Tribunal Criminal Tribunal for the Former Yugoslavia

Page 336

1 Wednesday, 17 September 2003

2 [Appeals Judgement]

3 [Open session]

4 --- Upon commencing at 3.05 p.m.

5 THE INTERPRETER: Microphone, please, for the Presiding Judge.

6 [The appellant entered court]

7 JUDGE JORDA: [Interpretation] Mr. Krnojelac, please sit down.

8 Madam Registrar -- yes, please sit down. You can sit down now.

9 Can you hear me? Do sit down.

10 Madam Registrar, could you please call the case number.

11 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honours.

12 This is the case number IT-97-25-A, the Prosecutor versus

13 Milorad Krnojelac.

14 JUDGE JORDA: [Interpretation] Very well. Could the parties please

15 introduce themselves. Could we have the appearances for the Prosecution,

16 first of all, please.

17 MR. CARMONA: Your Honours, my name is Anthony Carmona. I appear

18 on behalf of the Prosecutor. Appearing with me is Ms. Norul Rashid and

19 Ms. Helen Brady. Our case manager, in fact, is Ms. Lourdes Galicia. As a

20 courtesy, I should indicate to you that our lead counsel, Mr. Christopher

21 Staker, in fact, has since left the Office of the Prosecutor. Thank you

22 very much.

23 JUDGE JORDA: [Interpretation] Very well. Thank you.

24 Could we have the appearances for the Defence, please.

25 MR. BAKRAC: [Interpretation] Your Honours, good day. My name is

Page 337

1 Mihajlo Bakrac and I'm accompanied by my colleague, Miroslav Vasic. We

2 represent the accused, Mr. Krnojelac.

3 JUDGE JORDA: [Interpretation] Very well. Thank you. Can the

4 interpreters hear me now? No problems? I don't hear them. There are no

5 problems for the booth? Very well. Thank you.

6 The appeals -- the Krnojelac Appeals Chamber is holding its public

7 hearing today to pronounce its judgement on the appeal in the case of the

8 Prosecutor versus Milorad Krnojelac.

9 On the 12th of April, 2002, Milorad Krnojelac filed a notice of

10 appeal against the Judgement rendered on the 15th of March, 2002 by Trial

11 Chamber II, composed of judges David Hunt, Florence Mumba, and Liu Daquin,

12 sentencing Krnojelac to a single judgement of seven and a half years in

13 prison.

14 The Trial Chamber found Krnojelac guilty of persecution, as a

15 crime against humanity (based upon imprisonment, living conditions and

16 beatings), both for his individual responsibility and as a superior; for

17 inhumane acts as a crime against humanity (based upon beatings), as a

18 superior; cruel treatment, as a violation of the laws or customs of war

19 (based upon beatings), as a superior; and cruel treatment, as a violation

20 of the laws or customs of war (based upon living conditions), for his

21 individual responsibility.

22 Milorad Krnojelac was acquitted of the following counts:

23 Count 2: Torture, as a violation of the laws or customs of war;

24 count 4: Torture, as a crime against humanity; count 8: Murder, as a

25 violations of the laws or customs of war; count 10: Murder, as a crime

Page 338

1 against humanity; count 11: Imprisonment, as a crime against humanity;

2 count 13: Inhumane acts, as a crime against humanity (based upon living

3 conditions).

4 On the 15th of April, 2002, the Prosecutor also appealed the

5 Judgement and it should be noted that the two parties appealed the

6 sentence.

7 The Appeals Chamber will render its findings on each appeal

8 presented, under the understanding that this summary of the Appeals

9 Judgement is in no way the authoritative version.

10 In this respect, I would like to inform you that the written

11 version will be postponed. It will be provided a few hours later. I

12 would just like to point out that one of the parties had filed a request,

13 a very late request, and this has resulted in the fact that the document

14 will be provided to -- at a later date, but towards the end of the day, I

15 hope.

16 The appeal of Milorad Krnojelac.

17 Aside from his ground of appeal relating to the sentence,

18 Milorad Krnojelac presented five grounds of appeal.

19 Reference must first be made to the Prosecutor's submission with

20 regard to various factual issues that the errors alleged by the Defence do

21 not satisfy the standard of review on appeal provided for in the case-law

22 of the Tribunal.

23 The Appeals Chamber recalls that, as opposed to the procedures in

24 force in certain national systems, the appeals procedure provided for

25 under Article 25 of the Statute of the ICTY is corrective by nature and is

Page 339

1 not therefore an occasion for re-examination de novo. This system of

2 appeal has consequences on the nature of the arguments that a party may

3 legitimately present on appeal and on the general burden of proof which it

4 must satisfy in order for the Appeals Chamber to intervene. With

5 particular regard to the alleged errors of fact, a party alleging this

6 type of error in support of an appeal against a conviction must provide

7 proof firstly that the error was committed, and secondly, that this

8 resulted in a miscarriage of justice. The Appeals Chamber regularly

9 recalled that it does not amend lightly factual findings reached by the

10 Trial Chamber. The Appeals Chamber emphasises that its established

11 case-law sets out that, if a party is not in a position to explain how an

12 alleged error invalidates the decision, it must, as a general rule,

13 refrain from appealing on that point. The Appeals Chamber considers that

14 this principle applies to allegations of both legal and factual errors.

15 Consequently, when a party's arguments have no chance of securing a

16 reversal or review of the impugned decision, the Appeals Chamber may

17 reject them as unlawful grounds from the outset and does not have to

18 examine them on the merits.

19 The Appeals Chamber holds that almost all of the grounds of appeal

20 of the Defence which raise factual errors as such are, in this case,

21 unlawful. Generally, it emerges from the Defence appeal brief that, with

22 the exception of one ground of appeal and the ground relating to the

23 sentence, it puts forward no argument demonstrating the unreasonable

24 nature of the Trial Chamber's findings. It is, in fact, impossible for

25 the Appeals Chamber to identify the error allegedly committed by the Trial

Page 340

1 Chamber. It appears that the Defence only challenges the Trial Chamber's

2 findings and suggests an alternative assessment of the evidence. However,

3 this simple challenging of the Judgement in no way sufficiently

4 demonstrates the erroneous nature of the Trial Chamber's findings. By not

5 indicating how the Trial Chamber's assessment of the evidence cited is

6 unreasonable and erroneous, the Defence is not assuming the burden of

7 proof associated with allegations of errors of fact.

8 The Appeals Chamber examined the admissibility of each ground of

9 appeal alleging errors of fact and found that the first, third and fourth

10 grounds of appeal of the Defence were unlawful in view of the

11 aforementioned standard of review. The Defence satisfied the burden of

12 proof for the burden of proof for the fifth ground of appeal which alleged

13 an error of fact. The Appeals Chamber therefore examined the merits of

14 the arguments relating to this ground.

15 The second ground of appeal of the Defence, alleging an error by

16 the Trial Chamber on a point of law, was also examined by the Appeals

17 Chamber.

18 Krnojelac's second ground of appeal which concerned aiding and

19 abetting, persecution (imprisonment and living conditions). This ground

20 of appeal is divided into three main subgrounds.

21 First subground: Krnojelac's acts or omissions and their

22 significance for the commission of the crime of persecution on the basis

23 of imprisonment and living conditions.

