IT-01-47-T D689 - 1 21623 BIS 05 12 2006 UNITED NATIONS International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 Case No IT-01-47-T Date 15 March 2006 Original ENGLISH French IN THE TRIAL CHAMBER Before Judge Jean-Claude Antonetti Judge Vonimbolana Rasoazanany Judge Bert Swart Registrar Mr Hans Holthuis Judgement of 15 March 2006 THE PROSECUTOR v ENVER HADŽIHASANOVIĆ AMIR KUBURA JUDGEMENT The Office of the Prosecutor Mr Daryl A Mundis Ms Tecla Henry-Benjamin Mr Stefan Waespi Mr Matthias Neuner Counsel for the Defence Ms Edina Rešidović and Mr Stéphane Bourgon for Enver Hadžihasanović Mr Fahrudin Ibrišimović and Mr Rodney Dixon for Amir Kubura 689 21623 BIS 688 21623 BIS I INTRODUCTION 1 A THE ACCUSED 1 1 The Accused Hadžihasanović 1 2 The Accused Kubura 2 B CHARGES AGAINST THE ACCUSED 2 II APPLICABLE LAW 4 A CONDITIONS FOR THE APPLICABILITY OF ARTICLE 3 OF THE STATUTE 4 1 Examination of the Existence of an Armed Conflict in the Area and during the Period Material to this Case 6 2 Examination of the Nexus between the Offences and the Conflict in View of the Facts of the Case 8 3 Nature of the Conflict Internal Armed Conflict 8 4 Examination of the Tadi Conditions as Applied to this Case 9 B DEFINITION AND CONSTITUENT ELEMENTS OF CRIMES AGAINST PERSONS 10 1 Murder 10 2 Cruel Treatment 10 C DEFINITION AND CONSTITUENT ELEMENTS OF CRIMES AGAINST PROPERTY 12 1 Jurisdiction of the Chamber to Try Counts 5 6 and 7 12 2 Wanton Destruction of Towns and Villages not Justified by Military Necessity 12 3 Plunder of Public or Private Property 15 4 Destruction or Wilful Damage of Institutions Dedicated to Religion 18 D CRIMINAL RESPONSIBILITY WITHIN THE MEANING OF ARTICLE 7 3 OF THE STATUTE 21 1 Command Responsibility in an Internal or International Armed Conflict 21 2 Nature of Command Responsibility 21 3 Elements of Article 7 3 of the Statute 24 a Superior-Subordinate Relationship 24 i Effective Control 24 ii Insufficiency of Substantial Influence 25 iii Indicators of Effective Control 26 iv Identity of Subordinates 28 b Mental Element the Superior Knew or Had Reason to Know 28 i Actual Knowledge 28 ii Mental Element Had Reason to Know 29 a Applicable Legal Criteria 29 b Scope of Knowledge 30 c Prior Knowledge 31 c Necessary and Reasonable Measures 36 i Material Ability of a Superior to Act 36 ii Two Distinct Duties Prevent and Punish 37 iii Failure to Punish and Recurrence of Unlawful Acts 38 iv Obligations Under National Law 41 v Components of the Duty to Prevent 42 a General Measures 42 b Specific Measures 44 c Duty to Intervene to Prevent the Recurrence of Unlawful Acts 45 vi Components of the Duty to Punish 48 a Principles Underlying the Duty to Punish 48 b Examples of Punitive Measures in Case Law 49 c Retroactive Duty to Punish Based on Prior Knowledge 50 d Causal Link and the Duty to Prevent 52 4 A Superior’s Responsibility After Leaving His Position 54 E BURDEN TO PROVE THE FAILURE TO TAKE MEASURES 56 1 Arguments of the Parties 58 Case No IT-01-47-T i 15 March 2006 687 21623 BIS 2 Examination by the Chamber 61 3 Duty to Prosecute Crimes Defined by International Law at the Time of Events 69 F DUTY TO INFORM AN ACCUSED OF THE NATURE AND CAUSE OF THE CHARGES AGAINST HIM 72 III EVIDENCE 76 A SCOPE OF DIRECT AND CROSS-EXAMINATION 76 1 Broad Scope of Cross-Examination 76 2 Restrictions 76 a Decision on Defence Motion regarding Cross-Examination of Witnesses by the Prosecution 76 b Decision on Motion of the Accused Hadžihasanovi regarding the Prosecution's Examination of Witnesses on Alleged Violations Not Covered by the Indictment 77 c Oral Decision of 29 November 2004 78 3 Questions from the Judges 78 B ADMISSIBILITY OF EVIDENCE 79 1 Flexible Approach of the Chamber 79 a Decision of 16 July 2004 on Admissibility of Documents 79 b Decision on the Admissibility of Documents of the Defence for Hadžihasanovi 81 c Decisions on Judicial Notice of Adjudicated Facts Admitted in Other Cases 81 2 Restrictions 82 3 Order on Admission of Chamber Exhibits 83 C FINDINGS OF THE CHAMBER ON EVIDENCE 84 a General Remarks on Evidence 84 b Linguistic Matters 85 c Restricted Admissibility during Cross-Examination Lack of Independent Probative Value 86 d Inferences 86 IV ABIH 3RD CORPS 88 A CREATION HIERARCHY AND STRUCTURE OF THE 3RD CORPS 88 1 Creation of the ABiH 88 2 Supreme Command Main Staff and Creation of the ABiH Corps 89 3 3rd Corps 90 a Zone of Responsibility 90 b 3rd Corps Command Staff 91 c Enver Had ihasanovi 92 i Training 92 ii Communicating Information to the Accused Had ihasanovi 93 d 3rd Corps Military Police and the Civilian Police 94 B 3RD CORPS UNITS 95 1 TO Units 95 2 Operations Groups 96 3 Brigades 97 a 7th Brigade 97 i Creation 97 ii Composition of the 7th Brigade 97 a Battalions 97 b 7th Brigade Military Police Battalion 98 iii 7th Brigade Command 99 a Formal Appointments 99 b Amir Kubura's De Facto Command Between 12 April and 6 August 1993 99 iv Superior-Subordinate Relationship 106 b 303rd Brigade 107 c 17th Brigade 107 d 306th Brigade 108 e 307th Brigade 109 f 314th Brigade 110 Case No IT-01-47-T ii 15 March 2006 686 21623 BIS g El Mujahedin Detachment 111 C DIFFICULTIES CONFRONTING THE 3RD CORPS 111 1 Massive Influx of Refugees 111 2 Problematic Organisation and Insufficient Equipment 112 V MUJAHEDIN 113 A INTRODUCTION 113 1 Arrival and Country of Origin 113 a Definition of the Term “Mujahedin” 113 b Arrival of Foreign Mujahedin in Central Bosnia 114 c Country of Origin and Physical Appearance of Foreign Mujahedin 115 2 Goals and Activities 115 3 Mujahedin Camps 117 a Poljanice Camp 117 b Ora ac Camp 119 c Travnik 120 d Zenica 120 e Arnauti 121 f Bijelo Bu je 121 g Ravno Rostovo 122 4 Leaders of the Mujahedin 122 5 Nature of the Allegations Against the Two Accused 122 a Scope of the Indictment 122 b Identity of the Mujahedin 124 c Alleged Relationship Between the Mujahedin and the ABiH 125 6 Different Sources Concerning the Mujahedin 126 B MUJAHEDIN AND THE ABIH - ARGUMENTS OF THE PARTIES 127 1 Arguments of the Prosecution 127 2 Arguments of the Defence for the Accused Had ihasanovi 128 3 Arguments of the Defence for the Accused Kubura 128 C MUJAHEDIN AND THE 3RD CORPS – DE JURE NEXUS BEFORE THE CREATION OF THE EL MUJAHEDIN DETACHMENT 129 1 Introduction 129 2 Foreign Muslim Fighters 129 a The Expression “Volunteers in Our Armies” 129 b Legislation on Foreign Volunteers 131 c Engaging Foreign Volunteers in the Army 132 d Conclusion 135 3 Former Members of the Travnik Muslim Forces 136 4 Persons Who Left ABiH Regular Units 138 5 Conclusion 138 D MUJAHEDIN AND THE 3RD CORPS - DE FACTO NEXUS BEFORE THE CREATION OF THE EL MUJAHEDIN UNIT 139 1 Mujahedin and the 3rd Corps 139 a Mujahedin Arrested by the HVO and the Abduction of @ivko Toti 139 i Arrest of Mujahedin and Abduction of HVO Soldiers 139 ii Efforts to Find the Croatian Hostages 141 iii Combat on Mt Zmajevac 142 iv Negotiating an Exchange 142 v The Chamber’s Analysis of These Events 145 b Joint Combat 148 c Involvement of the 3rd Corps in the Creation of the El Mujahedin Detachment 155 i Developments Leading to the Creation of the El Mujahedin Detachment 156 ii Analysis of the Events by the Chamber 159 d Observations of International Observers 162 Case No IT-01-47-T iii 15 March 2006 685 21623 BIS e Conclusion 167 2 Mujahedin and the 306th Brigade 167 a Introduction 167 b Units Present in Mehuri i during 1992 and 1993 168 c Evidence of a General Nature 168 d Military Activity of the Mujahedin in the 306th Brigade Zone of Responsibility 170 e Logistical Support 171 f Training 172 g Access to Poljanice Camp 172 h Recruitment of Local Men by the Mujahedin 172 i Conclusion 174 3 Mujahedin and the 17th Brigade 174 4 Mujahedin and the 7th Brigade 175 a Introduction 175 b Formation Structure and Composition by Origin of the 7th Brigade 176 i Formation Structure and Manpower of the 7th Brigade 176 ii Composition of the 7th Brigade 176 a Composition of the 7th Brigade by Origin 176 b Departure of Some Members of the 7th Brigade after its Formation 177 th c 7 Brigade and Foreign Muslim Fighters 181 i Introduction 181 ii Testimony 182 iii Documents 183 iv Conclusion 185 d Presence of the 7th Brigade in the Bila Valley 185 i Introduction 185 ii Evidence regarding the Presence of the 7th Brigade in the Bila Valley 186 a Introduction 186 b 2nd Battalion 186 c 3rd Battalion 187 d 1st Battalion 188 i General Information 188 ii Zone of Responsibility 188 iii 1st Battalion Troops 188 iv 1st Battalion 2nd Company 190 Command and Composition 190 Troops 190 Locations 190 v 1st Battalion 3rd Company 191 Command and Composition 191 Troops 191 Locations 191 vi 1st Battalion 4th Company 192 Command and Composition 192 Troops 192 Locations 192 vii 1st Battalion 1st Company 192 Command and Composition 193 Troops 193 Locations 195 viii Probative Value of Two Documents 197 e Conclusions of the Chamber on the Presence of the 7th Brigade in the Bila Valley Based on Evidence from the 7th Brigade 199 iii Evidence from the British Battalion on the Presence of the 7th Brigade in the Bila Valley 200 iv Evidence from the 306th Brigade on the Presence of the 7th Brigade in the Bila Valley 201 a Testimony 201 b Documents 202 i General Documents on the Presence of the 7th Brigade in the Bila Valley 202 Case No IT-01-47-T iv 15 March 2006 684 21623 BIS ii Sale of Weapons to “Muslim Forces” 204 iii Arrest of Foreign Muslim Fighters 204 iv Mileti i 206 v Other Documents from the 306th Brigade 208 e Evaluation of the Evidence 209 i Introduction 209 ii Contradictory Evidence 209 iii 7th Brigade 1st Battalion Troops and the Bila Valley 212 iv 7th Brigade Command and Effective Control of the Mujahedin at Poljanice Camp 215 a Foreign Muslim Fighters 215 b “Local” Mujahedin 216 f Conclusions on the Mujahedin and the 7th Brigade 219 5 Conclusion on the Mujahedin and the 3rd Corps - De Facto Link Before the Creation of the El Mujahedin Detachment 219 a Introduction 219 b Summary of the Partial Conclusions 220 i Mujahedin and the 3rd Corps 220 ii Mujahedin and the 3rd Corps Brigades 221 c Final Conclusion 223 E RELATIONS BETWEEN THE ABIH AND THE MUJAHEDIN AFTER THE CREATION OF THE EL MUJAHEDIN DETACHMENT 223 1 Arguments of the Parties 223 2 Discussion 223 a History of the Formation of the El Mujahedin Detachment 223 b Subsequent Developments 225 c Combat 227 d Combat Conditions and Methods 230 3 Conclusions 231 a De Jure Command 231 b Effective Control 232 VI MEANS TO PREVENT AND PUNISH AVAILABLE TO THE ACCUSED 235 A TRAINING 235 B MILITARY POLICE 236 1 Organisation 237 a Status Role and Jurisdiction 237 b Double Chain of Command 239 c Number of Police 239 i 3rd Corps Military Police Battalion 239 ii Military Police Units in the Brigades and Operations Groups 240 iii Relations Between the 3rd Corps Military Police Battalion and Military Police Units within the Brigades and Operations Groups Re-subordination Orders 241 d Recruitment and Training 242 e Difficulties Encountered by the Military Police 243 2 Relationship with the Civilian Police and Civilian Protection 244 a Relationship with the Civilian Police 244 b Relationship with the Civilian Protection 245 3 Investigation Results 246 C MILITARY AND CIVILIAN JUSTICE 249 1 Different Military Judicial Authorities in Central Bosnia 250 a Zenica and Travnik District Military Courts 250 i Ratione Personae and Ratione Loci Jurisdiction of the District Military Courts and District Military Prosecutors 251 a Ratione Personae Jurisdiction 251 b Ratione Loci Jurisdiction 252 Case No IT-01-47-T v 15 March 2006 683 21623 BIS ii Establishment Composition and Closure of the Zenica District Military Court and the Zenica District Military Prosecutor’s Office 252 iii Establishment Composition and Closure of the Travnik District Military Court and the Travnik District Military Prosecutor’s Office 253 iv Proceedings before the District Military Courts 254 a Filing Criminal Reports with the District Military Prosecutors 254 i Criminal Reports from the ABiH Military Police and Security Service 254 ii Criminal Reports from the Civilian Police 255 iii Complaints or Reports Filed by Civilians 255 iv Reports from the ABiH Command 255 b Investigations of the Investigating Judge 256 c Special Role of the Duty Judge 257 d Prosecutor’s Pre-Trial Case Management 257 e Special Case Direct Referral to an Investigating Judge 258 v Independence of the District Military Courts 259 b Military Disciplinary Courts 260 c Special Military Courts 261 2 Disciplinary Power of the Military Commanders 262 a Jurisdiction 262 b Exercise of Power 262 3 Civilian Courts 263 a Jurisdiction 264 i Ratione Personae Jurisdiction 264 ii Ratione Loci Jurisdiction 264 iii Prosecution 264 b Ties with Military Courts 264 D LAW APPLIED BY MILITARY AND CIVILIAN COURTS IN INTERNATIONAL LAW CRIMES 265 1 Substantive Law and Procedure 265 2 Characteristics of Crimes Based on Ordinary Law 266 E FACTUAL CONCLUSIONS REGARDING THE BURDEN TO PROVE THE FAILURE TO TAKE MEASURES 268 1 Methodology Used by the Prosecution May Constitute Evidence 268 2 Exhibits P 771 P 772 and P 773 270 3 Investigation Conducted by Peter Hackshaw 271 a Searching the Registers 272 b Search Criteria 273 c Searches Not Conducted 274 d Conclusions of the Chamber 274 i Conclusions on the Failure to Take Measures against Murders Committed by Subordinates 274 ii Conclusions on the Failure to Take Measures against Cruel Treatment count 4 and Crimes against Property counts 5 6 and 7 275 VII FINDINGS AND CONCLUSIONS 277 A CRIMES AGAINST PERSONS – VIOLATION OF THE LAWS OR CUSTOMS OF WAR 277 1 Count 1 Murders in Dusina Miletići and Maline 277 a Dusina 277 i Arguments of the Parties 277 ii Findings of the Chamber regarding the Murders Committed in Dusina 278 a Sequence of Events of 26 January 1993 in Dusina 278 b Murder of Zvonko Rajić Paragraph 39 a ab of the Indictment 283 c Murders of Niko Kegelj Stipo Kegelj Vinko Kegelj Pero Ljubičić Augustin Radoš and Vojislav Stanišić Paragraph 39 a aa of the Indictment 285 iii Findings of the Chamber regarding the Responsibility of the Accused Hadžihasanović 286 a Effective Control of Enver Hadžihasanović over the Perpetrators of the Crime 286 b Knowledge of the Accused Hadžihasanović 287 c Measures Taken 288 iv Conclusions of the Chamber 293 Case No IT-01-47-T vi 15 March 2006 682 21623 BIS b Miletići 294 i Arguments of the Parties 294 ii Findings of the Chamber regarding the Murders Committed in Miletići 295 a Sequence of Events in Miletići on 24 April 1993 295 i The Wounded Foreign Mujahed 295 ii Taking of the Village of Miletići Arrest and Detention of the Villagers 296 iii Release of the Villagers 299 iv Return to the Village of Miletići Following the Attack 300 v Investigations Carried out Following the Massacre 302 b Murders of Franjo Pavlović Tihomir Pavlović Vlado Pavlović and Anto Petrović Paragraph 39 b of the Indictment 303 iii Findings of the Chamber regarding the Responsibility of the Accused 306 iv Conclusions of the Chamber 307 c Maline 307 i Arguments of the Parties 307 ii Findings of the Chamber regarding the Murders in Maline 308 a Events Preceding the Attack on Maline 308 b Sequence of Events of 8 June 1993 309 i Taking of the Village of Maline and Arrest of Villagers 309 ii Departure of Approximately 200 Croatian Villagers for Mehurići 311 iii Loading the Wounded Croats onto a Truck and Their Abduction by Mujahedin 311 iv Interception of the Column of Villagers by Mujahedin 312 v Meeting between the Group of Croatian Men and Wounded Persons 314 vi Massacre of 24 Croats in Bikoši on 8 June 1993 315 c Meeting of the 306th Brigade Command on 12 June 1993 317 d Investigation into the Events of 8 June 1993 317 e Knowledge of the Accused Hadžihasanović 318 f Report Drawn up by the Civilian Police 318 g Site Visit by Representatives of the ECMM 319 h Report of UN Special Rapporteur Tadeusz Mazowiecki 319 i Murder of 24 Croats Paragraph 39 c of the Indictment 322 iii Findings of the Chamber regarding the Responsibility of the Accused 324 iv Conclusions of the Chamber 324 2 Counts 3 and 4 Murders and Cruel Treatment 324 a Introduction 325 b General Measures 326 c Zenica Music School 328 i Arguments of the Parties 328 ii Findings of the Chamber regarding Mistreatment at the Zenica Music School 329 a Description of the Facts from Late January 1993 to Late August or September 1993 329 b Mistreatment Paragraph 42 a of the Indictment 338 iii Findings of the Chamber regarding the Responsibility of Enver Hadžihasanović 340 a Effective Control of Enver Hadžihasanović over the Perpetrators of the Crime 340 b Knowledge of Enver Hadžihasanović 341 c Measures Taken 352 iv Findings of the Chamber regarding the Responsibility of Amir Kubura 356 a Effective Control of Amir Kubura over the Perpetrators of the Crime 356 b Knowledge of Amir Kubura 356 v Conclusions of the Chamber 359 d Former JNA Barracks in Travnik 359 i Arguments of the Parties 360 ii Findings of the Chamber regarding Mistreatment at the Former JNA Barracks 361 a Description of the Facts from May 1993 to Late October 1993 at the Former JNA Barracks in Travnik 361 b Mistreatment Paragraphs 41 b ba and 42 b of the Indictment 367 iii Findings of the Chamber regarding the Responsibility of Enver Hadžihasanović 369 Case No IT-01-47-T vii 15 March 2006 681 21623 BIS a Effective Control of Enver Hadžihasanović over the Perpetrators of the Crimes 369 b Knowledge of Enver Hadžihasanović 370 iv Conclusions of the Chamber 374 e Village of Mehurići Mehurići Elementary School and Mehurići Blacksmith Shop 374 i Arguments of the Parties 375 ii Findings of the Chamber regarding Mistreatment Committed at Mehurići Elementary School and Mehurići Blacksmith Shop 376 a Sequence of Events from 6 June 1993 to 4 July 1993 at Mehurići School and Mehurići Blacksmith Shop 376 i Mehurići School 377 ii Mehurići Blacksmith Shop 383 b Mistreatment Paragraph 42 c and d 389 iii Findings of the Chamber regarding the Responsibility of Enver Hadžihasanović 394 a Effective Control of Enver Hadžihasanović over the Perpetrators of the Crime 394 b Knowledge of Enver Hadžihasanović 395 iv Conclusions of the Chamber 398 f Village of Orašac Mistreatment of Prisoners and Beheading of Dragan Popović at Orašac Camp 398 i Arguments of the Parties 399 ii Findings of the Chamber regarding the Mistreatment and Murder Committed at Orašac Camp 400 a Sequence of Events between early October 1993 and January 1994 400 b Mistreatment Paragraph 42 e of the Indictment 409 c Murder Paragraph 43 e of the Indictment 412 iii Findings of the Chamber regarding the Responsibility of Enver Hadžihasanović 413 a Effective Control of Enver Hadžihasanović over the Perpetrators of the Crime 413 b Knowledge of Enver Hadžihasanović 414 i Did the Accused Hadžihasanović Have Actual Knowledge 414 ii Did the Accused Hadžihasanović Have Reason to Know 415 c Measures Taken 423 i Preventive Measures Taken by the Accused Hadžihasanović between 20 October 1993 and 31 October 1993 423 ii Were the Preventive Measures Taken by the Accused Hadžihasanović Necessary and Reasonable 426 iii Effectiveness of Using Force 430 iv Material Ability of the Accused Hadžihasanović to Use Force Against his Subordinates to Prevent Crimes 430 v Time Needed to Implement a Decision to Use Force 433 vi Conclusions on Preventive Measures 434 vii Punitive Measures 435 iv Conclusions of the Chamber 436 g Motel Sretno 436 i Arguments of the Parties 436 ii Findings of the Chamber regarding Mistreatment at Motel Sretno 437 a Sequence of Events of 18 and 19 May 1993 437 b Sequence of Events from 18 to 21 June 1993 443 c Mistreatment Paragraph 42 f of the Indictment 443 iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi 447 a Effective Control of Enver Had ihasanovi over the Perpetrators of the Crime 447 b Knowledge of Enver Had ihasanovi 447 c Measures Taken 454 iv Findings of the Chamber regarding the Responsibility of Amir Kubura 457 a Effective Control of Amir Kubura over the Perpetrators of the Crime 457 b Knowledge of Amir Kubura 458 v Conclusions of the Chamber 460 Case No IT-01-47-T viii 15 March 2006 680 21623 BIS h Bugojno Municipality Murders of Mladen Havranek Slavonija Furniture Salon in Bugojno and Mario Zrno Bugojno Convent and the Mistreatment of Prisoners 461 i General Arguments of the Parties 461 ii Sequence of Events from July 1993 to March 1994 464 iii Limitations on the Scope of the Judgement 466 iv Slavonija Furniture Salon in Bugojno Mistreatment of Prisoners and the Murder of Mladen Havranek 467 a Arguments of the Parties 467 b Findings of the Chamber on the Mistreatment of Prisoners and the Murder of Mladen Havranek 468 i Sequence of Events from 24 July 1993 to 23 August 1993 468 ii Mistreatment Paragraph 42 g of the Indictment 471 iii Murder of Mladen Havranek paragraph 43 c of the Indictment 474 v Bugojno Convent Mistreatment of Prisoners and Murder of Mario Zrno 475 a Arguments of the Parties 475 b Findings of the Chamber on the Mistreatment of Prisoners and the Murder of Mario Zrno 476 i Sequence of Events Between 25 July 1993 and the End of July 1993 476 ii Mistreatment Paragraph 42 g of the Indictment 478 iii Murder of Mario Zrno Paragraph 43 d of the Indictment 483 vi Gimnazija School Building 484 a Arguments of the Parties 484 b Findings of the Chamber regarding Mistreatment at the Gimnazija School Building 485 i Sequence of Events from 18 July 1993 to 8 October 1993 485 ii Mistreatment Paragraph 42 g of the Indictment 489 vii Vojin Paleksi Elementary School 490 a Arguments of the Parties 490 b Findings of the Chamber regarding Mistreatment at the Vojin Paleksi Elementary School491 i Sequence of Events Between Late July 1993 and Late August 1993 491 ii Mistreatment Paragraph 42 g of the Indictment 494 viii FC Iskra Stadium 495 a Arguments of the Parties 495 b Findings of the Chamber regarding the Mistreatment Committed at the FC Iskra Stadium 496 ix BH Banka 502 a Arguments of the Parties 502 b Findings of the Chamber regarding the Mistreatment at BH Banka 503 x Interpretation of the Indictment 504 xi Particular Aspect Linked to the Context 505 xii Findings of the Chamber regarding the Responsibility of the Accused Hadžihasanović 506 i Effective Control of the Accused Hadžihasanović over the Perpetrators of the Crime 506 ii Knowledge of the Accused Hadžihasanović 509 iii Measures Taken 513 xiii Findings of the Chamber 517 B FINDINGS AND CONCLUSIONS REGARDING CRIMES AGAINST PROPERTY 518 1 Count 5 Wanton Destruction of Towns and Villages not Justified by Military Necessity in the Municipalities of Zenica Travnik and Vareš – Violations of the Laws or Customs of War 518 a Dusina 518 b Miletići 519 c Gu a Gora 519 i Arguments of the Parties 519 ii Findings of the Chamber regarding Wanton Destruction in Gu a Gora 520 iii Conclusions of the Chamber 524 d Maline 524 i Arguments of the Parties 525 ii Findings of the Chamber regarding Wanton Destruction in Maline 525 iii Conclusions of the Chamber 528 e ukle 529 Case No IT-01-47-T ix 15 March 2006 679 21623 BIS i Arguments of the Parties 529 ii Findings of the Chamber regarding Wanton Destruction in ukle 530 iii Conclusions of the Chamber 533 f u anj Ovnak Brajkovići Grahovčići 533 i Arguments of the Parties 533 ii Findings of the Chamber regarding Wanton Destruction in u anj Ovnak Brajkovići Grahovčići 534 iii Conclusions of the Chamber 539 g Vareš 539 i Arguments of the Parties 540 ii Findings of the Chamber regarding Wanton Destruction in Vareš 540 iii Findings of the Chamber regarding the Responsibility of Amir Kubura 543 a Effective Control of Amir Kubura over the Perpetrators of the Crime 543 b Knowledge of Amir Kubura 544 iv Conclusions of the Chamber 545 2 Count 6 Plunder of Public or Private Property in Towns and Villages in the Municipalities of Zenica Travnik and Vare 545 a Mileti i 545 i Arguments of the Parties 546 ii Findings of the Chamber regarding Plunder of Public or Private Property in Mileti i 546 iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi 548 iv Findings of the Chamber regarding the Responsibility of Amir Kubura 548 v Conclusions of the Chamber 549 b Gu a Gora 549 i Arguments of the Parties 549 ii Findings of the Chamber regarding the Plunder of Public or Private Property in Gu a Gora 550 iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi 553 a Effective Control of Enver Had ihasanovi over the Perpetrators of the Crime 553 b Knowledge of Enver Had ihasanovi 554 c Measures Taken 555 iv Conclusions of the Chamber 556 c Maline 556 i Arguments of the Parties 556 ii Findings of the Chamber regarding Plunder of Public or Private Property in Maline 557 iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi 560 a Effective Control of Enver Had ihasanovi over the Perpetrators of the Crimes 560 b Knowledge of Enver Had ihasanovi 561 c Measures Taken 561 iv Findings of the Chamber regarding the Responsibility of Amir Kubura 562 v Conclusions of the Chamber 562 d ukle 562 i Arguments of the Parties 563 ii Findings of the Chamber regarding Plunder of Public or Private Property in ukle 563 iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi 566 a Effective Control of Enver Had ihasanovi over the Perpetrators of the Crime 566 b Knowledge of Enver Had ihasanovi 567 c Measures Taken 567 iv Conclusions of the Chamber 568 e u anj Ovnak Brajkovići Grahovčići 568 i Arguments of the Parties 569 ii Findings of the Chamber regarding the Plunder of Public or Private Property in u anj Ovnak Brajkovići Grahovčići 570 iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi 576 a Effective Control of Enver Had ihasanovi over the Perpetrators of the Crime 576 b Knowledge of Enver Had ihasanovi 577 c Measures Taken 577 Case No IT-01-47-T x 15 March 2006 678 21623 BIS iv Findings of the Chamber regarding the Responsibility of Amir Kubura 578 a Effective Control of Amir Kubura over the Perpetrators of the Crimes 578 b Knowledge of Amir Kubura 579 c Measures Taken 579 v Conclusions of the Chamber 580 f Vare 581 i Arguments of the Parties 581 ii Findings of the Chamber regarding the Plunder of Public or Private Property in Vare 582 iii Findings of the Chamber regarding the Responsibility of Amir Kubura 587 a Effective Control of Amir Kubura over the Perpetrators of the Crime 587 b Knowledge of Amir Kubura 588 c Measures Taken 589 iv Conclusions of the Chamber 591 3 Count 7 Destruction or Wilful Damage of Institutions Dedicated to Religion in the Municipality of Travnik 592 a Gu a Gora the Monastery 592 i Arguments of the Parties 592 ii Findings of the Chamber regarding the Destruction or Damage of Institutions Dedicated to Religion in Gu a Gora 593 iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi 596 iv Conclusions of the Chamber 596 b Travnik the Church and the Town of Travnik 596 i Arguments of the Parties 597 ii Findings of the Chamber regarding the Destruction and Wilful Damage of Religious Institutions in Travnik 597 iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi 599 iv Conclusions of the Chamber 599 C FINDINGS OF THE CHAMBER ON MEASURES TAKEN BY THE ACCUSED HAD IHASANOVI REGARDING DESTRUCTION AND PLUNDER 599 1 Introduction 599 2 Documentary Proof from the 3rd Corps 600 a General Prohibition against Destruction and Plunder 601 b General Preventive and Punitive Measures 601 c Organisation and Mobilisation of the Military Police 602 d Reports Submitted to the Supreme Command 602 e Personal Initiatives Taken by the Accused Had ihasanovi in Respect of Specific Cases 603 f Interaction Between the 3rd Corps Command and Subordinate Units 603 g Autonomous Initiatives by the Commanders of 3rd Corps Units 603 3 Investigations and Criminal Proceedings 604 a Extent of the Plunder Difficulties in Stopping and Identifying the Perpetrators 605 b Means Put into Effect by the 3rd Corps and Their Limitations 606 c Disciplinary Measures 607 4 General Conclusions 608 VIII SENTENCING 610 A SUBMISSIONS OF THE PARTIES 610 B LEGAL FRAMEWORK FOR SENTENCING 611 1 Legal Provisions and Principles for Determining Sentences 611 2 Single Basis of Responsibility of the Accused Their Position as Superiors at the Time of the Events 614 C DETERMINATION OF SENTENCE 615 1 Enver Hadžihasanović 615 a Mitigating Circumstances Accepted by the Chamber 615 i Personal Mitigating Circumstances 615 ii Factual Mitigating Circumstances 616 b Aggravating Circumstances Accepted by the Chamber 616 Case No IT-01-47-T xi 15 March 2006 677 21623 BIS c Single Sentence 617 d Credit for Time Served 617 2 Amir Kubura 617 a Mitigating Circumstances Accepted by the Chamber 617 i Personal Mitigating Circumstances 617 ii Factual Mitigating Circumstances 618 b Aggravating Circumstances Accepted by the Chamber 618 c Single Sentence 619 d Credit for Time Served 619 IX DISPOSITION 620 X ANNEX I HISTORICAL BACKGROUND 629 XI ANNEX II GLOSSARY 632 A FREQUENTLY USED TERMS AND ABBREVIATIONS 632 B ABIH BRIGADES 636 C INTERNATIONAL INSTRUMENTS AND AUTHORITIES 637 D CASE LAW 640 1 ICTY - Prosecutor v Enver Hadžihasanović and Amir Kubura Case No IT-01-47-T 640 2 ICTY- Other Cases 640 3 ICTR 644 4 Decisions of Other Courts 644 XII ANNEX III PROCEDURAL BACKGROUND 646 A PRE-TRIAL PROCEEDINGS 646 1 Indictment Transfer and Initial Appearance 646 2 Counsel for the Defence Pre-Trial Judge and Composition of the Trial Chamber 646 3 Preliminary Motions on Defects in the Form of the Indictment Brought Under Rule 72 A ii of the Rules 647 a Indictment of 13 July 2001 647 b Indictment of 11 January 2002 648 c Indictment of 15 August 2003 650 d Indictment of 26 September 2003 651 4 Motion on Jurisdiction Command Responsibility in an Armed Internal Conflict under Rule 72 A i 651 5 Detention and Provisional Release Pending Trial 654 6 Status Conferences 654 B TRIAL 654 1 General Comments 654 2 Tendering of Exhibits into Evidence 654 3 Provisional Release During the Trial and Deliberations 654 4 Decision on Motions for Acquittal Pursuant to Rule 98 bis of the Rules 655 5 Decision on the Prosecution’s Application to Reopen its Case 656 6 Site Visit 656 XIII ANNEX IV INDICTMENT 657 XIV ANNEX V MAPS 673 A DH 82 EXTRACT 674 B DH 84 EXTRACT 675 C DH 97 EXTRACT 676 Case No IT-01-47-T xii 15 March 2006 676 21623 BIS I INTRODUCTION A The Accused 1 The Accused Hadžihasanović 1 The Accused Hadžihasanović was born on 7 July 1950 in Zvornik Zvornik municipality Republic of Bosnia and Herzegovina “RBiH” 1 The Accused Hadžihasanović is a former officer in the Yugoslav People’s Army “JNA” 2 who after graduating from the Belgrade Land Forces Military Academy in 1973 was assigned to JNA posts in Tuzla and Sarajevo 3 In 1988 he was appointed Chief of Staff of the 49th Motorised Brigade and was later appointed its commander in late 1989 While in that position Hadžihasanović achieved the rank of Lieutenant Colonel 4 2 After leaving the JNA the Accused Hadžihasanović joined the Territorial Defence “TO” of the RBiH5 in early April 1992 and was subsequently appointed Chief of Staff of the 1st Corps of the Army of Bosnia and Herzegovina “ABiH” on 1 September 1992 6 Sefer Halilović first sent him to Zenica to organise troops to lift the siege of Sarajevo 7 The Accused Hadžihasanović was then tasked with consolidating and organising from Zenica units in Central Bosnia to face the Serbian military aggression on the RBiH He was appointed Commander of the 3rd Corps by Sefer Halilović some time in mid-November 1992 8 a post he held until 1 November 1993 when he was promoted to Chief of the ABiH Supreme Main Command Staff He was replaced in the post by Mehmed Alagi 9 3 In December 1993 the Accused Had ihasanovi was promoted to the rank of Brigadier General and became a member of the Joint Command of the Army of the Federation of Bosnia and Herzegovina 1 Initial appearance 9 August 2001 French transcript of proceedings “T F ” p 2 Joint Statement on the Agreement of Facts Annex A 3 Ibid 4 Ibid 5 Ibid 6 Defence Exhibit for Had‘ihasanović “DH” 451 7 Muradif Mekić T F p 9950 8 Prosecution Exhibit “P” 245 DH 2088 Report by military expert Vahid Karavelić paras 317 367 and 377 Hadžihasanović Defence Final Brief para 28 Joint Statement on the Agreement of Facts Annex A 9 Joint Statement on the Agreement of Facts Annex A p 209 and p 278 2 Case No IT-01-47-T 1 15 March 2006 675 21623 BIS 2 The Accused Kubura 4 The Accused Kubura was born on 4 March 1964 in Kakanj Bosnia and Herzegovina 10 He is a former professional officer of the JNA who after completing training at the Academy for Ground Forces served for five years as a JNA officer in Ðakovica In 1992 he left the JNA holding the rank of Captain 11 5 In 1992 the Accused Kubura joined the newly created ABiH as the Deputy Commander of a detachment in Kakanj Later he was appointed Commander of an ABiH mountain battalion in the same area 12 On 11 December 1992 Kubura was assigned to the ABiH 3rd Corps 7th Brigade and posted as Assistant Chief of Staff for Operations and Instruction Matters 13 On 12 March 1993 Sefer Halilovi ordered that the Accused Kubura be appointed Chief of Staff and Deputy Commander of the 7th Brigade 14 By order dated 6 August 1993 Rasim Deli Commander of the ABiH Supreme Main Command Staff appointed Kubura Commander of the 7th Brigade 15 Evidence we will examine at a later stage however will show that the Accused Kubura was the de facto Commander of the 7th Brigade well before he was formally appointed to that post 6 On 16 March 1994 the Accused Kubura then a colonel was appointed Commander of the ABiH 1st Corps 1st Muslim Mountain Brigade 16 On 16 December 1995 he was appointed Commander of the ABiH 4th Corps 443rd Brigade In June 1999 he became a member of the Command Staff of the ABiH 1st Corps 17 B Charges Against the Accused 7 The Prosecution submits that in 1993 and up until 18 March 1994 the ABiH was engaged in an armed conflict with the Croatian Defence Council “HVO” in Central Bosnia particularly in the municipalities of Travnik Zenica Bugojno Kakanj and Vare 18 The Prosecution alleges that units subordinated to the 3rd Corps including the 7th Brigade commanded by the Accused Kubura attacked towns and villages mainly inhabited by Bosnian Croats As a result of the attacks 10 Initial appearance 9 August 2001 T F p 2 Joint Statement on the Agreement of Facts Annex A 12 Ibid 13 Ibid 14 Defence Exhibit for Kubura “DK” 62 Annex A 15 DK 25 p 498 16 Joint Statement on the Agreement of Facts Annex A 17 Ibid 18 Indictment para 26 11 Case No IT-01-47-T 2 15 March 2006 674 21623 BIS predominately Bosnian Croat but also Bosnian Serb civilians were allegedly subjected to wilful killings and serious injury 19 The Prosecution further alleges that predominately Bosnian Croats but also Bosnian Serbs 8 were unlawfully imprisoned or otherwise detained in facilities controlled by units subordinated to the Accused While imprisoned the Bosnian Croats and Serbs were allegedly subjected to physical and psychological abuse Prison conditions were allegedly overcrowded and unsanitary and detainees lacked medical care and were inhumanely deprived of food water and clothing 20 The Prosecution also alleges that units subordinated to the Accused plundered and destroyed 9 Bosnian Croat and Bosnian Serb property without military justification In addition Bosnian Croat buildings sites and institutions dedicated to religion were allegedly destroyed or otherwise damaged or violated 21 10 The Prosecution submits that the Accused knew or had reason to know that their subordinates were about to commit such acts or had done so and that they failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators 11 By those omissions the Accused are alleged to be criminally responsible for murder and cruel treatment violations of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute of the Tribunal and recognised by Article 3 1 a of the Geneva Conventions 22 wanton destruction of towns or villages not justified by military necessity a violation of the laws or customs of war punishable under Articles 3 b and 7 3 of the Statute of the Tribunal 23 plunder of public or private property a violation of the laws or customs of war punishable under Articles 3 e and 7 3 of the Statute of the Tribunal 24 and destruction of or wilful damage to institutions dedicated to religion a violation of the laws or customs of war punishable under Articles 3 d and 7 3 of the Statute of the Tribunal 25 19 Ibid para 27 Ibid para 28 21 Ibid para 29 22 Ibid paras 39-43 23 Ibid paras 44 and 45 24 Ibid paras 44 and 45 25 Ibid para 46 20 Case No IT-01-47-T 3 15 March 2006 673 21623 BIS II APPLICABLE LAW A Conditions for the Applicability of Article 3 of the Statute 12 The Indictment charges crimes defined by the provisions of Article 3 of the Statute such as count 5 wanton destruction of towns and villages not justified by military necessity count 6 plunder of public or private property and count 7 destruction of or wilful damage to institutions dedicated to religion It also charges other crimes set out in Article 3 of the Statute but which are themselves based on common Article 3 of the Geneva Conventions of 1949 counts 1 and 3 murder and counts 2 and 4 cruel treatment 13 Two preliminary conditions must be satisfied for Article 3 of the Statute to apply First an armed conflict internal or international must exist and second there must be a close nexus between the crimes alleged and the conflict 26 Tribunal case law has repeatedly established that Article 3 of the Statute applies whatever the nature of the armed conflict 27 14 In the Tadi Jurisdiction Decision the Appeals Chamber held that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State 28 It is sufficient to determine that an armed conflict exists in an area of which the municipality in question forms a part 29 