Anexo A al informe "Crímenes contra la humanidad y crimen organizado en Colombia": Extracto de la sentencia del TPIY de 27 de septiembre de 2006 en el caso
Prosecutor v. Momilo Krajišnik
Extracto de la sentencia del TPIY de 27 de septiembre de 2006
PROSECUTOR v. MOMCILO KRAJISNIK
Responsabilidad penal por participación en Empresa Criminal Conjunta
* * *
6.17 Conclusions on the Accused's responsibility
1078. From the above considerations, the Chamber concludes that the Accused committed crimes mentioned in part 5 of this judgement as a member of a JCE. The features of the JCE in which he participated are summarized below.
6.17.1 Plurality of persons
1079. Paragraph 7 of the indictment alleges the existence of a group in the following terms:
Numerous individuals participated in this joint criminal enterprise. Each participant, by acts or omissions, contributed to achieving the objective of the enterprise. Momilo Krajišnik and Biljana Plavši worked in concert with other members of the joint criminal enterprise, including Radovan Karadži and Nikola Koljevi. Other members of the joint criminal enterprise included: Slobodan Miloševi, Željko Ražnatovi (aka "Arkan"), General Ratko Mladi, General Momir Tali, Radoslav Branin, and other members of the Bosnian Serb leadership at the Republic, regional and municipal levels; members of the SDS leadership at the Republic, regional and municipal levels; members of the Yugoslav People's Army ("JNA"), the Yugoslav Army ("VJ"), the army of the Serbian Republic of Bosnia and Herzegovina, later the army of the Republika Srpska ("VRS"), the Bosnian Serb Territorial Defence ("TO"), the Bosnian Serb police ("MUP"), and members of Serbian and Bosnian Serb paramilitary forces and volunteer units and military and political figures from the (Socialist) Federal Republic of Yugoslavia, the Republic of Serbia and the Republic of Montenegro.
1080. In its final trial brief, the Prosecution allowed for the existence of a JCE constituted of a "core group" of persons:
Should the Trial Chamber find that the members of the JCE consisted only of a core group (such as Krajišnik, Karadži, Plavši, Koljevi, Mladi, Mio Staniši and Mandi), liability still attaches to Krajišnik for participation in that JCE, as the physical perpetrators of the crimes were acting as instruments of that JCE. Similarly, insofar as any crimes were committed by local Bosnian Serbs who were not members of the JCE, those Serbs were acting as instruments under the direction of participants in the JCE. |2184|
1081. The Prosecution was invited by the Chamber to comment on the kinds of evidence which would distinguish perpetrators of crimes acting as part of a JCE from persons not part of that JCE but who were committing similar crimes. The Prosecution listed some distinguishing factors:
Whether the perpetrator was a member of, or associated with, any organised bodies connected to the JCE; whether the crimes committed were consistent with the pattern of similar crimes by JCE members against similar kinds of victims; whether the perpetrator acted at the same time as members of the JCE, or as persons who were tools or instruments of the JCE; whether the perpetrator's act advanced the objective of the JCE; whether the perpetrator's act was ratified implicitly or explicitly by members of the JCE; whether the perpetrator acted in cooperation or conjunction with members of the JCE at any relevant time; whether any meaningful effort was made to punish the act by any member of the JCE in a position to do so; whether similar acts were punished by JCE members in a position to do so; whether members of the JCE or those who were tools of the JCE continued to affiliate with the perpetrators after the act; finally - and this is a non-exhaustive list - whether the acts were performed in the context of a systematic attack, including one of relatively low intensity over a long period. |2185|
1082. The Chamber accepts the submissions in the previous paragraph, which essentially identify indicia (from an indefinite range of such indicia) concerning connections or relationships among persons working together in the implementation of a common objective. A person not in the JCE may share the general objective of the group but not be linked with the operations of the group. Crimes committed by such a person are of course not attributable to the group. On the other hand, links forged in pursuit of a common objective transform individuals into members of a criminal enterprise. These persons rely on each other's contributions, as well as on acts of persons who are not members of the JCE but who have been procured to commit crimes, to achieve criminal objectives on a scale which they could not have attained alone.
1083. One aspect of the Accused's defence was to deny that he was linked to any persons who might have been connected with the commission of crimes: "Everybody had their own province of work." |2186| Moreover, the officials in the municipalities had "great" autonomy. |2187|
1084. The Accused said about the MUP's July 1992 reporting on civilian detainees: "I really don't understand why they would tell me about this. It is their job to get this done, to take measures, to punish, to investigate. All of that is up to them, the government." |2188| "For me, it was sufficient that they would take care of it." |2189| And, somewhat inconsistently: "If you wouldn't be interested in this kind of thing, then you would be committing a crime." |2190|About detention of civilians the Accused said, "Officially, I knew nothing." |2191| Asked whether he would have reacted to rumours of abuse of detention powers, the answer was drowned in legalisms: "this was under the jurisdiction of the government. It [the Assembly] would have to interfere with the powers of the government. It was for the government to investigate this, to submit a report to the Assembly ... That is the proper channel." |2192| Even though as both leader of the Assembly and member of the Presidency the Accused's powers were enormous, in the witness box, he tried to cast himself as a pathetic figure: "I could only suggest ... I could not ask for a report on my own ... I could speak out within the Presidency, and that was the end of all my activity. I couldn't punish. ... I couldn't not trust the government ... I could say, Wait a minute, is this correct? if there were any indications elsewhere that this was not the case, but there was nothing I could do." |2193|
1085. According to Biljana Plavši, Momilo Mandi of the Ministry of Justice and Mio Staniši of the MUP were very close to the Accused and Karadži, and Prime Minister eri had no control over the two Ministers. |2194| This is borne out by other evidence. eri was Prime Minister in little more than name only, a cover for the dictatorial ways of a core group which had amassed unto itself all important executive powers. eri's statement that "Mr Karadži considered Mr Krajišnik to be his very own, private Prime Minister", |2195| is apposite. Momilo Mandi testified that, in terms of power and influence, Karadži was "absolute number one". In Mandi's opinion, the Accused was number two. |2196| This assessment is equivalent to eri's, and in light of all the evidence, the Chamber finds it to be correct.
