Tribunal Criminal Tribunal for the Former Yugoslavia

Page 205

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

Page 206

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

22 interpreted.

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

Page 207

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

Page 208

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

3 guilty.

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

7 subground.

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.

Page 209

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

15 Srpska.

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.

Page 210

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

Page 211

1 authorities, there was civilians and there was no connection between the

2 two.

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

Page 212

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

21 sentence.

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

Page 213

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

16 Justice.

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

Page 214

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.

Page 215

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

Page 216

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

14 challenges.

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

Page 217

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

Page 218

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

15 conflict.

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

Page 219

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.

Page 220

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

18 army.

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

Page 221

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

21 prison.

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

Page 222

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

24 properly.

25 The Defence wishes to draw the attention to the already mentioned

Page 223

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

Page 224

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

Page 225

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

Page 226

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

Page 227

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

Page 228

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

Page 229

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

15 appeal.

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.

Page 230

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

5 judgement.

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

25 crime.

Page 231

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

17 imprisonment.

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

Page 232

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

Page 233

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

Page 234

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

5 made.

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

Page 235

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

Page 236

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

Page 237

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

14 detainees.

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

22 evident.

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

Page 238

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

Page 239

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

Page 240

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

Page 241

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.

Page 242

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

Page 243

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

Page 244

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

7 front.

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?

Page 245

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

25 held.

Page 246

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

Page 247

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

11 superior.

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

25 correctly?

Page 248

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.

Page 249

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

Page 250

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

13 accused.

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

Page 251

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

6 amicably.

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

15 for.

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

Page 252

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

24 Dom.

25 We therefore stand by all our grounds of appeal that we presented

Page 253

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

10 time.

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

Page 254

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

Page 255

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

21 now.

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?

Page 256

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

14 translators.

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

Page 257

1 that.

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

Page 258

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

Page 259

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

Page 260

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

Page 261

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,

Page 262

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

Page 263












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13 English transcripts. Pages 263 to 271.













Page 272

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

Page 273

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

7 that.

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.

Page 274

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.

Page 275

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

10 warden.

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

Page 276

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

11 Krnojelac.

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

Page 277

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.

Page 278

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

15 contention.

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

21 it.

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,

Page 279

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

Page 280

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

21 Krnojelac.

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.

Page 281

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

Page 282

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

6 duties.

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

Page 283

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

Page 284

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

21 question.

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

Page 285

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,

Page 286

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

4 explanation.

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.

Page 287

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.

Page 288

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

Page 289

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

Page 290

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

Page 291

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

Page 292

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

Page 293

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

Page 294

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

3 guards.

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

10 sections?

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

Page 295

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

13 structure.

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

19 case.

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

Page 296

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

Page 297

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

Page 298

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

20 offenders.

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

25 proposition.

Page 299

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

16 ruling.

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

Page 300

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

12 abetting.

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

Page 301

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)

Page 302

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

Page 303

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

Page 304

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

19 appeal.

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

Page 305

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

22 circumstances.

23 JUDGE JORDA: [Interpretation] Judge Shahabuddeen. Thank you,

24 Mr. Staker.

25 JUDGE SHAHABUDDEEN: Mr. Staker, it used to be the position in one

Page 306

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

Page 307

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

8 law.

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.

Page 308

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

Page 309

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.

Page 310

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.

Page 311

1 JUDGE SHAHABUDDEEN: That seems to me to be a slightly different

2 position.

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

5 on.

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

Page 312

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.

Page 313

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

20 evidence?

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,

Page 314

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

25 minutes.

Page 315

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

Page 316

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

7 concerned.

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

Page 317

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.

Page 318

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

8 impossible.

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

Page 319

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.

Page 320

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

Page 321

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

24 upon.

25 My learned friend also claimed that in point of fact, the army

Page 322

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

13 him.

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

Page 323

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

Page 324

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

Page 325

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

Page 326

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

Page 327

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

3 decision.

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.

Page 328

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

Page 329

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

Page 330

1 one who is still alive, and this is where I am, before this Trial Chamber

2 now.

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

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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.