International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached or in the case of internal conflicts a peaceful settlement is achieved 30 15 Furthermore the Appeals Chamber in Tadi held “Even if substantial clashes were not occurring in a given region at the time and place the crimes allegedly were committed … international humanitarian law applies It is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict ”31 26 Tadi Jurisdiction Decision paras 67-70 Prosecution’s Submissions Concerning Armed Conflict and Elements of Crimes 2 July 2004 paras 3-8 27 Tadi Jurisdiction Decision paras 94 and 137 Strugar Trial Judgement para 216 28 Tadi Jurisdiction Decision para 70 29 elebi i Trial Judgement para 185 30 Tadi Jurisdiction Decision para 70 31 Tadi Jurisdiction Decision para 70 reaffirmed by the Appeals Chamber in the Kunarac Appeal Judgement para 57 Case No IT-01-47-T 4 15 March 2006 672 21623 BIS 16 As to the requisite clear or close nexus between the armed conflict and the commission of the crime the Appeals Chamber in Kunarac specified that it is sufficient to establish that “the perpetrator acted in furtherance of or under the guise of the armed conflict” 32 In that regard it noted that the armed conflict need not have been causal to the commission of the crime but that the existence of an armed conflict must at a minimum have played a substantial part in the perpetrator’s ability to commit it his decision to commit it the manner in which it was committed or the purpose for which it was committed 33 17 As regards the Chamber’s jurisdiction over crimes covered by common Article 3 of the Geneva Conventions of 1949 we recall that in its Decision on Jurisdiction the Appeals Chamber determined that Article 3 of the Statute functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal 34 In that regard the Appeals Chamber specified the conditions to be fulfilled for an offence to be subject to prosecution before the International Tribunal under Article 3 of the Statute ‘‘ i the violation must constitute an infringement of a rule of international humanitarian law ii the rule must be customary in nature or if it belongs to treaty law the required conditions must be met iii the violation must be serious that is to say it must constitute a breach of a rule protecting important values and the breach must involve grave consequences for the victim … iv the violation of the rule must entail under customary or conventional law the individual criminal responsibility of the 35 person breaching the rule ” 18 Accordingly for a chamber to have jurisdiction over an offence those conditions must be fulfilled regardless of whether the crime is expressly stipulated in Article 3 of the Statute 36 The Appeals Chamber further noted that it does not matter whether the offence was committed within the context of an international or an internal armed conflict so long as the requirements set out above are met 37 As such the scope of Article 3 of the Statute covers common Article 3 of the Geneva Conventions in respect of counts 1-4 which applies to situations of non-international armed conflicts 32 Kunarac Appeal Judgement para 58 Ibid para 58 34 Tadi Jurisdiction Decision paras 91 and 94 Strugar Trial Judgement para 218 The Appeals Chamber found that its jurisprudence is binding on Chambers see Aleksovski Appeal Judgement para 113 35 Tadi Jurisdiction Decision para 94 36 Strugar Trial Judgement para 218 footnotes omitted 37 Tadi Jurisdiction Decision paras 94 and 137 33 Case No IT-01-47-T 5 15 March 2006 671 21623 BIS 19 Moreover common Article 3 of the Geneva Conventions applies when it is established that the victims of the crime were not actively taking part in the armed conflict 38 That condition is also a requirement in the preamble of common Article 3 which refers to “persons taking no active part in the hostilities including members of armed forces who have laid down their arms and those placed hors de combat by sickness wounds detention or any other cause ”39 The application of those provisions to the instant case will be addressed in the part of this Judgement on the factual findings for each of the counts 1 Examination of the Existence of an Armed Conflict in the Area and during the Period Material to this Case 20 The Chamber considers that there is sufficient evidence to find that during the period material to the Indictment an armed conflict between the HVO and the ABiH raged in the municipalities referred to in this case Some witnesses stated that as of late 1992 there were already confrontations between the two armies in the La va Valley 40 Gornji Vakuf 41 Busova a 42 Prozor 43 Novi Travnik 44 and Kiseljak 45 Those confrontations carried on into January 1993 and then spread to other municipalities in Central Bosnia 46 Orders and cease-fire agreements between the ABiH and HVO in late January 1993 indicate that there was an armed conflict between those two armies at that time 47 21 The Chamber also recalls that pursuant to a request by the Defence for Had ihasanovi and the Defence for Kubura it took judicial notice of certain facts established in the Aleksovski case which deal with the existence of an armed conflict between the ABiH and HVO in the La va Valley 38 On the crime of murder see Staki Trial Judgement para 581 on the crime of cruel treatment see Čelebići Appeal Judgement para 424 and Bla ki Appeal Judgement para 595 39 See common Article 3 1 40 ZP T F pp 8799 8800 9010 and pp 9011-9013 41 Zdravko @ulj T F p 3635 Bryan Watters T F pp 7526-7527 DH 579 DH 648 ZP T F p 9010 but he does not specify the date of the confrontation 42 Dragan Radi T F p 3568 Bryan Watters T F pp 7526-7527 43 Bryan Watters T F pp 7526-7527 Witness ZP T F p 9010 but he does not specify the date of the confrontation 44 Bryan Watters T F pp 7526-7527 DH 551 45 Bryan Watters T F pp 7526-7527 46 Witness ZN T F p 5290 DH 579 DH 648 DH 551 D emal Merdan T F pp 13024-13026 p 13032 Busova a p 13042 Vitez and pp 13050-13052 Bila Valley as well as the following documents DH 557 DH 558 DH 559 DH 561 DH 562 DH 564 DH 565 DH 566 DH 568 DH 576 DH 577 DH 578 DH 581 DH 589 DH 592 DH 600 DH 604 DH 615 DH 620 DH 705 Gornji Vakuf 47 P 127 The Joint Statement on the Agreement of Facts Annex A bears witness to that “The ABiH and the HVO signed a United Nations brokered cease-fire on 30 January 1993 ’’ Case No IT-01-47-T 6 15 March 2006 670 21623 BIS “Towards the end of January 1993 there was an outbreak of open hostilities between the HVO and BH army and Bosnian Muslim men were rounded up by the HVO in the town of Busovaca as well as in surrounding villages around 24 January 1993 Approximately four hundred of these men were taken to be detained at the nearby detention facility at Kaonik for about two weeks ”48 22 From January to June 1993 fighting between the ABiH and the HVO continued with varying degrees of intensity 49 Some witnesses referred to the ongoing conflict from January to April 1993 between the HVO and the ABiH in Busova a and Gornji Vakuf with sporadic fighting elsewhere 50 According to the same witnesses in April 1993 conflict erupted in Vitez Travnik Kakanj and Zenica municipalities 51 Then in June 1993 the conflict between the two armies in Central Bosnia escalated 52 The Chamber notes that one fact the Parties agree about was that on 8 June 1993 there was a confrontation between the ABiH and the HVO in Maline 53 During the summer and autumn of 1993 fighting between the ABiH and the HVO continued 54 The Chamber also notes that in their testimony many witnesses referred to the “conflict” “hostilities” or “war” between the HVO and the ABiH 55 23 Furthermore cease-fire orders issued by the general staffs of both armies and the political leaders representing the two parties to the conflict imply that there was an armed conflict between the two armies on the date of the agreements 56 The fact that representatives from international organisations were there attempting to broker and enforce cease-fire agreements is additional evidence making it possible to infer that there was in fact an armed conflict in the municipalities and during the period referred to in the Indictment 57 The repeated failed attempts to form a joint 48 Final Decision on Judicial Notice of Adjudicated Facts 20 April 2004 p 7 referring to the Aleksovski Trial Judgement para 23 Witness ZP nevertheless testified that the armed conflict began in June 1992 in Bosnia and Herzegovina T F p 8784 49 Joint Statement on the Agreement of Facts Annex A attack in Ahmi i 16 April 1993 Annexes B 14 and B 15 fighting in Dusina 50 D emal Merdan T F pp 13024-13026 and p 13269 51 D emal Merdan T F pp 13270-13271 ZP T F p 9010 but he does not specify the date of the confrontation DH 204 DH 205 52 D emal Merdan T F p 13277 Fikret uski T F p 12071 Travnik and p 12122 53 Joint Statement on the Agreement of Facts Annex C 54 Fikret uski T F pp 12146-12147 DK 13 p 671 Chamber Exhibit “C” 11 on 5 September 1993 C18 on 5 September 1993 P 440 C 11 p 252 and p 253 and C 13 p 73 and p 74 on 6 September 1993 C 11 p 264 and C 11 p 268 on 7 September 1993 C 13 p 78 C 11 p 276 on 9 September 1993 P 482 C 11 p 9 and C 13 p 88 on 18 September 1993 C 11 on 9 October 1993 P 492 DK 15 P 656 C 13 and C 11 on 27 October 1993 P 9254 formerly P 711 P 931 P 495 C 13 p 183 on 18 January 1994 C 13 p 192 on 19 January 1994 55 See in particular the testimony of Ivo Mr o Zdravko @ulj Ivan Tvrtkovi Dragan Radi Witness ZN Franjo Kri anac Bryan Watters Nenad Bogeljić Ranko Popović and Hakan Birger 56 The Joint Statement on the Agreement of Facts Annex A bears witness to such agreements “On 18 April 1993 Alija Izetbegovic and HZ-FIB leader Mate Boban signed an agreement in Zagreb ordering an immediate end to fighting between the ABiH and HVO” see also Annex B 7 of the Joint Statement on the Agreement of Facts DH 205 57 Bryan Watters T F pp 7483-7575 Vaughan Kent-Payne T F pp 4761-4949 Case No IT-01-47-T 7 15 March 2006 669 21623 BIS command between the HVO and the ABiH only underscore the fact that there was an ongoing armed conflict in the La va Valley during the period in question 58 24 The Chamber recalls that one of the Accused also referred to the armed conflict in the La va Valley from 1992 to 1993 in one of his submissions 59 25 Consequently the Chamber finds that an armed conflict between the HVO and the ABiH existed during the period relevant to the Indictment up until the Washington Agreement was signed in February 1994 60 2 Examination of the Nexus between the Offences and the Conflict in View of the Facts of the Case 26 As regards the close nexus which must exist between the crimes charged and the conflict the Chamber is of the opinion that there is sufficient evidence to find that such a nexus did exist This finding is based in particular on evidence establishing that many people were detained either following an attack following ABiH searches for people with weapons or radios or for any other reason 61 The destruction of towns or villages and of institutions dedicated to religion as well as the plunder or confiscation of personal or military property were all linked to the ongoing fighting in the La va and Bila valleys during the period in question 62 3 Nature of the Conflict Internal Armed Conflict 27 The Indictment does not characterise the nature of the conflict raging in Central Bosnia and Herzegovina at the time of the events but indicates only that “at all times relevant to this indictment an armed conflict existed in the territory of Bosnia and Herzegovina ”63 On several occasions the Parties debated the issue of the nature of the armed conflict and its implications 64 Adopting the reasoning of the Appeals Chamber in a pre-trial decision 65 the Chamber found that the armed conflict in the case before it was by default of an internal nature 66 In 2003 the Appeals 58 D emal Merdan T F p 13045 See Kubura Defence Pre-Trial Brief para 13 “However he was not a 'desk' officer – he was most often away from his headquarters in the town of Zenica and involved in heavy combat both with the VRS and HVO forces in parts of Central Bosnia and other areas during the course of 1992 and 1993” emphasis added 60 D emal Merdan T F pp 13269-13270 61 See in particular the testimony of Ivanka Tavi Zrinko Alvir Nenad Bogelji Ranko Popovi Dalibor Ad aip Ivan Josipovi and Vinko Tadi 62 See for example infra paras 1792 1824 1998-2002 and 2019 63 Indictment para 8 64 See infra para 273 and IX Annex III Procedural Background 65 Decision Pursuant to Rule 72 E as to Validity of Appeal Appeals Chamber 21 February 2003 66 Decision on Defence Motion Regarding Cross-Examination of Witnesses by the Prosecution 9 December 2004 59 Case No IT-01-47-T 8 15 March 2006 668 21623 BIS Chamber ruled that “if the prosecution wishes to rely upon an international armed conflict even if only in the alternative it must plead as a material fact that the armed conflict was international in character and state the basis upon which such an assertion is made ”67 The Appeals Chamber held that “following the withdrawal of both the Article 2 charges and the express allegation in the original indictment that the armed conflict was international in character the prosecution should not be permitted to rely upon the imprecision of its current pleading in order to put forward a case that the armed conflict was international in character without a further amendment to its indictment to make this expressly clear ”68 28 Basing itself on that decision the Chamber considered that since the Indictment does not explicitly indicate the existence of an international armed conflict in Central Bosnia in 1993 evidence about the possible international nature of that conflict has no direct relationship with any specific charges in the Indictment In that regard the Chamber noted in its decision that the Prosecution did not present evidence during its case-in-chief which would establish that the armed conflict in Central Bosnia in 1993 was international in nature 69 Ruling on the evidence produced by the Prosecution in cross-examination and finding that it would be admissible only insofar as it provides further details about the general context of this case and that it cannot serve to establish the international nature of the conflict in respect of the applicable law 70 the Chamber recognises that it is in fact dealing with an internal armed conflict 4 Examination of the Tadi Conditions as Applied to this Case 29 To determine whether the crimes of murder and cruel treatment based on common Article 3 of the Geneva Conventions satisfy the conditions set out in the Tadi Appeals Judgement the Chamber adopts the reasoning of the Chamber in Strugar namely that the violations breach a rule protecting important values and involving grave consequences for the victims and that common Article 3 forms part of customary international law and entails individual criminal responsibility 71 Accordingly the Chamber finds that since the Tadi conditions are met the crimes of murder and cruel treatment based on common Article 3 apply 72 67 Ibid pp 4-5 citing the Decision Pursuant to Rule 72 E as to Validity of Appeal Appeals Chamber 21 February 2003 68 Decision on Defence Motion Regarding Cross-Examination of Witnesses by the Prosecution 9 December 2004 p 5 citing the Decision Pursuant to Rule 72 E as to Validity of Appeal Appeals Chamber 21 February 2003 para 12 69 Decision on Defence Motion Regarding Cross-Examination of Witnesses by the Prosecution 9 December 2004 p 5 70 Ibid p 6 71 Strugar Trial Judgement para 219 72 Ibid Case No IT-01-47-T 9 15 March 2006 667 21623 BIS B Definition and Constituent Elements of Crimes Against Persons 1 Murder 30 The Chamber has already established that common Article 3 of the Geneva Conventions is covered by the scope of Article 3 of the Statute and that common Article 3 applies when it is established that the victims of the crime were not actively taking part in the armed conflict 73 31 Since the elements of the crime of murder under common Article 3 of the Geneva Conventions were not disputed by the Parties during the trial the Chamber recalls its findings in that respect in its Decision on Motions for Acquittal 74 The crime of murder as a violation of the laws or customs of war under Article 3 of the Statute is clearly defined by the case law of the Tribunal 75 For the crime of murder to be established the death must be the result of an act or omission of the accused or of one or more persons for whom the accused is criminally responsible and it must be committed with the intent to kill the victim or to wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death 76 As to the mens rea element required under common Article 3 of the Geneva Conventions the Chamber subscribes to the definition of the Chamber in Staki according to which “… both a dolus directus and a dolus eventualis are sufficient to establish the crime of murder under Article 3 The technical definition of dolus eventualis is the following if the actor engages in life-endangering behaviour his killing becomes intentional if he “reconciles himself” or “makes peace” with the likelihood of death Thus if the killing is committed with ‘manifest indifference to the value of human life’ even conduct of minimal risk can qualify as intentional homicide ”77 2 Cruel Treatment 32 The Chamber considers that Tribunal case law has defined the crime of cruel treatment a violation of the laws or customs of war under Article 3 of the Statute as an intentional act or omission causing serious mental or physical suffering or injury or constituting a serious attack on human dignity 78 33 To determine the seriousness of an act all the factual circumstances must be taken into account “including the nature of the act or omission the context in which it occurs its duration 73 See supra paras 18-19 Decision on Motions for Acquittal para 37 75 See Kvo ka Appeal Judgement para 261 76 Kvo ka Appeal Judgement para 261 footnotes omitted 77 Staki Trial Judgement para 587 78 Čelebići Appeal Judgement para 424 Bla ki Appeal Judgement para 595 74 Case No IT-01-47-T 10 15 March 2006 666 21623 BIS and or repetition the physical mental and moral effects of the act on the victim and the personal circumstances of the victim including age sex and health ”79 34 In Krnojelac the Chamber stressed “The required mens rea is met where the principal offender at the time of the act or omission had the intention to inflict serious physical or mental suffering or to commit a serious attack on the human dignity of the victim or where he knew that his act or omission was likely to cause serious physical or mental suffering or a serious attack upon human dignity and was reckless as to whether such suffering or attack would result from his act or omission ”80 35 On the basis of the definition established by Tribunal case law beating or detaining persons in difficult conditions may constitute cruel treatment if they cause great suffering or physical or mental harm or are a serious attack on human dignity 81 Article 5 1 of Additional Protocol II to the Geneva Conventions may assist in establishing the seriousness of the conditions of detention That article obliges parties to the Additional Protocol II to respect certain minimum conditions of detention with regard to persons deprived of their liberty for reasons related to an armed conflict It provides inter alia that persons deprived of their liberty shall be provided with the same basic needs as the local population “In addition to the provisions of Article 4 the following provisions shall be respected as a minimum with regard to persons deprived of their liberty for reasons related to the armed conflict whether they are interned or detained T he persons referred to in this paragraph shall to the same extent as the local civilian population be provided with food and drinking water and be afforded safeguards as regards health and hygiene and protection against the rigours of the climate and the dangers of the armed conflict ”82 In that regard the type of subsistence given to the guards of people deprived of their liberty may serve as a measure to evaluate whether the minimum subsistence conditions are being respected 83 36 In the case where these minimum standards of treatment cannot be maintained the detaining authority may not continue to detain those persons deprived of their liberty without possibly incurring criminal responsibility 37 The Prosecution bears the burden of proving that the conditions of detention were sufficiently bad to constitute cruel treatment of the prisoners within the meaning of Article 3 of the Statute If in his defence the Accused argues that the local civilian population was affected by conditions similar to those of the prisoners he must bring evidence to that effect The Accused must therefore demonstrate that a food or drinking water shortage in the region where the detention 79 Krnojelac Trial Judgement para 131 Krnojelac Trial Judgement para 132 81 Čelebići Trial Judgement paras 554-558 1015-1018 1112-1119 82 Additional Protocol II Article 5 1 b emphasis added 83 Commentary on Additional Protocol II para 4573 80 Case No IT-01-47-T 11 15 March 2006 665 21623 BIS centre was located equally affected the local civilian population as well as the prisoners of war and detained civilians C Definition and Constituent Elements of Crimes Against Property 1 Jurisdiction of the Chamber to Try Counts 5 6 and 7 38 In its Decision on Motions for Acquittal of 27 September 2004 the Chamber held that in the context of non-international armed conflicts customary international law prohibits the wanton destruction of towns or villages 84 the plunder of public or private property 85 and the destruction of institutions dedicated to religion 86 The Chamber also considered that the elements of the abovementioned crimes under Article 3 of the Statute were identical regardless of whether the crimes were committed in an international or non-international conflict 87 The Appeals Chamber affirmed the Chamber’s findings with regard to customary international law’s prohibition of crimes stipulated in Article 3 b d and e of the Statute when they are committed in the context of an internal armed conflict but did not make any determination as to the elements of those crimes 88 2 Wanton Destruction of Towns and Villages not Justified by Military Necessity 39 The Chamber is of the view that the crime of wanton destruction of towns and villages not justified by military necessity under Article 3 b of the Statute is constituted when i the destruction of property occurs on a large scale ii the destruction is not justified by military necessity and iii the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction 89 40 The Chamber considers that the mens rea element of the destruction is established when the perpetrator of the crime acted “consciously and with intent i e with his mind on the act and its 84 Decision on Motions for Acquittal para 104 Ibid para 125 86 Ibid para 147 87 Ibid paras 107 128 and 150 88 Ibid paras 30 37 and 47 See Kordić Appeal Judgement paras 75-78 and 92 89 See Kordić Trial Judgement para 346 Strugar Trial Judgement para 292 See Prosecution Final Brief para 29 in which the Prosecution recalls the constituent elements of wanton destruction of towns and villages not justified by military necessity as defined in the Kordić Trial Judgement In their submissions neither the Defence for Had‘ihasanović nor the Defence for Kubura raised any objections regarding the constituent elements of the crime of wanton destruction of towns or villages 85 Case No IT-01-47-T 12 15 March 2006 664 21623 BIS consequences and willing them”90 or acted in reckless disregard of the likelihood of the destruction 91 41 The Chamber notes that the offence stipulated in Article 3 b of the Statute is similar to that stipulated by Article 2 d of the Statute namely wanton destruction of property not justified by military necessity and carried out unlawfully or wantonly on a large scale 92 That similarity was underscored in the Naletilić Trial Judgement where the Chamber considered that the offence of destruction of property within the meaning of Article 2 d of the Statute is constituted when a the general requirements of Article 2 of the Statute are fulfilled b the property destroyed carries general protection under the Geneva Conventions c the destruction is carried out on a large scale d the destruction is not justified by military necessity and e the perpetrator acted with the intent to destroy the property or the property was destroyed on account of his recklessness 93 Consequently if the general test for applying Articles 2 and 3 of the Statute with regard to the nature of the armed conflict94 is applied to crimes stipulated by Articles 2 d and 3 b of the Statute respectively the elements of the crimes of destruction under Articles 2 d and 3 b of the Statute are identical It follows that in the case where the armed conflict is internal in nature and bears a close relationship to the alleged offence the crime of destruction may be punishable under Article 3 b of the Statute 95 42 Given the similarity between the offences stipulated in Articles 2 d and 3 b of the Statute the Chamber considers that wanton destruction of towns and villages not justified by military necessity applies in the same manner as the offence stipulated in Article 2 d of the Statute to movable and non-movable property 96 43 It should be recalled that in order to establish that devastation is on a large scale the Chamber in Strugar required a showing that many objects were damaged or destroyed but did not require that a town or village be destroyed in its entirety 97 According to the Judgement in Blaškić the concept of extensive must be evaluated in relation to the facts of the case 98 One single act 90 See ICRC Commentary on Article 85 of Additional Protocol I para 3474 See Prosection’s Submissions Concerning Armed Conflict and Elements of Crimes para 28 in which the Prosecution points out that the Accused must have acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction 92 See Blaškić Trial Judgement para 183 The Chamber found that the destruction of property is similar to the offence stipulated in Article 3 d of the Statute 93 Naletilić Trial Judgement para 577 94 See Naletilić Trial Judgement paras 176 and 225 95 Kordić Appeal Judgement para 74 96 See ICRC Commentary on Article 147 of the Geneva Conventions Br janin Trial Judgement para 586 Blaškić Trial Judgement para 157 97 Strugar Trial Judgement para 294 98 Blaškić Trial Judgement para 157 91 Case No IT-01-47-T 13 15 March 2006 663 21623 BIS such as the destruction of a hospital may in fact suffice to characterise an offence as being large scale 99 The Chamber finds that destruction is large scale either when a large quantity of property has been destroyed or when the value of a single destroyed object is sufficiently great 100 44 The question arises as to whether acts of partial destruction can constitute an offence punishable under Article 3 b of the Statute The Chamber takes note of national practice here and observes that many military manuals and national criminal codes prohibit the partial or total destruction of property when it is not justified by military necessity 101 The Chamber considers that absent any indication to the contrary in the Statute and Tribunal case law the partial destruction of property falls within the ambit of Article 3 b of the Statute Moreover the Chamber is of the view that although the criteria for determining whether an offence is large scale must be evaluated on a case-by-case basis they will usually be met when the acts of partial destruction are committed on a large scale 45 The protection offered by Article 3 b of the Statute is however limited by the exception of military necessity The Chamber finds that collateral damage to civilian property may be justified by military necessity and may be an exception to the principles of protection of civilian property Relying primarily on the principles set out in Articles 57 and 58 of Additional Protocol I the Chamber in Kupreškić held that the protection of civilians and civilian property provided by modern international law may cease entirely or be reduced or suspended when the target of a military attack is comprised of military objectives and belligerents cannot avoid causing collateral damage to civilians 102 These principles form part of customary international law 103 99 Ibid See Prosection’s Submissions Concerning Armed Conflict and Elements of Crimes para 26 the Prosecution maintains that the concept of large scale requires proof that the quantity or value of the property was sufficiently large and that this concept must be evaluated according to the facts of the case See Kubura Defence Final Brief para 181 the Defence for Kubura notes that considering the large scale element of the offence limited incidents of damage must be ruled out 101 See Canada LOAC Manual 1999 p 12-8 Netherlands Military Manual 1993 p IX-6 New Zealand Military Manual 1992 para 1335 UK Military Manual 1958 para 588 Ghana Armed Forces Act 1962 Section 18 d Iraq Military Penal Code 1940 Art 113 Jordan Military Criminal Code 1952 Art 12 2 Malaysia Armed Forces Act 1972 Section 46 c Nicaragua Military Penal Code 1996 art 59 Norway Military Penal Code 1902 paras 103 and 108 Paraguay Military Penal Code 1980 Art 282-283 Romania Penal Code 1968 art 359 Spain Military Criminal Code 1985 Art 73 Sri Lanka Army Act 1949 Section 96 b Uganda National Resistance Army Statute 1992 Section 35 c Vietnam Penal Code 1990 Art 274 Cited in Customary International Humanitarian Law ICRC Volume II pp 1004-1021 102 Kupreškić Trial Judgement para 522 103 Ibid para 524 The Chamber found that the provisions of Articles 57 and 58 of Additional Protocol I form part of customary international law because they specify general pre-existing norms and because no State seems to contest them 100 Case No IT-01-47-T 14 15 March 2006 662 21623 BIS 46 The Chamber considers that wanton destruction need not be committed within the context of military action to constitute an offence punishable by Article 3 of the Statute It is sufficient for the crimes stipulated by Article 3 b of the Statute to be closely related to the hostilities 104 47 The Chamber recalls that the crime of wanton destruction of towns and villages must satisfy the conditions for applying Article 3 of the Statute particularly the condition regarding the gravity of the offence That last condition is met when the crime of wanton destruction of towns and villages constitutes a breach of the rules protecting important values and involves grave consequences for the victim 105 The Chamber notes that one of the elements of the offence of destruction has to do with its severity and considers that acts of destruction committed on a large scale undoubtedly have grave consequences for their victims 106 It follows that commission on a large scale is both an element of the crime of destruction and a condition for the applicability of Article 3 of the Statute 48 The Chamber finds that the offence of wanton destruction of towns and villages is constituted when acts of destruction not justified by military necessity are committed deliberately and on a large scale The criterion of large scale must be evaluated according to the facts of the case 3 Plunder of Public or Private Property 49 The Chamber considers that the elements of the offence of plunder exist when public or private property is acquired illegally and deliberately 107 This crime covers “all forms of unlawful appropriation of property in armed conflict for which individual criminal responsibility attaches under international law including those acts traditionally described as ‘pillage’’’108 and extends to 104 See Tadi Jurisdiction Decision para 70 See Naletilić Trial Judgement para 589 in which the Chamber found that the destruction was not justified by military necessity because it took place after the shelling had stopped See Customary International Humanitarian Law ICRC Volume I Rule 50 pp 176-177 105 See Tadi Jurisdiction Decision para 94 The Appeals Chamber found that for a crime to be prosecuted before the Tribunal under Article 3 of the Statute “the violation must be ‘serious’ that is to say it must constitute a breach of a Rule protecting important values and the breach must involve grave consequences for the victim ” 106 See Strugar Trial Judgement para 231 107 See Naletilić Trial Judgement para 612 Kordić Appeal Judgement para 84 See Prosecution Final Brief para 31 in which the Prosecution expressly repeats this definition See Prosecution’s Submissions Concerning Armed Conflict and Elements of Crimes para 35 the Prosecution points out that “the perpetrator acquires the property ‘wilfully’ if by holding selling consuming destroying or passing it on the perpetrator either intends to deprive the victim of his or her effective possession of that property or consciously disregards a substantial and unjustifiable risk that his or her conduct will cause the rightful owner to lose his or her effective possession ” See Had‘ihasanović Defence Final Brief paras 384 467 554 591 and 663 the Defence for Had‘ihasanović considers that the Prosecution needed to prove that civilian property was plundered or unlawfully appropriated and that the plunder was deliberate 108 Čelebići Trial Judgement para 591 Case No IT-01-47-T 15 15 March 2006 661 21623 BIS ‘‘both widespread and systematised acts of dispossession and acquisition of property in violation of the rights of the owners and isolated acts of theft or plunder by individuals for their private gain ’’109 50 The mens rea element of the offence of plunder of public or private property is established when the perpetrator of the offence acts with the knowledge and intent to acquire property unlawfully or when the consequences of his actions are foreseeable 110 51 Treaty and customary law does however provide for exceptions to the principle of protection of public and private property enshrined in Article 3 e of the Statute In the context of international armed conflicts the taking of war booty and the requisition of property for military use may constitute limitations to that principle As early as 1863 the Lieber Code laid down the principle that war booty belongs to the party who seized it 111 According to national practices war booty includes enemy property or military equipment captured on the battlefield Personal effects belonging to prisoners of war are an exception 112 In the case of an occupation the Hague Regulations leave open in some cases the possibility for the occupying power to requisition property “for the needs of the occupation army” 113 52 The Chamber notes however that in non-international conflicts such regulations authorising or prohibiting war booty and requisitions have not been identified 114 In such cases national law must settle those issues 115 In its submissions the Defence for Had‘ihasanović refers to “authorised war booty and confiscation of items where a receipt is given ”116 The regulations governing war booty as defined by the Supreme Command Staff of the ABiH specify which property may be considered war booty and spell out the procedures for registering it 117 Those regulations authorise the ABiH to seize enemy public property captured on the battlefield 118 Property which may be considered war booty includes weapons ammunition equipment or any other materials with military applications communications equipment vehicles and other means of 109 Kordić Trial Judgement para 352 The Prosecutor v Naser Orić Decision on Defence Motions for Acquittal 8 June 2005 T F p 9027 111 Instructions for the Government of Armies of the United States in the Field Lieber Code 1863 Article 45 112 See Argentine Law of War Manual 1969 para 1020 Australia Commanders’ Guide 1994 paras 712 and 967 Canada LOAC Manual 1999 paras 27 and 48 Germany Military Manual 1992 paras 706 and 707 Kenya LOAC Manual 1997 pp 7 and 8 Netherlands Military Manual 1993 p IV-5 New Zealand Military Manual 1992 paras 526 and 527 US Field Manual 1956 para 59 UK Military Manual 1958 para 615 Cited in Customary International Humanitarian Law ICRC Volume II pp 992-998 113 The Hague Regulations Art 52 114 See Customary International Humanitarian Law ICRC Volume I pp 174 181-182 115 Ibid p 182 116 Had‘ihasanović Defence Final Brief paras 727 734 and 549 117 DH 1469 118 DH 1469 110 Case No IT-01-47-T 16 15 March 2006 660 21623 BIS transportation 119 The personal effects of prisoners of war however may not be considered war booty 120 Those regulations also provide that weapons ammunition and any other materials which have direct military applications even if they are private property may be seized as war booty 121 Such property must be handed over to the competent authorities and may not be appropriated by individuals 122 The property must be registered 123 This Chamber is of the opinion that the property mentioned above which has military applications and has been registered may be considered war booty In fact those regulations seek to implement customary international law and treaty law in those areas According to international law the regulations do not allow arbitrary and unjustified plunder for army purposes or for the individual use of army members even if the property seized can be used collectively or individually This is explicitly acknowledged in documents from the 3rd Corps Command which prohibit the plunder of movable property belonging to the civilian population 124 53 The Chamber is of the view that in the context of an actual or looming