1086. It is clear that paragraph 7 of the indictment alleges a JCE consisting of a large and indefinite group of persons. The Chamber does not find it possible on the evidence to specify fully the membership of the JCE; and even if it were possible, it is neither desirable nor necessary to do so. What is necessary is to be convinced that the Accused was sufficiently connected and concerned with persons who committed crimes pursuant to the common objective in various capacities, or who procured other persons to do so.
1087. The Chamber finds that the JCE of which the Accused was a member consisted of persons situated throughout the territories of the Bosnian-Serb Republic. There was a Palebased leadership component of the group, including, but not limited to, the Accused, Radovan Karadži, Biljana Plavši, Nikola Koljevi, Momilo Mandi, Velibor Ostoji, Mio Staniši, and, as of 12 May 1992, General Ratko Mladi. The JCE rank and file consisted of local politicians, military and police commanders, paramilitary leaders, and others. It was based in the regions and municipalities of the Bosnian-Serb Republic, and maintained close links with Pale.
1088. The local component included Arkan (Željko Ražnatovi), |2197| Dr Beli (proper name Milenko Vojnovi: a local SDS official, deputy to the Bosnian-Serb Assembly, and SDS Main Board member), |2198| Mirko Blagojevi (paramilitary leader), |2199| Radoslav Branin (ARK crisis staff president and deputy to Bosnian-Serb Assembly), |2200| Simo Drljaa (chief of Prijedor SJB), |2201|Rajko Duki (president of SDS Executive Board and SDS Main Board member), |2202| Gojko Klikovi (president of Bosanska Krupa war presidency and SDS Main Board member), |2203| "Vojo" Kuprešanin (president of ARK and SDS Main Board member), |2204|Rajko Kuši (SDS leader of Rogatica, paramilitary leader, and SDS Main Board member), |2205|Mauzer (paramilitary leader; proper name Ljubiša Savi), |2206| Jovan Mijatovi (member of Zvornik crisis staff and deputy to Bosnian-Serb Assembly), |2207| Veljko Milankovi (paramilitary leader), |2208| Nedeljko Rašula (president of Sanski Most municipal assembly and deputy to Bosnian-Serb Assembly), |2209| Momir Tali (commander of 1st Krajina Corps), |2210|Jovan Tintor (president of Vogoša crisis staff and SDS Main Board member), |2211| Vojin (Žuo) Vukovi (paramilitary leader), |2212| and Stojan Župljanin (chief of Banja Luka SJB), |2213|among others.
6.17.2 Common objective
1089. The second element of JCE responsibility, namely the common objective of the enterprise, is pleaded in the indictment as being "the permanent removal, by force or other means, of Bosnian Muslim, Bosnian Croat or other non-Serb inhabitants from large areas of Bosnia and Herzegovina through the commission of crimes which are punishable under Articles 3, 4, and 5 of the Statute", and that "The crimes enumerated in all the Counts of this indictment were within the object of the joint criminal enterprise, and Momcilo Krajišnik ... held the state of mind necessary for the commission of each of these crimes." |2214|
1090. The Chamber finds that the above allegations have been proven in relation to Article 5 of the Statute (crimes against humanity). The Bosnian-Serb leadership wanted to ethnically recompose the territories under its control by expelling and thereby drastically reducing the proportion of Bosnian Muslims and Bosnian Croats living there. In the words of a decision of representatives from Biha, Bosanski Petrovac, Sprska Krupa, Sanski Most, Prijedor, Bosanski Novi, and Klju, on 7 June 1992, "Muslims and Croats should move out of our municipalities until a level is reached where Serbian authority can be maintained and implemented on its own territory in each of these municipalities". |2215|
1091. The evidence does not show that the Accused or other members of the JCE had the mens rea of genocide (Article 4 of the Statute). Nor does it support the conclusion that the Accused was complicit in genocide. The Chamber has classified all proven killings under Article 5 of the Statute, so the allegation regarding Article 3 of the Statute (violations of the laws or customs of war), which was charged in the alternative to murder as a crime against humanity, is rendered moot.