24 Krnojelac states that the Trial Chamber committed an error of law

25 when it found him guilty of aiding and abetting persecution on the basis

Page 341

1 of imprisonment of non-Serb civilian detainees and living conditions

2 imposed on them without clarifying how he had contributed significantly to

3 the commission of these crimes by their principal perpetrators.

4 The Appeals Chamber examined the substance of this subground,

5 firstly, with regard to imprisonment, and secondly, with regard to the

6 living conditions. The Appeals Chamber considered this subground as a

7 challenge to the reasoning used for the actus reus of aiding and abetting.

8 It recalled as an introductory point that the aider and abettor must, by

9 his acts or omissions, have provided the principal perpetrator with

10 practical assistance, encouragement or moral support which had a

11 substantial effect on the commission of the crime.

12 With regard to imprisonment, the Appeals Chamber states that a

13 reading of the Judgement contradicts Krnojelac's assertion that the Trial

14 Chamber did not specify acts or omissions by which he provided the

15 principal perpetrators of the crime of persecution - based on the

16 imprisonment of the non-Serb civilian detainees practical

17 assistance - with encouragement or moral support which had a substantial

18 effect on the commission of the crime by those perpetrators.

19 With regard to the living conditions the Appeals Chamber stated

20 that, contrary to Krnojelac's assertions, the Trial Chamber did

21 characterise the omission underpinning his conviction as aider and abettor

22 to those who inflicted inhumane living conditions on the non-Serb

23 detainees.

24 Second subground: Krnojelac's knowledge that, through his acts or

25 omissions, he was contributing in a significant way to the underlying

Page 342

1 crimes committed by the principal perpetrators (persecution on the basis

2 of imprisonment and living conditions) and Krnojelac's knowledge of the

3 discriminatory intent of the perpetrators.

4 Contrary to the previous subground, this subground concerns the

5 mens rea and not the actus reus of aiding and abetting persecution.

6 Despite the allegations put forward by the Defence, the Appeals Chamber

7 considered that this subground alleged, in substance, an error of fact

8 rather than an error of law. The Appeals Chamber also examined, firstly,

9 Krnojelac's allegations relating to imprisonment, and secondly, those

10 relating to the living conditions.

11 With regard to the two allegations, the Appeals Chamber indicated

12 that Krnojelac did not demonstrate how the factual findings in question

13 were unreasonable. The Appeals Chamber thus rejects the first claim of

14 the second subground.

15 Third subground: The mens rea of the aider and abettor to an act

16 of persecution.

17 This error of law alleged by Krnojelac raises the question of

18 knowing whether, in establishing the mens rea of the aider and abettor to

19 persecution, it suffices to demonstrate that the person concerned

20 voluntarily provided the principal perpetrator with this practical

21 assistance or encouragement knowing that the principal had discriminatory

22 intent, or whether it is also necessary to demonstrate that the aider and

23 abettor was also driven by such intent.

24 The Appeals Chamber holds that the aider and abettor to

25 persecution, a crime with special intent, must not only have knowledge of

Page 343

1 the crime whose perpetration he is facilitating, but must also be aware of

2 the discriminatory intent of the perpetrators of the crime. He must not

3 necessarily share that intent but must be aware of the discriminatory

4 context in which the crime is to be committed, and know that his support

5 or encouragement is to have a substantial effect on its commission. The

6 Appeals Chamber points out that this is the very criterion applied by the

7 Trial Chamber in the case in point in paragraphs 489 and 490 of the

8 Judgement.

9 Consequently, the second ground of appeal of the Defence has been

10 rejected.

11 I will now turn to the Krnojelac's fifth ground of appeal, which

12 concerns superior responsibility for beatings inflicted on detainees.

13 Krnojelac maintains that the Trial Chamber erred in finding him

14 guilty as superior, pursuant to Article 7(3) of the Statute, of inhumane

15 acts and cruel treatment on the basis of beatings. He asserts that the

16 Trial Chamber erroneously concluded that he was aware that beatings were

17 being inflicted on the detainees. Krnojelac challenges the three main

18 pieces of evidence on which the Trial Chamber relied in determining

19 whether he had the requisite knowledge.

20 The Appeals Chamber did not consider the arguments presented by

21 Krnojelac in support of this ground of appeal to be convincing. It

22 therefore rejected the arguments relating to this ground of appeal as

23 lacking in merit.

24 The fifth ground of appeal is therefore rejected.

25 We shall now address the appeal of the Prosecutor.

Page 344

1 The Prosecutor presented seven grounds of appeal. The Appeals

2 Chamber will set out its findings relating to each ground of appeal.

3 First ground of appeal: The Trial Chamber erred in law in

4 defining the responsibility arising from participation in a joint criminal

5 enterprise and in applying this definition to the facts of the case.

6 According to the Prosecutor, had the definition of joint criminal

7 enterprise been applied correctly, Krnojelac would have been found guilty

8 as co-perpetrator and not as aider and abettor to the crimes of

9 persecution (imprisonment and inhumane acts) and cruel treatment (living

10 conditions) on counts 1 and 15 of the indictment.

11 The Appeals Chamber considers that, in establishing the intent to

12 participate in a systemic joint criminal enterprise, the Trial Chamber, by

13 requiring evidence of an agreement on the commission of each of the crimes

14 within the joint enterprise, went beyond the criterion set by the Appeals

15 Chamber in the Tadic case. Since the Trial Chamber's findings showed that

16 the system in place at the KP Dom was meant to subject the non-Serb

17 detainees to inhumane living conditions and ill-treatment on

18 discriminatory grounds, the Trial Chamber had to examine whether or not

19 Krnojelac had knowledge of the system and subscribed thereto, without it

20 needing to be established that he had entered with the guards and

21 soldiers - the principal perpetrators - into an agreement to commit the

22 crimes implicit in the system.

23 The Appeals Chamber holds that the scope of the alleged error

24 depends on the issue of whether applying the criterion set by the Tadic

25 Appeals Judgement, that is, determining intent on the basis of knowledge

Page 345

1 of the system and adherence thereto, rather than the Trial Chamber's

2 criterion which requires the aforementioned agreement, would have entailed

3 Krnojelac's liability as co-perpetrator and not as a simple aider and

4 abettor. If this is the case, consideration should be given to whether

5 the error in question invalidates the Judgement.

6 By applying the appropriate criterion to the facts of the case and

7 given the factual findings of the Trial Chamber relating to the living

8 conditions constituting inhumane acts, the beatings, torture and

9 imprisonment, the Appeals Chamber concluded that the error committed by

10 the Trial Chamber was an error which invalidated the verdict insofar as

11 the application of that criterion should have led the Trial Chamber to

12 find Krnojelac guilty as a co-perpetrator. The Appeals Chamber considers

13 that the error of law committed by the Trial Chamber was such as to

14 invalidate the Judgement. Consequently, the Appeals Chamber finds

15 Krnojelac guilty as co-perpetrator under counts 1 and 15 for the crime of

16 persecution (imprisonment and inhumane acts) and cruel treatment (on the

17 basis of living conditions imposed). And this as -- guilty as

18 co-perpetrator.

