Foca Prison Warden Convicted: Krnojelac guilty for failing to restrain or punish subordinates

On March 15, 2002, Trial Chamber II issued its judgment, finding Milorad Krnojelac guilty of war crimes and crimes against humanity for his conduct as commander of the Foca Prison or KP Dom (Foca Kazneno-Popravni Dom). While holding him responsible as a superior for the crimes of his subordinates and for aiding and abetting the principal offenders, the Trial Chamber rejected the prosecution's theory that he was engaged in a joint criminal enterprise with the principal offenders.

The Judgment makes clear that the Trial Chamber considered Mr. Krnojelac guilty for his failure to act to stop war crimes rather than for initiating them. In considering sentencing factors, the court said, 'This is a case in which the Accused chose to bury his head in the sand and to ignore the responsibilities and the power which he had as warden.' 'He . . . did not have a particularly strong character, and . . .had a conformist personality.' The court compared his behavior to that of others who filled roughly similar positions and found 'his participation in these crimes was limited to his aiding and abetting the criminality of others.' His relative passivity did not excuse his conduct. As the Court said, he had the power and responsibility of command. The court found it important to send a message to others who seek to avoid the responsibilities of command and sentenced him to 7 ½ years in prison, about half of which he has already served.

Mr. Krnojelac was warden of the Foca Prison from April 1992 until August 1993. Beginning in April 1992, the Bosnian Serb forces used the Foca Prison to detain hundreds of Bosnian Muslim men following ethnic cleansing of the surrounding area. No more than a few were combatants. They ranged in age from 15 years to almost 80 and were detained for periods ranging from four months to two and a half years. All the imprisonment was arbitrary and illegal. The court found that the only basis for their detention was their non-Serb ethnicity.

The Trial Chamber also found, 'The conditions under which non-Serbs were detained were below any legal standard regulating the treatment of civilians in times of armed conflict.' Those conditions included a near starvation diet, confinement in unheated rooms without exercise or access to outdoors, long periods of solitary confinement and beatings for minor infractions including attempts to alleviate their own suffering (making clothing out of a blanket), lack of contact with the outside world, deplorable hygienic conditions and inadequate medical care that caused at least one death. Arbitrary, as well as targeted beatings, were not uncommon. Prisoners suffered psychological harm from hearing the screams of those being beaten. Some men returned from the beatings unable to walk or talk for days. Others never returned. Exhumations in the Foca area after the war revealed 375 bodies, all but one were Muslim and the one was a Montenegrin married to a Muslim.

The KP Dom's use as a detention facility for Bosnian Muslims ended in late 1994, when 'the last remaining Muslim detainees at the KP Dom were exchanged, marking the end of the attack upon those civilians and the achievement of a Serbian region ethnically cleansed of Muslims. . . . Foca was renamed 'Srbinje' after the conflict, meaning 'Serb Town.'

The Office of the Prosecutor (OTP) charged Krnojelac with 1) crimes against humanity (Article 5), consisting of persecution on political, racial and/or religious grounds, torture, inhumane acts, murder, imprisonment and enslavement, and 2) violations of the laws and customs of war (Article 3), consisting of torture, cruel treatment, murder and slavery. (He was also charged with grave breaches of the Geneva Conventions of 1949, but the charges were withdrawn prior to trial.) Before trial, the OTP conceded it could not establish that the Accused personally participated in the events. Instead, it sought to show he was part of a joint criminal enterprise designed to commit them. He was also charged with individual responsibility for aiding and abetting the actual perpetrators of the crimes (Article 7 (1)) and with criminal responsibility as a superior for the acts of his subordinates (Article 7 (3)). He was found guilty only on the latter two grounds: aiding and abetting and 'command responsibility.'

As stated above, the Trial Chamber rejected the OTP's claim that Krnojelac participated in a joint criminal enterprise to unlawfully detain non-Serb civilians at Foca Prison for the reasons that he had no role in securing their detention and no power to secure their release. The court did, however, find him guilty of aiding and abetting those who were responsible based on its conclusion that he knew the detention was unlawful and he knew his acts or omissions contributed to the maintenance of the unlawful detention.

The Trial Chamber also rejected the joint criminal enterprise theory for the Accused's responsibility for inhumane living conditions. It found instead that he was guilty as an aider and abettor (Article 7(1)) since he knew of the inhumane conditions and the effects on the physical and psychological health of prisoners, but failed to take any action to stop or alleviate them and that this failure encouraged the primary perpetrators to maintain the conditions. The Chamber held this was a crime against humanity (Article 5) and also a violation of the laws or customs of war (Article 3).

While rejecting the Accused's responsibility for torture and murder committed by subordinates and others they let into the prison, the Trial Chamber nevertheless held Krnojelac responsible for failing to take appropriate action to stop the beating of prisoners. Though the Court was convinced that 26 people had been murdered at the prison, it was not satisfied that the Accused knew or should have known about it. As for torture, the prosecution failed, except in a few instances, to show that beatings were done for purposes prohibited in the Torture Convention, e.g. to extract a confession or obtain information, to punish or intimidate, or to discriminate by means that cause severe pain and suffering. The OTP also failed to prove that Krnojelac knew that beatings were meted out for a purpose prohibited by the Torture Convention, except in one instance where he witnessed the beating of a prisoner for trying to escape. The prosecution failed to charge Krnojelac with criminal responsibility in that instance. Had it done so, the Chamber wrote, 'he would have been responsible as a superior . . . because he failed to punish . . .' the guard who inflicted the beating.

The Court did find that the beatings, in many instances, constituted cruel treatment and inhumane acts, though they lacked the purpose requirement for torture. This, they held, Krnojelac knew about, yet 'failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders. . . .' He also failed to stop his subordinates from letting outsiders into the prison to participate in beating the prisoners. For this he was convicted of cruel treatment as a violation of the laws or customs of war, based on his command responsibility under ICTY Statute Article 7(3).

The Trial Chamber also held that Krnojelac was guilty for aiding and abetting persecution on political, racial or religious grounds based on an intentional policy of others to use imprisonment and inhumane conditions to further this purpose. The Court used its discretion to impose liability for aiding and abetting rather than for command responsibility, since the underlying acts are the same.

The Court found that allegations of deportation and expulsion were not proven.

The decision is a warning to others who assume positions of authority, yet fail to exercise it responsibly. In the words of the Trial Chamber,

'The basis of individual criminal responsibility of the Accused has been that, throughout the period of approximately 15 months during which he was the warden or acting warden of the KP Dom, he aided and abetted in the commission of these crimes, in that he was aware that these crimes were being carried out, and that, by his failure to take any action as warden in relation to those crimes, he knowingly contributed in a substantial way to the continued maintenance of those offences by encouragement to those who carried them out.'

In such circumstances, inaction and omission themselves constitute war crimes and crimes against humanity.