1092. An explanation of the Chamber's conclusion in relation to Article 4 of the Statute is in order. The evidence does not show that the crime of genocide formed part of the common objective of the JCE in which the Accused participated. When reviewing speeches and statements, witness evidence and documentation, in search of evidence of genocidal intent, utterances must be understood in their proper context. |2216| Statements and speeches of the Accused and others in the Bosnian-Serb leadership hinged on two main ideas, namely that Serbs had to separate from Muslims and Croats (since it was impossible for them to live together), and that there existed historically Serb territories. Even the more extreme statements of the Accused, such as his speech at the Bosnian-Serb Assembly session of 8 January 1993, do not enable the Chamber to conclude that his intent went further than the removal of Muslims and Croats from territories in Bosnia-Herzegovina. The discriminatory remarks uttered by the Accused at that time, and the Assembly resolution adopted in this connection, served, as the Chamber explained above, to retrospectively legitimize the forcible removal. They did not reveal an intent to destroy an ethnic group in whole or in part.
1093. The Chamber must consider whether all of the evidence taken together demonstrates a genocidal mental state. |2217| A review of the crimes committed in the indictment municipalities during 1992 provides some of the context of the speeches and statements of the Accused and his associates. The Chamber has found that, on the evidence presented, at least 3,000 Muslims and Croats were killed as part of a widespread or systematic attack against them. These persons were killed over a period of many months in a variety of circumstances. Yet the main focus of the JCE was to forcibly remove Muslims and Croats from the indictment municipalities, which it succeeded in doing in very large numbers. Killings and ill-treatment were often carried out with the aim to instill fear and force the population to leave. Destruction and appropriation of property was seen as a measure to prevent expelled people from returning.
1094. As explained in part 5, the Chamber has not found in the evidence that crimes of genocide were committed in the indictment municipalities, which of course is not to say that such crimes did not occur. It is only to say that the evidence is not conclusive beyond reasonable doubt as to the commission of genocide. Proof of genocide is not possible without proof of the mens rea at some level of the hierarchy of actors. This may be present from the start, or materialize later. Considering all the evidence, the Chamber does not find that the evidence supports a finding beyond reasonable doubt that at any time during the indictment period the common objective of the JCE came to include the crime of genocide (JCE form 1). Since JCE form 3 is not activated except through the commission of a crime of genocide by a co-perpetrator or agent of the JCE - something which has not been proven in this case - the charges of genocide must be dismissed.
1095. The indictment charges the Accused with persecution, murder, extermination, deportation, and forced transfer. The underlying acts of persecution are the imposition and maintenance of restrictive and discriminatory measures, killings during and after attacks, cruel or inhumane treatment during and after attacks, forced transfer or deportation, unlawful detention, killings related to detention facilities, cruel or inhumane treatment in detention facilities, inhumane living conditions in detention facilities, forced labour at front lines, use of human shields, appropriation or plunder of property, and destruction of private property, cultural monuments, and sacred sites. The Chamber, in part 5 of this judgement, has found that the full range of these crimes was committed against Muslims and Croats in the indictment municipalities, although the use of human shields has been incorporated under the heading of killing (murder).
1096. The question arises whether one or more of these crimes was not part of the common objective of the JCE (JCE form 1) but rather was a natural and foreseeable consequence of the implementation of the JCE's common objective (JCE form 3) or fell outside the JCE altogether. In relation to the crime of persecution, the same question arises for a second time: were any of the underlying acts not part of the common objective but rather the natural and foreseeable consequences of that objective?
1097. The Chamber finds that the crimes of deportation and forced transfer (as charged under counts 7 and 8 of the indictment and as incorporated in the charge of persecution in count 3) were necessary means of implementing the common objective of removal by force of Bosnian Muslims and Bosnian Croats from large areas of Bosnia-Herzegovina. The Chamber will refer to these crimes as "original" crimes. These were the crimes which constituted the JCE's common objective as of late March 1992, when the Accused called for "implementing what we have agreed upon, the ethnic division on the ground". Witness 583 reported "ethnic cleansing" to the Bosnian-Serb leadership in July 1992, when around 9,000 Muslims and Croats were forced to cross into Croatia. The Main Staff was informed by the 1st Krajina Corps in December 1992 of a convoy of buses transporting 1,008 detainees from Manjaa camp to Croatia. At around the same time, the 1st Krajina Corps informed the Main Staff of another 1,001 detainees from Manjaa being moved out of the Bosnian-Serb Republic. The Bosnian-Serb authorities tried to misinform the world about the forced-transfer crimes, such as when they denied in a press release that there had been "ethnic cleansing" in Grbavica, claiming that it was a case of some groups acting arbitrarily. In October 1992 Biljana Plavši again denied that there had been ethnic cleansing in Grbavica, stating euphemistically that "The truth is that Muslims have been able freely to leave the suburb, accompanied and protected" by the VRS.
1098. These are just some examples of the knowledge the Bosnian-Serb leadership had on crimes of forcible displacement. Whether other crimes were "original" to the common objective or were added later is of course a matter of evidence, not logical analysis. The Chamber's preference is for a strictly empirical approach which does not speculate about the crime-profile of the original JCE objective, but conceptualizes the common objective as fluid in its criminal means. An expansion of the criminal means of the objective is proven when leading members of the JCE are informed of new types of crime committed pursuant to the implementation of the common objective, take no effective measures to prevent recurrence of such crimes, and persist in the implementation of the common objective of the JCE. Where this holds, JCE members are shown to have accepted the expansion of means, since implementation of the common objective can no longer be understood to be limited to commission of the original crimes. With acceptance of the actual commission of new types of crime and continued contribution to the objective, comes intent, meaning that subsequent commission of such crimes by the JCE will give rise to liability under JCE form 1.