19 Moreover, the Prosecutor criticises the Trial Chamber for

20 partitioning the forms of conduct, which she believed constituted part of

21 a system, according to the different categories of crimes underpinning the

22 persecution charge.

23 The Appeals Chamber holds, firstly - and referring to the

24 concentration camps of the Second World War - the Appeals Chamber holds,

25 firstly, that although the second category of cases defined by the Tadic

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Page 347

1 Appeals Judgement (hereinafter "systemic cases") clearly draws on the

2 Second World War extermination and concentration camp cases, it can be

3 applied to other cases, in particular, to the serious violations of

4 international humanitarian law committed in the territory of the former

5 Yugoslavia since 1991. Even though the perpetrators of the acts tried in

6 the aforementioned concentration camps cases were mostly members of

7 criminal organisations, the Tadic case-law did not hold that an individual

8 had to belong to such an organisation to be deemed a member of the joint

9 criminal enterprise.

10 According to the Tadic Appeals Judgement, what characterises this

11 category of cases - a variant of the first - is the existence of an

12 organised system to achieve a joint criminal purpose. For the requisite

13 intent to be constituted, the accused must have had personal knowledge of

14 the system in question (whether proved by express testimony or inferred

15 from the accused's position of authority) and the intent to further that

16 concerted system. The Prosecutor could then rely on this form of joint

17 criminal enterprise.

18 The Appeals Chamber recalls that it is for the Prosecutor to

19 determine the legal theory which she believes most likely demonstrates

20 that the facts she intends to submit for the Trial Chamber's assessment

21 make it possible to establish the responsibility of the person being

22 prosecuted. To this end, the Prosecutor may additionally or alternatively

23 allege one or more legal theories, under the condition that she does so

24 clearly, soon enough, and in any event in time to put the accused on

25 notice of what precisely he is charged with and in time to allow the

Page 348

1 Defence to organise its case accordingly.

2 The Appeals Chamber considers well founded the challenge raised by

3 the Prosecutor to the partitioning made by the Trial Chamber. By

4 replacing the Trial Chamber's approach in its context, the Appeals Chamber

5 notes that the Trial Chamber clearly followed the approach taken in the

6 indictment since, for each aspect of the common purpose pleaded by the

7 Prosecutor, it sought to determine whether Krnojelac shared the intent of

8 the principal offenders. According to the Appeals Chamber, such an

9 approach corresponds more closely to the first category of joint criminal

10 enterprise than to the second but does not constitute an error of law,

11 insofar as the Prosecutor did not include in the theory of "systemic"

12 joint criminal enterprise a better suited definition of the common

13 purpose. Therefore, the Appeals Chamber does not discern any error in the

14 approach followed by the Trial Chamber.

15 The issue of what approach seems the most appropriate for

16 determining whether a participant in a "systemic" joint criminal

17 enterprise - be it as a co-perpetrator or an aider and abettor - may be

18 responsible for crimes committed by the principle offenders in a context

19 such as that of the KP Dom is considered one of general importance to the

20 Tribunal's case-law, and the Appeals Chamber therefore examined it,

21 limiting itself to the acts charged as persecution.

22 The Appeals Chamber finds that the most appropriate approach for

23 the Prosecutor in this case would have been to limit the definition of the

24 common purpose within the KP Dom "system" to the commission of those

25 crimes which, having regard for the context and evidence tendered, could

Page 349

1 be considered beyond all reasonable doubt, common to all the perpetrators.

2 As an alternative at least, the Prosecutor should, thus, have specified

3 the form under which, she thought, the accused's responsibility could be

4 entailed for the crimes which were not clearly part of the joint purpose

5 of the system, as set out. According to the Appeals Chamber, the

6 following approach could have been envisaged:

7 As to the alleged crimes such as the killings which, though

8 committed at the KP Dom, clearly surpassed the system's common purpose:

9 Liability may be imputed to a participant in the system for crimes of this

10 kind committed by another participant if it was foreseeable that such a

11 crime was likely to be committed by one participant or the other and the

12 former willingly took the risk (or was indifferent to it). The Appeals

13 Chamber notes that such was the Prosecutor's case for the killings in her

14 pre-trial brief.

15 With regard to the alleged crimes which, although bringing

16 together several co-perpetrators within the KP Dom, do not appear to

17 constitute, beyond all reasonable doubt, a purpose common to all the

18 participants in the system, they should be addressed, without recourse to

19 the notion of system, as part of a joint criminal enterprise of the first

20 category. The Appeals Chamber holds that the alleged crime of forced

21 labour must be dealt with in this way. A person who had participated in

22 its commission might be considered as a co-perpetrator in a joint criminal

23 enterprise which has as an objective the commission of the crime in

24 question, provided that the person concerned shares the joint intent of

25 the principal perpetrators. Alternatively, the person concerned might be

Page 350

1 considered an aider and abettor of the crime if he simply had knowledge of

2 the intent of its perpetrators and provided them with assistance which had

3 a substantial effect on the commission of the crime.

4 As far as deportation is concerned, a distinction should be made

5 between the various alleged crimes which fit into a broader plan, such as

6 imprisonment and deportation, on the basis of whether they form part of

7 the common purpose of all the participants in the system and other

8 co-perpetrators outside it or form part of a common purpose shared by only

9 some of the participants in the system and the outsiders. In the first

10 instance, to which the crime of imprisonment is related, the "system"

11 notion can be applied to all of the participants. However, the

12 distinctive nature of the crimes stems from the fact that some of the

13 principal offenders are persons outside of the system in place at the

14 camp - that is, with respect to imprisonment, certain civilian and/or

15 military authorities that ordered the arbitrary arrests and detention at

16 the KP Dom. In the second instance to which the crime of deportation or

17 transfer of some of the non-Serb detainees is related, the crimes in

18 question should be considered without applying the "system" notion. A

19 person who participated in their commission might be considered a

20 co-perpetrator in a joint criminal enterprise, the purpose of which is the

21 commission of the crimes in question, provided that the person concerned

22 shares the joint purpose of the principal perpetrators. Alternatively,

23 the person concerned might be considered an aider and abettor to the

24 crimes if he simply had knowledge of the intent of the principal

25 perpetrators and provided them with assistance which had a substantial

Page 351

1 effect on the commission of the crime.

2 We shall now address the second ground of appeal. The Prosecutor

3 maintains that the Trial Chamber erred in law when it found that the

4 accused could not be held liable under the third form of joint criminal

5 enterprise. The Trial Chamber erred in law when it required that the

6 indictment refer to an "extended form" of the joint criminal enterprise.

7 The Prosecutor maintains that the Trial Chamber erred in law when

8 it found that the accused could not be held liable under the third form of

9 joint criminal enterprise referred to in the Tadic Appeals Judgement with

10 respect to any of the crimes alleged, unless an "extended" joint criminal

11 enterprise was expressly pleaded in the judgement. The Prosecutor does

12 not request that the Trial Judgement be reversed or revised on this point.

13 She raises this ground of appeal because of its general significance to

14 the case-law of the Tribunal.

