied upon, when looked at together
24 with other evidence in the case, cumulatively is not such that any
25 reasonable Trial Chamber could have concluded that the conclusion was
1 established beyond a reason doubt.
2 Now, in our submission there is a danger that if, in an appeal
3 alleging error of fact, there is a concentration on the inconsistent
4 evidence, what we descend into is a new trial. It's not the
5 responsibility of a respondent to go through all of the evidence that
6 supported the Trial Chamber's findings and to explain why they support the
7 findings the Trial Chamber reached, and I fear this hearing may have
8 veered off in that direction slightly.
9 We submit it's not for the Prosecution to explain why the Trial
10 Chamber's findings are justified. The question is whether it has been
11 proven, and the burden lies on the Defence that no reasonable trier of
12 fact could have reached this conclusion based on the evidence before it.
13 And we submit that if that is not established, the findings of the Trial
14 Chamber stand. And I mean the findings of the Trial Chamber, because
15 there's also the danger that there may be a suggestion that by reopening
16 things, one's seeking to go beyond the Trial Chamber's findings and to
17 make new or additional findings. That's not the case either. And the
18 Prosecution position is that, apart from those specific areas of the trial
19 judgement that we have appealed in our appeal, we submit that the finding,
20 the judgement of the Trial Chamber stands unless and until it's shown that
21 there is something in that so unreasonable that no reasonable trier of
22 fact could have reached that conclusion, and our submission is that that
23 has not been established by the appellant in this case.
24 And unless I can be of further assistance, they are the
25 submissions of the Prosecution in response.
1 JUDGE JORDA: [Interpretation] Judge Shahabuddeen.
2 JUDGE SHAHABUDDEEN: Mr. Staker, I was interested in your
3 peroration, from which I derive great assistance, but tell me, have I got
4 it right? Your position is that in determining the issue whether any
5 reasonable Tribunal of fact would have come to the conclusion reached by
6 the Trial Chamber in question, regard is only to be had to the evidence
7 which the Trial Chamber relied on for its findings? Is that perhaps too
8 severe a view to take? Might there not be a case - Mr. Bakrac referred to
9 it - in which there is some evidence which the Trial Chamber did not rely
10 on for its findings but which a reasonable Tribunal of fact, if it took
11 account of it, might say to itself that it couldn't come to the conclusion
12 reached by the Trial Chamber on the facts which supported its findings?
13 MR. STAKER: Your Honour, I'm sorry if I wasn't entirely clear in
14 the submission I was making. Of course the evidence that one can look at
15 in an appeal alleging error of fact is all of the evidence that was before
16 the Trial Chamber. Of course one can't look at other evidence that was
17 not before the Trial Chamber, subject only to Rule 115.
18 But my submission is that when looking at whether there's been an
19 error of fact, the starting point is to look at the evidence that the
20 Trial Chamber did rely on and then -- and then perhaps proceed to say, in
21 light of the inconsistent evidence, no reasonable trier of fact could have
22 concluded on that evidence that it was proved beyond a reasonable doubt.
23 But you can't ignore the evidence the Trial Chamber did rely on and only
24 look at the inconsistent evidence, which is the approach, in our
25 submission, the Defence has taken in this appeal.
1 JUDGE SHAHABUDDEEN: That seems to me to be a slightly different
3 MR. STAKER: I apologise if I wasn't clear. My point is to say
4 that the starting point of the analysis is what the Trial Chamber did rely
6 JUDGE AGIUS: Just to clarify this in my mind mainly. I think
7 there are two points in issue at this point. One which has been raised by
8 my colleague Judge Shahabuddeen, the other one which was raised by you. Do
9 I take it that what Judge Shahabuddeen actually raised is a matter that
10 belongs to us when we come to deliberate on on the appeal or that
11 particular section of the appeal. The other one also belongs to us but
12 refers particularly to the onus that you have in fulfilling your task as
13 Prosecution defending or responding to the appeal of the Defence. In
14 other words, what -- the point that you have made, and if I misread you,
15 please do tell me so, is that it is not your job, your task in response to
16 the appeal of the Defence, this particular appeal to show how or why the
17 decision of the Trial Chamber as regards the evaluation of the fact ought
18 to stand but, rather, it is the onus of the Defence to prove that there
19 has been indeed been an error of fact. Is that correct?