1099. Notwithstanding the above, even before the Bosnian-Serb take-overs began in April 1992, the Accused and Radovan Karadži were aware that an armed conflict between the ethnic groups would have devastating consequences. On 15 October 1991, speaking before the Bosnia-Herzegovina Assembly, Radovan Karadži said: "This is the road that you want Bosnia and Herzegovina to take, the same highway of hell and suffering that Slovenia and Croatia went through. Don't think you won't take Bosnia and Herzegovina to hell and Muslim people in possible extinction." |2218| Three days earlier, he had said in a telephone conversation with Gojko ogo that the Bosnian Serbs would fight against secession from Yugoslavia, that "Sarajevo will be a black cauldron where 300,000 Muslims will die", and that "they'd be up to their necks in blood and that the Muslim people would disappear". |2219|Other evidence confirms that the Accused knew where the events he had helped set in train were heading. Witness 623, of Serb ethnicity, was in 1992 a senior member of the government of Bosnia-Herzegovina. He stated that the leading figures of the SDS, including the Accused, had created a policy of ethnic cleansing in full awareness that it entailed the use of force. |2220| In April or May 1992 he attended a meeting with the Accused in Sarajevo. |2221| He expressed his view to the Accused that any ethnic separation for the purpose of creating an entity under Serb rule could not be achieved without the violent displacement of civilians, causing bloodshed among them. |2222|
1100. If unlawful detention of civilians was not an original crime of the common objective of the JCE of which the Accused was a member, it very soon joined the intended crimes of deportation and forced transfer. As mentioned above, the Bosnian-Serb take-over of Bijeljina in early April 1992 immediately caused a large population of displaced persons to seek refuge at the JNA barracks in town. Biljana Plavši, who had invited Arkan to Bijeljina, saw around 3,000 displaced persons when she visited the barracks. After that first Bosnian-Serb take-over operation, displaced persons were herded into public buildings and other structures that served as detention centres. Miroslav Deronji sent hundreds of detained Muslim civilians under escort to Pale after the take-over of Bratunac municipality in May 1992. This fact was known to the Accused at the time. The acts of Rajko Kuši, who told Muslim detainees at the Veljko Vlahovi school in Rogatica that he was having to report to the leadership in Pale on why he was running late with ethnically cleansing his municipality further illustrate this point. Kuši mentioned decisions made in Pale, on the number of Muslims who could remain in Rogatica. |2223|
1101. Similarly, if cruel or inhumane treatment of detainees were not original crimes of the common objective, they too came to be added to the crimes of deportation and forced transfer. Staniši knew about the illegal and widespread detention of Muslim and Croatian civilians and their inhumane treatment, and reported the situation to Radovan Karadži and Prime Minister eri in July 1992: "The Army, crisis staffs and war presidencies have requested that the Army round up or capture as many Muslim civilians as possible, and they leave such undefined camps to internal affairs organs. The conditions in some of these camps are poor: there is no food, individuals sometimes do not observe international norms, etc." - the last being a euphemism for the mistreatment of detainees.
1102. In June 1992, Biljana Plavši entered a room where Witness 239 was being questioned and beaten by Serb soldiers. She told the soldiers to take away the witness and two other detainees, who showed visible signs of having been beaten, because she was trying to have breakfast in the room next door. Milanovi told the Bosnian-Serb Assembly in July 1992 that "We have a huge problem with captured people of other nationalities, we have hundreds and thousands of these prisoners." He acknowledged that "boozing" and "totally plastered" Serb soldiers, paramilitaries, and private armies roamed Banja Luka engaging in criminal activities which went unpunished.
1103. The ICRC reported mistreatment directly to the Bosnian-Serb leadership. The ICRC's July 1992 report stated that "detainees had been subjected to ill treatment during the visit. All eight delegates present in camp observed on detainees frequent and widespread traces of recent and often severe beatings ... Basic conditions of poor nutrition and hygiene, along with ill treatment, were assessed by delegates to be the biggest health problems." The Bosnian-Serb leadership did not give up their programme of expulsion .
1104. Killings in detention were also known to the Bosnian-Serb leadership and became a crime of the common objective. The records of the 1st Krajina Corps military prosecutor's office identify only two or three incidents in which the killing of non-Serb civilians in the custody of Bosnian Serbs was followed up through the military judicial process; even then, no trial was recorded. A combat report from the 1st Krajina Corps to the VRS Main Staff from November 1992, which would have put General Mladi and other members of the Bosnian-Serb leadership on notice, describes a "massacre" of about 200 Muslims prisoners of war in the village of Veii in Kotor Varoš municipality.
1105. Sexual violence was committed against persons in and out of detention and reported to the Bosnian-Serb leadership. In late July 1992 the Bijeljina CSB reported to Radovan Karadži that Mauzer's men, together with some members of the local MUP, "terrorized" Muslim residents of Bijeljina through crimes including rapes. Around June 1992, three women, two Muslim and one of mixed ethnicity, were raped during house searches by an armed man named Batko. Biljana Plavši stated that she was informed by people living in Grbavica that Batko and an armed group associated with him were committing crimes against non-Serbs. When she returned to Pale she had a meeting with Radovan Karadži, the Accused, Nikola Koljevi, Mio Staniši, and Momilo Mandi regarding what she had heard. In September 1992 the intelligence service of the Eastern Bosnia Corps Command reported to the VRS Main Staff that as of 30 April 1992, Brko had been flooded by "patriotic elements" which were responsible for robberies, rapes, and murders, including murders at Luka camp, and that some of the bodies of those killed had been buried in pits and covered with material from demolished mosques.