15 The Appeals Chamber notes that, in its decision on the form of the

16 second amended indictment, the Trial Chamber, which was, in particular,

17 seized of a complaint about the lack of precision in paragraph 5.2 of the

18 indictment in question, indicated that, in that indictment, the Prosecutor

19 presented for the first time the theory of common purpose and responded to

20 the question of what exactly was covered by this theory. In so doing, the

21 Trial Chamber set out the three categories of cases referred to in the

22 Tadic Appeals Judgement. In the light of this decision, had she

23 considered that the Trial Chamber had misinterpreted her intentions on

24 this point, it would have been for the Prosecutor to remove any ambiguity

25 in this respect, either by asking the Trial Chamber to reconsider its

Page 352

1 decision or by requesting leave to amend the indictment. Should the

2 Prosecutor have considered basing her argument on an extended concept of

3 joint criminal enterprise only after the said decision, it would have been

4 for her to request leave to amend the indictment.

5 The Appeals Chamber notes that the Trial Chamber Judgement shows

6 that the Chamber concluded as it did precisely because the Prosecutor did

7 not amend the indictment after the Trial Chamber held, without ambiguity,

8 that the second amended indictment did not consider an extended form of

9 joint criminal enterprise. In view of these circumstances, the Trial

10 Chamber considered that "in the exercise of its discretion," it would be

11 unfair to the accused to allow the Prosecutor to rely on an extended

12 concept of joint criminal enterprise in order to establish his

13 responsibility.

14 It must be noted that these circumstances give rise to a certain

15 amount of uncertainty for the Defence with regard to the Prosecution case.

16 Consequently, although Krnojelac's closing brief shows that he did not

17 consider the three forms of joint criminal enterprise set out in the Tadic

18 Appeals Judgement before concluding that he had not taken part in a joint

19 criminal enterprise, the Appeals Chamber considers that, in view of the

20 persisting ambiguity about what exactly was the Prosecutor's argument, the

21 Trial Chamber was well founded in refusing, in all fairness, to consider

22 an extended form of responsibility against Krnojelac.

23 This ground of appeal is therefore rejected.

24 Now, let's look into the third ground of appeal. The Trial

25 Chamber erred in fact by concluding that Krnojelac did not know or did not

Page 353

1 have reason to know that his subordinates were torturing the detainees

2 and, consequently, could not be held responsible pursuant to Article 7(3)

3 of the Statute.

4 The Appeals Chamber recalled the relevant facts accepted by the

5 Trial Chamber. These facts related to: 1) the context of the commission

6 of the beatings and the widespread nature of their commission; 2)

7 Krnojelac's authority over his subordinates as prison warden; and 3) the

8 frequency of the interrogations and punishment inflicted on the detainees.

9 The Appeals Chamber holds that both the external context (that is,

10 the circumstances in which the detention centre was set up) and the

11 internal context (that is, the operation of the centre, in particular, the

12 widespread nature of the beatings and the frequency of the

13 interrogations), together with the facts that Krnojelac witnessed the

14 beatings inflicted on Zekovic, apparently inflicted for the prohibited

15 purpose of punishing him for his escape attempt; that subsequent to this

16 event, at least one other detainee, Witness FWS-73, was victim to acts of

17 torture; and that the Trial Chamber did not accept Krnojelac's declaration

18 that he was not aware of any punishment inflicted on account of Zekovic's

19 escape, meaning that no reasonable trier of fact could fail to conclude

20 that Krnojelac had reason to know that some of the acts were or could have

21 been committed for one of the purposes prohibited by the rules of law

22 relating to torture. Krnojelac had a certain amount of general

23 information alerting him to possible acts constituting torture by his

24 subordinates. Thus, he incurs liability pursuant to Article 7(3) of the

25 Statute.

Page 354

1 It cannot be overly stressed that when superior responsibility is

2 at issue, an accused is not implicated for the crimes of his subordinates

3 but for a failure to carry out his duty as superior, that is, to exercise

4 control. There is no doubt that, given the information he possessed,

5 Krnojelac was in a position to exercise such control, that is, to

6 investigate the possible commission of acts of torture. The Trial Chamber

7 considered moreover that, as regards beatings, he had the authority to

8 prevent the crimes or punish the perpetrators. Considering that no

9 reasonable trier of fact could have arrived at the same factual findings

10 as the Trial Chamber, the Appeals Chamber holds that the Trial Chamber

11 committed an error of fact.

12 As regards whether this error resulted in a miscarriage of

13 justice, the Appeals Chamber adopts the findings of the ICTR Appeals

14 Chamber in the Rutaganda case and considers that when Krnojelac was

15 erroneously acquitted by the Trial Chamber, the latter failed in his duty

16 by not identifying all the requisite legal implications of the evidence

17 presented.

18 We will now examine the fourth ground of appeal of the

19 Prosecution. The Trial Chamber committed an error of fact by concluding

20 that, for the purposes of Article 7(3) of the Statute, Krnojelac did not

21 have sufficient information to put him on notice that his subordinates

22 were involved in the murder of detainees at the KP Dom.

23 The Prosecutor states that, given the factual findings accepted by

24 the Trial Chamber, the only reasonable finding open to the said Chamber

25 was that Krnojelac had sufficient information to put him on notice that

Page 355

1 his subordinates might be involved in the murder of detainees.

2 As with the previous ground of appeal, the Appeals Chamber

3 recalled the relevant facts accepted by the Trial Chamber with regard to

4 the murders.

5 The Appeals Chamber holds that a certain number of facts

6 constituted sufficiently alarming information to have required Krnojelac

7 to carry out an additional investigation. Being aware of the beatings and

8 the suspicious disappearances and having seen the bullet impacts in the

9 walls, Krnojelac was in a position to reflect that the perpetrators of

10 these beatings were likely to have committed murders. He should, at the

11 very least, have carried out an investigation. The Appeals Chamber

12 considers that no reasonable trier of fact could have reached the factual

13 findings of the Trial Chamber. The Appeals Chamber holds therefore that

14 the Trial Chamber committed an error of fact and that, for the reasons set

15 out above, this resulted in a miscarriage of justice.

16 We will now examine the fifth ground of appeal of the

17 Prosecution. The Trial Chamber erred in fact by concluding that the

18 beatings constituting inhumane acts and cruel treatment were not inflicted

19 on discriminatory grounds and that, therefore, Krnojelac could not be held

20 responsible for persecution as a superior.

21 The Prosecutor submits that the Trial Chamber erred in concluding

22 that the beatings constituting inhumane acts and cruel treatment inflicted

23 by the guards on detainees at the KP Dom were not carried out on

24 discriminatory grounds and that they did not therefore constitute

25 persecution for which Krnojelac could be responsible under Article 7(3) of

Page 356

1 the Statute.

2 The Appeals Chamber recalls that, in law, persecution as a crime

3 against humanity requires proof of specific intent to discriminate on

4 political, racial or religious grounds and that it falls to the Prosecutor

5 to prove that the acts in question were committed with the requisite

6 discriminatory intent. The Appeals Chamber does not consider that the

7 discriminatory intent of the beatings can be inferred directly from the

8 general discriminatory nature of an attack characterised as a crime

9 against humanity. According to the Appeals Chamber, such a context is not

10 in itself proof of discriminatory intent. The Appeals Chamber does hold,

11 however, that discriminatory intent may be inferred from such a context,

12 provided that, with respect to the facts of the case, there are

13 circumstances surrounding the commission of the acts charged which confirm

14 the existence of such intent. These circumstances may include, for

15 example, the functioning of the prison (in particular, the systematic

16 nature of the crimes committed against a racial or religious group) or the

17 general attitude of the alleged perpetrator of the offence through his

18 behaviour.