20 MR. STAKER: That's our position. In this case the Defence is
21 appealing and the Prosecution is responding, but the position would be
22 identical if the Prosecution was appealing and the Defence responding.
23 But the burden is always on the appellant to persuade the Appeals Chamber
24 that the standard is met and the respondent does not need to justify --
25 JUDGE AGIUS: Could it be our duty in fulfilling this exercise to
1 take into consideration not only what is specifically referred to in the
2 judgement of the Trial Chamber but also the sum totality of the evidence,
3 including evidence that Judge Shahabuddeen has referred to which a
4 reasonable Trial Chamber would or should have taken into consideration.
5 MR. STAKER: Well, yes. But the point I would keep returning to
6 is that the analysis is what the Trial Chamber found. Therefore, one
7 doesn't -- I mean, one is only looking at the trial judgement as it were
8 what are the findings that the Trial Chamber made.
9 In determining whether those findings were reasonable or
10 unreasonable in the sense that no reasonable trier of fact could have
11 reached them, the Appeals Chamber may look at the totality of the evidence
12 in the case. But of course it's for the parties to identify the
13 unreasonableness. As I said, the appellant bears the burden. If nothing
14 is identified for the Appeals Chamber to find something proprio motu that
15 the parties haven't had the opportunity of briefing or submitting argument
16 on would be going beyond this contradictory adversary process.
17 JUDGE JORDA: [Interpretation] Very interesting what you have just
18 said for the Appeals Judges listening to you because you mentioned various
19 points. And your criteria, trying to say that one should not look for
20 whether or not there were contradictions of this piece of evidence because
21 you think that when you look at all of the evidence that have been
22 provided that there might be contradictions, that is something that would
23 be of enormous interest to us, and we will take that into consideration.
24 I think we've finished now.
25 MR. STAKER: One further clarification.
1 JUDGE JORDA: [Interpretation] Yes, please.
2 MR. STAKER: When I said that the Appeals Chamber can look at all
3 the evidence in the case, the one clarification I make is that it can only
4 look at the evidence that the Trial Chamber could have looked at and taken
5 into account. The one situation that would cover is that if evidence were
6 tendered but the Trial Chamber refused to admit it and therefore didn't
7 take it into account, that couldn't be taken into account on appeal unless
8 it had been established that the Trial Chamber was unreasonable in
9 refusing to admit it.
10 JUDGE JORDA: [Interpretation] Yes, yes. That's a point that the
11 Chamber is very familiar with. That's part of our own case law, but of
12 course you're right to recall that.
13 Judge Schomburg.
14 JUDGE SCHOMBURG: But isn't it true that this review of the
15 evidence admitted at trial is limited to that extent that the appealing
16 party has no doubt the onus to prevent -- present the flaws, and would it
17 be not for the Appeals Chamber to go into a search exercise throughout all
18 the admitted evidence in order to find out whether or not the Trial
19 Chamber erred, for example, by not taking into account the one or other
21 In conclusion, this would mean that the work of the Appeals
22 Chamber would be limited to that end and to those alleged errors in coming
23 to the facts of the case they adduced and submitted during the appeal.
24 Would this be your position?
25 MR. STAKER: Essentially, yes, Your Honour. In any legal system,
1 the judiciary plays a certain role. The appellant plays a certain role.
2 The respondent plays a certain role. Others play a certain role. And
3 that role is different in different legal systems. But in the legal
4 system of this Tribunal, it's a -- well, a contradictory proceeding
5 whereby a party invokes the judicial mechanism so that, for instance, I
6 think it must be uncontroversial that the Appeals Chamber could not
7 reverse a trial judgement on appeal if neither of the parties appealed.
8 It's for the parties to invoke the appellate process, and it's for the
9 parties to specify their ground of appeal. Therefore, the Appeals Chamber
10 would not find errors in the judgement that have not been raised as any
11 ground of appeal. I believe we have case law to that effect as well.