1106. In August 1992, the Vogoša war commission sought approval from the Ministry of Justice to engage detainees at Planjo's house in Semizovac in construction and other works. Minister of Justice Mandi, approved the request. A man introducing himself as the Minister of Justice visited detainees at Planjo's house. He knew that they had been transferred there to perform labour assignments. They were in fact forced by Serb forces to perform labour at front lines.
1107. Inhumane living conditions and cruel or inhumane treatment at detention centres were issues that the Bosnian-Serb leadership actively tried to cover up. In August 1992 Karadži said in a television interview that "We have excellent conditions in all prisons, or in almost all prisons ... the fact is that we do not have camps for civilians".
1108. If murder of civilians during attacks on towns and villages had not been intended from the outset by the members of the JCE, it was soon incorporated as an intended crime. Biljana Plavši knew that civilians had been killed during the attack on Bijeljina in early April 1992. Her reaction was to say that Arkan had done a good job in saving the Serb population from the Muslim threat. The Bosnian-Serb leadership very soon came not only to accept killings in connection with attacks as part of the JCE, but also to encourage them. The indiscriminate bombardment of Sarajevo is a case in point. In June 1992, the Bosnian-Serb leadership, in a meeting with Mladi, did not oppose Mladi's decision to attack Sarajevo with artillery. The attack was massive and indiscriminate.
1109. Extermination of Muslims, such as the incident at Korianske Stijene in August 1992, was also reported to the Bosnian-Serb leadership. Its reaction to this particular event was to try to cover it up.
1110. The Serb attacks on Muslim and Croat enclaves were associated with cruel or inhumane treatment, and this was known to the Bosnian-Serb leadership. In April 1992, Witness 583 reported to Karadži about the terror inflicted on the Muslim population of Zvornik. Karadži answered that such crimes, committed by paramilitary units, were inevitable. In May 1992 Momilo Mandi said in a telephone conversation that "we are holding Turks under siege [in Sarajevo]. We'll starve them a bit." Physical and psychological abuse of the citizens of Sarajevo through indiscriminate bombardment of the city was a prominent aspect of the Bosnian-Serb aggression.
1111. As to plunder and appropriation of property, the Chamber mentioned Davidovi's evidence that Mio Staniši spoke of an agreement that Arkan's forces could do as they wished with any property in the "liberated" territories. During Davidovi's visits to Bijeljina in the course of 1992 he observed widespread looting in the municipality. The abandoned and looted homes of Muslims were sold to Serb refugees. In July 1992, the Doboj CSB reported to the MUP Minister that Serbs were committing crimes, mainly looting of property, in areas of the municipality recently "liberated" by the army; the systematic looting was committed by soldiers and reserve police officers. Mandi testified that he often met with Staniši to discuss the problem of theft and destruction of property. It was also discussed at Government sessions.
1112. When Witness 583 reported "ethnic cleansing" to the Bosnian-Serb leadership in July 1992, Karadži, Koljevi, and Plavši responded that it was a cruel war in which everybody was committing crimes. They insisted that the Muslims did not wish to remain in the territories, citing as proof that the Muslims had signed voluntary departure declarations and had exchanged their properties. A letter sent by Radovan Karadži in July 1992 to several municipalities requested an inventory of "all housing facilities ... that are vacant following the voluntary departure of Muslims". The housing stock was to be used to accommodate Serbs leaving the Muslim part of Sarajevo.
1113. Appropriation of property, as a crime, if not intended originally, had become a means of forcible ethnic recomposition.
1114. The same is true of destruction of cultural monuments and sacred sites, which was systematic and was reported to the Bosnian-Serb leadership; they, in any case, could see the results of the destruction for themselves when they traveled through the Bosnian-Serb territories. Krsti reported to the VRS Main Staff, and therefore to Mladi, in September 1992 that "During the day the village of Novoseoci was cleansed". Krsti's unit blew up all the mosques in Sokolac municipality, including the mosque in Novoseoci.
1115. At the Assembly session of 25 July 1992, the Accused asserted that the take-over of territories to date had been insufficient. Despite all that he knew by that time about the range of crimes being committed in pursuit of the common objective, he wanted the programme of expulsion to continue unabated. Moreover, he never expressed regret about the crimes committed by the Bosnian-Serb authorities in 1992. At no time did he desist. At the Geneva peace negotiations from 1992 to 1994, the Accused and Karadži insisted throughout on having an ethnically pure Serb area in Bosnia-Herzegovina, as a precondition for a peaceful settlement.
1116. In January 1993, unrepentant, the Accused questioned the very existence of a Muslim identity: "the Muslims are a communist creation and that they are a religious group of Turkish orientation", he said. In August 1994 he publicly announced that "We simply want to separate because we cannot live together". This echoed Karadži statement of July 1994, that the Bosnian Serbs had to "get rid of the enemy in our house, meaning the Croats and Muslims". In November 1994, the Accused called for the ethnic cleansing of Sarajevo: "The Muslims will have to look for a capital outside of Sarajevo, somewhere else. That is the natural course of things. This town will belong to the Republika Srpska in its totality." This implies that he would have had the same range of crimes, which he knew to be associated with ethnic cleansing, repeated against Muslim and Croat citizens of Sarajevo.