19 In this case, the Trial Chamber indicated that the "detention of

20 non-Serbs in the KP Dom, and the acts or omissions which took place

21 therein, were clearly related to the widespread and systematic attack

22 against the non-Serb civilian population in the Foca municipality." The

23 Appeals Chamber holds that one can infer from this finding that the

24 treatment inflicted on the non-Serb detainees is the result of the

25 aforesaid discriminatory policy, which was the cause of their detention.

Page 357

1 There still need to be circumstances surrounding the commission of the

2 acts charged which confirm this initial inference.

3 In this case, it emerges from the Trial Chamber's findings that,

4 in reality, only the non-Serb detainees were beaten. The Appeals Chamber

5 holds that the differences in the treatment of the Serb and non-Serb

6 detainees cannot reasonably be attributed to the guards' random

7 assignment. This finding confirms the aforesaid inference. Thus, the

8 Appeals Chamber considers that the only reasonable finding to be made on

9 the basis of the relevant facts accepted by the Trial Chamber was that the

10 beatings were inflicted on the non-Serb detainees for political or

11 religious reasons and that, consequently, these unlawful acts were

12 committed with the requisite discriminatory intent. The Appeals Chamber

13 considers that, assuming that the blows inflicted on the non-Serb

14 detainees were meted out to punish them for violation of the rules, the

15 choice of that punishment, if inflicted only on non-Serb detainees, arose

16 from a wish to discriminate against them on religious or political

17 grounds.

18 The Prosecutor maintains that Krnojelac should be found guilty of

19 persecution under Article 7(3) of the Statute. The Appeals Chamber

20 recalls that the Trial Chamber acknowledged that Krnojelac freely accepted

21 the position in full knowledge of the fact that non-Serb civilians were

22 being unlawfully detained at the KP Dom on the basis of their ethnicity.

23 Furthermore, Krnojelac accepted that he knew that the non-Serbs were being

24 detained precisely because they were non-Serbs and that none of the

25 procedures in place for legally detained persons were followed at the KP

Page 358

1 Dom. The Trial Chamber acknowledged that Krnojelac knew that Muslim

2 detainees were being beaten and generally mistreated. He "knew" - I'm

3 quoting from the judgement - "knew about the conditions of the non-Serb

4 detainees, the beatings and other mistreatment to which they were

5 subjected while being detained at the KP Dom, and [...] he knew that the

6 mistreatment which occurred at the KP Dom was part of the attack upon the

7 non-Serb population of Foca town municipality."

8 In view of all the elements set out above, the Appeals Chamber

9 considers that Krnojelac who, as prison warden, retained authority over

10 all detainees in the KP Dom had sufficient information to put him on

11 notice that inhumane acts and cruel treatment were being inflicted on the

12 non-Serb detainees on political or religious grounds. The Appeals Chamber

13 concludes, therefore, that the Trial Chamber committed an error of fact

14 which resulted in a miscarriage of justice.

15 We will now turn to the Prosecution's sixth ground of appeal.

16 The Trial Chamber erred by acquitting Krnojelac on the count of

17 persecutions based on forced labour.

18 In support of this ground of appeal, the Prosecutor submitted that

19 the Trial Chamber erred by finding that there was insufficient evidence to

20 establish the involuntary nature of the labour. She maintained that, in

21 applying the legal test for involuntariness to the facts, the Trial

22 Chamber erroneously determined for eight detainees that the evidence

23 produced was insufficient to conclude that they had been forced to work.

24 Here again, the Appeals Chamber has summed up the relevant facts

25 accepted by the Trial Chamber. We will not go over them again. You will

Page 359

1 find them in the written judgement.

2 The Appeals Chamber repeats that the living conditions at the KP

3 Dom were clearly deplorable. Of the facts previously summed up, some are

4 especially significant and must be emphasised. The Trial Chamber

5 concluded that within the KP Dom, there was a deliberate policy to feed

6 the non-Serb detainees barely enough for their survival. All non-Serb

7 detainees suffered considerable weight loss ranging from 20 to 40

8 kilogrammes during their detention at the KP Dom. Additionally, the

9 non-Serb detainees were locked up in their rooms for most of the day,

10 being allowed out only to go to the canteen and back. Some, however, were

11 taken out to work knowing that they would receive additional and much

12 needed food if they did. Finally, the non-Serb detainees were subjected

13 to harrowing psychological abuse during their period of detention at the

14 KP Dom. The detainees were exposed to the sounds of people being beaten

15 and tortured over a period of months, in particular in June and July 1992,

16 and they constantly feared that they would be the next to be selected.

17 The Appeals Chamber considers that, in view of the particular detention

18 conditions of the non-Serb detainees at the KP Dom, a reasonable trier of

19 fact should have reached the conclusion that the detainees' general

20 situation negated any possibility of free consent.

21 The Appeals Chamber is satisfied that the detainees worked in

22 order to avoid being beaten or in the hope of obtaining additional food.

23 Those who refused to work did so out of fear, given the disappearance of

24 detainees who had gone outside the KP Dom. The climate of fear made it

25 impossible to express free consent. A detainee cannot be expected to

Page 360

1 raise an objection, nor can it be held that, for forced labour to be

2 established, a person in a position of authority must threaten to punish a

3 detainee if he refuses to work. The fact that a detainee may have

4 objected is irrelevant if the possibility of objecting is not a real

5 option.

6 In the view of the Appeals Chamber, the specific circumstances of

7 the KP Dom detainees' life in prison were therefore such as to make free

8 consent impossible. Consequently, the Appeals Chamber sets aside the

9 Trial Chamber's findings in respect of witnesses FWS-249, FWS-144,

10 Rasim Taranin, FWS-66, FWS-198, Ekrem Zekovic, Muhamed Lisica, and FWS-71

11 and reaches the conclusion that these witnesses were forced to work.

12 The Prosecutor secondly contended that if forced labour were to be

13 established the Trial Chamber's findings were sufficient to warrant

14 Krnojelac's conviction for persecutions based on forced labour.

15 On this point, the Appeals Chamber restates that the acts

16 underlying the crime of persecution, whether taken in isolation or in

17 conjunction with others, must constitute a crime of persecution of equal

18 gravity to the crimes enumerated under Article 5 of the Statute. It

19 maintained that, in the case in point, the forced labour must be

20 considered as part of a series of acts comprising unlawful detention and

21 beatings, the cumulative effect of which is of sufficient gravity to

22 amount to a crime of persecution, it being understood that the unlawful

23 detention and beatings were committed on one or more of the discriminatory

24 grounds listed under Article 5 of the Statute. Accordingly, the degree of

25 gravity of the persecution based on these acts amounts to that of the

Page 361

1 crimes expressly set out under Article 5 of the Statute.