12 The parties themselves are constrained in that they can't raise
13 errors that are not included within their grounds of appeal unless they
14 apply for and are given leave to amend those grounds. And it's part of
15 the efficiency of the process that litigation doesn't become endless and
16 uncontrollable and the mechanism for keeping procedures regular in this
17 legal system is that the parties invoke the process and identify what they
18 are seeking and this is ruled upon in due course.
19 JUDGE JORDA: [Interpretation] Thank you very much. We're going to
20 suspend, take a 20-minute break so that the Defence will have the final
21 word in its reply. All right. At the request of the majority of Judges,
22 Judge Shahabuddeen speaking for all, we will take a 30-minute break. And
23 the Defence can prepare itself for the final reply and we'll give the last
24 word to Mr. Krnojelac. Very well. We'll see one another again in 30
1 --- Recess taken at 4.14 p.m.
2 --- On resuming at 4.47 p.m.
3 JUDGE JORDA: [Interpretation] We will now resume the hearing.
4 Have the accused brought in, please.
5 Mr. Bakrac.
6 MR. BAKRAC: [Interpretation] Your Honours, I'd, with your leave,
7 like to ask my co-counsel, Mr. Vasic, to give the reply.
8 JUDGE JORDA: [Interpretation] It is your choice. Please go on,
9 Mr. Vasic. Very well. We're listening.
10 MR. VASIC: [Interpretation] Thank you, Your Honours.
11 Your Honours, learned friends, at this stage, in view of the
12 exhaustive presentation of the grounds of both parties, the Defence will
13 confine itself now to comments about some of the things that were said by
14 my learned friend Mr. Carmona which, in the Defence's view, do not arise
15 from the body of evidence available to the first instance Trial Chamber.
16 To begin with, the Defence should like to clarify an issue which
17 came up yesterday and today in the courtroom and had to do with the
18 document dated 11th January 2000, which the Defence did not use during its
19 case before the Trial Chamber.
20 Why did not we -- why didn't we do that? Because --
21 JUDGE SCHOMBURG: Sorry. This is a document mentioned in
22 paragraph 98? You're referring to this?
23 MR. VASIC: [Interpretation] I apologise, Your Honours. Let me
24 just check it. Yes, that is the document.
25 The reason we didn't do that is that the Trial Chamber -- because
1 that is a document from the year 2000 and the Trial Chamber recommended to
2 the Defence to think about it and to check the probative value of such a
3 document, and the Defence then, as it had more evidence to produce dating
4 to 1992 and 1993 about the same or even identical facts, the Defence,
5 therefore, decided not to tender that particular document into evidence as
6 its exhibit. So that was the reason insofar as that document is
8 My learned friend Mr. Carmona, when referring to the position of
9 the accused in the KP Dom, said that the fact that he was the warden and
10 that the hierarchical structure in the KP Dom did not change, and he said
11 that the witness FWS-138's testimony corroborated that position. That
12 witness was a guard in the KP Dom prior to the conflict, and for a while
13 he was also detained in the KP Dom.
14 I think that our learned friends in the Prosecution themselves
15 submitted during the case that -- that the detainees did not often leave
16 the rooms that they were detained in, so the question arises how could
17 they assess accurately the organisation of the prison's administration at
18 the time when they were kept in it?
19 On other hand, we heard in the course of the proceedings a large
20 number of witnesses for the Prosecution who said that Milorad Krnojelac
21 was a paper warden or a de jure warden which could also fit into their
22 subjective appreciation of the situation on the basis of what they could
23 see, bearing in mind the position they were in. However, the Defence
24 produced some other evidence to the same effect, showing that Milorad
25 Krnojelac's role was completely different. Those were guards who worked
1 in the KP Dom at the time relevant for the indictment and who stated that
2 Milorad Krnojelac was not their superior, that he issued no orders to
3 them, and that was also firsthand testimony.