1117. In summary, in the months following March 1992, reports about crimes detailed in parts 4 and 5 of this judgement reached the Bosnian-Serb political leadership, including the Accused. The leadership did not discontinue its discriminatory forced displacement programme in light of the increasing number and range of crimes being reported, but rather persisted with its territorial conquests and demographic recompositions.
1118. The Chamber finds that, whereas in the early stages of the Bosnian-Serb campaign the common objective of the JCE was discriminatory deportation and forced transfer, soon thereafter it became clear to the members of the JCE, including the Accused, that the implementation of the common objective involved, as a matter of fact, the commission of an expanded set of crimes. These crimes came to redefine the criminal means of the JCE's common objective during the course of the indictment period. In accordance with the reasoning set out earlier in this section, acceptance of this greater range of criminal means, coupled with persistence in implementation, signalled an intention to pursue the common objective through those new means. As this is an evidentiary matter, the Chamber's conclusion does not exclude the possibility that the "original" crimes of the common objective were not limited to deportation and forced transfer. To speak of an increase in criminal means is only to say that the evidence confirms that at the given point in time indicated by the evidence the accepted means were what they were.
1119. The Accused held a central position in the JCE. He not only participated in the implementation of the common objective but was one of the driving forces behind it. The Accused knew about, and intended, the mass detention and expulsion of civilians, he had the power to intervene, and his evasiveness in the witness box confirmed to the Chamber that he was not interested and did not care about the predicament of detained and expelled persons. He wanted the Muslims and Croats moved out of the Bosnian-Serb territories in large numbers, and if suffering, death, and destruction were necessary to achieve Serb domination and a viable statehood, he accepted that many Muslims and Croats of all ages would pay a heavy price. He therefore had the mens rea required for the commission of the crimes which the Chamber, in part 5 of this judgement, has found were committed.
1120. Paragraph 8 of the indictment alleges the Accused's contributions to the JCE: "Momilo Krajišnik ... acting individually, and through the associations, positions and memberships enumerated in paragraphs 12 and 13 below, and in concert with other members of the joint criminal enterprise, participated in the joint criminal enterprise in the following ways: ...", following which eleven paragraphs particularize the alleged contributions. In the Chamber's view, the Accused's overall contribution to the JCE was to help establish and perpetuate the SDS party and state structures that were instrumental to the commission of the crimes. He also deployed his political skills both locally and internationally to facilitate the implementation of the JCE's common objective through the crimes envisaged by that objective.
1121. The Chamber will now state its findings on each of the alleged contributions on the basis of evidence discussed above. For the sake of clarity, evidence is used to illustrate the findings where necessary.
(a) Formulating, initiating, promoting, participating in, and/or encouraging the development and implementation of SDS and Bosnian Serb governmental policies intended to advance the objective of the joint criminal enterprise;
The above allegation has been proven.
(b) Participating in the establishment, support or maintenance of SDS and Bosnian Serb government bodies at the Republic, regional, municipal, and local levels, including Crisis Staffs, War Presidencies, War Commissions ("Bosnian Serb Political and Governmental Organs") and the VRS, TO, and the MUP ("Bosnian Serb Forces") through which [he] could implement the objective of the joint criminal enterprise;
The above allegation has been proven, except in relation to the establishment of the SDS party and the establishment of the TO.
(c) Supporting, encouraging, facilitating or participating in the dissemination of information to Bosnian Serbs that they were in jeopardy of oppression at the hands of Bosnian Muslims and Bosnian Croats, that territories on which Bosnian Muslims and Bosnian Croats resided were Bosnian Serb land, or that was otherwise intended to engender in Bosnian Serbs fear and hatred of Bosnian Muslims and Bosnian Croats or to otherwise win support for and participation in achieving the objective of the joint criminal enterprise;
The above allegation has been proven.
(d) Directing, instigating, encouraging and authorizing the Bosnian Serb Political and Governmental Organs and the Bosnian Serb Forces to carry out acts in order to further the objective of the joint criminal enterprise;
The above allegation has been proven. In his speech before the Bosnian-Serb Assembly on 18 March 1992 the Accused called for the "ethnic division on the ground", thus instigating, encouraging, and authorizing the implementation of the common objective. Some other examples may be considered. On 24 March 1992, the Accused instructed the new Government to prepare a plan for "assuming power and rendering operational the authorities" in the territory of the Bosnian-Serb Republic. It was under the Accused's direction that the Assembly, on 27 March 1992, set up the Bosnian-Serb MUP, and then proceeded to approve the proclamations of "Newly Established Serbian Municipalities". On 21 April 1992, the Accused made three telephone calls to Vraca to inquire about a front line situation involving Šešelj's men. During one of those conversations he spoke to Milenko Karišik, commander of a MUP special unit, and explained to him that the JNA could not get involved "because then we would have real problems". The Accused then instructed Karišik to make contact with the JNA so that leadership would know "how they're doing". In his capacity as an SNB member, the Accused supported the conclusions of a joint session of the SNB and the Government on 22 April 1992 that the Bosnian-Serb Republic should "maintain the positions that had been taken, especially in Sarajevo", referring, of course, to military gains achieved by the armed forces in the area. At the 12 May 1992 Assembly session which saw the establishment of the VRS, the Accused openly advocated violence against Muslims and Croats, saying "it will be possible to solve this thing with Muslims and Croats only by war." On 17 May 1992, the Accused, together with Karadži and Mladi, attended a meeting in Sokolac with representatives of Romanija SAO and the municipalities of Olovo and Rogatica. There the Accused said that the time had come for ethnically separate areas because a common state was no longer possible. At the Assembly session of 25 July 1992, the Accused asserted that the take-over of territories to date had been insufficient and then proceeded to sketch the desired borders, establishing parameters for further military action. Around 10 June 1992, the Accused attended a meeting with the other members of the Presidency in which General Mladi announced his intention to shell Sarajevo. The Accused expressed no opposition to this proposal, which was implemented shortly thereafter.