famine a state of necessity may be an exception to the prohibition on the appropriation of public or private property Property that can be appropriated in a state of necessity includes mostly food which may be eaten in situ but also livestock 125 To plead a defence of necessity and for it to succeed the following conditions must be met i there must be a real and imminent threat of severe and irreparable harm to life existence ii the acts of plunder must have been the only means to avoid the aforesaid harm iii the acts of plunder were not disproportionate and iv the situation was not voluntarily brought about by the perpetrator himself 126 54 The Chamber considers that to constitute an offence punishable by Article 3 of the Statute the plunder of public or private property need not be carried out in the context of military action It suffices for the offence stipulated in Article 3 e of the Statute to be closely linked to the hostilities 127 55 The Chamber recalls that the crime of plunder of public or private property must satisfy the conditions for applying Article 3 of the Statute particularly the condition regarding the gravity of 119 DH 1469 DH 1469 121 DH 1469 122 DH 1469 123 DH 1469 124 See for example p 283 DH 917 125 The Prosecutor v Naser Orić Decision on Motions for Acquittal 8 June 2005 T F p 9031 126 Ibid T F p 9027 127 See Tadi Jurisdiction Decision para 70 Naletilić Trial Judgement para 589 120 Case No IT-01-47-T 17 15 March 2006 659 21623 BIS the offence 128 That last condition is met when the plundered property is of sufficient value that its unlawful appropriation involves grave consequences for the victims 129 In Tadić the Appeals Chamber illustrated the concept of gravity by explaining that although the fact that a combatant’s appropriation of a loaf of bread in an occupied village might fall under the principle laid down in Article 46 of the Hague Regulations whereby private property must be respected by any army occupying an enemy territory that act would not amount to a serious violation of international humanitarian law 130 The Chamber agrees with the opinion expressed in Naletilić that the crime of plunder can result not only from the fact the “victim suffers severe economic consequences ” but also from “the reiteration of the acts and from their overall impact” 131 The seriousness of the violation must be ascertained on a case-by-case basis taking into consideration the circumstances of the crime 132 56 The Chamber finds that the offence of plunder of public or private property is constituted when property has been unlawfully and deliberately appropriated The property must be sufficiently valuable to entail grave consequences for the victim Property seized as war booty requisitioned or whose seizure is justified by necessity are exceptions to the principle of protection of public and private property 4 Destruction or Wilful Damage of Institutions Dedicated to Religion 57 The Chamber subscribes to the definition of the Kordić Chamber according to which the crime of destruction or wilful damage to institutions dedicated to religion is constituted when “the destruction or damage is committed wilfully and the accused intends by his acts to cause the destruction or damage of institutions dedicated to religion ₣ ğ and not used for a military purpose ”133 58 The Chamber considers that the elements of the offence of destruction or wilful damage to institutions dedicated to religion exist under Article 3 d of the Statute when i a religious institution is destroyed or damaged ii the damaged or destroyed property was not used for 128 See Tadi Jurisdiction Decision para 94 The Appeals Chamber found that for a crime to be prosecuted before the Tribunal under Article 3 of the Statute “the violation must be ‘serious’ that is to say it must constitute a breach of a Rule protecting important values and the breach must involve grave consequences for the victim ” 129 See elebići Trial Judgement para 1154 See Prosecution’s Submissions Concerning Armed Conflict and Elements of Crimes para 32 the Prosecution points out that the “plunder must be serious” and that “certain cases of petty property misappropriation may not rise to the level of ‘serious violations of international humanitarian law ’” See Had‘ihasanović Defence Final Brief paras 384 467 554 591 and 663 the Defence for Had‘ihasanović considers that the plundered property must be sufficiently valuable to involve grave consequences for the victim 130 Tadi Jurisdiction Decision para 95 131 Naletilić Trial Judgement para 614 132 Kordić Appeal Judgement para 82 133 Kordić Trial Judgement para 361 citing the Blaškić Trial Judgement para 185 Case No IT-01-47-T 18 15 March 2006 658 21623 BIS military purposes and iii the act was carried out with the intent to damage or destroy the property in question 134 59 The Chamber considers the wilful nature of the destruction or damage to be established when the perpetrator acted intentionally with the knowledge and will of the proscribed result or in reckless disregard of the likelihood of the destruction 135 60 The Chamber notes that it is sufficient for the damaged or destroyed institution to be an institution dedicated to religion and that there is no need to establish whether it represented the cultural heritage of a people 136 The Hague Regulations of 1907 which form part of customary international law137 and provide the basis for Article 3 of the Statute 138 afford protection to “buildings dedicated to religion art science or charitable purposes historic monuments ₣…ğ provided they are not being used at the time for military purposes” without requiring that these buildings represent the cultural heritage of a people 139 61 The Chamber considers that the provisions of the Hague Convention of 1954 and the Additional Protocol dealing with cultural property have scopes of application different from Article 3 d of the Statute Unlike the Statue Article 53 of the Additional Protocol I and Article 1 of the Hague Convention of 1954 afford protection solely to property which “constitute s the cultural or spiritual heritage of peoples”140 or which is “of great importance to the cultural heritage of every people” 141 Moreover the protection afforded by the Hague Convention of 1954 and by Additional Protocol I is broader than that afforded by Article 3 d of the Statute While Tribunal case law at times waives the principle of protection of religious institutions when they are used for military purposes 142 Additional Protocol I prohibits all acts of hostility against protected property thereby 134 See Strugar Trial Judgement para 312 See Br janin Trial Judgement para 599 136 See Had‘ihasanović Defence Final Brief para 592 Regarding the Gu a Gora monastery the Defence for Had‘ihasanović argues that the Prosecution must prove that the institution damaged or destroyed represented the cultural heritage of a people 137 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 1993 3 May 1993 S 25704 para 35 See Kordić Appeal Judgement para 92 138 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 1993 3 May 1993 S 25704 paras 41 and 44 139 Convention IV Respecting the Laws and Customs of War on Land and its annex Regulations Concerning the Laws and Customs of War on Land The Hague 18 October 1907 Articles 27 and 56 140 Article 53 of Additional Protocol I See ICRC Commentary paras 2063-2067 141 Article 1 of the Hague Convention of 1954 See ICRC Commentary on Article 53 of Additional Protocol I paras 2063-2067 142 See Blaškić Trial Judgement para 185 Kordić Trial Judgement para 361 Naletilić Trial Judgement para 605 135 Case No IT-01-47-T 19 15 March 2006 657 21623 BIS providing no such waiver 143 The Hague Convention of 1954 waives the obligation to protect only in cases where military necessity imperatively requires such a waiver 144 62 The Chamber is of the opinion that to constitute an offence punishable by Article 3 of the Statute the destruction of or damage to institutions dedicated to religion need not be carried out in the context of military action It is sufficient for the offence stipulated in Article 3 d of the Statute to be closely linked to the hostilities 145 63 The Chamber recalls that the crime of destruction or wilful damage to institutions dedicated to religion must satisfy the conditions for applying Article 3 of the Statute particularly that dealing with the gravity of the offence 146 That condition is met when the damage or destruction constitutes a breach of a rule protecting important values and involves grave consequences for the victim The Chamber notes that while civilian property is afforded general protection under customary international law special attention is paid to certain property namely religious buildings owing to their spiritual value Because those values go beyond the scope of a single individual and have a communal dimension the victim here must not be considered as an individual but as a social group or community The Chamber considers that the destruction of or damage to the institutions referred to in Article 3 d of the Statute constitutes grave breaches of international law when the destruction or damage is sufficiently serious to constitute desecration The Chamber considers that the seriousness of the crime of destruction of or damage to institutions dedicated to religion must be ascertained on a case-by-case basis and take much greater account of the spiritual value of the damaged or destroyed property than the material extent of the damage or destruction 64 The Chamber finds that the offence of destruction of or damage to institutions dedicated to religion is constituted when a religious building not being used for military purposes has been wilfully damaged or destroyed Religious institutions are protected under Article 3 d of the Statute regardless of whether they are part of the cultural heritage of peoples 143 Additional Protocol I Article 53 See ICRC Commentary on Article 53 of Additional Protocol I paras 2069-2073 The Hague Convention of 1954 Art 4 145 Tadi Jurisdiction Decision para 70 Naletilić Trial Judgement para 589 146 See Tadi Jurisdiction Decision para 94 The Appeals Chamber found that for a crime to be prosecuted before the Tribunal under Article 3 of the Statute “the violation must be ‘serious’ that is to say it must constitute a breach of a Rule protecting important values and the breach must involve grave consequences for the victim ” 144 Case No IT-01-47-T 20 15 March 2006 656 21623 BIS D Criminal Responsibility within the Meaning of Article 7 3 of the Statute 1 Command Responsibility in an Internal or International Armed Conflict 65 In the pre-trial phase of this case the Chamber found that command responsibility was an integral part of customary international law at the time of the events to the extent that it applied to war crimes committed in the context of an internal or international armed conflict 147 The Appeals Chamber also subscribed to that opinion 148 2 Nature of Command Responsibility 66 The purpose behind the principles of responsible command and command responsibility is to promote compliance with the rules of international humanitarian law and to protect the people and property covered by those rules 149 As emphasised in the Commentary on Additional Protocol I the role of commanders is decisive in ensuring the proper application of the Conventions and Additional Protocol I so that a fatal gap between the undertakings entered into by Parties to the conflict and the conduct of individuals under their orders is avoided 150 By virtue of the authority vested in them commanders are qualified to exercise control over troops and the weapons they use more than anyone else they can prevent breaches by creating the appropriate frame of mind ensuring the rational use of the means of combat and by maintaining discipline 151 67 Command responsibility under Article 7 3 of the Statute is derived from the obligations of responsible command 152 Failure to fulfil those obligations results in criminal responsibility In this case the Appeals Chamber noted “The Appeals Chamber recognizes that there is a difference between the concepts of responsible command and command responsibility The difference is due to the fact that the concept of responsible command looks to the duties comprised in the idea of command whereas that of command responsibility looks at liability flowing from breach of those duties But as the foregoing shows the elements of command responsibility are derived from the elements of responsible command ”153 147 Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility paras 11 and 31 see also Customary International Humanitarian Law Vol I Rule 153 pp 559 and 560 148 Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility paras 29 and 31 149 Decision on Joint Challenge to Jurisdiction para 66 Halilovi Trial Judgement para 39 150 Commentary on Additional Protocol I para 3550 151 Halilovi Trial Judgement para 85 citing Commentary on Additional Protocol I Art 87 para 3560 152 Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility paras 22 and 23 153 Ibid para 22 Case No IT-01-47-T 21 15 March 2006 655 21623 BIS 68 In that regard the question arises as to whether a commander who has failed in his obligation to ensure that his troops respect international humanitarian law is held criminally responsible for his own omissions or rather for the crimes resulting from them The question arises in particular in this case since the Accused are alleged to have incurred responsibility solely on the basis of Article 7 3 of the Statute As such the Indictment does not allege that the Accused participated in crimes committed by their purported subordinates but that they failed in their obligation to take the necessary and reasonable measures to prevent crimes or punish the perpetrators of those crimes 69 Except for the Chamber in Halilovi Tribunal case law has never analysed the question of determining the object of command responsibility the superior’s omission or the crimes which resulted from it This is because before Halilovi the cases at this Tribunal dealt with both individual criminal responsibility under Article 7 3 and responsibility under Article 7 1 of the Statute Allegations against accused persons were based on both omission and participation in crimes 70 Some Chambers have issued rulings on the nature of command responsibility For example the Chamber in elebi i noted that “the type of individual criminal responsibility for the illegal acts of subordinates … is commonly referred to as ‘command responsibility’” 154 There the Chamber seems to indicate that a superior will be held responsible for the acts of his subordinates Nevertheless as the Chamber in Halilovi emphasised in its Judgement the Chamber in elebi i did not have to consider the matter at issue before this Chamber Instead that Chamber focused on the question of whether command responsibility was an integral part of customary international law at the time of the events and examined the conditions for applying Article 7 3 of the Statute 155 71 Accordingly the Chamber in Halilovi examined national legislation post-World War II case law the Additional Protocols to the Geneva Conventions and Tribunal case law to establish whether responsibility under Article 7 3 of the Statute is “sui generis” or responsibility for the crimes of subordinates 156 That examination shows that post-World War II case law diverges on the issue 157 Similarly the Additional Protocols to the Geneva Conventions make no determination as to the nature of command responsibility 158 154 elebi i Trial Judgement para 331 emphasis added elebi i Trial Judgement para 333 ff Halilovi Trial Judgement para 53 footnote 125 156 Halilovi Trial Judgement para 42 ff 157 Ibid para 48 158 Ibid para 49 155 Case No IT-01-47-T 22 15 March 2006 654 21623 BIS 72 The analysis by the Chamber in Halilovi shows that most Chambers of this Tribunal have determined that a superior is responsible for the acts of his subordinates under Article 7 3 of the Statute There are however a few exceptions 159 The Chamber in Aleksovski made a distinction between individual responsibility under Articles 7 1 and 7 3 of the Statute “The doctrine of superior responsibility makes a superior responsible not for his acts sanctioned by Article 7 1 of the Statute but for his failure to act A superior is held responsible for the acts of his subordinates if he did not prevent the perpetration of the crimes of his subordinates or punish them for the crimes ”160 73 Similarly the Appeals Chamber in Krnojelac found “It cannot be overemphasised that where superior responsibility is concerned an accused is not charged with the crimes of his subordinates but with his failure to carry out his duty as a superior to exercise control ”161 74 The Halilovi Chamber found that command responsibility under Article 7 3 of the Statute is responsibility for an omission According to that Chamber the commander is responsible for failing to prevent and punish crimes committed by his subordinates “The Chamber finds that under Article 7 3 command responsibility is responsibility for an omission The commander is responsible for the failure to perform an act required by international law This omission is culpable because international law imposes an affirmative duty on superiors to prevent and punish crimes committed by their subordinates Thus “for the acts of his subordinates” as generally referred to in the jurisprudence of the Tribunal does not mean that the commander shares the same responsibility as the subordinates who committed the crimes but rather that because of the crimes committed by his subordinates the commander should bear responsibility for his failure to act The imposition of responsibility upon a commander for breach of his duty is to be weighed against the crimes of his subordinates a commander is responsible not as though he had committed the crime himself but his responsibility is considered in proportion to the gravity of the offences committed The Chamber considers that this is still in keeping with the logic of the weight which international humanitarian law places on protection values ”162 75 The Chamber subscribes to the findings of the Halilovi Chamber Since command responsibility under Article 7 3 of the Statute is the corollary of a commander’s obligation to act that responsibility is responsibility for an omission to prevent or punish crimes committed by his 159 Ibid para 53 Aleksovski Trial Judgement para 67 footnotes omitted 161 Krnojelac Appeal Judgement para 171 162 Halilovi Trial Judgement para 54 footnotes omitted 160 Case No IT-01-47-T 23 15 March 2006 653 21623 BIS subordinates The responsibility is “sui generis” distinct from that defined in Article 7 1 of the Statute 3 Elements of Article 7 3 of the Statute a Superior-Subordinate Relationship i Effective Control 76 Application of command responsibility under Article 7 3 of the Statute presupposes that the Accused was the superior of the perpetrators of the crime at the time it was committed i e that a superior-subordinate relationship existed In that regard the Appeals Chamber in elebi i underscored the need to demonstrate that the Accused by virtue of his position in the formal or informal hierarchy is senior to the perpetrator of the crime 163 77 Tribunal case law has consistently held that a superior-subordinate relationship exists under Article 7 3 of the Statute when a superior exercises effective control over his subordinates that is when he has the material ability to prevent or punish their acts 164 As the Chamber held in elebi i “Accordingly it is the Chamber’s view that in order for the principle of superior responsibility to be applicable it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law in the sense of having the material ability to prevent and punish the commission of these offences ”165 78 The formal title of commander is neither required nor sufficient to entail superior responsibility Responsibility under Article 7 3 of the Statute may derive from a person’s de facto as well as de jure position as commander so long as he has the material ability to prevent or punish “ … it is the Chamber’s opinion that a position of command is indeed a necessary precondition for the imposition of command responsibility However this statement must be qualified by the recognition that the existence of such a position cannot be determined by reference to formal status alone Instead the factor that determines liability for this type of criminal responsibility is the actual possession or non-possession of powers of control over the actions of subordinates 163 elebi i Appeal Judgement para 303 see also elebi i Trial Judgement para 647 which noted “The law does not know of a universal superior without a corresponding subordinate The doctrine of command responsibility is clearly articulated and anchored on the relationship between superior and subordinate and the responsibility of the commander for actions of members of his troops It is a species of vicarious responsibility through which military discipline is regulated and ensured This is why a subordinate unit of the superior or commander is a sine qua non for superior responsibility ” 164 elebi i Trial Judgement paras 377 and 378 see also elebi i Appeal Judgement paras 197 and 256 Bla ki Appeal Judgement para 67 Halilovi Trial Judgement para 58 footnotes omitted Case No IT-01-47-T 24 15 March 2006 652 21623 BIS Accordingly formal designation as a commander should not be considered to be a necessary prerequisite for command responsibility to attach as such responsibility may be imposed by virtue of a person’s de facto as well as de jure position as a commander ”166 79 In elebi i the Appeals Chamber found that a showing of effective control is required in cases involving both de jure and de facto superiors 167 In that regard it should be noted that the Appeals Chamber in elebi i starts with the assumption that the official position of commander comes with effective control “In general the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced ”168 ii Insufficiency of Substantial Influence 80 Since command responsibility is predicated on a superior’s power to control the acts of his subordinates a superior may only be held criminally responsible if he has the necessary powers of control i e if he exercises effective control over his subordinates The simple exercise of powers of influence over subordinates does not suffice The elebi i Appeals Chamber held “It is clear however that substantial influence as a means of control in any sense which falls short of the possession of effective control over subordinates which requires the possession of material abilities to prevent subordinate offences or to punish subordinate offenders lacks sufficient support in State practice and judicial decisions ”169 81 It is fitting to recall here the distinction the elebi i Appeals Chamber made between commanders in occupied and unoccupied territory 170 While the authority of a commander in occupied territory is territorial the authority of one in unoccupied territory is limited to the soldiers under his command It follows that the duties of a commander in occupied territory are broader than those of commanders in general While a commander in occupied territory may incur responsibility by virtue of his substantial influence it must be kept in mind that the same does not hold for a 165 elebi i Trial Judgement para 378 elebi i Trial Judgement para 370 167 elebi i Appeal Judgement para 196 168 elebi i Appeal Judgement para 197 169 elebi i Appeal Judgement para 266 170 elebi i Appeal Judgement paras 258 and 267 166 Case No IT-01-47-T 25 15 March 2006 651 21623 BIS commander in unoccupied territory Similarly Tribunal case law does not hold a commander in unoccupied territory responsible for crimes committed in his area of responsibility 171 iii Indicators of Effective Control 82 According to Tribunal case law “the indicators of effective control are more a matter of evidence than of substantive law and those indicators are limited to showing that the accused had the power to prevent punish or initiate measures leading to proceedings against the alleged perpetrators where appropriate ”172 83 Tribunal case law has identified several elements which make it possible to establish whether there is effective control including the official position of an accused even if “actual authority however will not be determined by looking at formal positions only ”173 the power to give orders and have them executed 174 the conduct of combat operations involving the forces in question 175 the authority to apply disciplinary measures 176 the authority to promote or remove soldiers 177 and the participation of the Accused in negotiations regarding the troops in question 178 84 A few observations are in order regarding the cooperation of troops in battle who de jure fall under different chains of command The question arises as to the extent commanders of different units engaged in combat may be held criminally responsible for the acts of soldiers not under their de jure command The Chamber considers that mere participation in joint combat operations is not sufficient to find that commanders of different units exercise effective control over all the participants in a battle Although such cooperation might be an indicator of effective control it is appropriate to determine on a case-by-case basis what authority an accused commander actually had over the troops in question 85 Finally it is appropriate to discuss whether there can be effective control in the case where a commander cannot prevent a purported subordinate from committing a crime other than by the use of force The Defence for Had ihasanovi submits that in such cases the commander does not exercise effective control without however providing reasons for that argument 179 171 Kordi and erkez Appeal Judgement paras 842-849 which require an element of effective control to hold an Accused criminally responsible 172 Bla ki Appeal Judgement para 69 footnotes omitted 173 Kordi and erkez Trial Judgement para 418 174 Kordi and erkez Trial Judgement para 421 Strugar Trial Judgement paras 394-396 406 and 408 175 Strugar Trial Judgement para 394 176 elebi i Trial Judgement para 767 Strugar Trial Judgement paras 406 and 408 177 elebi i Trial Judgement para 767 Strugar Trial Judgement paras 404 411 and 413 178 Strugar Trial Judgement para 398 179 Had ihasanovi Defence Final Brief para 1170 Case No IT-01-47-T 26 15 March 2006 650 21623 BIS 86 That issue is particularly important in this case in the context of a de jure superior- subordinate relationship The Chamber recalls that by virtue of his official position it is assumed that a commander exercises effective control The Chamber considers that the assumption is not automatically refuted in cases where commanders are compelled to use force to control their troops Instead such matters should be looked at on a case-by-case basis If a commander has the material ability to use force to enforce international humanitarian law he may be compelled to do so if the circumstances leave him no other choice 87 The Chamber recalls that for an army to even function troops must obey given orders As such a commander must ensure compliance with his orders He will not hesitate to use force against his own troops in cases where they refuse to obey a combat order In times of war and in exceptional circumstances a commander may find himself in a position where he must order the execution of soldiers who refuse to obey his orders or who desert The obligation to ensure compliance with orders is not limited to combat orders but encompasses all orders given by a commander to his troops including those intended to ensure compliance with international humanitarian law 88 The Chamber is aware of the fact that a commander with only a limited number of soldiers and materials may find it difficult to use force against his own troops He may lack sufficient troops to discipline soldiers who have breached the rules of international humanitarian law That issue must be assessed on a case-by-case basis and may lead to a determination that a commander does not have the material ability to enforce international humanitarian law 89 Finally the Chamber will make a few remarks regarding the case where a commander intends to use undisciplined soldiers to defend the front lines In that regard it is important to recall that commanders have a fundamental role in ensuring that international humanitarian law is correctly enforced Commanders by virtue of their authority are qualified to exercise control over their troops and the weapons they use thus ensuring that persons and objects afforded protection by international humanitarian law are in fact protected A commander who knows or has reason to know that the troops he uses in combat have committed acts prohibited by international humanitarian law runs the risk of later being held criminally responsible for crimes committed by those troops If a commander uses soldiers while knowing or having reason to know that there is a serious risk they will not obey his orders especially orders to comply with international humanitarian law he may not claim to have lacked effective control over them in order to avoid his responsibility under Article 7 3 of the Statute A commander may not exonerate himself by Case No IT-01-47-T 27 15 March 2006 649 21623 BIS claiming to lack effective control if his conduct before the crimes were committed demonstrates that he accepted the possibility that subsequently he might not be able to control his troops iv Identity of Subordinates 90 The Defence submits that the identity of the alleged perpetrators is of crucial importance when establishing whether a superior-subordinate relationship existed between the perpetrator and the commander 180 The Chamber recalls the observation made by the Chamber in Krnojelac “if the Prosecution is unable to identify those directly participating in such events by name it will be sufficient for it to identify them at least by reference to their ‘category’ or their official position as a group” 181 Accordingly to establish the existence of a superior-subordinate relationship the Chamber finds it sufficient to specify to which group the perpetrators belonged and to show that the Accused exercised effective control over that group b Mental Element the Superior Knew or Had Reason to Know 91 The mental element required by Article 7 3 of the Statute has been established when the superior knew or had reason to know that his subordinates were about to commit a crime or had done so 92 The theory of command responsibility does not impose strict responsibility on a superior who failed to prevent his subordinates from committing crimes or to punish them for having done so The Prosecution must instead demonstrate that the superior actually knew that his subordinates had committed a crime or were about to do so or that he had in his possession information of a nature which would at least put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed 182 i Actual Knowledge 93 The Trial Chamber in Kordi and erkez defined actual knowledge as “the awareness that the relevant crimes were committed or were about to be committed” 183 180 Had ihasanovi Defence Final Brief para 1171 Kubura Defence Final Brief para 8 The Prosecutor v Milorad Krnojelac Case no IT-97-25-PT Decision on the Defence Preliminary Motion on the Form of the Indictment 24 February 1999 para 46 see also Bla ki Appeal Judgement para 217 citing paragraphs 19 and 46 of that Decision 182 elebi i Appeal Judgement paras 223 citing para 383 of the elebi i Trial Judgement and 241 183 Kordi and erkez Trial Judgement para 427 181 Case No IT-01-47-T 28 15 March 2006 648 21623 BIS 94 Actual knowledge may be established through direct or circumstantial evidence but cannot be presumed 184 To determine whether the superior in fact had actual knowledge of the acts of his subordinates the Chamber may take into account factors such as the number type and scope of unlawful acts the time during which they occurred the number and type of troops involved the logistics involved if any the geographical location of the acts their widespread occurrence the tactical tempo of the operations the modus operandi of similar unlawful acts the officers and staff involved and the location of the commander at the time the acts were committed 185 As for the factors of time and place the Trial Chamber in Aleksovski held that the more physically distant the commission of the acts the more difficult it will be in the absence of other indicia to establish that the superior had knowledge of them Conversely the commission of a crime in the immediate proximity of the place where the superior ordinarily carried out his duties would suffice to establish a significant indicium that he had knowledge of the crime a fortiori if the crimes were repeatedly committed 186 The Appeals Chamber in Bla ki however noted that the proximity of the scene of the crime to a commander’s headquarters cannot be the determining factor in establishing a superior’s command responsibility 187 Additionally it may be easier to prove the actual knowledge of a military commander if a priori he is part of an organised structure with established reporting and monitoring systems The standard of proof will be higher however for a commander exercising de facto authority over a more informal military structure 188 ii Mental Element Had Reason to Know a Applicable Legal Criteria 95 The Appeals Chamber in elebi i as well as subsequent case law have accepted the elebi i Trial Chamber’s interpretation of “had reason to know” that is a superior may be held criminally responsible through the principles of superior responsibility only if specific information was available to him which would have put him on notice of offences committed or about be committed by his subordinates 189 It is clear from the Appeals Chamber’s finding that the mental element for “had reason to know” is determined only by reference to the information in fact 184 elebi i Trial Judgement para 386 See also Krnojelac Trial Judgement para 94 Kordi and erkez Trial Judgement para 427 Br anin Trial Judgement para 278 Strugar Trial Judgement para 368 185 elebi i Trial Judgement para 386 citing the final report of the United Nations Commission of Experts p 17 See also Bla ki Trial Judgement para 307 Kordi and erkez Trial Judgement para 427 Strugar Trial Judgement para 368 186 Aleksovski Trial Judgement para 80 187 Bla ki Appeal Judgement footnote 1284 188 Kordi and erkez Trial Judgement para 428 Case No IT-01-47-T 29 15 March 2006 647 21623 BIS available to the superior190 and that it is sufficient for the information to be of a nature which at least would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were or were about to be committed 191 96 By adopting that interpretation the Appeals Chamber rejected the stricter criteria of “should have known” and held that a superior cannot be held criminally responsible for neglecting to acquire knowledge of the acts of subordinates but only for failing to take the necessary and reasonable measures to prevent or to punish 192 The Appeals Chamber in Bla ki noted that a superior may be held responsible for deliberately refraining from finding out but not for negligently failing to find out 193 b Scope of Knowledge 97 The Appeals Chamber in elebi i considered that the mens rea requirement under Article 7 3 is sufficiently satisfied when it is shown that a superior had some general information of a nature to put him on notice of possible unlawful acts by his subordinates The information in the superior’s possession need not necessarily be of a nature such that it alone establishes that crimes took place Additionally the information need not contain specific details about the unlawful acts which had been or were about to be committed 194 98 While the Appeals Chamber in Krnojelac concurred with that opinion it further qualified its position considering that it could not be inferred from this case law that where one offence has a material element in common with another but the second offence contains an additional element not present in the first it suffices that the superior has alarming information regarding the first offence in order to be held responsible for the second on the basis of Article 7 3 of the Statute 195 189 elebi i Appeal Judgement para 241 Bla ki Appeal Judgement paras 62-64 Kordi and erkez Trial Judgement para 437 Krnojelac Trial Judgement para 94 Br anin Trial Judgement para 278 Strugar Trial Judgement para 369 190 elebi i Appeal Judgement paras 238 and 239 Strugar Trial Judgement para 369 191 elebi i Appeal Judgement paras 223 citing para 383 of the elebi i Trial Judgement and 241 192 elebi i Appeal Judgement para 226 193 Bla ki Appeal Judgement para 406 See also elebi i Trial Judgement para 387 The Chamber notes that the Appeals Chamber affirmed that criminal negligence may not constitute a basis for command responsibility Bla ki Appeal Judgement para 63 citing Bagilishema Appeal Judgement paras 34-35 194 elebi i Appeal Judgement para 238 See also Krnojelac Appeal Judgement paras 59 154-155 169 Kordi and erkez Trial Judgement paras 436-437 Strugar Trial Judgement paras 369-370 195 Krnojelac Appeal Judgement para 155 The Appeals Chamber gave the example of cruel treatment and torture which despite having a material element in common with cruel treatment requires an additional material element in respect of cruel treatment Case No IT-01-47-T 30 15 March 2006 646 21623 BIS 