2 The Appeals Chamber has previously recalled that, in this

3 instance, the Trial Chamber indicated that "the detention of non-Serbs in

4 the KP Dom and the acts or omissions which took place therein, were

5 clearly related to the widespread and systematic attack against the

6 non-Serb civilian population in the Foca municipality." The Appeals

7 Chamber had also previously pointed out that it could be inferred from

8 this backdrop that the treatment meted out upon the non-Serb detainees was

9 the result of the aforementioned discriminatory policy which led to their

10 detention on the condition that, as regards the facts of the case, there

11 were circumstances surrounding the commission of the acts of forced labour

12 which confirm the existence of such intent. In the view of the Appeals

13 Chamber, there is no doubt that, in this instance, the non-Serb prisoners

14 were detained and forced to work on account of their ethnicity. The Trial

15 Chamber underscored that, and I quote "the few Serb convicts who were

16 detained at the KP Dom were kept in a different part of the building from

17 the non-Serbs. They were not mistreated like the non-Serb detainees. The

18 quality and quantity of their food was somewhat better, sometimes

19 including additional servings. They were not beaten or otherwise abused,

20 they were not locked up in their rooms, they were released once they had

21 served their time, they had access to hygienic facilities and enjoyed

22 other benefits which were denied to non-Serb detainees." It is clear that

23 the non-Serb detainees were, on the other hand, subjected to a quite

24 different regime. The overcrowding of the solitary confinement cells in

25 which the detainees were so crammed that they were unable to move around

Page 362

1 or lie down, the undernourishment and its principal effects in terms of

2 weight loss, the widespread nature of the beatings and mistreatment and

3 the psychological abuse linked to the detention conditions and the

4 mistreatment constitute circumstances particularly indicative of the

5 discriminatory character of the acts of forced labour imposed upon the

6 non-Serb detainees.

7 In the opinion of the Appeals Chamber, the Trial Chamber was

8 misled by its case-by-case approach to each of the acts of forced labour

9 and, consequently, failed to consider all of the circumstances surrounding

10 the commission of the acts - circumstances which, in this instance,

11 confirm that the said acts did indeed fit into the discriminatory context

12 at the KP Dom, as did the unlawful detention and the beatings that were

13 committed. The Appeals Chamber thus finds that, in view of the

14 circumstances, no reasonable trier of fact would have failed to conclude

15 that the acts of forced labour were committed with discriminatory intent.

16 The Appeals Chamber is many in no doubt that the eight detainees

17 forced to work were the victims of persecutions within the meaning of

18 Article 5 of the Statute.

19 With the persecution based on forced labour established, the

20 Appeals Chamber next considered Krnojelac's responsibility for these

21 crimes.

22 The Appeals Chamber has previously stated that, in the case in

23 point, the alleged crime of forced labour should be dealt with as forming

24 part of a first category joint criminal enterprise without use being made

25 of the "system" notion, and that the persons who participated in its

Page 363

1 commission may be viewed as co-perpetrators of a joint criminal enterprise

2 whose purpose was to commit the crime in question or as aiders and

3 abettors thereto depending on whether, as in the first instance, the

4 individual concerned shared the common intent or as in the second merely

5 had knowledge thereof.

6 On this point, the Appeals Chamber takes the view that Krnojelac

7 must not be regarded as a mere aider and abettor but as a co-perpetrator

8 of the crimes of forced labour which were committed. The Appeals Chamber

9 believes that Krnojelac shared the intent to make the non-Serb detainees

10 perform unlawful labour in conditions which the Appeals Chamber found to

11 be such that have it was impossible for them to consent freely to work.

12 The Appeals Chamber holds that the only conclusion which a reasonable

13 trier of fact should have reached is that Krnojelac was guilty as a

14 co-perpetrator of persecutions based on the forced labour of the non-Serb

15 detainees for the following reasons: Krnojelac was aware of the initial

16 decision to use KP Dom detainees to work, he was responsible for all the

17 business units and work sites associated with the prison, and he played a

18 central role in the matter. Moreover, Krnojelac voluntarily accepted the

19 position in full awareness that non-Serb civilians were being illegally

20 detained at the KP Dom because of their ethnicity and he also knew that

21 none of the procedures in place for legally detained persons was ever

22 followed with the non-Serbs at the KP Dom. He exercised final control

23 over the work of detainees in and for the KP Dom. He had regular meetings

24 with the heads of the furniture factory, metal workshop and farm where the

25 detainees worked.

Page 364

1 It is the Appeals Chamber's opinion that, in light of the

2 foregoing, it is not possible that Krnojelac did not share the intent to

3 use unlawfully detained non-Serbs to work. The Appeals Chamber therefore

4 finds that the Trial Chamber's decision to acquit Krnojelac of the crime

5 of persecution based on forced labour must be reversed and that on the

6 basis of Article 7(1) of the Statute, Krnojelac must be convicted of

7 persecution based on forced labour as a co-perpetrator of the joint

8 criminal enterprise whose purpose was to persecute the non-Serb detainees

9 by exploiting their forced labour.

10 The Appeals Chamber will now turn to the seventh ground of appeal:

11 The Trial Chamber erred by acquitting Krnojelac on the counted of

12 persecutions (deportation).

13 This ground of appeal concerns the Trial Chamber's findings on the

14 first count of the indictment, persecutions based on "deportation and

15 expulsion."

16 The quotes are particularly important.

17 First of all, I shall look into the persecutions.

18 In support of this ground, the Prosecutor principally argued that

19 the Trial Chamber had erred in the definition of deportation and, to some

20 extent, the definition of expulsion.

21 The Appeals Chamber does not believe that, in the circumstances of

22 this case, the main issue is the definition of these terms. The Appeals

23 Chamber emphasises that, as regards the indictment submitted by the

24 Prosecutor, the subject of the discussions before the Trial Chamber was

25 persecution, and the Appeals Chamber therefore holds that two issues arise

Page 365

1 out of the Prosecutor's submissions: (A) whether the Trial Chamber

2 correctly construed the allegations of persecution in the indictment; and

3 (B) whether the acts of displacement admitted by the Chamber are such as

4 to possibly constitute crimes underlying persecutions.

5 In the indictment, Krnojelac is charged with persecutions

6 punishable under Article 5(h) of the Statute for acts of deportation and

7 expulsion. He is not separately charged with deportation as a crime

8 against humanity. The Appeals Chamber is of the view that while the

9 wording used in the indictment was not best suited, it did not contain any

10 ambiguity as to the fact that Krnojelac was being prosecuted for having

11 perpetrated the crime of persecution by means of forcible displacements

12 within and across the borders of Bosnia and Herzegovina.

13 The Appeals Chamber is of the view that there is no need to rule

14 on the definition the Trial Chamber gave to the terms "deportation" and

15 "expulsion" either for the purposes of setting aside or upholding that

16 definition. The issue raised in this instance was whether the alleged

17 acts of forcible displacement could constitute a crime of persecution,

18 assuming that they were committed with discriminatory intent. The Appeals

19 Chamber notes that the terms "deportation" and "expulsion" under paragraph

20 5.2(f) of the indictment were clearly used by the Prosecutor as a generic

21 terms embracing all the forms of conduct alleged in this instance to

22 underlie the crime of persecution. No reference was made in the

23 indictment to deportation under Article 5(d) of the Statute. As such,

24 there is no need to define a term which does not appear in the provision

25 on which the indictment relies.