4 The third category of evidence produced to show the same point are
5 documents which Milorad Krnojelac sent to his ministry, that is the
6 Ministry of Justice, under whose jurisdiction he was and which clearly
7 show what were his powers, what were his terms of reference. And we think
8 that if one juxtaposes this evidence on the one hand and the FWS-38's
9 statement on the other, then that the only conclusion we can arrive at is
10 that -- what immediate participants, that is guards, present should -- and
11 documents which Milorad Krnojelac wrote at the critical period should be
12 given more weight.
13 My learned friend also said that it was the duty of a warden to
14 report to the Ministry of Justice about beatings that were happening at
15 the relevant period, again on the basis of the testimony of the
16 above-mentioned witness FWS-138.
17 It is indisputable that in peacetime any such violent act means an
18 infraction of the rules of service and needs to be reported to the
19 Ministry of Justice. However, bearing in mind the situation in Foca in
20 1992/1993 when the KP Dom had been leased to the army so that it could
21 keep the non-Serb population there, the detained non-Serb population, it
22 was quite clear that the Ministry of Justice had no jurisdiction over that
23 wing of that part of the KP Dom and that it was under a completely
24 different administration which could possibly communicate with the
25 commander of the unit which supervised the prison.
1 At the time when those ministries were put in place and when they
2 were operational, bearing in mind at that time one could hardly go along
3 with the conclusion about the fluid nature of those institutions according
4 to which, I presume, the jurisdiction of the Ministry of Justice might be
5 interwoven with that of the Ministry of Defence or some other ministry,
6 and I think that if one does have a government in place, if one does have
7 -- if one has ministries in place, something like that would be
9 The Defence, therefore, thinks that such a conclusion is untenable
10 and that the Ministry of Justice had jurisdiction only over that part of
11 the KP Dom in Foca where prisoners from before the conflict were kept and
12 in that segment of the KP Dom which was called the Drina Economic Unit.
13 Needless to say that different ministries communicate at the government
14 level, and I think that that is the only reasonable level allowing us to
15 conclude that the government is performing its -- the duties it is
16 supposed to perform.
17 My learned friend also mentioned the exhibit of the Prosecution,
18 P2, to corroborate his submission that there was no division in the
19 administration of individual parts of the KP Dom, and he based his
20 conclusion on the fact that although the kitchen and the hospital had been
21 leased to the Foca Tactical Group, they nevertheless were used by other
22 prisoners too.
23 If one -- if one looks carefully at a number of exhibits
24 addressing the state of affairs in that part which was under Milorad
25 Krnojelac's jurisdiction according to the Defence, and that is the Defence
1 Exhibit 85, it's the document which is the report of Milorad Krnojelac
2 that he's submitting to the Ministry of Justice, and if one looks at it
3 carefully, then one can see that there were only six prisoners who for
4 reasons that my colleague mentioned because who for -- were either
5 alcoholics or drug addicts and who were, for that reason, put in the KP
6 Dom. And it is only natural that there was no need to build a new kitchen
7 or a new infirmary for six prisoners.
8 Therefore, we do not think that the conclusion can be accepted
9 that the Defence did not raise the question of these six prisoners earlier
10 since their presence arises from Exhibit D85, which states it quite
11 clearly. And it even indicates for each of these prisoners individually
12 why he is being detained in the KP Dom.
13 As for the allegations of my learned friend regarding the terms of
14 reference, the mandate of Milorad Krnojelac as the warden and manager of
15 the Drina Economic Unit, and he also mentioned Prosecution's Exhibit 3,
16 the Defence thinks that it is precisely this exhibit which shows best the
17 degree of changes made in the administration of the prison in relation to
18 the peacetime setup, and in particular in that part of it. At the time
19 when Milorad Krnojelac was responsible for the civilian part, we see that
20 there was no other manager of the economic unit. And after the summer of
21 1993, we have this -- we see that this office reappears but then there is
22 a manager in place, there are his assistants there too, which shows that
23 during the critical period of time there were only 27 prisoners at the
24 Drina Economic Unit which were the only part, the only aspects of the
25 KP Dom that Milorad Krnojelac was responsible for.
1 My learned friend mentioned also the mining of the KP Dom,
2 submitting that it was done to prevent the escape of prisoners of war.