99 According to the ICRC Commentary on Additional Protocol I superiors may not claim to ignore information such as reports addressed to them the tactical situation the level of training and instruction of subordinate officers and their troops and their character traits 196 The ICRC Commentary on Additional Protocol I also specifies that such information available to a superior may enable him to conclude either that breaches have been or are about to be committed and gives as an example information such as the troops’ lack of any instruction on the Geneva Conventions and Additional Protocol I 197 100 The case law of this Tribunal has identified examples of information of a general nature which informs a superior that his subordinates are about to commit a crime The Appeals Chamber in elebi i thus found that a military commander has the required knowledge when he has been informed that some of the soldiers under his command have a violent or unstable character or were drinking prior to being sent on a mission 198 The Chamber in Kordi and erkez includes information such as the level of training and the character traits or habits of the subordinates 199 101 The Appeals Chamber in elebi i noted that the mental element required by Article 7 3 of the Statute must be evaluated in the specific circumstances of each case taking into account the specific situation of the superior concerned at the time in question 200 In particular as indicated in the ICRC Commentary on Additional Protocol I that evaluation must distinguish between the time the information was available to the superior and the time the breach was committed 201 c Prior Knowledge 102 The Chamber will now examine whether a superior’s knowledge of an offence previously committed by his subordinates is sufficient to alert him that another offence is about to be committed 196 ICRC Commentary on Additional Protocol I para 3545 referring to Article 86 of Additional Protocol I See elebi i Appeal Judgement para 238 citing that passage 197 ICRC Commentary on Additional Protocol I para 3545 referring to Article 86 of Additional Protocol I 198 elebi i Appeal Judgement para 238 199 Kordi and erkez Trial Judgement para 437 According to the criteria identified by the elebi i Appeals Chamber the fact that a superior takes general preventive measures such as giving orders to comply with international humanitarian law is not of a nature to demonstrate that a superior knew or had reason to know that his subordinates were about to commit crimes The Appeals Chamber in Bla ki found that such orders are “not relevant to the issue of his liability if any under Article 7 3 of the Statute unless the reference to them is premised on the fact that he knew or had reason to know that his subordinates were about to commit crimes subject to the jurisdiction of the International Tribunal” Bla ki Appeal Judgement para 486 200 elebi i Appeal Judgement para 239 See also Krnojelac Appeal Judgement para 156 201 ICRC Commentary on Additional Protocol I para 3545 referring to Article 86 of Additional Protocol I Case No IT-01-47-T 31 15 March 2006 645 21623 BIS 103 The Prosecution submits that the prior commission of criminal acts is per se evidence of the existence of “an unacceptable degree of risk” triggering a duty to take all the necessary and reasonable steps to prevent the recurrence of similar crimes 202 The Prosecution further submits that the Appeal Judgement in Krnojelac supports the argument that when a superior has knowledge that crimes have already been committed by his subordinates he is put on notice of a risk that crimes will be committed in the future and has a duty to intervene to prevent them 203 The Prosecution also refers to its submissions in its Appeal Brief in the Strugar case 204 104 In its Closing Arguments the Defence for the Accused Had ihasanovi opposed the Prosecution’s view that a superior has reasons to know from the moment he is put on notice of the simple risk that unlawful acts might be committed 205 Relying on the Judgement in Strugar the Defence for Had ihasanovi submitted that Article 7 3 does not require that a commander had to have knowledge of the possibility an offence might be committed by his subordinates but requires that the information available to him enable him to conclude that there is a clear prospect an offence might be committed 206 105 The Defence for the Accused Kubura did not make any submissions on this specific issue 106 The Chamber notes that the Prosecution acknowledges an initial limitation on the scope of prior knowledge namely that the alleged criminal acts must be similar 207 107 The Prosecution however does not deal with the issue of whether a superior’s prior knowledge of crimes committed by his subordinates gives him reason to know that the same subordinates are preparing to commit similar crimes or if that prior knowledge extends to similar criminal acts by all of his subordinates By failing to raise the issue the Prosecution implicitly accepts that a superior’s prior knowledge of crimes committed by a given group of subordinates is sufficient to give him reason to know that all of his subordinates are about to commit crimes of the same nature 108 In its analysis in Krnojelac the Appeals Chamber endeavoured to ascertain whether the Accused Krnojelac knew or had reason to know that his subordinates had committed or were about to commit beatings for one of the purposes mentioned in the prohibition against torture 208 202 Prosecution Final Brief para 43 Ibid 204 The Prosecutor v Pavle Strugar Case no IT-01-42-A Prosecution Appeal Brief 17 May 2005 paras 2 49-2 69 205 Had ihasanovi Defence Closing Arguments T F p 19176 206 Ibid T F p 19178 207 Prosecution Final Brief para 43 203 Case No IT-01-47-T 32 15 March 2006 644 21623 BIS 109 The Appeals Chamber first examined the agreed facts admitted by the Trial Chamber relating to the context in which beatings at the KP Dom Penal and Correctional Facility in Fo a were committed and to the widespread nature of their commission 209 The Appeals Chamber found that Krnojelac admitted to knowing that non-Serbs were being detained precisely because they were non-Serbs to having knowledge about the detention conditions under which the non-Serbian prisoners were being held and to knowing that the Muslim detainees were being beaten and generally mistreated 210 The Appeals Chamber then examined the agreed facts admitted by the Trial Chamber relating to Krnojelac’s authority over his subordinates who had committed the beatings 211 The Appeals Chamber found that Krnojelac supervised the KP Dom in Fo a that he had jurisdiction over the detainees there and that he was there practically every day 212 Finally the Appeals Chamber examined the agreed facts admitted by the Trial Chamber relating to the frequency of the interrogations and to the punishments inflicted upon the detainees 213 It held that the interrogations were conducted frequently and that punishment was inflicted as a common practice 214 Moreover the Appeals Chamber found that Krnojelac witnessed the beating of a detainee Ekrem Zekovi on 8 July 1993 ostensibly inflicted for the prohibited purpose of punishing him for his failed escape and that Krnojelac was aware that punishment was being inflicted because of Ekrem Zekovi ’s escape 215 110 After having come to those conclusions the Appeals Chamber held that “taken as a whole these facts constitute a sufficiently alarming body of information to put him on notice of the risk of torture” 216 The Appeals Chamber however seems to consider Ekrem Zekovi ’s beating which Krnojelac witnessed on 8 July 1993 and which was ostensibly inflicted for the prohibited purpose of punishing him for his failed escape as the temporal element triggering Krnojelac’s duty to act The Appeals Chamber held that by witnessing that beating on 8 July 1993 the Accused incurred responsibility for the count of torture pursuant to Article 7 3 of the Statute for having “failed to take the necessary and reasonable measures to prevent the acts of torture committed subsequent to 208 The Trial Chamber in Strugar also examined this issue in its factual analysis but did not consider the criteria set out in the Krnojelac Appeal Judgement Strugar Trial Judgement paras 415-418 The Appeals Chamber in Bla ki was seized of this matter but its findings do not make it possible to determine the weight it attached thereto in its reasons Bla ki Appeal Judgement paras 488-490 209 Krnojelac Appeal Judgement para 163 210 Ibid para 166 211 Ibid para 164 212 Ibid para 167 213 Ibid para 165 214 Ibid para 168 215 Ibid paras 169-170 216 Ibid para 166 emphasis added Case No IT-01-47-T 33 15 March 2006 643 21623 BIS those inflicted on Ekrem Zekovi and for having failed to investigate the acts of torture committed prior to those inflicted on Ekrem Zekovi ” 217 The Chamber will examine the mental element of the duty to intervene in order to prevent the recurrence of unlawful acts in the next chapter of this Judgement which discusses necessary and reasonable measures 218 111 The conclusions of the Appeals Chamber call for several observations 112 First considering the facts in their entirety namely the external context and the internal workings of the Fo a detention centre it is clear that the acts of torture inflicted upon Ekrem Zekovi could not have been isolated events but were rather the result of the detention conditions of which Krnojelac had knowledge Considering the atmosphere of terror which reigned at the KP Dom in Fo a that act of torture put the Accused on notice that it must have been preceded by other acts of the same nature As such Krnojelac’s prior knowledge of certain criminal acts derived from a combination of circumstances which made it impossible for those acts to have been isolated events 113 The Appeals Chamber then found that the acts of torture inflicted upon Ekrem Zekovi taken in the aforementioned context were of a nature to alert the Accused Krnojelac that other acts of torture were being committed Stated otherwise it was not sufficient that the Accused had alarming information about beatings committed by his subordinates he had to have information to alert him of beatings being inflicted for one of the prohibited purposes of torture 219 By drawing that conclusion it is clear that the Appeals Chamber limited the Accused Krnojelac’s prior knowledge to similar criminal acts A contrario it could be argued that since the crime of torture subsumes the lesser offence of cruel treatment 220 if a superior has alarming information that his subordinates are committing acts of torture this would be sufficient to alert him of the risk that they might commit acts of cruel treatment 114 Finally it is clear that the Accused Krnojelac’s prior knowledge of the crimes committed by the guards at the KP Dom in Fo a gave him reason to know that members of that same group of subordinates namely the guards at the KP Dom in Fo a were about to commit crimes of the same nature The reasons underpinning that limitation to the same group are obvious First the commission of the alleged criminal acts occurred in the same geographical setting that is the Fo a detention centre Second that group of subordinates was under the authority and supervision of one 217 Ibid para 172 see also paras 169 and 170 The principles identified in the Appeals Chamber Judgement and their implications in respect of a superior’s duty to take the necessary and reasonable measures to prevent crimes or punish the perpetrators will be discussed in the part of this Judgement dealing with the law applicable to measures 218 See infra paras 133 and 166 219 Ibid para 155 Case No IT-01-47-T 34 15 March 2006 642 21623 BIS same prison warden In view of those circumstances it follows that the guards at the KP Dom in Fo a formed one identifiable group of subordinates 115 The Chamber notes that the Prosecution did not take this aspect into account On the contrary the Prosecution’s position implicitly seeks to extend a commander’s prior knowledge to criminal acts of the same nature committed by all of his subordinates regardless of whether they belong to the same group In this case that would amount to saying that since the Accused Had ihasanovi had knowledge of the existence of previous cases of a brigade’s criminal conduct this would put him on notice of the risk that other brigades were about to commit similar criminal acts To adopt such a position misconstrues the reasoning of the Krnojelac Appeals Chamber in that it is silent about taking into account one same group of subordinates and the geographical aspects related to that group for example the location of a subordinate unit which fall within the scope of Krnojelac’s prior knowledge 116 Moreover by attempting to extend the Accused Had ihasanovi ’s prior knowledge to the crimes committed by all his subordinates regardless of their positions in the 3rd Corps zone of responsibility the Prosecution is attempting to reintroduce a criterion already dismissed by the Appeals Chamber in elebi i namely a superior’s “general duty to know” the breach of which would have been sufficient to entail his responsibility for crimes committed by his subordinates 221 In that Judgement the Appeals Chamber in fact determined that customary law did not impose such obligations on military commanders 222 Indeed that position has since been reaffirmed 223 The Prosecution’s position is therefore discordant with the case law and in addition the Prosecution failed to offer any arguments to support it 117 Accordingly the Chamber is of the view that in this case the “identifiable group of subordinates” must be interpreted given the structure and operations of the 3rd Corps as a brigade or brigade battalion assuming that a battalion has a geographical location different from that of the other units of the brigade to which it belongs Consequently the Chamber dismisses the Prosecution’s argument in this case which seeks to extend the reasoning elaborated in the Krnojelac Appeal Judgement to cover all the subordinates of the Accused regardless of whether they belong to the same group 220 Ibid para 155 elebi i Appeal Judgement para 230 222 Ibid paras 228-240 223 Bla ki Appeal Judgement paras 61-62 221 Case No IT-01-47-T 35 15 March 2006 641 21623 BIS 118 As a result the Chamber considers that a superior’s prior knowledge must be interpreted narrowly in that it derives from a situation of recurrent criminal acts and from circumstances where those acts could not be committed in isolation by a single identifiable group of subordinates 119 It should be noted that the theory of prior knowledge is of little interest if as the Trial Chamber in Strugar held 224 the threshold of a superior’s duty to act is considered to have been met only when a crime is already in the process of being committed For the reasons set out in this part of the Judgement the Chamber disagrees with that position and accordingly considers that the position of the Defence for Had ihasanovi as expressed in its Closing Arguments lacks foundation 120 The implications of prior knowledge as circumscribed above relating to a superior’s duty to take the necessary and reasonable measures to prevent crimes or punish the perpetrators will be discussed in the next part of this Judgement c Necessary and Reasonable Measures 121 The failure in the duty to prevent or punish which triggers individual command responsibility pursuant to Article 7 3 of the Statute presupposes that the superior exercises effective control over his subordinates 225 Similarly a superior’s knowledge that his subordinates were preparing to commit crimes or had done so is another element underpinning the duty to take measures 226 i Material Ability of a Superior to Act 122 Regarding the obligation to prevent or punish the case law of the Tribunals first notes that a superior cannot be obliged to perform the impossible 227 To determine whether a superior has discharged his duty the case law has sought to assess whether the superior took the measures in his powers and to define which measures must be considered to be within the superior’s powers in that sense 228 In elebi i the Chamber concluded that a superior should be held responsible for failing to take the measures within his material possibility 229 In certain cases the superior need not possess 224 Strugar Trial Judgement paras 415-418 See Strugar Trial Judgement para 526 Halilovi Trial Judgement para 73 Bla ki Trial Judgement para 335 226 Kajelijeli Trial Judgement para 777 citing Semanza Trial Judgement para 405 Bagilishema Trial Judgement para 46 and elebi i Trial Judgement paras 384-386 227 elebi i Trial Judgement para 395 228 Ibid para 395 229 Ibid para 395 225 Case No IT-01-47-T 36 15 March 2006 640 21623 BIS the formal legal competence to take the necessary measures if it is proved that he has the material ability to act 230 123 The case law of the International Tribunals has consistently held that the assessment of measures taken in view of the material ability of the superior must be evaluated on a case-by-case basis In Aleksovski for example the Trial Chamber applied the concept of a superior’s “material possibility” to act and held that “such a material possibility must not be considered abstractly but must be evaluated on a case-by-case basis depending on the circumstances” 231 124 The Trial Chamber in Čelebići also noted that the evaluation of the measures taken by a superior to determine whether he has met his duty is inextricably linked to the facts of each particular situation any general standard would not be meaningful 232 Accordingly the evaluation of measures taken is more a matter of evidence than of substantive law 233 ii Two Distinct Duties Prevent and Punish 125 Tribunal case law has clearly established that Article 7 3 of the Statute distinguishes between two different duties of a superior The Trial Chamber in Strugar recently reaffirmed this distinction unambiguously by holding that Article 7 3 does not provide a superior with two alternative options but contains two distinct legal obligations 1 to prevent the commission of the crime and 2 to punish the perpetrators The duty to prevent arises for a superior from the moment he acquires knowledge or has reasonable grounds to suspect that a crime is being or is about to be committed while the duty to punish arises after the commission of the crime 234 126 As for the duty to prevent a superior clearly has a limited time to perform it Once the crime has been committed by his subordinates it is too late and the superior has failed in his duty The duty to punish the subordinates arises after the crimes have already been committed In no case may the superior “make up” for the failure to act by punishing the subordinates afterwards 235 Accordingly if it is established that a superior did nothing to prevent his subordinates from committing a crime an examination of the measures taken to punish them serves no purpose He has failed in his duty to prevent and therefore entails responsibility 236 230 Strugar Trial Judgement para 73 citing elebi i Trial Judgement para 395 Aleksovski Trial Judgement para 81 see also Krsti Appeal Judgement footnote 250 232 elebi i Trial Judgement para 394 233 Strugar Trial Judgement para 73 citing Bla ki Appeal Judgement para 72 234 Strugar Trial Judgement para 373 235 Bla ki Trial Judgement para 336 236 Kayishema and Ruzindana Trial Judgement para 515 231 Case No IT-01-47-T 37 15 March 2006 639 21623 BIS 127 The case law makes an unequivocal distinction between the duty to prevent and the duty to punish the first arises prior to the commission of the criminal offence by the subordinate and the second after Nevertheless the duty to “suppress” is recognised by the case law and seems to be included in the duty to prevent even though it arises while the unlawful act is in the process of being committed The duty to suppress should be considered part of the superior’s duty to prevent as its aim is to prevent further unlawful acts 237 In its Judgement in Strugar the Trial Chamber refers to the duty to suppress by stating that “the Accused did not take necessary and reasonable measures to ensure at least that the unlawful shelling of the Old Town be stopped ”238 Similarly the Trial Chamber in Kajelijeli found that “the Accused failed to prevent or stop the killings of early to mid April 1994 in Mukingo Nkli and Kigombe communes ”239 iii Failure to Punish and Recurrence of Unlawful Acts 128 While the duty to prevent is distinct from the duty to punish there are situations where both duties have a causal link and one may be the consequence of the other This reasoning appears in the Prosecution’s written submissions on the issue of prior knowledge 240 which deals with both the definition of a superior’s knowledge and once that knowledge has been established the superior’s duty to intervene 129 According to the Prosecution the prior commission of criminal acts is per se evidence of the existence of an “unacceptable degree of risk” which triggers a superior’s duty to take all the necessary and reasonable steps to prevent the recurrence of similar crimes 241 The Prosecution refers to its Appeal Brief in Strugar where it provides a more comprehensive explanation of its reasoning which relies on post-World War II case law and the Krnojelac and Bla ki Appeal Judgements which it submits support this argument 242 In its Closing Arguments the Defence for Had ihasanovi contests the Prosecution position which seeks to establish command responsibility from the moment the superior has been alerted of the risk that unlawful acts might be committed 243 Citing the Strugar Judgement the Defence for Had ihasanovi considers that a superior may incur 237 See Halilovi Trial Judgement para 87 footnotes omitted Strugar Trial Judgement para 446 emphasis added see also Kajelijeli Trial Judgement para 740 The duty to suppress implicitly part of a superior’s duty is mentioned in the ICRC Commentary on Additional Protocol I regarding Articles 86 and 87 thereof Furthermore the commentary addresses the following issue “In trials following the Second World War Allied tribunals had indeed convicted several persons in cases where they had not intervened to prevent a breach or to put a stop to it” emphasis added See ICRC Commentary on Additional Protocol I Article 86 para 3525 239 Kajelijeli Trial Judgement para 740 emphasis added 240 Prosecution Final Brief para 43 see supra para 102 ff 241 Prosecution Final Brief para 43 The Prosecution refers to its Appeal Brief in the Strugar case where it gives a more comprehensive explanation of its reasoning The Prosecutor v Pavle Strugar Case no IT-01-42-A Prosecution Appeal Brief 17 May 2005 paras 2 49-2 69 242 The Prosecutor v Pavle Strugar Case no IT-01-42-A Prosecution Appeal Brief 17 May 2005 paras 2 49-2 69 243 Had ihasanovi Defence Closing Arguments English transcript of proceedings “T E ” p 19176 238 Case No IT-01-47-T 38 15 March 2006 638 21623 BIS responsibility only when he has specific information that breaches have been committed by one of his subordinates 244 The Defence for Kubura did not make submissions on this specific issue 130 The applicable law on measures was touched on only marginally in the elebi i Judgement in a passage dealing with a causal link and in the Halilovi Judgement 245 131 This issue is closely linked to knowledge and to the definition of a superior’s duty to “know or have reason to know” as explained above 246 For the purposes of clarity the Chamber recalls only the conclusions of the Trial Chamber in elebi i regarding the interpretation of these terms “ … a superior can be held criminally responsible only if some specific information was in fact available to him which would provide notice of offences committed by his subordinates This information need not be such that it by itself was sufficient to compel the conclusion of the 247 existence of such crimes ” 132 In its factual assessment the Appeals Chamber in Krnojelac relied on the elebi i Trial Chamber’s conclusions regarding the knowledge of superiors who should “know or have reason to know ” to determine whether an Accused has sufficient information on the crime of torture and to ascertain whether the Accused Krnojelac had alarming information which need not necessarily be specific which would have alerted him of the risk that acts of torture might be committed by his subordinates 248 133 The Appeals Chamber in Krnojelac considered all the evidence admitted by the Trial Chamber to determine that “taken as a whole these facts constitute a sufficiently alarming body of information to put him on notice of the risk of torture” 249 Nevertheless the Appeals Chamber seems to consider the beating of Ekrem Zekovi which Krnojelac witnessed on 8 July 1993 as the temporal element triggering the responsibility of the Accused to act Moreover the Appeals Chamber held that by witnessing the beating on 8 July 1993 the Accused incurred criminal responsibility for the count of torture under Article 7 3 of the Statute for “having failed to take the necessary and reasonable measures to prevent the acts of torture committed subsequent to those 244 Ibid T E p 19177 See elebi i Trial Judgement para 400 which reads “In contrast while a causal connection between the failure of a commander to punish past crimes committed by subordinates and the commission of any such future crimes is not only possible but likely … ” see Halilovi Trial Judgement para 96 “Finally the Trial Chamber considers that punishment is an inherent part of prevention of future crimes This failure to punish on the part of a commander can only be seen by the troops to whom the preventative orders are issued as an implicit acceptance that such orders are not binding ” 246 See supra para 102 ff 247 elebi i Trial Judgement para 393 248 Krnojelac Appeal Judgement para 155 The Trial Chamber in Strugar also examined this issue but distanced itself from the criteria identified in the Krnojelac Appeal Judgement See Strugar Trial Judgement paras 416-417 and The Prosecutor v Pavle Strugar Case no IT-01-42-A Prosecution Appeal Brief 17 May 2005 para 2 19 249 Krnojelac Appeal Judgement para 166 245 Case No IT-01-47-T 39 15 March 2006 637 21623 BIS inflicted on Ekrem Zekovi … ” 250 Accordingly the knowledge of Ekrem Zekovi ’s beating entails Krnojelac’s responsibility for failing to punish those who tortured Zekovi Additionally as the Appeals Chamber did not specify which elements it considered to establish Krnojelac’s responsibility the Chamber considering the facts of this case interprets Krnojelac’s failure to act as an endorsement of those actions which resulted in subsequent acts of torture being committed The Chamber thus infers that in particular the failure to punish the acts committed against Zekovi constitutes negligence in the duty to prevent other similar acts of torture 251 Over and beyond the conclusions of the Appeals Chamber the Chamber is of the opinion that by failing to take measures to punish crimes of which he has knowledge the superior has reason to know that there is a real and reasonable risk those unlawful acts might recur 252 134 The Appeals Chamber goes further in its reasoning by determining that after that event Krnojelac is also guilty for having failed to investigate the acts of torture committed prior to those inflicted on Ekrem Zekovi and if need be punish the perpetrators 253 Accordingly the Appeals Chamber affirms that according to the circumstances of a case prior knowledge of certain facts entails the retroactive duty of a superior 135 At a later point in that Judgement the Appeals Chamber reapplies that principle to the murders committed at the KP Dom in Fo a The Appeals Chamber considered that from the moment a certain amount of information was available to Krnojelac which taken as a whole was sufficiently alarming and such as to alert him to the risk of murders being committed inside the prison he had an obligation to intervene and at the least should have carried out an investigation 254 That duty resulted from the fact that he was aware of the beatings and suspicious disappearances and that he saw the bloodstains and the bullet holes on the walls On that basis the Appeals Chamber found Krnojelac guilty for having failed to take the necessary and reasonable measures to prevent the murders committed subsequent to the disappearances of which he had knowledge and for having failed to investigate the murders committed prior to those disappearances and if need be punish the perpetrators of the murders of whom he was the superior 255 136 The aspects of the duty to prevent and punish will be examined later in the sections of the Judgement dealing with those distinct duties 250 Ibid para 172 Ibid paras 170 and 172 252 See also infra para 193 253 Ibid para 172 emphasis added 254 Ibid paras 178-179 255 Ibid para 180 251 Case No IT-01-47-T 40 15 March 2006 636 21623 BIS iv Obligations Under National Law 137 To determine measures a superior must take an examination of national law is relevant The Commentary on Additional Protocol I states that the concept of the duty to act raises the complex problem of the attribution of powers and duties which is not a matter of international law but is governed by the national law of the Parties to the Protocol 256 The Commentary on Additional Protocol I states that once national law has attributed powers the duty resulting therefrom with regard to international humanitarian law has to be interpreted in the light of treaty instruments 257 In other words the national law of a State establishes the powers and duties of civilian or military representatives of that State but international law lays down the way in which they may be exercised within the area governed by it 258 138 As such we may infer that national law provides the framework for the authority attributed to a superior but Chambers must evaluate the duty to act which stems from that authority in view of international law 259 139 In order to determine the scope of the measures a superior could take to determine his responsibility under Article 7 3 of the Statute the Tribunal’s case law has relied on the national law and or regulations of one or both of the armed forces in conflict 140 In its examination of the responsibility of the Accused as a superior the Aleksovski Trial Chamber considered the fact that the law of Bosnia and Herzegovina imposed a civic duty on all its citizens to report any unlawful acts to the judicial authorities 260 141 Similarly in the Bla ki Judgement the Trial Chamber relied on Article 60 of the HVO Rules on Military Discipline to determine that the Accused had failed in his duty to punish the actions of his subordinates 261 The Appeals Chamber in Bla ki considered this reference useful for determining that the Accused had failed to take reasonable measures 262 142 Again in Bla ki the Appeals Chamber noted that the Trial Chamber also relied on the Regulations Concerning the Application of International Law to the Armed Forces of SFRY in order to point out that a superior’s responsibility for his failure to punish is a distinct form of 256 ICRC Commentary on Additional Protocol I Article 86 para 3537 Ibid 258 Ibid 259 See Aleksovski Trial Judgement paras 135-136 260 Ibid paras 91 and 136 261 See Bla ki Trial Judgement para 488 “Nor did he take any measures to seal off the area and ensure that evidence was preserved despite being required to do so by Article 60 of the military discipline regulations ” 262 Bla ki Appeal Judgement para 414 257 Case No IT-01-47-T 41 15 March 2006 635 21623 BIS responsibility 263 The Appeals Chamber relied on those regulations to establish that commanders were required to report offences to the competent authorities 264 v Components of the Duty to Prevent 143 As set out in the Commentary on Additional Protocol I the role of a commander is decisive for the proper application of the Conventions and Additional Protocol I and to avoid a fatal gap between the undertakings entered into by parties to the conflict and the conduct of individuals under their orders 265 A superior must therefore provide structure for his subordinates to ensure they observe the rules of armed conflict and must also prevent the violation of these norms 266 144 As noted in the Halilovi Judgement a commander’s overall obligation to prevent the commission of crimes by his subordinates arises from the importance which international humanitarian law places on the prevention of violations of its norms 267 Nevertheless at the outset a distinction must be made between general measures taken by a commander to provide structure for his subordinates and those ordered to prevent specific crimes of which he has knowledge By failing to take the first the commander runs the increased risk that his subordinates will engage in unlawful acts although this will not necessarily entail his criminal responsibility Failure to take the second will result in criminal sanctions a General Measures 145 The Commentary on Additional Protocol I recalls that armed forces must be subject to an internal disciplinary system enforcing compliance with the rules of international law applicable in armed conflict commanders are responsible for carrying out this task 268 In this respect commanders have a duty to disseminate those rules and to include the study thereof in their programmes of military instruction 269 Legal advisers must be available to advise military commanders on the instruction to be given to the armed forces on the subject of the application of the Conventions and Additional Protocol I 270 The purpose of such instruction is to ensure that the 263 Ibid para 84 Bla ki Trial Judgement para 338 Bla ki Appeal Judgement paras 630 and 632 265 ICRC Commentary on Additional Protocol I para 3550 266 Decision on Joint Challenge to Jurisdiction para 66 Halilovi Trial Judgement para 81 267 Halilovi Trial Judgement para 81 268 ICRC Commentary on Additional Protocol I Article 87 para 3550 referring to Article 43 of Protocol I 269 ICRC Commentary on Additional Protocol I Article 87 para 3557 referring to Article 83 of Protocol I 270 ICRC Commentary on Additional Protocol I Article 87 para 3557 referring to Article 82 of Protocol I 264 Case No IT-01-47-T 42 15 March 2006 634 21623 BIS members of the armed forces under their command are aware of their obligations under the Conventions and Additional Protocol I 271 146 As noted by the Trial Chamber in Halilovi commanders by virtue of the authority vested in them are qualified to exercise control over troops and the weapons they use more than anyone else they can prevent breaches by creating the appropriate frame of mind ensuring the rational use of the means of combat and by maintaining discipline 272 That control a component of troop instruction may be exercised either periodically or expressly before an engagement by drawing particular attention where necessary to the sort of action to be avoided taking into account the situation or the morale of the troops 273 147 The Chamber concurs with the Trial Chamber in Halilovi as regards the general measures which were not taken and which have been raised by other Trial Chambers 274 Although international law intends to bar not only actual but also potential breaches the fact remains that a commander’s failure to take general preventive measures does not entail the same consequences for his criminal responsibility as the failure to act in a specific circumstance where a crime of which he has knowledge is about to be committed 148 The Commentary on Additional Protocol I is only marginally helpful in this regard although it does indicate that the protocol also condemns commanders for their failure to act in cases where there are grave breaches as well as in cases where the breaches are not grave but notes that in the case where the breaches are not grave the sanctions can only be disciplinary 275 The distinction between breaches that are grave and breaches that are not grave is not clearly set out 149 Tribunal case law has also distinguished between the failure to take “general” measures to control troops and those measures directly related to the commission of a crime The Appeals Chamber in elebi i held that “although a commander’s failure to remain apprised of his subordinates’ action or to set up a monitoring system may constitute a neglect of duty which results in liability within the military disciplinary framework it will not necessarily result in criminal liability ”276 271 ICRC Commentary on Additional Protocol I Article 87 para 3557 Halilovi Trial Judgement para 85 citing ICRC Commentary on Additional Protocol I Article 87 para 3560 273 Halilovi Trial Judgement para 85 citing ICRC Commentary on Additional Protocol I Article 87 para 3558 274 Halilovi Trial Judgement para 86 275 See ICRC Commentary on Additional Protocol I para 3542 “It should be clearly noted that this paragraph condemns failure to act of superiors in case of breaches which are not grave breaches as well as in case of grave breaches In the first case the sanction can be disciplinary or penal while universal jurisdiction understood as 'aut dedere aut judicare' applies in the second case i e in case of a grave breach ” 276 elebi i Appeal Judgement para 226 see also Halilovi Trial Judgement para 88 citing Strugar Trial Judgement para 420 272 Case No IT-01-47-T 43 15 March 2006 633 21623 BIS 150 Similarly the Appeals Chamber in Bagilishema held that a superior’s failure in his duty may entail disciplinary rather than criminal sanctions 277 but it did not provide the elements to distinguish between which failures