(e) Exercising effective control over the Bosnian Serb Political and Governmental Organs and Bosnian Serb Forces which participated in or facilitated the commission of crimes identified in this indictment;
In relation to (e), "effective control" is a technical term which must be proven in connection with certain modes of liability. It is not a required element of JCE liability. For effective control, proof is required of a material ability on the part of a "superior" to directly or indirectly prevent, punish, or take measures resulting in disciplinary or criminal proceedings against the principal perpetrators of the crimes. |2224| While evidence in the present case demonstrates that the Accused had power and influence over those bodies which the indictment refers to as the Bosnian-Serb political and governmental organs and Bosnian-Serb forces, it does not demonstrate that he himself had effective control over those bodies. The above allegation therefore has not been proven.
(f) Encouraging, assisting or participating in the acquisition of arms or in the distribution of them to Bosnian Serbs to further the objective of the joint criminal enterprise;
In relation to (f), the Accused knew about and accepted the fact that the Bosnian-Serb population was being armed through the SDS, among other methods. But the evidence does not prove that he encouraged, assisted, or participated in the acquisition and distribution of arms. Therefore the allegation has not been proven.
(g) Requesting the assistance of or facilitating or co-ordinating the participation of JNA/VJ forces and/or Serbian paramilitary units and Bosnian Serb paramilitary and volunteer units to further the objective of the joint criminal enterprise;
The above allegation has not been proven.
(h) Directing or encouraging [his] subordinates in the Bosnian Serb Political and Governmental Organs and in the Bosnian Serb Forces to direct, assist or request assistance from JNA/VJ forces, Serbian paramilitary units and Bosnian Serb paramilitary and volunteer units in the commission of acts to further the objective of the joint criminal enterprise;
The above allegation has not been proven, as the evidence does not establish that there was a "superior-subordinate" relationship between the Accused himself and the Bosnian-Serb political and governmental organs and Bosnian-Serb forces. The proven relationship between the Accused and those organs and forces is dealt with under paragraph (d), above.
(i) Directing, supporting or encouraging the incorporation into the Bosnian Serb Forces [of] members of paramilitary forces and volunteer forces known to have participated or suspected of having participated in crimes;
The above allegation has not been proven, insofar as it is limited to the "incorporation" of paramilitary forces. The Accused's association with, and support for, paramilitary activity is another matter, which has been discussed above.
(j) Aiding or abetting or instigating the commission of further crimes by failing to investigate, to follow up on investigations, and to punish subordinates in the Bosnian Serb Forces for crimes committed against Bosnian Muslims, Bosnian Croats or other non-Serbs throughout the period described in this indictment; or
The above allegation has been proven in relation to failure to investigate and failure to follow up on investigations. It has not been proven in relation to failure to punish subordinates, since it has not been shown that the Accused personally had such a power.
(k) Engaging in, supporting or facilitating efforts directed at representatives of the international community, non-governmental organizations and the public denying or providing misleading information about crimes against Bosnian Muslims, Bosnian Croats or other non-Serbs of Bosnia and Herzegovina and about the role that Bosnian Serb Forces had played in those crimes.
The above allegation has been proven.
6.17.4 Activation of the criminal enterprise
1122. Having found that there existed a JCE which included the Accused, it remains to determine the starting point of the crimes committed through the JCE.
1123. The Prosecution was asked to specify the first crime which the Accused committed as part of the JCE alleged in the indictment:
The first charged crime committed pursuant to the JCE is scheduled incident 1.1 in schedule A, which is the killing of at least 48 Bosnian Muslim and/or Bosnian Croat men, women and children in the town of Bijeljina on the 1st or 2nd of April. ... As pleaded in our indictment, the objective of the joint criminal enterprise was the permanent removal by force or other means of Bosnian Muslim, Bosnian Croat, or other non-Serb inhabitants from large areas of Bosnia and Herzegovina through the commission of crimes punishable under the Statute of the Tribunal. It was a vast criminal enterprise, and, like any vast criminal enterprise, its membership was not static. The members of the JCE participated in different ways, in different geographical areas, with the shared intent to secure the objective of forcibly removing non-Serbs from the targeted territory across great parts of Bosnia and Herzegovina. At the end of March 1992, and at the time of the first crimes charged in the indictment, the joint criminal enterprise already included a great number of individuals, including Krajišnik, Karadži, Koljevi, Plavši, Arkan, Miloševi, Mauzer, Mio Staniši, Mandi, Branin, and Kukanjac. It also included those Serb Crisis Staffs which had been established, members of the RS MUP, the Serb TO, and paramilitary groups and JNA personnel. Your Honours may ask why Mladi is not in that list. Mladi and other VRS staff became part of the joint criminal enterprise on the 12th of May, 1992, on the establishment of the VRS. |2225|
1124. The Chamber accepts this analysis and finds that the Accused's criminal responsibility arises with the attack and crimes committed in Bijeljina municipality in the beginning of April 1992.