3 The evidence presented and the statement of Milorad Krnojelac himself show
4 that out of concern for the storage space that was in that -- that was
5 located in that part of the KP Dom next to the wall which was not secured
6 that he was present at the time when the military laid the mines and that
7 it was not done because of the prisoners of war.
8 And a similar thing could be said of the request to procure oil or
9 petrol or the security system. So some of the oil was used in the
10 production. And as for security system, it could only be used to supply
11 the electric energy, that is the lighting, as the one who is leasing the
12 KP Dom is bound to do. And I think that this request may not be
13 interpreted as my learned colleague tried to do. I do not see how else
14 could oil be used in the security system unless it was for lighting.
15 As for the working hours and Milorad Krnojelac's presence in the
16 KP Dom, I think that it is less important whether working hours were from
17 7.00 in the morning until 3.00 in the afternoon or until 4.00 in the
18 afternoon. However, it is not true that it was only once when he went to
19 visit his son who had lost both his legs that he was absent from the
20 KP Dom on that one occasion only.
21 In addition to the testimony of witnesses who worked at the Drina
22 Economic Unit and who testified about daily duties that Milorad Krnojelac
23 had to discharge which had to do with Foca and its surroundings and which
24 also had to do with his efforts to restart the production at the Drina
25 Economic Unit, the Defence also tendered into evidence a number of travel
1 orders which show where and when Milorad Krnojelac travelled during the
2 critical period.
3 The next submission that the Defence should like to touch upon
4 is -- is the fact that Milorad Krnojelac accepted the labour obligation
5 fearing that he might be arrested for failing to do so. My learned friend
6 challenges that and relies on Mr. Tesovic's and Mr. Cancar's case, who
7 allegedly did not suffer any consequences for refusing to take up the post
8 which was later on taken up by Milorad Krnojelac.
9 The Defence finds it necessary to point out once again that
10 Exhibit P3 shows clearly that Mr. Tesovic left Foca in the wake of the
11 outbreak of the conflict, taking a number of prisoners to Tuzla. He had
12 to pass through Montenegro, Serbia on his way and that he was absent until
13 May 1992.
14 And allow me to remind you that Mr. Milorad Krnojelac was
15 appointed the temporary warden in the end of April. Therefore, nobody
16 could appoint Mr. Tesovic to that post, nor even ask him if he wanted to,
17 if he was ready to accept it. After his return to Foca, there was already
18 a new warden.
19 As for Mr. Cancar and the statement that he gave in the court in
20 Sarajevo where he was the accused and when later he was released in spite
21 of a very severe sentence, I believe that my co-counsel has
22 already -- that my lead counsel has already addressed this question
23 extensively and that will be a matter for the Appeals Chamber to decide
25 My learned friend also claimed that in point of fact, the army
1 placed the authority in the hands of Milorad Krnojelac. But that
2 conclusion is completely wrong. First of all because there is evidence
3 about his appointment, documents which come from the Ministry of Justice
4 to which he reports and to which he is accountable, and I do not think
5 that there should be any dispute about that. And the relationship or,
6 rather, the actual authority which Milorad Krnojelac might have in
7 relation to the military and the guards which my learned friends insist
8 upon, I think can best be gleaned from two instances that were mentioned
9 today. One is the witness Dzevad Lojo, when the guard warned
10 Milorad Krnojelac that the conversation was not permitted and that he did
11 it repeatedly. That is a very important fact. And that after that,
12 Milorad Krnojelac, as my colleague puts it, told him to stop interrupting
14 It is difficult to imagine that a subordinate could behave in such
15 a manner. Even more drastic is an example that has to do with
16 Ekrem Zekovic, where according to the testimony of this witness, the guard
17 Burilo, although Milorad Krnojelac was present snatched, that is pushed
18 him, snatched Zekovic from him and then banged him against a call. One
19 could hardly imagine such an attitude towards a warden who has factual
20 power and authority. One could hardly imagine that a simple guard could
21 treat him in this manner.