result in disciplinary sanctions and which failures result in criminal sanctions The Appeals Chamber held that an abstract approach cannot be envisaged in this particular case “The line between those forms of responsibility which may engage the criminal responsibility of the superior under international law and those which may not can be drawn in the abstract only with difficulty … ” 278 151 Additionally it is important to note that a commander who has taken all the general measures prescribed by Additional Protocol I is not relieved of criminal responsibility if he fails to take specific measures to prevent acts of which he is aware 279 Those general measures will however be taken into consideration in the factual analysis and evaluation of efforts made by the Accused to fulfil their obligation to prevent in view of the circumstances of the case 280 In fact it is much less foreseeable for violations of international humanitarian law to occur when a commander has taken a series of general preventive measures to instil order and discipline in his troops than when a commander has not taken care to put in place a system which instils respect for the law and discipline The taking of general measures is also decisive in the evaluation of mitigating circumstances 281 b Specific Measures 152 Clearly the duty to intervene to prevent the commission of a crime is defined by the material ability of a commander to act his duties will vary according to his rank and the powers vested in him 282 153 To provide a basis for that duty the Trial Chamber in Strugar relied on the case law of the post-World War II Tribunals which set out inter alia the following factors a superior’s failure to secure reports that military actions have been carried out in accordance with international law the failure to issue orders aimed at bringing the relevant practices into accord with the rules of war the failure to protest against or to criticise criminal action the failure to take disciplinary measures to prevent the commission of atrocities by the troops under their command and the failure to insist 277 Bagilishema Appeal Judgement para 36 Ibid 279 Halilovi Trial Judgement para 88 280 Ibid 281 See infra para 2080 282 ICRC Commentary on Additional Protocol I Article 87 para 3561 Strugar Trial Judgement para 375 Bagilishema Trial Judgement para 48 278 Case No IT-01-47-T 44 15 March 2006 632 21623 BIS before a superior authority that immediate action be taken 283 Moreover the Strugar Chamber noted that the International Military Tribunal for the Far East held that a superior’s duty may not be discharged by the issuance of “routine” orders and that more active steps must be required 284 154 Moreover the Trial Chamber in Bla ki held that a commander may fulfil his duty to prevent by reporting the “matter” to the competent authorities 285 155 On the basis of that case law the Chamber finds that the necessary and reasonable measures a superior must take to prevent the commission of a crime must be evaluated on a case-by-case basis in view of the particular facts of the case It must be noted however that the measures must be specific and closely linked to the acts they are intended to prevent c Duty to Intervene to Prevent the Recurrence of Unlawful Acts 156 As explained above the Appeals Chamber in Krnojelac held that a superior has a duty to punish the acts of his subordinates as soon as he is alerted of the risk that they will be committed Failure in that duty to intervene entails the superior’s responsibility since his passiveness condones subsequent similar acts Accordingly by failing to punish the superior Krnojelac did not prevent subsequent criminal acts 286 Nevertheless to evaluate the scope of the Krnojelac Appeal Judgement the Chamber would make several observations 157 It should be pointed out that in this case the Prosecution acknowledges an initial limitation on a superior’s duty to prevent the recurrence of criminal acts by stating that the acts must be similar 287 158 The Prosecution however does not deal with the question of whether the duty to intervene to prevent similar acts concerns only the acts of the same group of subordinates who perpetrate the unlawful acts or if it applies to all of a superior’s subordinates By failing to raise that issue the Prosecution implicitly extends the duty to prevent the recurrence of similar acts to cover those committed by all of a superior’s subordinates 288 The Defence for Had ihasanovi and the Defence for Kubura did not raise that specific issue in their final written submissions or closing arguments 283 Strugar Trial Judgement para 374 Halilovi Trial Judgement para 89 Strugar Trial Judgement para 375 285 Bla ki Trial Judgement para 335 Staki Trial Judgement para 461 286 Krnojelac Appeal Judgement para 172 287 Prosecution Final Brief para 43 288 Emphasis added 284 Case No IT-01-47-T 45 15 March 2006 631 21623 BIS 159 First and in view of the case law established by the Appeals Chamber in Krnojelac the Chamber agrees with the Prosecution’s position which limits to similar acts a superior’s duty to punish unlawful acts in order to prevent their recurrence In Krnojelac the Appeals Chamber relied on the repetitive nature of the mistreatment inflicted on a discriminatory basis to define a superior’s responsibility to prevent unlawful acts from recurring That same reasoning is applied later in that Judgement as regards the murders committed by the guards at the KP Dom 289 Furthermore postWorld War II case law supports that position 290 160 Conversely the Chamber is of the opinion that an extension of a superior’s duty to include preventing the recurrence of unlawful acts by all of his subordinates would be inconsistent with the Krnojelac Appeal Judgement and previously-established Appeals Chamber case law 161 To respond to the Prosecution position the Chamber would first note the lack of consistency in its interpretation of the Krnojelac Appeal Judgement The Prosecution acknowledges the limitations on the duty to prevent the recurrence of unlawful acts as set out in the Krnojelac Appeal Judgement in that it is triggered only when acts of the same nature are committed again The Prosecution however neither analyses nor takes a position on the fact that in the Krnojelac Appeal Judgement the duty to prevent the recurrence of similar unlawful acts concerned only those committed by the guards at the KP Dom in Fo a who had already committed prior abuse 162 As such the Prosecution’s approach does not limit the Accused Had ihasanovi ’s duty to punish the recurrence of subsequent acts committed by a same identifiable group of subordinates as did Krnojelac but extends his duty instead to acts of a similar nature committed by all of his subordinates who were members of the 3rd Corps 163 Nevertheless the reasoning of the Appeals Chamber in Krnojelac concerns a situation where a same identifiable group of subordinates that is the guards at the KP Dom in Fo a repeatedly committed acts of abuse Krnojelac’s “prior” knowledge arose from a context where the modus operandi of his subordinates was known 164 It follows that the duty to prevent the recurrence of similar acts must be limited to the acts of subordinates who form part of an “identifiable group” some members of which have already committed similar acts That limitation bears a relationship to the very nature of the duty to prevent which is based on the risk of a recurrence of similar acts In fact such responsibility can be 289 Krnojelac Appeal Judgement paras 178-180 See for example the Trial of Major Karl Rauer and Six Others Law Reports of Trials of War Criminals 1947 London Published for the United Nations War Crimes Commission by His Majesty’s stationary office 1947 vol 4 290 Case No IT-01-47-T 46 15 March 2006 630 21623 BIS established only when the recurrence is foreseeable since it is premised on the fact that the failure to punish encourages soldiers – who have already committed unlawful acts – to commit those acts once again The failure to intervene results in the foreseeable consequence of such conduct being repeated 165 The Trial of Major Karl Rauer and Six Others is a good illustration of that issue The case concerned Major Rauer the commander of an aerodrome and his responsibility for the summary executions of prisoners of war on three occasions namely on 22 24 and 25 March 1945 by the same group of subordinates On 22 March 1945 four prisoners from the group captured the day before were shot in cold blood Rauer received a report explaining that they had been killed while attempting to escape During his trial the accused pleaded that he did not have the time to order an investigation into the incident On 24 March 1945 a second group of prisoners was sent out to fill holes on the aerodrome runway seven or eight of them were shot by Rauer’s subordinates Regarding that second element Rauer could not find the time to question the soldier who had escorted the prisoners Another report justifying the executions and stating that the prisoners had been shot while trying to escape was sent to the high command On 25 March 1945 a wounded prisoner of war was taken out of the aerodrome in a motorcycle side-car and shot by the same subordinates The Accused was acquitted of the first executions of 22 March 1945 but convicted of the two others Commentary on the case suggests that the accused should have taken measures after the first wave of executions in order to prevent further executions from occurring 291 166 This case clearly supports the argument that a superior’s failure to intervene makes it possible to foresee a recurrence of unlawful acts This case also supports the proposition that by failing to punish crimes of which he has knowledge the superior has reason to know that there is a real and reasonable risk that the unlawful acts will be committed again The case also backs the argument that punishing for the purpose of preventing other unlawful acts presupposes that the subordinates draw conclusions from the superior’s intervention and in so doing are aware of the measures taken 167 By attempting to extend Had ihasanovi ’s duty to prevent the recurrence of unlawful acts committed by all his subordinates regardless of their position in the 3rd Corps zone of responsibility the Prosecution is attempting to reintroduce a criterion already dismissed by the Appeals Chamber in elebi i namely “a general duty to know upon commanders or superiors ” the Case number 23 and the Hostage Case United States v Wilhem List et al Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No 10 Vol XI Case No IT-01-47-T 47 15 March 2006 629 21623 BIS breach of which would be sufficient to entail his responsibility for crimes committed by his subordinates 292 In that Judgement the Appeals Chamber determined that customary law did not impose such an obligation on military commanders 293 which position has since been reaffirmed 294 The Prosecution’s position is therefore discordant with the case law of this Tribunal Moreover the Prosecution failed to offer any arguments to support it 168 Accordingly the Chamber is of the view that in this case the “identifiable group of subordinates” must be interpreted given the structure and operation of the 3rd Corps as a brigade or given battalion Consequently the Chamber dismisses the Prosecution’s argument which seeks to extend the principles set out in the Krnojelac Appeal Judgement to all the subordinates of the Accused regardless of whether they belong to a same group 169 To conclude the Chamber finds that the duty to prevent the recurrence of similar acts which is based on a superior’s prior knowledge must be interpreted as applying to an identifiable group of subordinates who have already committed such acts in the past In this case that is equivalent to a specific brigade operating in the same limited geographical area and to detention centres which fall under the authority and control of the same supervisory power vi Components of the Duty to Punish 170 Case law has always endeavoured to determine whether a superior had the material ability to act Appropriate measures are gauged by considering that power of a superior a Principles Underlying the Duty to Punish 171 The duty to punish is in keeping with military practice whose purpose is to establish the internal order and discipline necessary to run the armed forces In Bagilishema the Trial Chamber drew inferences from a superior’s failure to act and clarified the basis of such a principle by noting that a superior’s responsibility forms part of military practice whereby superiors because they have the power to punish create an environment of discipline and respect for the law 291 The Trial of Karl Rauer and Six Others pp 113-117 cited in the Prosecution’s Appeal Brief in The Prosecutor v Pavle Strugar paras 2 50-2 51 292 elebi i Appeal Judgement para 230 293 Ibid paras 228-240 294 Bla ki Appeal Judgement paras 61-62 Case No IT-01-47-T 48 15 March 2006 628 21623 BIS “The Chamber is of the view that in the case of failure to punish a superior’s responsibility may arise from his or her failure to create or sustain among the persons under his or her control an 295 environment of discipline and respect for the law … ” 172 Most of the Chambers do not provide a detailed list of examples of necessary and reasonable measures but recall a few general principles in this regard b Examples of Punitive Measures in Case Law 173 In Bla ki the Trial Chamber held that a commander may discharge his duty to prevent or punish by reporting the matter to the competent authorities especially when he does not have broader powers 296 Additionally the Trial Chamber in Kvo ka noted that a superior need not be the person who dispenses the punishment but he must take an important step in the disciplinary process 297 174 In Kordi and erkez the Trial Chamber pointed out that this duty includes at the very least an obligation to investigate the crimes to establish the facts and to report them to the competent authorities if the superior does not have the power to sanction himself 298 Relying on the ICRC Commentary the Trial Chamber in Kordi and erkez also noted that military commanders will usually have the duty only to start an investigation 299 175 The Trial Chamber in Strugar also considered the duty to investigate an example of a reasonable measure a superior could take to fulfil his duty to punish 300 That Trial Chamber recalled the case law of the post-World War II military tribunals to further describe the elements defining the duty to punish Those tribunals interpreted that duty as implying an obligation for the superiors to conduct an effective investigation and to take active steps to secure that the perpetrators will be brought to justice Additionally those tribunals considered whether the superior called for a report on the incident and the thoroughness of the investigation as relevant aspects in determining if a superior has fulfilled his duty to act 301 176 The Trial Chamber in Strugar also recalled the elements drawn from the ICRC Commentary on Article 87 3 of Additional Protocol I with regard to the duty to punish The ICRC notes that the article requires that any commander “where appropriate” will “initiate disciplinary or penal action 295 Bagilishema Trial Judgement para 50 Bla ki Trial Judgement para 335 Bla ki Appeal Judgement para 72 see also Blagojevi and Joki Trial Judgement para 793 297 Kvo ka Trial Judgement para 316 Halilovi Trial Judgement para 100 298 Kordi and erkez Trial Judgement para 446 299 Kordi and erkez Trial Judgement para 446 footnote 623 300 Strugar Trial Judgement para 376 Halilovi Trial Judgement para 98 301 Strugar Trial Judgement para 376 Halilovi Trial Judgement para 98 296 Case No IT-01-47-T 49 15 March 2006 627 21623 BIS against violators” The ICRC commentary suggests that this action may include informing his superior officers of the situation drawing up a report in the case of a breach … proposing a sanction to a superior who has disciplinary power or – in the case of someone who holds such power himself – exercising it within the limits of his competence and finally remitting the case to the judicial authority where necessary with such factual evidence as it was possible to find 302 177 Responding to the Prosecution’s argument that disciplinary measures would have been insufficient to punish certain acts the Chamber recalls that the appropriateness of sanctions is measured in view of what is necessary and reasonable considering the particular facts of each case 178 From this angle the Trial Chamber in Kayishema and Ruzindana held that a superior’s duty does not end where the sanction he has the power to impose is insufficient with respect to the crime committed the massacre of Tutsi refugees at the Mubuga church and stressed the Accused’s complete failure to take measures In that case the Defence argued that the only power Prefect Kayishema had to punish the perpetrators of the crimes was to incarcerate them for a period not exceeding 30 days While the Chamber acknowledged that such a derisory punishment would have been insufficient it recalled that up until his departure from Rwanda three months later Kayishema took no action to punish the alleged perpetrators 303 c Retroactive Duty to Punish Based on Prior Knowledge 179 In its factual analysis in Krnojelac the Appeals Chamber defined a superior’s retroactive duty to punish to cover acts committed prior to the one the Appeals Chamber considered decisive when determining that the Accused had knowledge of unlawful acts namely the beating of Ekrem Zekovi as regards mistreatment 304 and the disappearance of detainees as regards murders Accordingly the Appeals Chamber affirmed that according to the circumstances of a case prior knowledge of certain facts entails the retroactive duty of a superior 180 First the Chamber finds that this retroactive duty cannot be conceived solely in cases where similar acts are committed by the same troops for the reasons explained above which also apply here 305 The Chamber further considers that this retroactive duty to punish must have further limitations in its application 302 Strugar Trial Judgement para 377 Kayishema and Ruzindana Trial Judgement para 514 304 Krnojelac Appeal Judgement para 172 emphasis added 305 See supra paras 157-169 303 Case No IT-01-47-T 50 15 March 2006 626 21623 BIS 181 The Chamber would note that the Krnojelac Appeals Chamber reiterated that the evaluation of the mental element required by Article 7 3 of the Statute should be conducted in view of the specific circumstances of each case taking into account the specific situation of the superior in question at the time of the events 306 182 It is thus necessary to recall the particular nature of the Krnojelac case with regard to both mistreatment and murders As for the Accused’s knowledge of mistreatment the Chamber noted that he supervised the KP Dom in Fo a and that his presence there had been verified 307 Moreover it was also clearly established that the Accused knew that ethnically-motivated beatings of nonSerbs were widespread and systematic in nature that he was aware of the intent of the principal offenders and that he had knowledge of the unwritten “rules” on communication between detainees violators of which were subjected to inter alia mistreatment 308 183 Regarding the Accused’s knowledge of murders committed by his subordinates the Chamber recalled that he went to the KP Dom in Fo a practically every day of the working week that he had knowledge of beatings and suspicious disappearances and that he could see the bloodstains and bullet holes on the walls of the entrance to the administration building 309 184 Those facts make it clear that the beatings or disappearances could not have been isolated events but were the result of the detention conditions of which the Accused had knowledge In that context after Krnojelac was informed of Ekrem Zekovi ’s beating and the disappearances an investigation of previously committed acts was required Given the atmosphere of terror that prevailed at the KP Dom in Zenica those acts alerted the Accused that they must have been preceded by other acts of the same nature 185 Judging from those circumstances the Chamber infers that prior knowledge cannot entail the responsibility of the perpetrator for failing to investigate and punish past acts unless those acts are of a similar nature and that the subordinates committing a series of repeated acts of the same nature form part of a same identifiable group of subordinates In this case the group is a brigade or given battalion operating in a defined geographical area and in detention centres which fell under the authority and control of the same supervisory power Moreover for that retroactive duty to apply the circumstances surrounding those acts have to be such that the acts could not have occurred in isolation 310 306 Krnojelac Appeal Judgement para 156 citing elebi i Appeal Judgement para 238 Krnojelac Appeal Judgement para 167 308 Krnojelac Appeal Judgement para 163 309 Ibid para 178 310 Ibid paras 162-168 307 Case No IT-01-47-T 51 15 March 2006 625 21623 BIS d Causal Link and the Duty to Prevent 186 In its written submissions the Prosecution notes that the existence of causality between a commander’s failure to act and his subordinates’ crimes need not be established 311 The Trial Chamber in elebi i responded in part to the question of whether there must be a nexus between the superior’s omission and the cause of the offence In that case the Defence argued that if the superior’s failure to act did not cause the commission of the offence the commander could not be held criminally responsible for the acts of his subordinates 312 That Chamber held that a causal link has not traditionally been considered as a conditio sine qua non for the imposition of criminal responsibility on superiors for their failure to prevent or punish offences committed by their subordinates 313 Accordingly that Trial Chamber relied on relevant case law to consider that there was no support for the existence of a requirement of proof of causation as a separate element of superior responsibility 314 187 Nevertheless the elebi i Chamber did recognise that the requirement of crimes committed by subordinates and the superior’s failure to take the measures to prevent them is recognition of a necessary causal link 315 The elebi i Chamber further held that in such cases the superior may be considered to be causally linked to the offences in that but for his failure to act the offences would not have been committed 316 That Chamber found that a causal connection between the failure of a commander to punish past crimes committed by subordinates and the commission of any such future crimes is not only possible but likely 317 188 While that position may prove correct it may not be turned into a requirement that the Prosecution prove a causal link to impose command responsibility 318 As the Chamber in elebi i held no causal link can possibly exist between an offence committed by a subordinate and the subsequent failure of a superior to punish the perpetrator of that same offence 319 311 Prosecution Final Brief para 35 citing Bla ki Appeal Judgement para 77 elebi i Trial Judgement para 396 313 elebi i Trial Judgement para 398 314 Ibid para 398 315 Ibid para 399 316 Ibid para 399 317 Ibid para 400 318 This position is in fact always present in customary international law elebi i Trial Judgement paras 398-400 see also Ford v Garcia 11th Circuit No 99-08359 2002 In Ford v Garcia the U S 11th Circuit Court of Appeals citing the Decision in Hilao v Estate of Marcos 103 F 3d 767 766 to 778 9th Circuit 1996 in which the U S 9th Circuit Court of Appeals specifically rejected the argument that “proximate cause is a required element of the doctrine of command responsibility ” notes that the Tribunal made the same findings as the Court in Hilao The 11th Circuit Court of Appeals recalls the position of the Trial Chamber in elebi i stating that “proof of causation is not an independent requirement for the imposition of command culpability” See elebi i Trial Judgement paras 398-400 319 elebi i Trial Judgement para 400 Similarly see Kordić and Čerkez Appeal Judgement para 832 312 Case No IT-01-47-T 52 15 March 2006 624 21623 BIS 189 The Bla ki Appeals Chamber recalled the finding of the elebi i Trial Chamber which dismissed the idea of causality between the subordinate’s offence and the failure to act by holding that “the very existence of the principle of superior responsibility for failure to punish therefore recognised under Article 7 3 and customary law demonstrates the absence of a requirement of causality as a separate element of the doctrine of superior responsibility ”320 The Appeals Chamber added that it was “therefore not persuaded … that the existence of causality between a commander’s failure to prevent subordinates’ crimes and the occurrence of these crimes is an element of command responsibility that requires proof by the Prosecution in all circumstances of a case ”321 190 When analysing the nexus between the failure to punish and the commission of subsequent crimes the Appeals Chamber Judgement in Krnojelac should also be noted There the Appeals Chamber gave an illustration of the approach it would later adopt explicitly in Bla ki In Krnojelac the Appeals Chamber first noted that the Appellant had received information which gave him reason to know that his subordinates were committing or were about to commit acts of torture on the detainees The Appeals Chamber then noted that in spite of that knowledge the Appellant failed to take measures to punish the perpetrators of the crimes already committed and to prevent those crimes from recurring The Appeals Chamber finally noted that at least one detainee was subsequently the repeated victim of acts of torture Those circumstances were sufficient for the Appeals Chamber to find that the Appellant was responsible for failing to prevent the new crime 322 The Appeals Chamber did not discuss the potential causal link between the Appellant’s omission and the new acts of torture nor did it discuss the prosecutorial duty to adduce evidence thereof 191 The Halilović Chamber sought to explain why it is not necessary to establish the existence of a causal link between a superior’s failure to act and the crime committed by a subordinate The Chamber noted that criminal command responsibility under Article 7 3 of the Statute as it is sui generis and different from the forms of responsibility under Article 7 1 does not require a causal link According to that Chamber a superior’s responsibility is responsibility for an omission which flows from his obligations under international law Requiring a causal link would change the basis of command responsibility for failure to prevent or punish to the extent that it would practically require involvement on the part of the commander in the crime his subordinates committed thus 320 Bla ki Appeal Judgement para 77 citing elebi i Trial Judgement para 400 See also Halilovi Trial Judgement paras 75-78 321 Bla ki Appeal Judgement para 77 citing elebi i Trial Judgement para 400 322 Krnojelac Appeal Judgement paras 170-172 Case No IT-01-47-T 53 15 March 2006 623 21623 BIS altering the very nature of the responsibility imposed under Article 7 3 323 This Chamber agrees with that interpretation of the Statute 192 The Chamber would however note that command responsibility may be imposed only when there is a relevant and significant nexus between the crime and the responsibility of the superior accused of having failed in his duty to prevent Such a nexus is implicitly part of the usual conditions which must be met to establish command responsibility As such a superior may not be held responsible for crimes committed by subordinates who are not under his effective control nor is he responsible if he did not know or have reason to believe that his subordinates had committed or were about to commit crimes The superior is not responsible when he lacks the necessary means to prevent or punish crimes Finally the superior is not responsible for failing to prevent crimes committed before he assumed command over the perpetrators of the crimes 193 Considering the foregoing the Chamber makes the following findings as regards a superior’s failure to prevent his subordinates from committing crimes Firstly a superior who exercises effective control over his subordinates and has reason to know that they are about to commit crimes but fails to take the necessary and reasonable measures to prevent those crimes incurs responsibility both because his omission created or heightened a real and reasonably foreseeable risk that those crimes would be committed a risk he accepted willingly and because that risk materialised in the commission of those crimes In that sense the superior has substantially played a part in the commission of those crimes Secondly it is presumed that there is such a nexus between the superior’s omission and those crimes The Prosecution therefore has no duty to establish evidence of that nexus Instead the Accused must disprove it 4 A Superior’s Responsibility After Leaving His Position 194 In some situations a commander’s responsibility after he has finished exercising his command must be determined That question is intrinsically linked to a superior’s duty to take the necessary and reasonable measures to punish the perpetrators of a crime 195 As indicated in the chapter of this Judgement discussing necessary and reasonable measures 324 Article 7 3 of the Statute provides that a commander has the duty to prevent his 323 Halilović Trial Judgement para 78 “The Trial Chamber further notes that the nature of command responsibility itself as a sui generis form of liability which is distinct from the modes of individual responsibility set out in Article 7 1 does not require a causal link Command responsibility is responsibility for omission which is culpable due to the duty imposed by international law upon a commander If a causal link were required this would change the basis of command responsibility for failure to prevent or punish to the extent that it would practically require involvement on the part of the commander in the crime his subordinates committed thus altering the very nature of the liability imposed under Article 7 3 ” 324 See supra paras 125-127 Case No IT-01-47-T 54 15 March 2006 622 21623 BIS subordinates from committing crimes when he knows or has reason to know that they are about to commit them and also has a duty to punish the perpetrators of crimes when he knows or has reason to know that his subordinates have already committed them In fact these are two distinct obligations which apply at different times The duty to prevent the commission of a crime arises when the commander knows or has reason to know that a crime is being or is about to be committed while the duty to punish arises when a crime has already been committed 196 The duty to prevent the commission of crimes may arise only in cases where a superior was already in command at the time his subordinates were about to commit a crime The duty to punish exists only after a crime has been committed There are however situations where a crime is committed shortly before one commander leaves and another arrives to assume command In such cases reports on the commission of the crime may not reach the superior who was in command at the time the crime was committed and may be received only by the new superior who has taken up duties 197 In that scenario the superior in command at the time the crime was committed would not incur criminal responsibility under Article 7 3 of the Statute When the reports that a crime has been committed reach his successor he no longer exercises effective control over the perpetrators of the crime As such he is no longer in a position where he has the authority to punish the subordinates in question As indicated above 325 the power to punish depends on a commander’s ability to exercise effective control 198 The Appeals Chamber has held that the new commander may not incur criminal responsibility under Article 7 3 of the Statute for crimes committed by his subordinates before they were under his command 326 To reach that conclusion a majority of the Appeals Chamber found that there is no state practice nor any opinio juris that would sustain the proposition that a commander can be held responsible for crimes committed by a subordinate prior to assuming command over that subordinate 327 The Appeals Chamber further held that there are in fact indications that militate against the existence of a customary rule establishing such criminal responsibility 328 It found that an Accused may be held criminally responsible only if the crime charged was clearly established under customary international law at the time the events in issue occurred 329 In case of doubt the Appeals Chamber added criminal responsibility cannot be found 325 See supra para 121 Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility para 51 327 Ibid paras 44 and 45 328 Ibid paras 46-50 329 Ibid para 51 326 Case No IT-01-47-T 55 15 March 2006 621 21623 BIS to exist thereby preserving full respect for the principle of legality 330 Judges Shahabuddeen and Hunt each attached dissenting opinions to the majority decision 199 Although the reasons given by the dissenting Judges merit further examination the Chamber will limit itself to espousing a pragmatic consideration set out by Judge Shahabuddeen Since the commanders of troops change on a regular basis in times of war there is a serious risk that a gap in the line of responsibilities will be created as the changes occur Considering the aforementioned case if the superior in command at the time a crime is committed is replaced very soon after its commission it is very likely that the perpetrators of that crime will go unpunished and that no commander will be held criminally responsible under the principles of command responsibility It must be recognised that in such a case military practice whose purpose is to establish the internal order and discipline necessary to run the armed forces and from which the power to punish flows falls short of achieving its objective E Burden to Prove the Failure to Take Measures 200 The Defence for Had ihasanovi and the Prosecution debated extensively the issue of proving the failure to take measures For the sake of clarity the Chamber believes it necessary to recall at this stage the basis and source of the debate which had significant effects on this case The issues it raised arose following the testimony of Prosecution Witness General Reinhardt 331 On the basis of information provided to him by the Office of the Prosecutor the witness had drafted an expert report in which he concluded that Enver Had ihasanovi and Amir Kubura332 only once punished soldiers of the 3rd Corps specifically of the 7th Brigade 3rd Battalion for their criminal acts 333 201 During the cross-examination of General Reinhardt the Defence for Had ihasanovi produced a large number of documents which dealt with measures taken by Enver Had ihasanovi of which that witness was unaware 334 This had several effects Firstly after the documents were 330 Ibid para 51 Klaus Reinhardt testified before the Chamber from 3 May to 7 May 2004 T F pp 6462-6551 332 Later the debate on this issue would be primarily between the Prosecution and the Had ihasanovi Defence 333 See P108 paras 9 4 13 and 9 5 1 Klaus Reinhardt T F pp 6505-6506 A In one case in Kakanj where the 3rd Battalion of the 7th Mountain Brigade was looting and destroying property of the civilian population he even ordered the brigade commander of the 7th Mountain Brigade to relieve the battalion commander and company commanders … Q General Reinhardt based on your review of the materials provided to you on how many other occasions did the Corps Commander take similar steps A “I don't know sir I really don't know This is the only document which I found in the stack of documents provided to me There might have been different cases but this is the only one which I have found ” Q “Did you find any similar instances of situations where the commander of the 7th Muslim Mountain Brigade the accused Kubura took similar steps with respect to subordinate units under his command ” A “No sir I did not” emphasis added 334 Klaus Reinhardt T F pp 6747- 6761 It would appear those documents include DH 154 DH 155 DH 156 DH 157 DH 158 DH 159 DH 160 DH 161 DH 162 and DH 163 331 Case No IT-01-47-T 56 15 March 2006 620 21623 BIS tendered into evidence the witness acknowledged that it was necessary to revise his opinion and concluded that the Accused Had ihasanovi had taken much more than one measure 335 Secondly the Prosecution stated that after the Defence for Had ihasanovi tendered those documents concerning measures the Accused Had ihasanovi had taken its position on his responsibility had changed 336 202 During the hearing of 19 May 2004 the Prosecution announced it had changed its position explaining that despite having argued prior to General Reinhardt’s appearance that the Accused Had ihasanovi failed to take any reasonable measures except for the one mentioned by General Reinhardt it now believed the situation had changed entirely 337 The Prosecution acknowledged that the Accused Had ihasanovi did in fact take measures and conduct investigations but that none of those steps were taken with respect to the crimes alleged in the Indictment 338 203 Consequently while the Prosecution acknowledged that it did not have possession of the documents tendered into evidence