Page 366

1 The Appeals Chamber holds that the Trial Chamber was bound to make

2 a ruling on the material facts alleged and to assess whether these acts

3 constituted persecutions within the meaning of Article 5(h) of the

4 Statute. The Appeals Chamber has examined which acts of displacement may

5 constitute persecutions when perpetrated with the requisite discriminatory

6 intent and whether the acts alleged by the Prosecutor were indeed such as

7 to constitute acts underlying the crime of persecution. The Appeals

8 Chamber considers that the acts of forcible displacement underlying the

9 crime of persecutions punishable under Article 5(h) of the Statute are not

10 restricted to displacements across a national border. The Appeals Chamber

11 believes that the crime of persecutions may take various forms. It may be

12 one of the other acts constitutive of crimes under Article 5 of the

13 Statute or one of the acts constitutive of crimes under the articles of

14 the Statute -- other articles of the Statute. In order for it to be

15 possible for these acts to be viewed as underlying the crime of

16 persecution, they must, separately or cumulatively, be committed with

17 discriminatory intent and constitute a crime of persecution of equal

18 gravity to the other crimes under Article 5 of the Statute. The Appeals

19 Chamber concludes that displacements within a country or across a national

20 border committed on grounds not authorised by international law are crimes

21 punishable in customary international law and that such acts, if committed

22 with the requisite discriminatory intent, do constitute the crime of

23 persecution under Article 5(h) of the Statute. The Appeals Chamber holds

24 that the facts found by the Trial Chamber fall into the category of

25 displacements which may constitute persecutions. The Appeals Chamber

Page 367

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Page 368

1 notes that by failing to determine whether the alleged acts of forcible

2 displacement constituted persecutions, the Trial Chamber committed an

3 error of law which renders its decision void.

4 The Prosecutor contended that the Trial Chamber made an error of

5 fact when it held that the 35 non-Serb detainees from the KP Dom taken

6 across the border to Montenegro freely chose to be exchanged. She

7 submitted that the Trial Chamber was mistaken in not taking account of the

8 regime of coercion to which the KP Dom detainees were subjected.

9 The Appeals Chamber observes that the living conditions at the KP

10 Dom subjected the non-Serb detainees to a coercive prison regime which was

11 such that they were unable to make a true choice. The Appeals Chamber

12 accordingly concludes that the 35 detainees were subjected to duress and

13 that the Trial Chamber was mistaken in finding that they had freely chosen

14 to be exchanged.

15 The Prosecutor further argued that no Trial Chamber could have

16 reasonably concluded that it had not been shown that the transfer of the

17 35 detainees to Montenegro had been carried out on the requisite

18 discriminatory grounds. The Prosecutor makes general reference back to

19 the arguments pleaded in support of her fifth ground of appeal and,

20 notably, to the climate of systematic violence and discrimination in which

21 the KP Dom detainees lived because of their ethnicity.

22 Given these findings, as well as the discriminatory character of

23 the unlawful imprisonment and the infliction upon the non-Serb detainees

24 at the KP Dom of living conditions as described above, the Appeals Chamber

25 makes the finding that it was unreasonable for the Trial Chamber to

Page 369

1 conclude that there was no evidence that the transfer of the 35 detainees

2 to Montenegro had been carried out on the requisite discriminatory

3 grounds. The Appeals Chamber considers that the reasoning used in order

4 to establish that the 35 non-Serb detainees were forcibly displaced to

5 Montenegro applies mutatis mutandis to the other displacements found by

6 the Trial Chamber. The same holds for Krnojelac's discriminatory intent.

7 We shall now look at Krnojelac's responsibility. The Prosecutor

8 maintained that the Trial Chamber erred when it held that Krnojelac was

9 not responsible for the displacement of detainees within Bosnia and

10 Herzegovina with which he was charged under count 1, persecution, and that

11 the acquittal should be reversed. In addition, she contended that the

12 Trial Chamber erred by finding Krnojelac not guilty pursuant to Article

13 7(1) of the Statute of the transfer of the 35 non-Serb detainees to

14 Montenegro and of other non-Serb detainees to other locations in Bosnia

15 and Herzegovina.

16 The Appeals Chamber is satisfied that the KP Dom administration

17 carried out the orders of the military authorities and that the KP Dom

18 guards handed over the detainees for transfer. It is not, however,

19 satisfied that Krnojelac had the power to influence which detainees were

20 to be displaced. There is evidence that Krnojelac tried, without success,

21 to assist Witness RJ, who wanted to be exchanged, and that he believed he

22 was assisting him to gain security and rejoin his family. The Prosecutor

23 further submitted that Krnojelac "knew that the transport of detainees was

24 problematic and that he had reason to ensure the safety of the detainees

25 after they left the compound." The Appeals Chamber considers that

Page 370

1 Krnojelac was aware of the consequences of the transport of the detainees

2 but that he played no role therein.

3 This notwithstanding, Krnojelac is criminally and individually

4 responsible for the exchanges which formed part of the joint criminal

5 enterprise in which he personally played a role in the ultimate aim of

6 achieving the forcible displacement of the detainees under his control at

7 the KP Dom. As a result, it need not be proven that he personally took

8 part in drawing up the lists. The "exchanges" began in the summer of 1992

9 and continued until March 1993, at least. As already stated, the Appeals

10 Chamber is satisfied that the non-Serb detainees were taken out of the KP

11 Dom with discriminatory intent. According to his own testimony, Krnojelac

12 knew that the detainees were being taken out of the KP Dom. Furthermore,

13 the Trial Chamber established that, by virtue of his position as warden of

14 the KP Dom, Krnojelac knew that the non-Serb detainees were being

15 unlawfully detained on account of their ethnicity. In his capacity as

16 warden, Krnojelac authorised the KP Dom personnel to hand over non-Serb

17 detainees. He encouraged such departures by allowing them to

18 continue. Without the unlawful imprisonment, it would not have been

19 possible to continue with the exchanges. The Appeals Chamber is satisfied

20 that Krnojelac shared the intent of the principal perpetrators of the

21 joint criminal enterprise whose purpose was to take the non-Serb detainees

22 out of the KP Dom.

23 The Appeals Chamber therefore considers that Krnojelac is

24 responsible as a co-perpetrator for persecutions which took the form of

25 forcible displacements, as alleged by the Prosecutor under deportation and

Page 371

1 expulsion.

2 Let's now turn to the sentence.

3 In the present case, both parties raised grounds of appeal

4 relating to the seven-and-a-half-year sentence imposed by the Trial

5 Chamber. The Appeals Chamber has examined the various grounds of appeal

6 by applying the standard of review for alleged errors as settled in its

7 jurisprudence.

8 The Appeals Chamber dismissed all of the grounds of appeal raised

9 by the parties with the exception of one of the Prosecutor's grounds.

10 The Prosecutor challenged the weight which the Trial Chamber gave

11 in mitigation of sentence to the cooperation provided to the Tribunal and

12 Prosecution by the Defence, and not Krnojelac. According to the

13 Prosecutor, the efficient and cooperative conduct of Defence counsel

14 cannot be a mitigating factor warranting a reduced sentence for the

15 accused any more than the inefficient or uncooperative conduct of counsel

16 may be considered an aggravating factor warranting an increased sentence.