22 But my learned friend submitted today that it has been established
23 that Milorad Krnojelac was a superior of some guards but not of all of
24 them. I think that it will be fair that a step forward been made -- had a
25 further step forward been made to establish who were those guards who were
1 subordinate to Milorad Krnojelac and which guards were not, so that we
2 could see then whether those guards who were his subordinates did commit
3 some crimes or was he a superior of those guards who had not committed any
4 crimes. And would it be fair then to view his responsibility under 7(3)
5 in that light.
6 JUDGE JORDA: [Interpretation] Judge Agius wants to ask a question.
7 JUDGE AGIUS: Yes. I'm beginning to think or believe that you
8 have not read paragraph 317 of the judgement which lists precisely the
9 guards that, according to the Trial Chamber, were personally responsible
10 for some of the atrocities, for the beatings that took place in the KP
11 Dom, and these are precisely the guards that the Trial Chamber considers
12 your client to have been responsible for. Paragraph 317, starting on page
13 126 and continuing on page 127.
14 MR. VASIC: [Interpretation] Thank you, Your Honour. I was only
15 referring to what my learned colleague the Prosecutor stated here. He
16 didn't mention what -- he didn't give the reference of what he had stated,
17 so I thought that what I -- I thought that my comment was appropriate.
18 In addition to what I have said, in paragraph 317 of the
19 judgement, the Defence doesn't see on the basis of what arguments certain
20 selection was made. Who are the guards who were not subordinates of Mr.
21 Krnojelac? But as I said, this was just a response to what my learned
22 colleague from the Prosecution had said since a reference had not been
23 provided when this issue was raised.
24 My learned colleague also mentioned the contact that the
25 International Red Cross had with Milorad Krnojelac, and he considered that
1 this -- these meetings had to do with the detainees and with improving the
2 food. I don't think that there is any evidence that would point to the
3 fact that there was contact with Milorad Krnojelac with regard to
4 imprisoning individuals. There were meetings about food, and he explained
5 -- the accused explained that he tried to improve the food and to obtain
6 food for all those who were detained in the KPD.
7 As far as the allegation -- as far as the allegations that
8 demonstrate the effective power that Milorad Krnojelac had, the allegation
9 that on the basis of his intervention the witnesses Pavlovic and
10 Krsmanovic were enabled to visit the KPD, I think that this fact has been
11 very well explained in the testimony of these witnesses, and I think that
12 he asked these people from the military command to help him set the Drina
13 Economic Unit -- to put it into function again. These people were
14 demobilised and were provided him for assistance. And while they were his
15 subordinates, they weren't mobilised into military units.
16 As far as Exhibit D39 is concerned, that was mentioned by my
17 learned colleague and relates to a report of Milorad Krnojelac with regard
18 to transferring the Bilece prison to the KPD in Foca, we have to say that
19 this report has to do with his report in which it is stated what is
20 essential to be done in order to make such a transfer possible. A
21 transfer is not implied in it, it isn't requested, it isn't ordered. This
22 is just a report which says that if they want to make this transfer to the
23 KPD in Foca, they have to ask the Ministry of Justice. First of all, they
24 have to have a contract in order to lease certain premises and they have
25 to provide the guards who will provide security for the detainees, just
1 like the Foca Tactical Group provided security when it signed the
2 contracts on leasing the KPD that we have been discussing here.
3 JUDGE JORDA: [Interpretation] I suppose that -- well, you are
4 speaking very slowly, much more slowly than the Prosecutor talks. So we
5 have to be completely equal in the time distribution. We have to measure
6 or take into account the speed of the speakers as well. You're speaking
7 more slowly than your colleagues, but we do have to maintain balance, and
8 I want to know whether you still have a great deal to say in your reply.
9 MR. VASIC: [Interpretation] Thank you for your understanding, Your
10 Honour. I don't have -- I don't need a lot more time. Perhaps another
11 ten minutes.
12 JUDGE JORDA: [Interpretation] Well, how many minutes do you -- all
13 right. You have five minutes. We have to take a decision. You have got
14 five more minutes. You should be able to summarise things, and I'm sure
15 within five minutes you should be able to reply to the Prosecution,
16 otherwise, we're going to have Mr. Staker get up and say, come on, I want
17 to speak longer too. So make an effort, please, Mr. Vasic. Thank you
18 very much. Go ahead.