by the Defence for Had ihasanovi it raised the possibility of submitting an affidavit from the investigations team leader to shed light on the steps taken by the Prosecution to discover any records from the courts operating at that time or from the Security Service 339 Accordingly on 28 and 29 June 2004 the Prosecution called Peter Hackshaw the investigations team leader who had worked on this case and undertaken a research mission from 2 to 5 June 2004 at the relevant courts 340 335 Klaus Reinhardt T F p 6808 A “As I have stated in my statement I found only one case until now Now in those binders I found many other cases and therefore I would revise my opinion that this was a singulary sic action I would say that having seen all this material it shows that he has taken much more of his responsibility … ” emphasis added 336 Daryl Mundis Senior Trial Attorney T F pp 7705-7709 337 Daryl Mundis Senior Trial Attorney T F p 7706 “As a result of those documents -- which again your Honours might recall when they were first produced the Prosecution was not aware of those documents -- clearly have put us in a situation where unlike our prior position which was the accused did nothing other than General Reinhardt being able to identify one instance where based on the documents the Prosecution had it appeared that the accused took the appropriate and reasonable steps to a situation where it is quite clear that on a number of occasion it is 3rd Corps Security Service conducted investigations and referred cases to the direct military courts for action That's as far as his duty went Once the Accused or a commander has conducted an investigation and referred the matter to the relevant court authorities his duty ends” 338 Daryl Mundis Senior Trial Attorney T F p 7706 “ … notwithstanding the large number of investigations and referrals that were done no such investigations and referrals were done with respect to the crimes alleged in our indictment ” 339 Daryl Mundis Senior Trial Attorney T E pp 7704-7705 “Mr Withopf mentioned earlier or perhaps it was late last week that we were in the process of working on an affidavit or statement by the investigative team leader to put some evidence before your Honours with respect to precisely what steps were taken by the Prosecution to discover any court records or Security Service records relating to the charges in our Indictment or the crimes committed in our Indictment ” 340 T F pp 9677-9844 T E p 8598 Case No IT-01-47-T 57 15 March 2006 619 21623 BIS 1 Arguments of the Parties 204 In its written submissions the Prosecution first stated that the trite proposition that an Accused is presumed innocent until proven guilty is of little assistance to a trier of fact seeking to determine in a specific case whether or not sufficient evidence has been presented during the course of a trial to displace that legal presumption 341 The Prosecution then argued that in a case founded on command responsibility proof of an omission essentially requires the Prosecution to prove a negative 342 The Prosecution submitted that this can be done in several ways through direct evidence or by way of circumstantial evidence in stages It argued in the latter case that as illustrated in these proceedings the Prosecution must present sufficient evidence to demonstrate prima facie that the Accused Had ihasanovi failed in his duty to act 343 Once that showing has been made the Defence for Had ihasanovi has a case to answer with respect to that issue 344 205 The Prosecution acknowledges that in order to prove a negative it must adduce some evidence so that the Defence for Had ihasanovi can answer the charges against its client According to the Prosecution however once it has put forth sufficient evidence of the omission it is for the Defence for Had ihasanovi to show during its case which steps were taken to satisfy the duty to act 345 The Prosecution thus concludes that it is immaterial if it has not exhaustively proved the content of every available court record or military prosecutor’s file 346 The question asserts the Prosecution is rather whether the Prosecution has “done enough” in terms of attempting to locate evidence of the steps taken by the Accused The Prosecution further submits that if the answer is in the affirmative the Accused must be required to point out the appropriate steps taken following the crimes set forth in the Indictment 347 The Prosecution argues that this situation calls for the burden of proof to be shifted 348 206 The Prosecution’s Final Brief and the Senior Trial Attorney’s Closing Arguments on this issue seek to further support that position 349 The Prosecution first notes the extent to which it was 341 Prosecution Response to Motions for Acquittal para 15 Ibid para 16 343 Ibid para 16 344 Ibid para 16 Prosecution Response to Motions for Acquittal para 16 citing Richard May and Marieke Wierda International Criminal Evidence Transnational Publishers 2002 paras 4 62-4 65 pp 121-123 345 Prosecution Response to Motions for Acquittal para 18 346 Ibid para 19 347 Ibid para 19 Although the Prosecution refers to both Accused in that passage the debate over the burden of proof was primarily between the Prosecution and the Defence for Had ihasanovi 348 Prosecution Response to Motions for Acquittal footnote 29 349 Prosecution Final Brief paras 47-50 Prosecution Closing Arguments T F pp 19109-19110 “Your Honours have heard the evidence - and I'm not going to go through it again - or the steps taken by the Office of the Prosecutor to prove a negative ” T E p 19106 “You've heard Investigator Hackshaw testify about that It's been raised on a number of occasions We will point out one final aspect of this component of the case if you will By no means - by no means is the Office of the Prosecutor suggesting that a burden shifts or that any burden shifts with respect to what we are 342 Case No IT-01-47-T 58 15 March 2006 618 21623 BIS sufficiently thorough in fulfilling its obligations to “adequately search” 350 The Prosecution then points out that both Parties had access to the archives and that the documents produced by the Defence for Had ihasanovi during General Reinhardt’s testimony were obtained as a result of such searches through them 351 207 The Prosecution then requested the Chamber to draw inferences from the fact that the Defence for Had ihasanovi did not produce documents showing that the Accused Had ihasanovi took measures in relation to the crimes specifically referred to in the Indictment To do so the Prosecution noted that the Defence for Had ihasanovi like the Prosecution searched through the relevant archives 352 This reasoning therefore implies that if the Accused Had ihasanovi had taken the necessary and reasonable measures his Defence would have produced documents to support it 208 The Defence for Had ihasanovi fully grasped the a contrario argument put forth by the Prosecution and provided a response in its written submissions the Defence for Kubura made no reference to the position The Defence for Had ihasanovi recalled that all accused persons are presumed innocent until proved guilty pursuant to the provisions of the Statute It further noted that pursuant to Rule 87 A of the Rules an Accused may be found guilty only when his guilt has been proved beyond a reasonable doubt 353 209 The Defence for Had ihasanovi went on to explain that generally speaking and pursuant to Article 16 1 of the Statute the Prosecutor is responsible for prosecuting persons responsible for violations which fall within the ratione materiae jurisdiction of the International Tribunal As such the Defence for Had ihasanovi states that the Prosecution must prove beyond a reasonable doubt each of the essential elements in the charges against the Accused Had ihasanovi 354 210 The Defence for Had ihasanovi notes that the corollary of the presumption of innocence is the Accused’s fundamental right to remain silent It argues that it would contravene the rights of the Accused to suggest that he must present a defence in the event that evidence for a single one of the essential elements of a charge is lacking or insufficient 355 required to prove ” The Senior Trial Attorney however goes further somewhat emphatically “The parties have been through the archives The parties have been through the archives ” T F p 19110 350 Prosecution Closing Arguments T F pp 19109-19110 351 Ibid 352 Ibid 353 Enver Had ihasanovi ’s Motion for Acquittal para 1 354 Enver Had ihasanovi ’s Motion for Acquittal para 2 355 Ibid para 13 Case No IT-01-47-T 59 15 March 2006 617 21623 BIS 211 The Defence for Had ihasanovi states that after the Prosecution announced its change of position on 19 May 2004 it dispatched a team of investigators to Bosnia and Herzegovina to prove that the Accused Had ihasanovi had not taken a single measure specifically relating to the violations alleged in the Indictment Following the testimony of Team Nine’s acting Chief Investigator the Defence for Had ihasanovi argued that the Prosecution mission had failed because it did not make it possible to demonstrate the inexistence in the archives which had been consulted of criminal complaints or other relevant documents linked to the violations alleged in the Indictment 356 212 The Defence for Had ihasanovi argues that the reversal of the burden of proof requested by the Prosecution is contrary to the most basic principles of international criminal law 357 In response to the Prosecution’s argument that the Accused Had ihasanovi must indicate the appropriate measures taken after a showing by the Prosecution of due diligence in its research the Defence for Had ihasanovi argues that the Prosecution confuses the notion of “evidential burden of proof” with that of “persuasive burden of proof ” whereas to oblige the Defence “to show during its case the steps taken to satisfy the duty to act” amounts to shifting the persuasive burden of proof 358 The Defence for Had ihasanovi recalls that the persuasive burden of proof remains with the Prosecution throughout the international criminal trial 359 It further notes that Article 67 1 i of the Rome Statute of the ICC states that the Accused has a right not to have imposed on him any reversal of the burden of proof or any onus of rebuttal 360 213 As for the burden which may rest on the Accused Had ihasanovi his Defence acknowledges there is a need for an Accused to adduce evidence in some circumstances in order to avoid being convicted The Defence for Had ihasanovi recalls that the evidence adduced to meet this burden may come from a Prosecution witness a co-defendant during his examination-in-chief or in any other way 361 214 Consequently the Defence for Had ihasanovi reiterates that for the Accused Had ihasanovi to be held criminally responsible for any of the violations alleged in the Indictment the Prosecution must prove that he failed to take measures to prevent his subordinates from committing violations or to punish them if they had done so 362 356 Ibid paras 68-69 Had ihasanovi Defence Final Brief paras 167-169 Reply of Enver Had ihasanovi to Prosecution’s Response to Defence Motions for Acquittal para 1 a 358 Ibid para 3 359 Ibid para 4 360 Reply of Enver Had ihasanovi to Prosecution’s Response to Defence Motions for Acquittal para 4 361 Ibid para 5 362 Had ihasanovi Defence Final Brief para 159 357 Case No IT-01-47-T 60 15 March 2006 616 21623 BIS 215 Recalling that investigator Hackshaw’s mission had failed in its Closing Arguments the Defence for Had ihasanovi submitted that the mission did however help to prove beyond a reasonable doubt that no claim could be made that steps were not taken in relation to each of the charges against the Accused Had ihasanovi Furthermore by alluding to the Prosecution’s statement on what inferences could be drawn from the fact that both Parties had examined the archives the Defence reiterated that the burden of proof rests with the Prosecution “It's not sufficient to say that the parties have visited the archives The Prosecution had the burden of proof and they have failed to prove their case ”363 2 Examination by the Chamber 216 The question of the burden of proof flows from the principle of the presumption of innocence Unless they plead guilty all accused persons are presumed innocent that presumption may be overcome by adducing evidence of a nature to establish their guilt 364 It follows therefore that the plaintiff in other words the Prosecution bears the burden to prove that an Accused has committed the crimes with which he is charged and that burden remains with the Prosecution throughout the trial 365 217 At the Tribunal as well as in common law jurisdictions the standard of proof required to overcome the presumption of innocence of an accused in a criminal trial is that of “reasonable doubt” the trier of fact makes a finding of guilt “beyond a reasonable doubt” 366 The Prosecution must meet this criteria and prove the Accused’s guilt beyond a reasonable doubt as the Accused enjoys the presumption of innocence 367 Accordingly it follows that the Accused has no onus to prove his innocence 368 The Prosecution however can meet this burden and satisfy the reasonable doubt standard through inferences 369 218 Mindful of that principle it should be observed that the Prosecution must prove each element of an Accused’s guilt beyond a reasonable doubt Moreover the Appeals Chamber in Bla ki recalled that in order to establish superior responsibility the following elements must be proved beyond a reasonable doubt the existence of a superior-subordinate relationship the fact that the superior knew or had reason to know that the criminal act was about to be or had been committed and the fact that the superior failed to take the necessary and reasonable measures to 363 Had ihasanovi Defence Closing Arguments T F p 19254 Renton and Brown Criminal Procedure 24-01 W Green Son Ltd Eds 2005 365 Bagilishema Trial Judgement Separate Opinion of Judge Asoka de Zoysa Gunawardana paras 5 and 6 citing Woolmington v DPP 1935 AC 462 HL pp 481-482 366 See Kordi Appeal Judgement para 834 367 See Kordi Appeal Judgement para 834 368 See Vasiljevi Trial Judgement para 12 364 Case No IT-01-47-T 61 15 March 2006 615 21623 BIS prevent the criminal act or punish the perpetrator thereof 370 It follows that in a case where command responsibility under Article 7 3 of the Statute is alleged the Prosecution must prove the elements of that article beyond a reasonable doubt including the superior’s failure to prevent or punish the unlawful acts of his subordinates 219 It should be noted that civil law systems also enshrine the principle of the presumption of innocence 371 Such is the case in the French system whose Code of Criminal Procedure provides that “every person suspected or prosecuted is presumed innocent as long as his guilt has not been established” 372 Although the criteria used in French law to determine the guilt of an Accused is based on “intimate conviction” 373 which distinguishes it from the widely-adopted criterion of “beyond a reasonable doubt” in the common law systems French law like those systems recognises that the burden to overcome that presumption lies with the prosecuting party 374 220 In Barberà Messegué and Jabardo v Spain the European Court of Human Rights also recalled the principle of the presumption of innocence 375 as well as the prosecution’s burden to overcome that presumption “ Article 6 2 of the Convention embodies the principle of the presumption of innocence It requires inter alia that when carrying out their duties the members of a court should not start with the preconceived idea that the accused has committed the offence charged the burden of proof is on the prosecution and any doubt should benefit the accused ”376 221 Nevertheless while the principle that the prosecution bears the burden to prove the guilt of an Accused is a cardinal principle of criminal law very limited areas where this burden shifts to the Defence do exist in such cases the Defence must overcome a presumption of guilt 222 French law for example recognises that Article 9 of the Declaration of the Rights of Man and of the Citizen of 1789 provides that in principle no legislation may institute the presumption of guilt in criminal matters In exceptional cases however such presumptions of fact or of law 369 See Kordi Appeal Judgement para 834 Blaski Appeal Judgement para 484 citing Aleksovski Appeal Judgement para 72 and elebi i Appeal Judgement para 346 371 For German law see Christoph Safferling Towards an International Criminal Procedure p 257 Oxford University Press 2001 372 Code of Criminal Procedure Dalloz 45th edition Preliminary Article 2004 Declaration of the Rights of Man and of the Citizen Article 9 1789 373 Code of Criminal Procedure Dalloz 45th edition Article 353 2004 374 Ibid Preliminary Article notes 47 and 48 2004 375 See also Article 14 of the International Covenant and Article 8 of the American Convention on Human Rights 376 Barberà Messegué and Jabardo v Spain 1994 IIHRL 43 June 1994 para 77 370 Case No IT-01-47-T 62 15 March 2006 614 21623 BIS may be established if they take into account the importance of what is at stake and fully maintain the rights of the Defence 377 223 In the cases of Salabiaku v France and Pham Hoang v France both regarding customs offences and the smuggling of prohibited goods the European Court of Human Rights held that such presumptions are admissible when they are not of an irrebuttable nature 378 In fact the European Court held that Article 6 2 of the European Convention is therefore not indifferent to presumptions of fact or of law provided for in the criminal statutes 379 It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence 380 Moreover when deciding those cases the Court held that it need not consider in the abstract how the provisions of domestic law conform to the Convention but that its task was to determine whether they were applied to the applicant in a manner compatible with the presumption of innocence 381 224 In the case of Porras v Netherlands which concerned offences relating to the intentional importation of cocaine the applicant argued that “ … the burden of proof had been reversed by imposing on him an obligation which he found impossible to discharge to prove that he was not and could not have been aware that persons unknown to him had hidden a significant quantity of the drug in his luggage” The European Court rejected this complaint holding that no irrebuttable presumption of guilt had been applied Although accepting a normal assumption that a person who packs his own luggage and takes it with him knows of the contents the Dutch court had regard to the possibility that this might not be so had considered all the circumstances had weighed all the evidence and had not therefore relied automatically on any presumption 382 225 In a more recent decision the European Court noted that any use of presumptions in criminal law must be proportionate to the intended objective In employing presumptions in criminal law the Contracting States are required to strike a balance between the importance of what is at stake and the rights of the defence in other words the means employed have to be reasonably proportionate to the legitimate aim sought to be achieved 383 377 Declaration of the Rights of Man and of the Citizen Article 9 1789 Code of Criminal Procedure Dalloz 45th Edition Preliminary Article and note 52 of the Preliminary Article 2004 378 Salabiaku v France 10519 83 1988 ECHR 19 1998 “Salabiaku” para 29 Pham Hoang v France 13191 87 1992 ECHR 61 1992 “Pham Hoang” paras 34-36 379 Article 6 2 of the European Convention of Human Rights provides “Anyone charged with an offence is presumed innocent until proved guilty according to law ” 380 Salabiaku para 28 381 Pham Hoang para 33 citing Salabiaku para 28 382 Porras v The Netherlands 49226 99 2000 Unofficial translation 383 Janosevi v Sweden 34619 97 2002 EHR 618 2002 para 101 Case No IT-01-47-T 63 15 March 2006 613 21623 BIS 226 English law also provides statutory exceptions which erode the principle of the presumption of innocence 384 For example in cases of terrorism 385 counterfeiting 386 and drug use possession or trafficking 387 the law allows some presumptions of fact or of law which shift the burden of proof in criminal matters 388 Nonetheless any limitations on that principle even in areas where the law seeks to facilitate the work of the prosecuting authority as part of criminal policy include safeguards for the rights of the Defence particularly in view of European Court case law 389 227 In addition to those circumscribed areas where the purpose of legislative intervention is to help the prosecution more easily secure convictions in order to establish public order even international public order during a criminal trial the burden to prove certain elements may fall to the defence 228 Subject to any statutory exceptions the House of Lords noted that it is the duty of the prosecution to prove the guilt of an accused which burden it bears throughout the trial except in cases involving a defence of insanity 390 229 Moreover it appears that in indictment-based trials despite unclear case law the British courts make a distinction between the legal burden or burden of persuasion and the evidential burden The legal burden is the prosecution’s duty to prove to the standard beyond a reasonable doubt The evidential burden rests with the defence and is an obligation to prove on the preponderance of the evidence or on the balance of probabilities In this case it is not a burden of proof or even a burden to produce evidence The evidential burden simply means that before any plea can be considered the jury must have sufficient material in support of it bearing in mind that the onus is always on the Prosecution to disprove the plea once it is raised The material in question may come from the Prosecution case 391 See Woolmington v DPP 1935 A C 462 R v Hunt 1987 A C 352 R v DPP ex parte Kebilene 1999 4 All E R 801 Prevention of Terrorism Act Temporary Provisions Act 1989 Section 16 A Possession of Articles for Suspected Terrorist Purposes 386 R v Johnstone 2003 HL 28 Trade Marks Act 1994 s 92 387 R v Hunt 1987 A C 352 Misuse of Drugs Amendment Regulations 1983 R v Lambert 2002 A C 545 388 See Lewis P The Human Rights Act 1998 Shifting the Burden 2000 Crim L R 667 in which the author states that in British law at least 29 statutory provisions shift the burden of proof 389 R v DPP ex parte Kebilene 1999 4 All E R 801 R v Lambert 2002 A C 545 390 See Woolmington v DPP 1935 A C 462 at 481 HL R v Hunt 1987 A C 352 Archbold Sweet Maxwell Ltd p 4-380 2004 M’Naughton’s case 1843 4 St Tr N S 847 Rex v Oliver Smith 1910 6 Cr App R 19 391 R v Hunt at 355 It is not a burden of proof nor even an obligation to produce evidence This simply supposes that before a plea is considered fit to be left before a jury for consideration evidence must be presented to support it but the onus is always on the Prosecution to disprove the plea once it is raised Such evidence may come from the Prosecution case R v Burke 1978 67 Cr App R 220 see R v Spurge 1961 2 Q B 205 regarding this application to defence pleas in common law R v Burke 1978 67 Cr App R 220 see Richard May and Marieke Wierda International Criminal Evidence 2002 Transnational Publishers 384 385 Case No IT-01-47-T 64 15 March 2006 612 21623 BIS 230 Accordingly as Judge Gunawardana noted in the Bagilishema Judgement as regards defences such as self-defence duress alibi automatism involuntary uncontrollable reflexes and provocation the Accused must raise them either through the cross-examination of witnesses or by adducing other evidence and thus bears an evidential burden which must then be disproved by the Prosecution Regarding the defence of insanity a higher burden is placed on the defendant in which case he is required to adduce sufficient evidence to establish the cogency of such a defence on the balance of probabilities 392 231 In the United States where the Supreme Court recognises that the Prosecution is constitutionally bound to prove every element of an offence 393 the law may shift the burden of persuasion when certain defences are raised namely affirmative defences such as insanity and selfdefence 394 232 The United States Supreme Court ruled that a statute which places the burden of persuasion on a defendant requiring him to prove that he acted in the heat of passion upon sudden provocation was not unconstitutional as that defence did not serve to negate any facts of the crime which the State of New York had to prove in order to convict for murder under its statutes 395 In such a case it should be noted that the defendant must prove his defence by a preponderance of the evidence a standard more easily met than that of “beyond a reasonable doubt” which is required to rebut the presumption of innocence 396 233 This is the issue the Defence for Had ihasanovi emphasises in its written submissions Referring to a shift in the burden the Defence for Had ihasanovi argues that the Prosecution confuses the notion of the “evidential burden” with that of the “persuasive burden ” and that by 392 Bagilishema Trial Judgement Separate Opinion of Judge Asoka de Zoysa Gunawardana para 7 In re Winship 397 U S 358 364 1970 See the Due Process Clauses of the 5th and 14th Amendments to the Constitution of the United States of America which provide 5th Amendment “No person … shall be compelled in any criminal case to be a witness against himself nor be deprived of life liberty or property without due process of law … ” 14th Amendment “ … nor shall any state deprive any person of life liberty or property without due process of law … ” emphasis added 394 Patterson v New York 432 US 197 1977 see also Black’s Law Dictionary 8th ed Westgroup 2004 which defines affirmative defense as follows “A defendant’s assertion of facts and arguments that if true will defeat the plaintiff’s or prosecution’s claim even if all the allegations in the complaint are true The defendant bears the burden of proving an affirmative defense Examples of affirmative defenses are duress in a civil case and insanity and selfdefense in a criminal case ” In addition to statutory law common law in the United States recognises the same principle see Mullaney v Wilbur 421 US 684 1975 4 W Blackstone Commentaries 201 M Foster Crown Law 255 1762 395 Patterson v New York 432 US 266 1977 McMillan v Pennsylvania 477 US 79 86 1986 Apprendi v New Jersey 120 S Ct 2348 2000 396 Patterson v New York 432 US 266 1977 see also Leland v Oregon 343 US 790 1952 Mullaney v Wilbur 421 US 684 1975 Rivera v Delaware 429 US 877 1976 393 Case No IT-01-47-T 65 15 March 2006 611 21623 BIS requiring the Defence “to show during its case the steps taken to satisfy the duty to act ” it shifts the burden of proof 397 234 The Defence for Had ihasanovi relies on Judge May’s work on international criminal tribunals in which he takes note of a distinction between the legal and the evidential burden of proof 398 Judge May wrote that the legal or persuasive burden is the obligation of the Prosecution to prove all the facts necessary to establish the guilt of the Accused whereas the evidential burden is the obligation on either the Prosecution or Defence to establish the facts of a particular case 399 235 Judge May explained that in international criminal trials the persuasive burden of proof always remains with the Prosecution this is a consequence of the presumption of innocence encapsulated in Articles 21 3 of the Statute and Article 67 1 of the Rome Statute 400 The evidential burden in fact is not a true burden but rather refers to the practical requirement of a party to call evidence in order to establish certain defences Judge May noted however that this shift in the evidential burden has no impact on the persuasive burden of proof 401 236 After this analysis of the principle of the presumption of innocence and its limitations the Chamber notes that while there are areas and defences where the presumption of innocence is somewhat eroded there are no such limitations in the case at hand the Prosecution must overcome that presumption beyond a reasonable doubt in order to prove its case 237 In this case the fact that the Defence for Had ihasanovi presented evidence on the measures taken flows from a burden all defendants have to answer charges and adduce evidence This is a practical reality the Defence must deal with if it wishes to avoid a conviction 402 238 The Defence for Had ihasanovi points to that reality in its Reply to the Prosecution’s Response to Motions for Acquittal 403 Additionally the case of John Murray v United Kingdom before the European Court demonstrates the limitations on an Accused’s right to silence arguing implicitly that a passive defence can lead to a conviction In that case the Accused refused to answer throughout the trial While the European Court held that silence in itself cannot be regarded as an indication of guilt it noted that it must be ascertained in each particular case whether the 397 Reply of Enver Had ihasanovi to Prosecution’s Response to Defence Motions for Acquittal para 3 See Richard May and Marieke Wierda International Criminal Evidence 2002 Transnational Publishers para 4 62 399 Ibid para 4 62 400 Ibid para 4 63 401 Ibid para 4 67 402 See McWilliams Peter K McWilliams Canadian Criminal Evidence 2003 Canadian Law Books eds citing R v Burdett 1820 4 B Ald 95 106 E R 873 403 Reply of Enver Had ihasanovi to Prosecution’s Response to Defence Motions for Acquittal paras 3 and 4 398 Case No IT-01-47-T 66 15 March 2006 610 21623 BIS evidence adduced by the prosecution is sufficiently strong to require an answer 404 An Accused clearly may not rely on a passive defence without risking conviction especially when the gravity of the charges “requires an answer” 239 From this vantage point the Defence for Had ihasanovi has a duty to answer the charges against its client and may in order to discharge that duty produce documents attesting to the measures he took in order to provide for example a context for the case or to show that the military criminal justice system was functioning Nevertheless the production of such documents should in no way prejudice the Accused While it is recognised that an Accused must answer the charges against him the burden of proof may not be shifted as the Prosecution suggests where it would put the Defence for Had ihasanovi in a dead-end situation should it produce some documents attesting to the measures taken the Prosecution would take advantage of the weaknesses in its presentation and should it opt for a passive defence and fail to produce documents on the measures taken the Prosecution would use that to argue that the Accused Had ihasanovi failed to take any measures since the Defence failed to produce any documents attesting to them 240 The onus is clearly on the Prosecution to first prove a failure to take measures it may not make up for its failure to discharge that duty by using “weaknesses” in the Had ihasanovi Defence case 241 The Chamber notes that the application of the law to the facts by the Chambers of the Tribunal and the ICTR has embodied the principle according to which the Prosecution must fulfil its duty to prove an omission and in no case may rely on the Defence case to make its own 242 Accordingly in the case of The Prosecutor v Juvénal Kajelijeli the Trial Chamber held that the Accused’s testimony did not establish that he failed to punish the attackers The Chamber also found that the Prosecution did not prove that the situation prevailing at the end of 1994 was such that the Accused as the new burgomaster would have had the material ability to punish the perpetrators of the massacres The Chamber thus did not find that the Accused failed to punish the perpetrators of the massacres 405 243 Similarly the Appeals Chamber in Bla ki applied the principle according to which the Defence is obligated to present Defence evidence only if the Prosecution has successfully 404 405 John Murray v United Kingdom EHR 41 1994 488 570 1996 paras 48 and 51 Kajelijeli Trial Judgement para 741 Case No IT-01-47-T 67 15 March 2006 609 21623 BIS discharged its duty to prove the omission Accordingly for the crimes related to detention the Appeals Chamber upheld the findings of the Trial Chamber in Bla ki 406 which had found “…The evidence demonstrated that the accused did not duly carry out his duty to investigate the crimes and impose disciplinary measures or to send a report on the perpetrators of these crimes to the competent authorities ”407 244 To arrive at that conclusion the Trial Chamber relied on testimony referenced in footnote 1648 of the Bla ki Judgement according to which Bla ki failed to take measures systematically to punish the crimes related to detention centres Moreover Bla ki himself and a deputy prosecutor who both appeared as witnesses acknowledged those facts The Trial Chamber clearly did not rely on Bla ki ’s testimony to find him guilty but considered that Bla ki had not succeeded in rebutting the evidence adduced by the Prosecution through the testimony of its witnesses The Appeals Chamber confirmed the reasoning of the Trial Chamber “…the Trial Chamber’s conclusion that the Appellant knew or had reason to know that these practices were extant in those locations and that he failed to punish the personnel responsible who were under his effective command and control was a conclusion that a reasonable trier of fact could have made ”408 245 On a different occasion during that case the Appeals Chamber recalled the principle that the onus was on the Prosecution to establish that Bla ki had failed to take measures to punish following the attack of Vitez on 16 April 1993 409 246 The Chamber considers that the Prosecution may submit any relevant evidence which has probative value in order to meet its burden to prove a negative 410 Furthermore to establish guilt beyond a reasonable doubt for failure to act the Prosecution may rely on inferences 411 247 In this regard the Prosecution may as this Chamber recalls elsewhere in this Judgement rely on the testimony of a witness when that witness’s credibility has not been impeached on the content of a document tendered into evidence or even on inferences based on a particular situation such as a promotion given to the perpetrators of unlawful acts or any other reward given to such subordinates Similarly the Chamber is of the view that conclusions from an investigation may 406 Bla ki Appeal Judgement paras 623-634 in particular para 628 See Bla ki Trial Judgement footnote 1648 Witness Marin PT “Provisional Transcript” pp 8898-8901 and p 10189 and Witness Bla ki PT pp 15159-15161 408 Bla ki Appeal Judgement para 628 409 Bla ki Appeal Judgement para 507 dealing with crimes committed in Vitez municipality other than those in Ahmi i 410 Rule 89 C Statute 411 See Kordi Appeal Judgement para 834 407 Case No IT-01-47-T 68 15 March 2006 608 21623 BIS have probative value if the methodology used during the investigation is sufficiently reliable to satisfy the requirements for a fair trial 412 248 The Chamber would however point out that should the methodology used prove faulty and insufficiently reliable the Defence for Had ihasanovi may in no way be expected to prove his innocence Later in this Judgement the Chamber will analyse the different evidence adduced by the Prosecution to ascertain whether it met its burden to prove that the Accused Had ihasanovi failed to take the necessary and reasonable measures 413 3 Duty to Prosecute Crimes Defined by International Law at the Time of Events 249 Later in this Judgement the Chamber analyses the steps taken by the Prosecution to see whether it discharged its duty to prove its case concerning the Accused’s failure to take measures For example the Prosecution sent letters to the Zenica Cantonal Court and the Cantonal Prosecutor’s Office in Travnik which keep archives from the Zenica District Military Court and the Travnik District Military Prosecutor’s Office 250 Those letters were not tendered into evidence but the responses thereto do form part of the trial record Exhibits P 771 and P 773 are responses from the Zenica Cantonal Court and Travnik Cantonal Prosecutor’s Office to letters from the Tribunal Office of the Prosecutor In both documents the judicial authorities answer the Prosecution query about how many cases involving ABiH members implicated for “war crimes ” pursuant to Article 142 of the SFRY Code went before the Zenica District Military Court and the Travnik District Military Prosecutor’s Office 414 251 Later in this Judgement the Chamber will examine whether in view of the law applied by the district military courts that query could show if measures were taken with regard to the acts which form the basis of the Indictment 415 252 Consideration should now be given in view of customary international humanitarian law to the meaning and scope of the question from the Tribunal’s Office of the Prosecutor about the involvement of ABiH members in “war crimes” The analysis will therefore deal with the issue of whether at the time material to the Indictment States and in particular the Republic of Bosnia and Herzegovina were obligated to prosecute serious violations of international humanitarian law only on the basis of international criminal law setting aside charges of violations of ordinary law included in their domestic criminal codes 412 413 Rule 89 C of the Rules see infra para 970 See infra paras 970-1000 Case No IT-01-47-T 69 15 March 2006 607 21623 BIS 253 The 2005 ICRC study on customary