17 The Appeals Chamber finds that the conduct described in the

18 contested paragraph of the judgement is the normal conduct that any

19 counsel should adopt before a Trial Chamber. The Appeals Chamber

20 therefore considers that the Trial Chamber committed an error by giving

21 credit to the accused for the conduct of his counsel. The Appeals Chamber

22 concludes that the commission of this error means, as previously

23 indicated, that the conduct of counsel for Krnojelac must not be taken

24 into consideration in determining the sentence imposed on the basis of the

25 new convictions on appeal.

Page 372

1 The Appeals Chamber shall now determine the sentence having regard

2 for the new convictions pronounced on appeal. The Prosecutor requested

3 that, if the Appeals Chamber reversed one or more of the acquittals, the

4 sentence be increased commensurably. She submitted that it was possible

5 for the Appeals Chamber to revise the sentence itself rather than remit

6 the matter to the Trial Chamber. This assertion was not contested by

7 Krnojelac and is accepted by the Appeals Chamber.

8 Having given due consideration to the gravity of the crimes and

9 Krnojelac's responsibility as established by the Trial Chamber and taking

10 into account Krnojelac's responsibility established on the basis of the

11 new convictions on appeals, the Appeals Chamber has revised the sentence

12 in the exercise of its discretion and in the light of the mitigating and

13 aggravating circumstances taken into consideration.

14 Mr. Krnojelac, I shall ask you now to stand so that you can hear

15 the disposition that will be read out.

16 The Appeals Chamber, pursuant to Article 25 of the Statute and

17 Rules 117 and 118 of the Rules, noting the respective written submissions

18 of the parties and the arguments they presented at the hearing of 14 and

19 15 May 2003, sitting in open session, allows the Prosecutor's first ground

20 of appeal and sets aside Krnojelac's convictions as an aider and abettor

21 to the persecutions (crime against humanity, for imprisonment and inhumane

22 acts) and cruel treatment (violations of the laws or customs

23 of war for the living conditions imposed) under counts 1 and 15 of the

24 indictment pursuant to Article 7(1) of the Statute;

25 Allows the Prosecutor's third ground of appeal and reverses

Page 373

1 Krnojelac's acquittal on counts 2 and 4 of the indictment (torture as a

2 crime against humanity and violations of the laws or customs of war)

3 pursuant to Article 7(3) of the Statute;

4 Allows the Prosecutor's fourth ground of appeal and reverses

5 Krnojelac's acquittal on counts 8 and 10 of the indictment (murder as a

6 crime against humanity and murder as a violation of the laws or customs

7 of war) pursuant to Article 7(3) of the Statute;

8 Allows the Prosecutor's fifth ground of appeal for the revision of

9 Krnojelac's conviction on count 1 of the indictment (persecution as a

10 crime against humanity) pursuant to Article 7(3) of the Statute so that it

11 encompasses a number of beatings;

12 Allows the Prosecutor's sixth ground of appeal and reverses

13 Krnojelac's acquittal on count 1 of the indictment (persecution as a crime

14 against humanity) based on the forced labour imposed upon the non-Serb

15 detainees;

16 Allows the Prosecutor's seventh ground of appeal and reverses

17 Krnojelac's acquittal on count 1 of the indictment (persecution as a crime

18 against humanity) based on the deportation and expulsion of non-Serb

19 detainees;

20 Dismisses the Prosecutor's second ground of appeal on the form of

21 the indictment;

22 Dismisses all of the grounds of appeal raised by Krnojelac;

23 Finds Krnojelac guilty of counts 1 and 15 of the indictment as a

24 co-perpetrator of persecution, a crime against humanity (imprisonment and

25 inhumane acts) and of cruel treatment, a violation of the laws or customs

Page 374

1 of war (for the living conditions imposed), pursuant to Article 7(1) of

2 the Statute;

3 Finds Krnojelac guilty of counts 2 and 4 of the indictment

4 (torture as a crime against humanity and violations of the laws or customs

5 of war) pursuant to Article 7(3) of the Statute based on the following

6 facts: paragraph 5.21 (for FWS-73), paragraph 5.23 (except for FWS-03),

7 paragraph 5.27 (for Nurko Nisic and Zulfo Veiz), 5.28 and 5.29 (for Aziz

8 Sahinovic) of the indictment and facts described under points B4, B14,

9 B22, B31, B52 and B57 of the List C of the indictment;

10 Finds Krnojelac guilty of counts 8 and 10 of the indictment

11 (murder as a crime against humanity and murder as violations of the laws

12 or customs of war) pursuant to Article 7(3) of the Statute;

13 Revises Krnojelac's conviction under count 1 of the indictment

14 (persecutions as a crime against humanity) pursuant to Article 7(3) so

15 that it encompasses the beatings described in paragraphs 5.9, 5.16, 5.18,

16 5.20, 5.21 (for FWS-110, FWS-144, Muhamed Lisica and several

17 over unidentified detainees), 5.27 (for Salem Bico) and 5.29 (for Vahida

18 Dzemal, Enes Uzunovic and Elvedin Cedic) of the indictment, and in the

19 facts corresponding to the numbers A2, A7, A10, A12, B15, B17, B18, B19,

20 B20, B21, B25, B26, B28, B30, B33, B34, B37, B45, B46, B48, B51, and B59

21 of List C of the indictment;

22 Finds Krnojelac guilty of count 1 of the indictment as a

23 co-perpetrator of the crime against humanity of persecutions (forced

24 labour, deportation, and expulsion) pursuant to Article 7(1) of the

25 Statute;

Page 375

1 Sets aside all of the convictions entered under count 5 of the

2 indictment (inhumane acts as crimes against humanity) pursuant to Article

3 7(3) of the Statute and the convictions entered under count 7 of the

4 indictment (cruel treatment as a violation of the laws or customs of war)

5 pursuant to Article 7(3) of the Statute based on the following facts:

6 paragraph 5.21 (for FWS-73), 5.23, 5.27 (for Nurko Nisic and Zulfo Veiz),

7 5.28 and 5.29 (for Aziz Sahinovic) of the indictment and facts described

8 under points B4, B14, B22, B31, B52, and B57 of List C of the indictment;

9 Dismisses the sentencing appeals entered by Krnojelac and the

10 Prosecutor (with the exception of the ground of appeal allowed in

11 paragraph 262 of this judgement) and determines a new sentence, having

12 regard for Krnojelac's responsibility established on the basis of the new

13 convictions on appeal and in the exercise of its discretion;

14 Sentences Krnojelac to 15 years' imprisonment to run as of this

15 day, subject to credit being given under Rule 101(C) of the Rules for the

16 period Krnojelac has already spent in detention, that is, from 15 June

17 1998 to the present day.

18 This Appeals Judgement has been drafted in English and in French,

19 The English being authoritative, in the presence of Judge Wolfgang

20 Schomburg, Judge Mohamed Shahabuddeen, Judge Mehmet Guney, Judge Carmel

21 Agius, and I, myself. I would like to state that Judges Shahabuddeen

22 have -- the Judges Schomburg and Shahabuddeen each append a separate

23 opinion to the Appeals Judgement.

24 Done this 17th day of September, 2003, at The Hague.

25 --- Whereupon the Appeals Judgement at 4.19 p.m.