19 MR. VASIC: [Interpretation] Thank you, Your Honour. I didn't
20 notice that I had already gone over time.
21 As far as the request that Milorad Krnojelac forwarded to the
22 Crisis Staff and the fact that he had the telephone of the Crisis Staff, I
23 don't think this can be taken to be proof that he was part of the
24 hierarchy that my learned colleagues had been referring to. The Defence
25 has explained why he forwarded these requests. The reason for this was
1 that he wanted to help people, but this wasn't part of his
2 responsibilities. He wasn't responsible for those detainees, and the
3 telephone number of the Crisis Staff or going to the -- going to the
4 canteen for lunch with Rasevic, I don't think that if this is taken into
5 consideration with all the other evidence, I don't think that this is
6 proof that he was part of that hierarchy.
7 As far as the claim that there were guards is concerned, that
8 there were guards who worked both in the KPD and in the Drina Economic
9 Unit, I think that this has been explained and that when the guards worked
10 in the Drina Economic Unit, they weren't mobilised into the army. The
11 people who worked there were civilians, but when they worked as guards,
12 that was after the mobilisation, and they were responsible, they answered
13 to the military authorities.
14 So those would be all my comments in response to the Prosecution's
15 allegations apart from the fact that in the written brief, in the written
16 response to the Prosecution's appeal, in item 3 and 4, my learned
17 colleagues suggest under the ground of appeal number 2 -- ground of appeal
18 number 2, that if -- that the only legal remedy that could be acceptable
19 would be to revise the Trial Chamber's judgement, and they suggest that
20 the existing sentence should be changed under count 1 and there should be
21 -- they should take into account count 11. This has to do with the crime
22 of persecution on the basis of imprisonment.
23 The Defence considers that in the judgement delivered by the Trial
24 Chamber, it is stated that Milorad Krnojelac was acquitted on count 11 and
25 that this decision of the Trial Chamber with regard to count 11 was not
1 the subject of an appeal by the Prosecution. So such a revision would not
2 be permissible, and that would be tampering with the fairness of the
4 If you have no other questions, the Defence has finished, has
5 concluded its remarks.
6 JUDGE JORDA: [Interpretation] Thank you very much, Mr. Vasic.
7 This is the end of the hearing. You may be seated.
8 We've reached the end of the hearing. The Chamber, according to
9 the principles and standards of international law, we, as the last point,
10 must listen to what Mr. Milorad Krnojelac would like to say to us if he
11 would like to stand. Perhaps he should come to the front. He could come
12 with his guard and stand in front of us. Madam Registrar, would you
13 please organise this. If you like, Mr. Krnojelac, you can come over here,
14 up in the front. Come up here in front of us. We'll ask the usher to
15 help you settle in. Thank you.
16 You may be seated if you like. If not, just proceed.
17 THE APPELLANT: [Interpretation] Your Honours, I'm a little
18 surprised. I have been following this hearing, these appellate
19 proceedings for two days now, but since you have allowed me to address
20 you, there is not much that I want to say because I think that a lot has
21 been said already, and I'm not capable of speaking about matters that I am
22 not prepared for and that I haven't studied for because, as I can see,
23 these are all legal matters. I work in the field of education. So I
24 would like to say a few words, but if I go on for too long, if I tire you
25 with what I have to say, please interrupt me. I will not take offence.
1 Throughout my life I have always said that all that matters is
2 truth and truth is defended with truth. What I can say here is that my
3 Defence, from my point of view, gathered a fair amount of evidence with
4 which they attempted to prove my innocence. By chance today, on the 15th
5 of May, it's been 59 months since I first came here, 59 months since I
6 have been separated from my dear Mila and my dear family. But I won't
7 tire you with this.