international law 416 considered an authoritative source on the subject says nothing about whether a State is obligated to prosecute war crimes per se It would be logical to infer from the absence of such an analysis that there is no customary rule requiring States to rely on the characterisation of international law as the only basis for prosecution 254 To prove the existence of a customary rule the two constituent elements of the custom must be established namely the existence of sufficiently consistent practices material element and the conviction of States that they are bound by this uncodified practice as they are by a rule of positive law mental element 255 In this case considering their judicial practice state practice seems to be more than divided and would even tend to suggest that they have no obligation to prosecute war crimes solely on the basis of international humanitarian law Admittedly there are cases where state courts relying on provisions in their domestic law considered that they did not have jurisdiction to prosecute violations 417 Moreover the Statutes of the International Tribunals do not take into account national prosecutions of war crimes characterised as ordinary crimes according to an evaluation of the principle of ne bis in idem 418 which suggests that the Tribunals do not regard such prosecutions as valid responses to international crimes 256 Nevertheless since the end of World War II majority practice seems to provide more than enough freedom in prosecuting international crimes solely under domestic criminal law as ordinary 414 P 771 refers specifically to Article 142 P 773 does not See infra paras 977-982 416 Jean-Marie Henckaerts and Louise Doswald-Beck Customary International Humanitarian Law Vol I Rules Cambridge University Press 2005 See nonetheless the discussion on Rule 158 pp 607-610 The study examines the duty of States to investigate war crimes and prosecute the suspects thereof In this regard it acknowledges the difficulty of determining whether that duty is based on an obligation or a right The study does not however deal with the question of the basis of such prosecutions 417 For example the Colombian Constitutional Court rejected the ordinary crimes approach in 2001 See Ward Ferdinandusse Direct Application of International Criminal Law in National Courts Amsterdam 2005 p 208 footnote 1202 Similarly Belgium amended its legislation on core crimes to criminalise genocide and crimes against humanity in its domestic law See Belgian Senate Report of the Justice Commission on the Law for the Punishment of Genocide enforcing the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 1 December 1998 No 1-749 3 para II A and B “It ₣the inclusion of a criminalisation of genocide in national criminal lawğ is important because of its symbolic value in the sense that the perpetrators of a genocide will be punished for committing that specific offence obviating the need for the criminal Judge to convict on the basis of other characterisations such as criminal homicide or murder The effect of a conviction for genocide and its preventative nature will be reinforced ₣…ğ The introduction of a specific offence regarding crimes of genocide and other crimes against humanity is simply a confirmation of existing law which achieves better visibility and draws attention to the specific nature of those acts and the need to prosecute them and the need to prosecute them as such” as cited by Ward Ferdinandusse Direct Application of International Criminal Law in National Courts Amsterdam 2005 p 209 footnote 1203 It must however be noted that this example is of little interest in this case as it does not seem to concern war crimes 418 See Article 10 2 of the Statute of the Tribunal and Article 9 2 of the Statute of the ICTR See also the Separate Opinion of Judge Sidhwa para 83 in The Prosecutor v Duško Tadić Case No IT-94-1 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 2 October 1995 415 Case No IT-01-47-T 70 15 March 2006 606 21623 BIS criminal offences As such many defendants have been prosecuted in national jurisdictions for ordinary crimes although they were committed in the context of armed conflicts and therefore liable to be characterised as war crimes 419 In the United States in 1973 an army lieutenant was convicted for murder and assault not war crimes for his involvement in the My Lai massacre during the Vietnam War 420 257 International criminal law was likewise ignored in the trial of a Russian colonel accused of raping and murdering a Chechen civilian421 during the conflict between Russia and Chechnya 422 Similarly American soldiers accused of abusing detainees in Iraq in 2004 were court martialled and convicted for ordinary crimes 423 In 2001 an Argentine court ruled explicitly that core crimes could be charged as ordinary crimes 424 Several States have also stated that they regarded their ordinary criminal law as a sufficient basis for the prosecution of war crimes Finally unlike prevailing practice at the Tribunal and at the ICTR the Rome Statute of the International Criminal Court provides that in its relations with national jurisdictions the principle of ne bis in idem will block a second prosecution if an Accused has already been tried in a national court for conduct also proscribed under the Statute 425 In so doing the Statute of the International Criminal Court leaves the characterisation of the crimes open to national courts 258 Regarding the mental element it can be inferred from the absence of sufficiently consistent practice that a majority of States do not consider themselves bound under international law to prosecute and try grave breaches of international humanitarian law solely on the basis of international criminal law 259 Looking at the various international instruments governing humanitarian law and criminal law it would appear that there is no written rule which obligates States to prosecute serious breaches of international humanitarian law on the basis of the international laws on war crimes As such States generally refuse to initiate proceedings solely on the basis of customary international 419 See Matthew Lippman “Prosecutions of Nazi War Criminals before Post-World War II Domestic Tribunals” 8 University of Miami International and Comparative Law Review 1 1999-2000 as cited by Ward Ferdinandusse Direct Application of International Criminal Law in National Courts Amsterdam 2005 p 30 footnote 86 420 See Ward Ferdinandusse Direct Application of International Criminal Law in National Courts Amsterdam 2005 p 31 footnote 88 421 See Richard Van Elst “Implementing Universal Jurisdiction Over Grave Breaches of the Geneva Conventions” 13 Leiden Journal of International Law 2000 827-828 422 See Ward Ferdinandusse Direct Application of International Criminal Law in National Courts Amsterdam 2005 p 31 footnote 89 423 See S D Murphy “Contemporary Practice of the United States Relating to International Law” 98 American Journal of International Law 2004 595 424 Simon Julio Del Cerro Juan Antonio s sustracción de menores de 10 años Case no 8686 2000 Buenos Aires Federal Court 6 March 2001 as cited by Ward Ferdinandusse in Direct Application of International Criminal Law in National Courts Amsterdam 2005 p 210 footnotes 1209 and 1210 425 Rome Statute of the International Criminal Court Article 20 3 See Ward Ferdinandusse Direct Application of International Criminal Law in National Courts Amsterdam 2005 p 210 footnote 1212 Case No IT-01-47-T 71 15 March 2006 605 21623 BIS law 426 In fact none of the provisions in the Geneva Conventions and Additional Protocols would lead to a conclusion that such a rule exists Even Section II Part V of the Additional Protocol I to the Geneva Conventions which deals with the “Repression of Breaches of the Conventions and of this Protocol ”427 is silent as to the existence of such a rule Moreover the Rome Treaty itself would seem to argue for more state freedom in the prosecution of offences characterised as war crimes 428 260 As such there is no rule either in customary or in positive international law which obligates States to prosecute acts which can be characterised as war crimes solely on the basis of international humanitarian law completely setting aside any characterisations of their national criminal law 261 Consequently at the time the acts alleged in the Indictment were committed there was no binding obligation on States and therefore on the courts in the Republic of Bosnia and Herzegovina to prosecute individuals for war crimes under customary international law 429 F Duty to Inform an Accused of the Nature and Cause of the Charges Against Him 262 The Chamber will now examine issues related to the interpretation of the Indictment and their possible implications on the rights of the Accused As the formal charging document the Indictment guides the deliberations of the Chamber which must vote separately on each charge it contains 430 In this case the arguments and evidence put forth by the Prosecution during the trial lead the Chamber to consider to what extent it can base its assessment of the guilt or innocence of the Accused on facts which were not or were but only implicitly set out in the Indictment 263 Each Accused has the right to a fair trial pursuant to Articles 20 1 and 21 2 of the Statute Pursuant to Article 21 4 a of the Statute each Accused has the right “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him” Article 18 4 of the Statute provides that an Indictment must contain a concise statement of the facts and the crime or crimes with which the Accused is charged under the Statute Rule 47 C of the Rules provides inter alia that an Indictment shall set forth “a concise statement of the facts of the case and of the crime with which the suspect is charged” 264 The Appeals Chamber in Kupreškić affirmed that the aforementioned provisions of the Statute and Rules require the Prosecution to set forth in the Indictment the material facts which 426 See Antonio Cassese International Criminal Law Oxford 2003 pp 303-304 Articles 85-91 See in particular Articles 85 86 and 87 428 Rome Statute of the International Criminal Court Articles 17 and 20 3 See Ward Ferdinandusse Direct Application of International Criminal Law in National Courts Amsterdam 2005 p 210 footnote 1212 429 See infra paras 959-969 427 Case No IT-01-47-T 72 15 March 2006 604 21623 BIS form the basis of the charges against the Accused 431 The Prosecution must set out the material facts with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence 432 The Appeals Chamber in Kupreškić noted that “the materiality of a particular fact cannot be decided in the abstract” and that “a decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged to the accused ”433 According to the Appeals Chamber in Rutaganda the prejudice which may be caused to the Accused must be examined before holding that a fact charged is not material “Before holding that an event charged is immaterial or that there are minor discrepancies between the indictment and the evidence presented at trial a Chamber must normally satisfy itself that no prejudice shall as a result be caused to the accused An example of such prejudice is the existence of inaccuracies likely to mislead the accused as to the nature of the charges against him Depending on the specific circumstances of each case the question to be determined is whether an accused was reasonably able to identify the crime and criminal conduct alleged in each of the paragraphs of the Indictment ”434 265 The Appeals Chamber in Blaškić held that the following essential facts inter alia must be set out in the Indictment when charging an Accused with responsibility under Article 7 3 of the Statute “ i that the accused is the superior of ii subordinates sufficiently identified iii over whom he had effective control – in the sense of a material ability to prevent or punish criminal conduct – and iv for whose acts he is alleged to be responsible” 435 These material facts must be pleaded with sufficient particularity 436 Regarding the identity of the subordinates alleged to have committed the crimes the Bla ki Appeals Chamber endorsed the finding of the Krnojelac Trial Chamber which held that “if the prosecution is unable to identify those directly participating in such events by name it will be sufficient for it to identify them at least by reference to their ‘category’ or their official position as a group ”437 266 Regarding the degree of specificity with which the material facts must be pleaded in the Indictment Tribunal case law has established that the Indictment “is to be read as a whole not as a series of paragraphs existing in isolation ”438 meaning that “each of the material facts must usually 430 Rule 87 B of the Rules Kupre ki Appeal Judgement para 88 432 Kupre ki Appeal Judgement para 88 433 Kupre ki Appeal Judgement para 89 see also Ntakirutimana Appeal Judgement para 25 434 Rutaganda Appeal Judgement para 303 435 Bla ki Appeal Judgement para 218 436 Bla ki Appeal Judgement para 229 437 Bla ki Appeal Judgement para 217 The Prosecutor v Milorad Krnojelac Case no IT-97-25-PT Decision on the Defence Preliminary Motion on the Form of the Indictment 24 February 1999 para 46 438 The Prosecutor v Mile Mrk i Case no IT-95-13 1-PT Decision on Form of the Indictment 19 June 2003 para 28 see also The Prosecutor v Enver Had ihasanovi and Amir Kubura Case no IT-01-47-PT Decision on Form of Indictment 7 December 2001 para 38 The Prosecutor v Milorad Krnojelac Case no IT-97-25-PT Decision on the Defence Preliminary Motion on the Form of the Indictment 24 February 1999 para 7 431 Case No IT-01-47-T 73 15 March 2006 603 21623 BIS be pleaded expressly although it may be sufficient in some circumstances if it is expressed by necessary implication ”439 267 Tribunal case law has adopted a two-step approach first it determines whether the Indictment sufficiently pleaded the material facts of the case and second it determines whether the Prosecution’s failure in that duty renders the trial unfair which should not be presumed 440 The Appeals Chamber in Kupre ki did not exclude the possibility that a defective indictment can be cured if the Prosecution provides the accused with timely clear and consistent information detailing the factual basis underpinning the charges against him 441 Nevertheless it noted that there can only be a limited number of cases that fall within that category 442 268 The Chamber concurs with Tribunal case law according to which the identity of subordinates is a material fact of a charge brought under Article 7 3 of the Statute It must be pleaded with sufficient detail to enable the Accused to prepare his defence The Chamber notes that not all of the facts regarding the identity of the perpetrators may be characterised as material and recalls that the materiality of a particular fact cannot be decided in the abstract Generally speaking the Indictment must sufficiently inform the Accused of the military unit or armed group to which the perpetrator of the crime allegedly belonged but it is not necessary that it provide the name of the perpetrator or the exact position of the implicated unit within the chain of command 269 The Chamber notes that the Kupre ki Appeals Chamber adopted a two-step approach to determine whether the rights of the Accused had been violated Nonetheless this Chamber notes that the above case law dealt with a lack of specificity in the Indictment and not errors regarding the material facts of the case When an Indictment is imprecise its language lends itself to several interpretations and leaves the Accused uncertain of the charges against him Although not wrong it does lack specificity Conversely when the material facts pleaded in the Indictment do not correspond with those presented by the Prosecution during the trial there is an error While a defective indictment lacking specificity can be cured if the Prosecution provides the accused with timely clear consistent information detailing the material facts of the case an indictment that is defective because it contains an error of material fact cannot be cured in the same manner In that case the Prosecution must request leave of the Chamber to amend the Indictment failing which the Chamber does not consider itself seized of the facts pleaded by the Prosecution during the trial 439 The Prosecutor v Mile Mrk i Case no IT-95-13 1-PT Decision on Form of the Indictment 19 June 2003 para 12 440 Kupre ki Appeal Judgement paras 87 and 120 Bla ki Appeal Judgement paras 221 and 238 Rutaganda Appeal Judgement para 303 Krnojelac Appeal Judgement para 133 441 Kupre ki Appeal Judgement para 114 442 Kupre ki Appeal Judgement para 114 Case No IT-01-47-T 74 15 March 2006 602 21623 BIS Should the Prosecution fail to make such a request the Chamber would rule only on the facts pleaded in the Indictment As the Prosecution made no attempt to prove those facts but different ones not pleaded in the Indictment the Chamber would have to acquit the Accused of the facts alleged therein Case No IT-01-47-T 75 15 March 2006 601 21623 BIS III EVIDENCE 270 The Chamber considers it appropriate to explain the approach it adopted to assess evidence and determine its probative value whether such evidence was supported by documentary or visual aids or if it came in the form of testimony of witnesses called by the Prosecution Defence or even the Chamber A Scope of Direct and Cross-Examination 1 Broad Scope of Cross-Examination 271 From the day the trial began the Chamber adopted a broad approach with regard to the scope of direct examinations and especially cross-examinations Accordingly in its Decision on the Defence Motion for Clarification of the Oral Decision of 17 December … the Chamber recalled that pursuant to Rule 90 H cross-examinations are not limited to issues raised in direct examination and that questions going to the credibility of witnesses and to the case of the crossexamining party are permitted 443 On that basis the Chamber exercised its control and admitted questions intended to establish the historical political and military context at the time of the events provided that the cross-examining party explain the objective and relevance of such questions to the Chamber before putting them to the witness 444 272 Mindful that these contextual questions could result in testimony being described as “hearsay” or “indirect” the Chamber recalled that Rule 89 C applies equally to direct and indirect evidence In cases where testimony was based on hearsay the Chamber noted that to assess its probative value it wished to know the source of the information that is insofar as possible the identity of the initial source how he might have learned of the facts and the number of intermediaries through which the testimony had passed 2 Restrictions a Decision on Defence Motion regarding Cross-Examination of Witnesses by the Prosecution 273 The Chamber placed some restrictions on its flexible approach to questions that could be raised in cross-examination in view of the stage of the trial and the content of the Indictment Accordingly in its Decision on Defence Motion regarding Cross-Examination of Witnesses by the 443 Decision on Defence Motion for Clarification of the Oral Decision of 17 December 2003 Regarding the Scope of Cross-Examination Pursuant to Rule 90 H of the Rules 28 January 2004 p 3 444 Ibid p 4 Case No IT-01-47-T 76 15 March 2006 600 21623 BIS Prosecution the Chamber did not permit the Prosecution to put questions to defence witnesses in cross-examination seeking to establish the international character of the armed conflict in Central Bosnia in 1993 The Chamber relied on the fact that the Indictment does not explicitly indicate that an international armed conflict existed in Central Bosnia in 1993 and that consonant with the Indictment the Prosecution did not present evidence which would establish that the nature of the armed conflict in Central Bosnia in 1993 was international when it presented its case in chief 445 274 Conversely the Chamber allowed the Prosecution to make limited references to the nature of the armed conflict during the period and in the places relevant to the Indictment during its crossexamination of Defence witnesses if those witnesses referred to the nature of the armed conflict during their examination by the Defence Evidence thus produced would however be admitted only insofar as it provided further details about the general factual context of this case and could not serve to establish the international nature of the conflict in respect of the applicable law 446 275 Still with regard to the evaluation of the context of the case the Chamber’s decision also granted the Prosecution leave to refer during its cross-examination of defence witnesses to the possible unlawful detention of persons in places under the control of the ABiH during the period covered by the Indictment even though the Indictment did not charge unlawful detention of persons in ABiH facilities 447 b Decision on Motion of the Accused Hadžihasanovi regarding the Prosecution's Examination of Witnesses on Alleged Violations Not Covered by the Indictment448 276 In its Decision on the Motion of the Accused Hadžihasanovi regarding the Prosecution's Examination of Witnesses on Alleged Violations Not Covered by the Indictment the Chamber limited the scope of the Prosecution’s cross-examination of prosecution witnesses In its Motion the Defence for the Accused Had ihasanovi requested the Chamber to find that the Indictment did not contain any charges that people were used to dig trenches on the front lines whether such charges were brought directly or indirectly under Article 3 1 a of the Geneva Conventions that any questions from the Prosecution to witnesses regarding the use of people to dig trenches on the front lines were irrelevant and to deny the Prosecution leave to amend the Indictment in order to 445 Decision on Defence Motion Regarding Cross-Examination of Witnesses by the Prosecution 9 December 2004 See also Decision Pursuant to Rule 72 E as to Validity of Appeal Appeals Chamber 21 February 2003 446 Decision on Defence Motion Regarding Cross-Examination of Witnesses by the Prosecution 9 December 2004 p 6 447 Decision on Defence Motion Regarding Cross-Examination of Witnesses by the Prosecution 9 December 2004 pp 6 and 7 In this Decision the Chamber noted that the Indictment expressly alleges that “Bosnian Croats but also Bosnian Serbs were unlawfully imprisoned and otherwise detained in ABiH detention facilities” and refers to the “imprisonment” of persons to “detainees” and to “prisoners” 448 Decision on Motion of the Accused Hadžihasanovi Regarding the Prosecution's Examination of Witnesses on Alleged Violations Not Covered by the Indictment 16 March 2004 Case No IT-01-47-T 77 15 March 2006 599 21623 BIS add a charge that people were forced to dig trenches even though such a charge was withdrawn from the Initial Indictment by the Prosecution proprio motu 449 In the Prosecution Filing Pursuant to the 18 February 2004 Oral Order of the Trial Chamber regarding Evidence Concerning TrenchDigging the Prosecution requested the Chamber to admit evidence of trench-digging on the front lines 277 The Chamber found that an examination of the Indictment and its background shows that it did not include allegations of inhuman treatment because of the use of detainees to carry out forced labour Accordingly the Chamber denied the Prosecution’s request to adduce evidence in relation to those charges 450 c Oral Decision of 29 November 2004 278 Another restriction was set by the Chamber in its oral decision of 29 November 2004 concerning the Prosecution’s use of documents on a limited basis during its cross-examination of defence witnesses when those documents were not already part of the trial record The Prosecution was authorised to question defence witnesses on those documents but only in order to attack their credibility or to refresh their memory 451 3 Questions from the Judges 279 Pursuant to Rule 85 B of the Rules a Judge may at any stage put any question to a witness be it during direct examination or cross-examination 452 The Chamber frequently exercised that power in the interests of justice during the trial either to seek clarification on issues that remained unclear after a witness was examined by one of the Parties or when there was a contradiction between witness statements or when a witness statement contradicted or differed from the content of one or several documents in evidence Finally the Chamber sought explanations from some witnesses regarding the contents of certain documents 453 449 Motion of the Accused Had ihasanovi Regarding the Prosecution’s Examination of Witnesses on Alleged Violations Not Covered by the Indictment 23 February 2004 450 Decision on Motion of the Accused Hadžihasanovi Regarding the Prosecution's Examination of Witnesses on Alleged Violations Not Covered by the Indictment 16 March 2004 p 3 451 Oral Decision of 29 November 2004 T F pp 12521-12527 452 See Decision on Had ihasanovi Defence Motion Seeking Clarification of the Trial Chamber's Objective in its Question Addressed to Witnesses 4 February 2005 453 See for example Kubura Defence Final Brief noting the Judges’ interventions in respect of paras 56 36 55 and 49 Case No IT-01-47-T 78 15 March 2006 598 21623 BIS B Admissibility of Evidence 1 Flexible Approach of the Chamber a Decision of 16 July 2004 on Admissibility of Documents 454 280 The Chamber also adopted a flexible approach for the admission of documents into evidence In its Decision of 16 July 2004 the Chamber had to rule on a Prosecution request to tender documents as it closed its case as the Defence objected to the admission of most of the documents By admitting virtually all the documents submitted by the Prosecution including those whose purported author was not called to testify or whose purported author did testify but did not remember them or admitting documents the witnesses were supposed to remember in some other capacity but did not the Chamber set out the few principles guiding its decision 455 281 The Chamber recalled that the criteria for relevance and probative value cannot necessarily be defined clearly and simply in the absence of context and that the application of those criteria depends mostly on the specific circumstances of a case and the nature of the documents whose admission is being requested The Chamber thus recalled the specific facts of the case particularly that it is based solely on criminal command responsibility under Article 7 3 of the Statute and that the Indictment refers to a great many different events which could entail the criminal responsibility of the Accused 456 Consequently the Chamber considered that the specific nature of the case because of those two points required that the concepts of relevance and probative value be applied in a circumspect and flexible manner and that admission of a document should not be too hastily refused 457 282 The Chamber gave additional reasons in support of such an approach including the complexities of an army’s functioning in wartime or the fact that a document which at first sight appears insignificant and marginally relevant might assume much greater importance when considered in light of other documents or testimony 458 The Chamber also noted that a document admitted during the Prosecution’s case may subsequently be contradicted by witnesses or documents produced by the Defence and concluded that the end of the trial would be the time for the Judges to assess the evidence and attribute to it greater or lesser weight when deliberating in 454 Decision of 16 July 2004 on the Admissibility of Certain Challenged Documents and Documents for Identification confidential Decision of 16 July 2004 on Admissibility of Documents The decision was made public on 27 July 2004 and 2 August 2004 see Decision to Unseal Confidential Decision on the Admissibility of Certain Challenged Documents and Documents for Identification Case no IT-01-47-T 2 August 2004 455 Ibid para 44 456 Ibid para 34 457 Ibid para 35 458 Decision of 16 July 2004 on Admissibility of Documents para 35 Case No IT-01-47-T 79 15 March 2006 597 21623 BIS Chambers 459 Accordingly in this Judgement the Chamber has endeavoured to explain its approach to the admission of documents into evidence and to attaching weight thereto 283 In that Decision the Chamber recalled that during the trial it had always demonstrated a liberal approach in its determination of the admissibility of documents as a function of their relevance on the ground that knowledge of the context surrounding certain events or an armed conflict in general is necessary in order to understand such events properly 460 284 The Chamber followed Tribunal case law in its deliberations recalling that reliability is a requirement for admissibility under Rule 89 C of the Rules 461 To ensure that the documents produced were reliable on 17 May 2004 the Chamber ordered the Prosecution to provide inter alia information regarding the documents furnished by governments to call as witnesses the archivists in charge of the Sarajevo and Zenica archives to inform the Chamber to the extent possible of any material it had in its possession that proved that these documents were sent and received and to call as a witness a former high-ranking member of the ABiH to testify about the drafting of orders in that army 462 Similarly Witness ZP appeared before the Chamber and recognised personal notes he had written whose admission was challenged and also provided some explanations regarding other challenged documents 463 285 Following that request and in addition to the information provided by the Prosecution on 21 and 22 June 2004 the Chamber heard archivists Adam Omerki and Sabahudin Smriko as witnesses 464 On 30 June and 1 July 2004 the Chamber heard witnesses Senad Selimovi and Muradif Meki regarding the drafting recording and transmission of orders within the ABiH It is the Chamber’s view that those witnesses provided information on the reliability of the documents which during its examination of the original versions 465 helped the Chamber determine some indicia of their reliability in particular the appearance and provenance of the challenged documents 466 459 Ibid para 35 Ibid para 37 461 Ibid para 29 462 Ibid para 7 463 Decision on the Admissibility of Certain Challenged Documents and Documents for Identification para 42 464 Decision of 16 July 2004 on Admissibility of Documents para 27 465 The Chamber examined all of the original versions of the challenged documents Ibid para 56 466 Ibid para 30 460 Case No IT-01-47-T 80 15 March 2006 596 21623 BIS b Decision on the Admissibility of Documents of the Defence for Hadžihasanovi 286 The Chamber adopted the same flexible approach in its Decision on the Admissibility of Documents of the Defence for Hadžihasanovi 467 c Decisions on Judicial Notice of Adjudicated Facts Admitted in Other Cases 287 In its Decision of 20 April 2004 the Chamber ruled on an initial Defence motion regarding judicial notice of adjudicated facts admitted in other cases 468 Applying the criteria set out in The Prosecutor v Mom ilo Kraji nik 469 the Chamber examined proposed facts from the cases of The Prosecutor v Zlatko Aleksovski The Prosecutor v Zoran Kupre ki et al The Prosecutor v Tihomir Bla ki and The Prosecutor v Dario Kordi and Mario erkez with a view of taking judicial notice of those facts pursuant to Rule 94 B of the Rules 288 In the Decision the Chamber recalled the principle of broadly interpreting the relevance of evidence when it relates to the historical political or military context at the time of the facts while noting that the application of such a principle could not prejudge the probative value the Chamber might in the course of the trial and if necessary decide to attribute to a fact of which judicial notice had been taken 470 After determining their relevance the Chamber thus decided to take judicial notice of four facts admitted in other cases The Chamber further noted that it had proceeded from the assumption that such facts were accurate and that they did not need to be reestablished at trial but that because this was an assumption such judicial notice could be challenged at trial 471 289 The Chamber adopted a similar approach in its second decision on previously adjudicated facts in which it took judicial notice of 39 facts admitted in other cases 472 467 Decision on the Admissibility of Documents of the Defence for Enver Hadžihasanovi 22 June 2005 paras 22-26 Final Decision on Judicial Notice of Adjudicated Facts 20 April 2004 469 The Trial Chamber in the case of The Prosecutor v Mom ilo Kraji nik held that for a fact to be admissible under Rule 94 B of the Rules it should be truly adjudicated in previous Judgements in the sense that i it is distinct concrete and identifiable ii it is restricted to factual findings and does not include legal characterisations iii it was contested at trial and forms part of a judgement which has either not been appealed or has been finally settled on appeal or iv it was contested at trial and now forms part of a judgement which is under appeal but falls within issues which are not in dispute during the appeal v it does not attest to criminal responsibility of the Accused vi it is not the subject of reasonable dispute between the parties in the present case vii it is not based on plea agreements in previous cases and viii it does not impact on the right of the Accused to a fair trial See The Prosecutor v Mom ilo Kraji nik case no IT-00-39 Decision on Prosecution Motions for Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses Pursuant to Rule 92 bis 28 February 2003 para 15 470 Final Decision on Judicial Notice of Adjudicated Facts 20 April 2004 p 9 471 Ibid p 7 472 Decision on Judicial Notice of Adjudicated Facts Following the Motion Submitted by Counsel for the Accused Hadžihasanovi and Kubura on 20 January 2005 14 April 2005 p 8 468 Case No IT-01-47-T 81 15 March 2006 595 21623 BIS 2 Restrictions 290 The Chamber recalls three major restrictions on its flexible approach one stems from its aforementioned Oral Decision of 29 November 2004 another from its Decision on the Prosecution's Application to Re-Open its Case 473 and the last from its Decision on the Motion to Strike the Testimony of Witness ZI 474 291 In its oral decision of 29 November 2004 the Chamber reiterated the principle that the Prosecution is required to present all of its evidence during its case-in-chief and therefore may not in cross-examination of defence witnesses adduce new evidence that has not already been admitted in an effort to strengthen its case-in-chief or to introduce new elements relating to the criminal responsibility of the Accused The Chamber then granted the Prosecution leave to produce and request the admission of documents not previously admitted into evidence during such crossexaminations but under more restricted conditions namely only to impeach the credibility of the witness in question or to refresh the witness’ memory 475 292 Another limitation on the Chamber’s flexible approach appears in its Decision on the Prosecution's Application to Re-Open its Case in which the Chamber denied the Prosecution’s request to tender 24 documents into evidence after the presentation of the Defence case on the ground that the Prosecution had failed to demonstrate the required due diligence to identify and produce the 24 documents before the close of its case on 23 July 2004 476 293 The final restriction on the Chamber’s flexible approach appears in its Decision regarding the testimony of Witness ZI On that occasion the Defence for the Accused Had ihasanovi filed a motion requesting the Chamber to order an investigation into Witness ZI’s activities in an HVO commission set up to collect exculpatory evidence for Croats indicted by the Tribunal It also requested that the testimony of Witness ZI and Prosecution Exhibits P81 to P89 be struck from the record in this case 477 In support of its allegations the Defence for the Accused Had ihasanovi filed six documents from the archives of the Republic of Croatia which it claimed showed the 473 Decision on the Prosecution's Application to Re-Open its Case 1 June 2005 Decision on the Motion to Strike the Testimony of Witness ZI 11 July 2005 475 The restricted admission of Prosecution evidence regards the following exhibits P 931 P 935 P 942 P 943 P 944 P 945 P 946 P 947 P 948 P 949 P 950 and P 951 The Chamber recalls that in its Decision of 16 July 2004 on Admissibility of Documents Exhibits P 103 and P 106 were admitted only for the purpose of testing the credibility of Witness Jasmin Eminovi See Decision of 16 July 2004 on Admissibility of Documents para 99 476 Decision on the Prosecution's Application to Re-Open its Case 1 June 2005 para 109 477 Decision on the Motion to Strike the Testimony of Witness ZI 11 July 2005 p 2 474 Case No IT-01-47-T 82 15 March 2006 594 21623 BIS involvement of Witness ZI in the activities of that commission as well as the correspondence on this matter between the Defence for the Accused Had ihasanovi and the Prosecution 478 294 The Chamber found that the Defence for the Accused Had ihasanovi had made its application after the conclusion of the Defence case and that the Defence was requesting the Chamber to rule on the credibility of Prosecution Witness ZI’s testimony on the basis of information in six “new documents” The Chamber considered that while the Defence for the Accused Had ihasanovi had not expressly requested leave to re-open its case its request to strike the