6.18 Findings on the charges
1125. The Chamber finds Momilo Krajišnik NOT GUILTY of the following charges in the indictment:
Count 1: genocide;
Count 2: complicity in genocide;
Count 6: murder as a violation of the laws or customs of war.
1126. The Chamber finds Momilo Krajišnik GUILTY of the following charges in the indictment pursuant to Article 7(1) of the Statute:
Count 3: persecution as a crime against humanity;
Count 4: extermination as a crime against humanity;
Count 5: murder as a crime against humanity;
Count 7: deportation as a crime against humanity;
Count 8: inhumane acts (forced transfer) as a crime against humanity.
2184. Prosecution's final trial brief, para. 3. [Back]
2185. T. 27468-9. [Back]
2186. T. 25776. [Back]
2187. T. 23917. [Back]
2188. T. 25784. [Back]
2189. T. 25785. [Back]
2190. T. 25786. [Back]
2191. T. 25864. [Back]
2192. T. 25874-5. [Back]
2193. T. 25865, emphasis added. [Back]
2194. T. 26865-6; C8, pp. 263-4. [Back]
2195. T. 27093. [Back]
2196. T. 8618, 9281-2. [Back]
2197. See part 4 of the judgement, on Bijeljina, Brko, and Zvornik; P529, tab 240; P944, p. 9. [Back]
2198. For example: T. 1715-16; P513.F, pp. 1856, 2229; T. 21681-2, 25508-16. [Back]
2199. See part 4 of the judgement, findings on Bijeljina and Brko; P727, tab 3, pp. 3-4, 13-14, 19. [Back]
2200. See part 4 of the judgement, findings on Banja Luka and Prijedor; also P64, p. 151; P64, p. 178. [Back]
2201. See part 4 of the judgement, findings on Prijedor. [Back]
2202. For example: T. 1201, 11636-8, 15328-9, 15892-3, 20709-11, 22620-1. [Back]
2203. For example: T. 6409, 6413, 6421-4, 6480-81; P303.A, paras 13-15; P303.B, para. 31; P747.F. [Back]
2204. See part 4 of the judgement, findings on Prijedor and Sanski Most. [Back]
2205. See part 4 of the judgement, findings on Rogatica. [Back]
2206. See part 4 of the judgement, findings on Bijeljina and Brko. [Back]
2207. See part 4 of the judgement, findings on Zvornik, and, for example, T. 24760. [Back]
2208. See part 2.2 of the judgement, and part 4 findings on Banja Luka and Prnjavor; P749, tab 7. [Back]
2209. For example: T. 2796-800; P98, pp. 2, 7; T. 3713, 3722-3, 3733, 3763-5; P181; P168, para. 4; P103, p. 1; P750.A; P158, pp. 26, 30-1; T. 5504-5; P521, pp. 7662-3, 7667-9, 7671-2; P521.C, p. 7863; P519, p. 4870; P519.A, pp. 4919-20, 4923-6; P519.E, pp. 5633-4, 5637-40; P519.G, pp. 5798-9; P522.B, p. 2; 565, T. 4554-6, 4591-3, 4560-61, 4620-21; P216, paras 45, 46, 48; P220; P200, tab 7; T. 16386-7, 9829-30. [Back]
2210. See part 3 of the judgement, and part 4 findings on Banja Luka and Prnjavor. [Back]
2211. For example: T. 1433-5, 11927-8, 12097-100, 14598, 14981-2, 15011-13; P744, pp. 1-5; P745; T. 13480-1; P742.A, pp. 4-5. [Back]
2212. See part 3.4.5 of this judgement, and part 4 findings on Bilea, Gacko, and Zvornik. [Back]
2213. See parts 2.2, 3.5.3, 3.5.4 of the judgement, and part 4 findings Banja Luka and Prijedor. [Back]
2214. Indictment, paras 4-5. The phrase "or other non-Serb inhabitants" in paragraph 4 was withdrawn by the Prosecution: T. 17085. [Back]
2215. P192, p. 2. [Back]
2216. Staki Appeal Judgement, para. 52. [Back]
2217. Ibid., para. 55. [Back]
2218. P69.A, p. 3. [Back]
2219. P67, tab 16.A, pp. 7-8. Similar remarks in P64A, tab 320, p. 2; P64A, tab 322, p. 3. [Back]
2220. P280, para. 45. [Back]
2221. 623, T. 5722; P280, paras 61-68. [Back]
2222. 623, T. 5726, 5901-2. [Back]
2223. The facts cited in this section for purposes of illustration of reporting practices have all been discussed in greater detail earlier in this part of the judgement, with full citation to sources. [Back]
2224. elebii Appeal Judgement, paras 192; 252, 255-6; Blaški Appeal Judgement, para. 69. [Back]
2225. T. 27460, 27462. [Back]
Informes DH en Colombia
|This document has been published on 25Jul07 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.|