8 For over 30 years I worked in a school. I taught young girls and
9 boys. I taught them difficult subjects. I taught them mathematics and
10 physics. And I always told them that there was nothing difficult about
11 mathematics and physics. There are only things that one knows and things
12 that one doesn't know. In the course of my professional experience, I
13 attempted to convey knowledge as best I could and as successfully as I
14 could to young people so that they might succeed as much as possible in
15 life. And it was a great honour, and it was a matter of great
16 satisfaction to me when I found out that these young people had reached a
17 high level of education than I myself had. I treated my pupils in a
18 correct manner. I always tried to be a second parent to them, and this
19 humane attitude is something I learned from my parents. I learnt to love
20 these children from them. And this attitude, this relationship with the
21 pupils, and as I said, I worked with them for 30 years, also entailed a
22 good relationship with parents and with other citizens. It was also
23 transferred to these people.
24 I have to admit that at all times there were various nationalities
25 who were represented among the pupils and among the parents. I was never
1 interested in the nationality of the children and of the parents. I was
2 interested in the nature of the pupil and whether the pupil achieved good
3 results and in whether the pupil could succeed in even more, because a
4 good teacher is someone who attempts to transfer all his or her
5 possibilities to the pupils.
6 What happened is something that I could never have imagined at the
7 age that I have now reached, this tragic war broke out, this fratricide
8 broke out because before the war everyone lived together, everyone got on
9 well. But then this dispute was suddenly -- suddenly broke out.
10 Something happened that I wouldn't want to tire you with.
11 My house burnt down in that war. You have heard that I have two
12 sons who are seriously handicapped. I was burnt. I spent time in a
13 hotel. I was then removed from the municipality and given a flat to rent.
14 This is where I lived.
15 That was not my only misfortune. There are other such people,
16 Serbs, Muslims, and Croats, and members of other nationalities and a
17 number of other people. I won't list them all and I won't waste your
18 precious time.
19 Other things happened too. I come from a peasant family that
20 lived in a mountainous region where my late parents had nine children.
21 Because of various circumstances in which they lived, because of the
22 mountainous area, only four of them survived the Second World War. My
23 father died in 1965. My mother died in 1967. In 1995, one of my brothers
24 died. I came here in 1998. My sister died. And in February of this
25 year, my other brother died. So out of the nine children, I'm the only
1 one who is still alive, and this is where I am, before this Trial Chamber
3 Naturally, this has all exerted an influence on me and has
4 influenced my health. So in 2000, I had to undergo an operation here in
5 the Detention Unit. My liver was operated on. I have recently had
6 problems with the veins in my legs. My digestive system is causing me
7 problems. I have -- my sight is not as good as it could be. I have
8 problems with regards to my sight, and I've asked for my glasses to be
9 changed for the fourth time because my sight is deteriorating.
10 I have mentioned all these facts because the things I have been
11 through, the things I have experienced show that even today, given all
12 those conditions, all the misfortunes I have been through, in spite of all
13 these misfortunes, there is not a shred of evil in me. I have -- I feel
14 no hatred to any man of goodwill regardless of the nationality of that
15 person or the social status of that person.
16 I am certain that this Appeals Chamber will reach a fair decision,
17 a just decision, and if possible, God willing, I hope that I will receive
18 this decision in a better mood than the mood I am in at the moment, today.
19 I would like to thank you, and I apologise. I didn't want to
20 discuss the proceedings because the hearing has taken two days, and to me
21 it seemed -- from my point of view it seemed to be quite professional and
22 quite -- quite elaborate. That is why I didn't want to discuss the
23 hearing. But I want to tell you that I bear no ill feelings towards
24 anyone, especially since none of my brothers have lived beyond the age of
25 60, and within a month and a bit I'll be 63, and I probably won't live
1 much longer than they did.
2 Thank you, and I apologise again.
3 JUDGE JORDA: [Interpretation] Thank you. You may be seated at
4 your place again.
5 THE APPELLANT: [Interpretation] Thank you.
6 JUDGE JORDA: [Interpretation] Our hearing is now concluded. I
7 would like to thank Defence counsel and the Prosecution for the proper
8 attitude that they had all through these discussions and also thank our
9 interpreters, faithful always, always at their posts, and having said
10 this, I adjourn the hearing.
11 --- Whereupon the Appeals Proceedings adjourned at
12 5.40 p.m.