testimony of Witness ZI and to withdraw exhibits previously admitted on the basis of information in new documents was tantamount to a request to re-open its case The Chamber then recalled that according to its Decision on the Prosecution’s Application to Re-open its Case such requests had to be subject to stringent conditions of admissibility 479 In denying the Defence motion the Chamber determined that when the conditions required for re-opening a case were applied the Defence for the Accused Had ihasanovi had not demonstrated the required due diligence in obtaining the six documents it sought to admit before the end of its case 480 3 Order on Admission of Chamber Exhibits 295 On 22 June 2005 the Chamber ordered that the war diaries be admitted in full as Chamber exhibits except for the Prosecution exhibits already admitted in the proceedings 481 During its casein-chief the Prosecution submitted ten war diaries and operations logbooks to the Chamber requesting however that only some excerpts from the war diaries be admitted During its examination of the Prosecution’s request to admit the documents the Chamber held that the documents presented sufficient indicia of reliability relevance and probative value 482 Moreover during the hearing of 27 April 2004 the Defence argued that the war diaries should be tendered in their entirety Accordingly considering that the war diaries in full would be useful in bringing out the truth and might in particular help to shed light on the content of other previously admitted exhibits and to follow the sequence of events in 1993 the Chamber ordered that except for those already admitted as Prosecution exhibits the full war diaries be tendered into the record 478 Ibid p 2 Ibid p 3 480 Ibid p 5 481 Order on Admission of Chamber Exhibits 22 June 2005 p 3 482 Ibid p 2 citing the Decision of 16 July 2004 Regarding the Admissibility of Documents para 63 479 Case No IT-01-47-T 83 15 March 2006 593 21623 BIS C Findings of the Chamber on Evidence a General Remarks on Evidence 296 The Chamber wishes to provide a few indications about its approach to documents put into evidence by the Parties as many of them were tendered either without going through a witness or a witness failed to recognise one or several of them or the content of one document or a series of documents seemed to contradict certain witness testimony 297 The Chamber obviously attached more weight to documents witnesses explained in convincing fashion than to documents admitted in isolation and therefore without a witness’s comments or observations 298 Nonetheless the Chamber did attach certain weight to documents which although not tendered through or put before a witness were part of a series of orders or reports which formed part of a set of related documents whose content there was no reason to question 299 The Chamber was however somewhat cautious with regard to isolated documents which lacked the support of a witness’s explanation and could therefore be misinterpreted This was the case for documents which could be misleading for readers in respect of certain municipalities in Central Bosnia 483 300 The Chamber considered that the date a document was drafted was a criterion in assessing the reliability of its content In fact documents written contemporaneously with the events they describe are presumed to be reliable since at the time they were written the author’s knowledge of the facts had not been affected by gaps in memory and in principle the author had no reason to wish to distort the facts Accordingly the Chamber has based its findings in this Judgement on the primary meaning of documents written contemporaneously with the facts as they occurred 301 In its Final Brief the Prosecution asked the Chamber to exercise extreme care when it assessed the credibility of most of the Defence witnesses giving two main reasons for that statement First a large number of the witnesses called by the Accused were former 3rd Corps officers or troops and second some of the witnesses called by the Defence were unbeknownst to them suspects or were being investigated by the local courts in Bosnia and Herzegovina in particular for their involvement in crimes committed by the Mujahedin 484 The Defence for the 483 Such is the case for references to Ora ac in Exhibits P 500 and P 501 See Had ihasanovi Defence Closing Arguments T E pp 19129-19130 The same is true for references to Zagradje Had ihasanovi Defence Closing Arguments T E p 19130 see DK 24 and Prosecution Pre-Trial Brief para 56 484 Prosecution Final Brief paras 7-11 Case No IT-01-47-T 84 15 March 2006 592 21623 BIS Accused Had ihasanovi responded to that allegation by explaining that the witnesses who were members of the ABiH are the only people who witnessed the events firsthand whereas international observers generally lacked knowledge of Bosnia and Herzegovina prior to their arrival and quite frequently did not understand the events and their causes as they unfolded on the ground 485 302 The Chamber set aside the testimony of Prosecution and Defence witnesses whose credibility seemed suspect at trial Such was the case with Witness XE for example Whenever the testimony of a witness unconvincingly contradicted a logical series of documents the Chamber accorded more weight to the documentary evidence 303 Finally the Chamber would note with regard to witnesses who were members of international organisations during the relevant period that while in principle they had vowed to be impartial this cannot be verified and also that their knowledge of how events unfolded was at times limited Nevertheless whenever the testimony of international observers contradicted that of other witnesses the Chamber attached more weight to the version of the observers to the extent that it was supported by other evidence 486 b Linguistic Matters 304 The Chamber has some observations with regard to linguistic matters which are of crucial importance in this case First before it could rely on statements made by witnesses contained in the court transcripts the Chamber attempted to compare the French and English versions of those texts In the case where there were discrepancies between the transcripts the Chamber relied on the English interpretation in the transcripts rather than the French considering the English versions more reliable as they are more accurate In the case where the two versions were incompatible the Chamber proprio motu requested the Tribunal’s language section CLSS to provide a new interpretation from the B C S Bosnian Croatian Serbian recording 487 305 Several factors have led the Chamber to make such a choice which is unfortunate given that French is its working language First during the trial the Chamber noted that the French interpretation of statements made in B C S by a witness was often by “relay” of the English interpretation which was interpreted directly from B C S Second the Chamber recalls that during the proceedings the Chamber and the Parties have access to the transcripts in English which allows them to point out errors in interpretation immediately whereas the Chamber has access to 485 Had ihasanovi Defence Closing Arguments T E p 19123 See infra para 1978 Vare infra paras 1190 and 1220 Music School infra paras 1413-1422 Ora ac 487 See Memorandum of 13 January 2006 from the Chamber’s Legal Officer to the Head of the Interpretation Unit CLSS and the response from that section the same day 486 Case No IT-01-47-T 85 15 March 2006 591 21623 BIS transcripts in French at best only the following day Finally the Chamber was surprised to note that despite the succinct nature of the English language the French transcripts are systematically shorter than the English version 306 Furthermore during the trial the interpretation of certain terms contained in the documents tendered into evidence was subject to frequent debate giving rise to requests to the translation section for its opinion Each opinion given by the translation section on the basis of such requests has been tendered into evidence 488 c Restricted Admissibility during Cross-Examination Lack of Independent Probative Value 307 The Chamber recalls that according to the above-mentioned decisions a number of documents tendered into evidence lack independent probative value Such is the case for Exhibits P 103 and P 106 which were admitted only for the purpose of determining the credibility of the witness to whom the exhibits in question referred 489 or Exhibits P 931 P 935 P 942 P 943 P 944 P 945 P 946 P 947 P 948 P 949 P 950 and P 951 which could be used only to refresh the memory or impeach the credibility of the witness in question 490 Accordingly any reading of one or several paragraphs of a document by a witness during his testimony in no way means that those passages have been tendered into evidence in this case Similarly those paragraphs may not be used to corroborate other evidence 491 d Inferences 308 In its Closing Arguments492 and Final Brief 493 the Defence for the Accused Kubura argued that the Prosecution’s case was based on a “pyramiding of inferences” which consists of drawing one inference from a series of inferences and prejudices the Accused Kubura 494 The Defence for the Accused Kubura thus characterised the Prosecution’s approach as a drive to get a legal conclusion based on various inferences 495 488 C3-C10 P 103 and P 106 were admitted restrictively following the Decision of 16 July 2004 Regarding the Admissibility of Documents para 99 490 The restricted admission of Prosecution exhibits following the oral decision of 29 November 2004 concerns the following documents P 931 P 935 P 942 P 943 P 944 P 945 P 946 P 947 P 948 P 949 P 950 and P 951 T F pp 12521-12527 491 See infra para 475 492 Kubura Defence Closing Arguments T E pp 19266 19275 19282 and 19283 493 Kubura Defence Final Brief paras 71 and 124 494 Kubura Defence Closing Arguments T E p 19266 “We say in many critical areas their case is riddled with what might be termed pyramiding of inferences which is drawing an inference upon another inference upon another inference upon another inference” 495 Kubura Defence Closing Arguments T E p 19275 489 Case No IT-01-47-T 86 15 March 2006 590 21623 BIS 309 The Defence for Kubura argued that circumstantial evidence must be examined “narrowly” as the possibilities for errors for fabricating false evidence and for inaccuracies are more prominent The fundamental test is that where evidence in a trial is circumstantial before a finding of guilt may be made the Court must conclude that the circumstances were both consistent with an inference of guilt and would not lead to any other reasonable inference 496 As such if there is another rational explanation or other inferences that are consistent with the innocence of an Accused then the inference “has not been established beyond reasonable doubt” 497 310 The Defence for the Accused Had ihasanovi made similar submissions in its Closing Arguments 498 311 The Chamber subscribes to the idea that although an inference can be made from direct or circumstantial evidence it must be reasonable and narrowly construed Consequently the Chamber rejects any inferences based on a series of inferences In addition in cases where several inferences may be made on the basis of the same evidence and are equally plausible the Chamber considered that it could not hold the most prejudicial evidence against the Accused except in cases where the inference most favourable to the Accused cannot be upheld in view of the facts of the case 496 Ibid T E p 19282 Ibid T E p 19283 498 Had ihasanovi Defence Closing Arguments T E p 19118 497 Case No IT-01-47-T 87 15 March 2006 589 21623 BIS IV ABIH 3RD CORPS A Creation Hierarchy and Structure of the 3rd Corps 1 Creation of the ABiH 312 On 23 June 1992 a decision of the Republic of Bosnia and Herzegovina “RBiH” Presidency created the RBiH Army “ABiH” to protect the RBiH from the fighting that had broken out on its territory499 Between 8 April and 23 June 1992 the RBiH Presidency organised the defence of the territory using already existing Territorial Defence “TO” units 500 313 On 8 April 1992 with the declaration of an imminent threat of war and the creation of the Republic of Bosnia and Herzegovina following the dissolution of the Socialist Republic of Bosnia and Herzegovina the RBiH TO Staff was established and the former TO Staff was dissolved 501 On 9 April 1992 a presidential Decision ordered all armed individuals and units to report to the staffs of municipal regional district and town Sarajevo TO units with the exception of members of the Yugoslav People’s Army “JNA” and Ministry of the Interior “MUP in order to put them under a single command 502 314 A state of war and mobilisation were declared in the RBiH on 20 June 1993 503 As of 23 June 1992 the RBiH TO was renamed the “RBiH Army”504 and the TO Main Staff became the Main Staff of the RBiH Armed Forces505 In Central Bosnia certain TO units at the district and particularly municipal level would be dissolved much later but until they disbanded they would remain a support force following ABiH orders 506 315 Following an amendment to the RBiH Constitution by presidential decree the RBiH Presidency became the RBiH Armed Forces Supreme Command for the duration of the state of 499 DH 2104 See infra paras 337-339 501 DH 386 Official Gazette of the RBiH No 1 9 April 1992 DH 1650 502 DH 1651 503 P 362 Official Gazette of the RBiH No 7 20 June 1992 DH 420 504 DH 2104 505 DH 2104 506 See infra paras 337-339 regarding the role of the TO within the 3rd Corps 500 Case No IT-01-47-T 88 15 March 2006 588 21623 BIS war 507 During that same period the General Staff of the RBiH Armed Forces became the Supreme Command Main Staff 508 2 Supreme Command Main Staff and Creation of the ABiH Corps 316 The ABiH Main Staff the highest organ in the ABiH hierarchy 509had its headquarters in Sarajevo 510 The Rules on Corps of the JNA Ground Forces gives a general idea of the traditional JNA corps subdivisions 511 This document delineates the tasks of an army corps command covering the following areas command staff political legal self-protection issues security personnel logistics support and general affairs Each area corresponded to a specific organ in the army corps structure staff political and legal affairs security services and development planning and finance Self-protection was the responsibility of all organs of the Corps Command as part of their official duties 512 317 The Chamber notes that the ABiH Supreme Command Main Staff consisted of the following organs Operations and Training including the Operations Command Centre 513 Combat Arms Administration Logistics Administration 514 Personnel Administration 515 Administration for Morale Information and Propaganda and Religious Affairs 516 Intelligence Administration Security Administration 517 and Legal Administration In view of the evidence it would appear that the staffs of the 3rd Corps the operations groups and brigades had the same composition but with reduced personnel 518 318 In 1992 Sefer Halilovi commanded the Supreme Command Main Staff holding the position of Chief of the ABiH Main Staff 519 On 8 June 1993 Rasim Deli was appointed head of the Main Staff with the rank of Supreme Command Main Staff Commander Sefer Halilovi 507 DH 428 DH 429 509 DH 210 510 See for example DH 211 DH 446 P 206 DH 1185 511 P 799 “Rules on the Corps of the JNA Ground Forces” 512 P 799 paras 64-76 513 DH 1416 514 DH 1416 515 DH 1416 516 P 209 517 DH 1416 P 244 para 45 518 P 498 brigades DH 2088 Annexes 93 and 94 519 DH 2088 para 243 see also Halilovi Trial Judgement para 103 508 Case No IT-01-47-T 89 15 March 2006 587 21623 BIS retained his title as Chief of the Main Staff 520 Stjepan iber and Jovan Divjak were appointed Supreme Command Main Staff deputy commanders 521 319 By presidential decision of 18 August 1992 the territory of the Republic of Bosnia and Herzegovina was to be divided into five zones of military responsibility each covered by an army corps answering to the ABiH Supreme Command Main Staff 522 320 Based on this decision army corps were established over the entire territory of Bosnia and Herzegovina The 3rd Corps which was to include the municipality of Banja Luka where it would appear it was to establish its headquarters temporarily set up headquarters in the town of Zenica on 18 August 1992 523 321 On 29 September 1992 pursuant to the Presidency Decision of 18 August 1992 524 the Supreme Command Main Staff ordered that the district TO staffs “Ok O” be re-subordinated to the corps which meant that the Ok O of Zenica and Banja Luka would be subordinated to the 3rd Corps 525 The municipal defence staffs “Op O” were to be subordinated to the ABiH units in their respective zone of responsibility 526 Because of combat operations in part of the territory of Bosnia and Herzegovina the 3rd Corps zone of responsibility changed slightly and the 3rd Corps set up permanent headquarters in Zenica 527 3 3rd Corps a Zone of Responsibility 322 On 9 November 1992 the Chief of the Supreme Command Main Staff Sefer Halilovi ordered the creation of specific types of units within the 3rd Corps in order to counter the fighting that raged in certain municipalities and also to allow various TO headquarters and units to merge 528 He appointed Enver Had ihasanovi head of the 3rd Corps around mid-November 1992 529 The 520 DH 1891 see also Halilovi Trial Judgement paras 1 and 103 P 295 DH 1891 P 431 Halilovi Trial Judgement para 103 522 P 121 A 6th Corps was created in June 1993 see DH 1172 523 P 121 On 18 August 1992 the zone of responsibility of the 3rd Corps included the following municipalities Banja Luka Bugojno Bosanska Dubica Bosanska Gradi ta Busova a elinac Donji Vakuf Gornji Vakuf Jajce Kakanj Kotor Varo Kupre Lakta i Mrkonji Grad Novi Travnik Prnjavor Srbac Skender Vakuf ipovo Travnik Vitez Zavidovi i Zenica and @ep e 524 See also P 121 under III 525 P 748 DH 215 526 P 748 DH 215 527 DH 220 P 245 DH 2019 P 336 528 P 123 Indictment para 15 529 P 245 18 November 1992 DH 2088 paras 317 367 377 18 November 1992 Had ihasanovi Defence Final Brief para 28 18 November 1992 Joint Statement on the Agreement of Facts Annex A 14 November 1992 521 Case No IT-01-47-T 90 15 March 2006 586 21623 BIS following municipalities were to be included in the 3rd Corps zone of responsibility Banja Luka Bosanska Dubica Bosanska Gradi ka Bugojno Busova a elinac Donji Vakuf Gornji Vakuf Jajce Kakanj Kotor Varo Kupre Lakta i Mrkonjic Grad Novi Travnik Prnjavor Skender Vakuf Srbac ipovo Travnik Vitez Zavidovi i Zenica and @ep e 530 Owing to combat operations this zone of responsibility was slightly changed and reduced although the municipality of Vare was subsequently added to it 531 b 3rd Corps Command Staff 323 The 3rd Corps Command Staff based in Zenica 532 consisted of several organs 533 The 3rd Corps Command Staff had the same structure as the Main Staff 324 For the purposes of this Judgement certain organs within the 3rd Corps Command Staff should be mentioned the Operations Centre the Communications Centre and the Military Security Service 325 The Operations Centre collected all information about the 3rd Corps zone of responsibility originating in civilian structures subordinated units the superior command and the MUP and transmitted important information to the Corps Commander 534 The Centre was the sole repository of information535 and operated 24 hours a day 536 The 3rd Corps Command sent a daily report compiled by the centre to the Main Staff Command 537 326 The Communications Centre was headed by Witness Senad Selimovi 538 It was an administrative organ in charge of planning and organising all communications within the Command 539 The decoding service was part of the Centre 540 The communications centre also operated 24 hours a day 327 The 3rd Corps Military Security Service was headed by Ramiz Dugali 541 This Service had ultimate responsibility for counter-intelligence activities the work of the military police and the 530 Joint Statement on the Agreement of Facts Annex B The zone of responsibility of the 3rd Corps included henceforth the municipalities of Breza Visoko Ilijas Vare Fojnica and Kiseljak DH 716 DH 2088 para 462 532 See for example P 245 DH 2019 P 336 533 Regarding the sections of the 3rd Corps Staff see DH 2088 Annex 91 534 Sakib @iko T F pp 14557 14558 14583 Vezir Jusufspahi T F p 13994 D emal Merdan T F p 13501 535 Sakib @iko T F p 14558 536 Sakib @iko T F p 14557 537 Vezir Jusufspahi T F p 13993 538 P 245 P 296 C 16 dated 23 June 1993 Senad Selimovi T F pp 9859-9862 539 Senad Selimovi T F p 9861 540 Senad Selimovi T F p 9922 541 Fehim Muratovi T F p 14948 P 923 7 DH 2086 P 656 531 Case No IT-01-47-T 91 15 March 2006 585 21623 BIS work of securing headquarters and other vital facilities 542 The Military Security Service answered to a double chain of command one from the military command headed by the Chief of the Main Staff and one from the military security headed by the Minister of Defence 543 Within the context of this double chain of command assistant commanders for security were in charge of transmitting information to their units and to the 3rd Corps chiefs of security regarding the situation in their zone of responsibility along with any intelligence having to do with military security 544 c Enver Had ihasanovi i Training 328 The Accused Had ihasanovi was a professional military officer who had graduated from the Land Forces Military Academy in Belgrade Promoted to the rank of Captain First Class he continued his training at the Staff Officers’ College When he finished he took over the command of a Military Police Battalion within the JNA 7th Army Military Police In this position he was promoted to the rank of “commander” 545 329 Witness Merdan testified that this training and experience in the JNA would not have qualified the Accused Had ihasanovi to command a 30 000-strong army corps but given the JNA structure to head a brigade with a maximum of two to three thousand soldiers 546 330 TO 547 In early April 1992 after leaving the JNA the Accused Had ihasanovi joined the RBiH and was appointed Chief of Staff of the ABiH 1st Corps on 1 September 1992 548 He was first mandated by Sefer Halilovi to go to Zenica to organise troops to lift the blockade of Sarajevo 549 His next mission was to consolidate and organise the units in Central Bosnia based in Zenica in order to counter the Serbs’ military aggression in Bosnia and Herzegovina Consequently Sefer Halilovi appointed him 3rd Corps Commander in mid-November 1992 550 a position he retained until 1 November 1993 when he was succeeded by Mehmed Alagi 551 542 Fehim Muratovi T F p 14949 Edib Zlotrg T E p 14981 544 Edib Zlotrg T F pp 14998-14999 545 Joint Statement on the Agreement of Facts Annex B 546 D emal Merdan T F p 13237 DH 155 3 p 2 547 Joint Statement on the Agreement of Facts A3-A5 548 DH 451 549 Muradif Meki T F p 9950 550 P 245 18 November 1992 DH 2088 paras 317 367 377 18 November 1992 Had ihasanovi Defence Final Brief para 28 18 November 1992 Joint Statement on the Agreement of Facts Annex A 14 November 1992 551 P 209 P 278 543 Case No IT-01-47-T 92 15 March 2006 584 21623 BIS 331 The 3rd Corps set up permanent headquarters in Zenica 552 According to his closest associate at the time D emal Merdan the Accused Had ihasanovi was a commander respected by his troops who also had a good reputation among international observers ii Communicating Information to the Accused Had ihasanovi 332 The Accused Had ihasanovi depended on the 3rd Corps’ military hierarchy for information regarding the situation on the ground and the actions of his troops In addition D emal Merdan 3rd Corps Deputy Commander systematically informed the Accused Had ihasanovi of any incidents and developments Had ihasanovi appointed Merdan to represent the 3rd Corps Command in joint commissions with the HVO “Croatian Defence Council” As part of his duties Merdan moved about the terrain and reported back to Had ihasanovi on the situation something he did regularly and whenever an incident occurred 553 At 3rd Corps headquarters Merdan’s office was adjacent to that of the Accused Had ihasanovi 554 The international observers also concluded that D emal Merdan was Had ihasanovi ’s “eyes and ears” 555 The Chamber considers that whenever Merdan had knowledge of a fact the Accused Had ihasanovi did too 333 Such an inference however cannot be made based on the military security chain of command The military security service to which the military police units and the Military Police Battalion were attached had a double chain of command 556 Following the vertical chain of command the military security service of a corps obeyed the orders and instructions of the Supreme Command Main Staff Chief of Security 557 This same chain meant that the Security Service of a corps had the command of the security units subordinated to it 558 Following the horizontal chain of command the 3rd Corps Security Service559 obeyed the orders of the 3rd Corps Commander 560 Witness HF explained that the vertical chain of command whereby the military security service of a corps obeyed the Supreme Command Main Staff was based on the fact that military security services were primarily responsible for counter-intelligence activities 561 In fact in limited cases especially counter-intelligence the security organs were not obliged to report their activities to 552 See e g P 245 DH 2019 P 336 D emal Merdan T F pp 13229-13230 554 D emal Merdan T F p 13580 Cameron Kiggell T F p 4979 555 D emal Merdan T F p 13231 556 Witness HF T F pp 17166-17167 557 Fikret Muslimovi was the first chief of the Main Staff Military Security Service he was replaced by Jusuf Ja arevi see Witness HF T F p 17224 558 Witness HF T F p 17153 559 Ramiz Dugali was appointed head of the 3rd Corps Military Security Service in mid-March 1993 Fehim Muratovi T F p 14948 P 923 7 DH 2086 P 656 560 Witness HF T F pp 17129 and 17167 561 Witness HF T F p 17152 553 Case No IT-01-47-T 93 15 March 2006 583 21623 BIS either the corps commander brigade commander or commander of the operations group 562 Within this context Witness Fehim Muratovi testified that some intelligence was not reported to either the brigade commands or the 3rd Corps Command 563 While the Chamber considers it cannot find that when Ramiz Dugali or Salko Beba had knowledge of a fact the Accused Had ihasanovi necessarily had the same knowledge the fact remains nevertheless that except for activities related to counter-intelligence 564 the military security service executed the orders of Enver Had ihasanovi and had the duty to inform him about the situation on the ground 565 d 3rd Corps Military Police and the Civilian Police 334 In late November 1992 the 3rd Corps wanted to set up a joint military police with the HVO 566 This however was never implemented 567 The 3rd Corps Military Police Battalion was created in December 1992568 and initially consisted of four companies569 of 75-80 men 570 In the second half of 1993 a new company was created to fight terrorist activities 571 In addition to the Military Police Battalion a military police platoon or company comprising some thirty men was attached to each of the brigades mentioned in the Indictment 572 As far as the Chamber can ascertain the OG Operations Group Bosanska Krajina was the only operations group with a military police unit during the period in question 573 335 Sometimes members of the Military Police Battalion or other military police unit took part in combat when the commander of their brigade or operations group felt it would be useful 574 In a later part of the Judgement the Chamber will discuss the fact that the Military Police Battalion and the different military police units were tasked inter alia with investigating offences committed by members of the ABiH and reporting them to the district military prosecutors 575 The role of the military police is discussed in more detail in another part of this Judgement 576 562 Witness HF T F p 17289 Fehim Muratovi T F pp 15046 and 15062 564 Witness HF T F p 17289 565 Witness HF T F pp 17129 and 17167 Edib Zlotrg T F p 14981 566 DH 2081 567 Zaim Mujezinovi T F pp 17424-17425 568 See infra para 875 569 Each company consisted of a command and three platoons Zaim Mujezinovi T F p 17408 570 Zaim Mujezinovi T F p 17409 571 Zaim Mujezinovi T F p 17407 572 Izet Mahir T E p 16814 573 DH 1920 DH 1922 The Chamber did not receive evidence that the other OG Bosna La va Zapad and Istok also had military police units 574 Zaim Mujezinovi T F pp 17417 and 17466 575 See infra paras 892 and 920 576 See infra paras 860-899 563 Case No IT-01-47-T 94 15 March 2006 582 21623 BIS 336 The civilian police were not subordinated to the ABiH and answered to the MUP 577 Nevertheless on several occasions civilian police units were subordinated to the military police in order to take part in specific missions Relations between the “two police” revolved primarily around cooperation in conducting investigations 578 B 3rd Corps Units 1 TO Units 337 Until the dissolution of Yugoslavia in 1991 the country’s armed forces consisted of the Yugoslav People’s Army “JNA” and the Territorial Defence “TO” whose members were part of the reserve troops The TO was part of the doctrine of All-People’s Defence “ONO” and social self-protection “DSZ” intended to counter external aggression against the territory 579 The TO did not exist on a federal level but was organised inter alia at the level of the republic district and municipality 580 The TO had both staffs and units 581 338 As Bosnia and Herzegovina was about to declare war the TO in Central Bosnia was abandoned by most of the Bosnian Serbs Following the creation of the HVO the Bosnian Croats abandoned it too 582 Consequently in Central Bosnia the TO was the only armed force already in place capable of rallying those who did not wish to respond to the call of the JNA or HVO Its ranks were primarily filled with Bosnian Muslims The TO preceded the ABiH in organising the defence of Bosnia and Herzegovina’s territory 339 With the creation of the ABiH the TO was initially maintained with the subordination of its different units to the ABiH TO units provided logistics support583 and or military support 584 Then the ABiH began to progressively dismantle these units in the 3rd Corps zone of responsibility by incorporating them into 3rd Corps units District TO staffs “Ok O ”were dissolved first while municipal defence staffs “Op O” remained operational until the autumn of 1993 585 On 16 April 1993 the Accused Had ihasanovi gave the order to dissolve the Zenica Ok O and subordinate all 577 Zaim Mujezinovi T F p 17450 Osman Menkovi T F p 14677 According to constitutional expert Kasim Trnka it was possible to subordinate the civilian police to the army within the framework of a specific operation but this could happen only in exceptional circumstances and required a special decision by the RBiH Presidency Such a decision had to contain precise information on the operation and units involved See Kasim Trnka T F pp 1656716568 578 See infra paras 887-890 579 DH 2088 paras 27-29 46 and 47 See Blagojevi Trial Judgement para 85 580 DH 2088 para 59 581 DH 2088 para 58 582 DH 2088 paras 66-70 and para 234 583 P 125 584 P 210 P 403 P 200 P 507 Case No IT-01-47-T 95 15 March 2006 581 21623 BIS the 3rd Corps zone’s Op O to the 3rd Corps Command Most of these were placed under the command of operations groups 586 In September 1993 the Main Staff mentioned preparations to dissolve the 3rd Corps Op O and transfer their powers to the corps and brigade commands 587 Following the Accused Had ihasanovi ’s proposal of 20 October 1993 an order to dissolve most of the Op O operating in the 3rd Corps zone was issued on 21 October 1993 588 2 Operations Groups 340 In February 1993 the Accused Had ihasanovi proposed the creation of operations groups “OG” to ensure a more rational functioning of the chain of command between the area units and the 3rd Corps Command 589 Operations groups were subsequently created on 8 March 1993 590 The OG Bosanska Krajina headquartered in Travnik was in charge of the 7th Brigade591 and the 17th Brigade among others In June 1993 the 306th Brigade592 and the 325th Brigade593 were also placed under its command When OG Bosanska Krajina was created on 8 March 1993 Mehmed Alagi was appointed its commander a position he held until 1 November 1993 when he was appointed 3rd Corps Commander replacing the Accused Had ihasanovi 594 341 The OG La va had its headquarters in Kakanj and the 309th 325th 595 and 333rd Brigades were subordinated to it The OG Bosna had its headquarters in @ep e or Zavidovi i596 and was in command of the 318th and 319th Brigades The OG Zapad had its headquarters in Bugojno and the commands of the 306th 597 307th 308th 312th and 317th Brigades were subordinated to it Selmo ikoti became the Commander of OG Zapad on 8 March 1993 598 As of 17 March 1993 OG 585 DH 610 P 192 p 13 DH 2088 Annex 76 P 192 DH 153 DH 1381 587 See P 197 588 DH 1504 Order to dissolve the following Op O Zavidovi i Kakanj Novi Travnik Travnik Vitez Jajce @ep e Busova a Gornji Vakuf 589 DH 2088 para 482 590 P 144 DH 768 591 The 7th Brigade however was put back under the direct command of the 3rd Corps in mid-July 1993 see DH 1322 P 747 P 215 DH 1363 592 The 306th Brigade was subordinated to OG Zapad until early June 1993 after which time it was re-subordinated to OG Bosanska Krajina see in particular DH 1873 C 13 dated 5 June 1993 DH 1119 DH 1322 P 710 593 The 325th Brigade was first subordinated to OG La va and then re-subordinated to OG Bosanska Krajina on 25 June 1993 DH 1322 P 710 594 P 209 P 278 595 The 325th Brigade was subordinated to OG Bosanska Krajina on 25 June 1993 DH 1322 P 710 596 P 144 DH 768 It is not clear from the evidence whether OG Bosna was based in @ep e or Zavidovi i 597 The 306th Brigade was subordinated to OG Zapad until the beginning of June 1993 when it was re-subordinated to OG Bosanska Krajina see in particular DH 1873 C 13 5 June 1993 DH 1119 DH 1322 P 710 598 P 144 Zijad aber T E p 10351 before this position Selmo ikoti was deputy to the chief of staff of the intelligence service in the 3rd Corps Command P 245 586 Case No IT-01-47-T 96 15 March 2006 580 21623 BIS Visoko which was originally subordinated to the 1st Corps was re-subordinated to the 3rd Corps 599 In April 1993 OG Visoko was renamed OG Istok 600 At the end of August 1993 OG Istok was resubordinated to the 6th Corps 601 342 The 301st 303rd and 314th Brigades answered directly to the 3rd Corps Command 602 3 Brigades a 7th Brigade i Creation 343 Following a proposal on 18 December 1992 by the Commander of the Zenica District TO staff “Ok O” 603 and the Accused Had ihasanovi 604 in the Main Staff the 7th Brigade was created out of Muslim forces located on the Mt Vla i plateau 605 According to this document the soldiers on Mt Vla i insisted that the 7th Mountain Brigade be characterised as “Muslim” 606 a request granted by the Chief of the Supreme Command Main Staff in the order setting up the 7th Brigade dated 19 November 1992 607 ii Composition of the 7th Brigade a Battalions 344 The headquarters and command of the 7th Brigade were in Bilimi te on the outskirts of Zenica in one of the buildings of the Technical School 608 The 7th Brigade consisted of three battalions the 1st Battalion headquartered in Travnik 609 the 2nd Battalion in the Bilimi te barracks in Zenica 610 and the 3rd Battalion in Kakanj 611 The total number of soldiers comprising all three 599 DH 779 DH 780 DH 834 11 April 1993 the headquarters of OG Istok were in Breza 601 DH 1416 602 DH 153 P 144 DH 768 603 P 124 this document dated 18 November 1992 was signed by Witness D emal Merdan while he was Commander of the Zenica Ok O The same day he was appointed Deputy Commander of the 3rd Corps see P 245 604 The Accused Had ihasanovi did not sign this document while he was 3rd Corps Commander he was promoted to that rank the same day see P 245 605 See supra para 622 606 P 124 607 P 125 608 Witness ZN T F p 5276 D emal Merdan T F p 13189 609 Naim Horo DK 61 para 3 610 P 693 P 724 P 562 Kasim Pod i T F p 18636 611 DK 55 D emal Merdan T F p 13189 Joint Statement on the Agreement of Facts Annex A 600 Case No IT-01-47-T 97 15 March 2006 579 21623 BIS battalions was approximately 1 500 612 For the purposes of this Judgement it is important to note that the 1st Battalion had four companies 613 345 It is not very clear who commanded the 1st Battalion from mid-December 1992 to mid-June 1993 614 It even seems that this Battalion had no command in April 1993 615 Starting in mid-June 1993 Witness Safet Junuzovi assumed its command 616 erif Patkovi was 2nd Battalion Commander from late 1992 until 21 July 1993617 when he was succeeded by Kasim Pod i 618 Witness Kasim Alajbegovi was the first commander of the 3rd Battalion 619 He left this position in February 1993620 and was replaced by Nihad ati from 6 February 1993 until 20 June 1993 621 Subsequently Mustafa Had ihafinzbegovi took over command of the 7th Brigade 3rd Battalion 622 b 7th Brigade Military Police Battalion 346 As of 15 January 1993 the 7th Brigade had a Military Police Battalion623 with headquarters in the Music School in Zenica 624 It seems that its commander was Jusuf Karali 625 The unit consisted of some thirty soldiers 626 The double chain of command that applied to the 7th Brigade Military Police Battalion is worth noting The fact remains that the 7th Brigade Military Police Battalion was required to execute the orders of the 7th Brigade Commander 627 612 P 449 P108 para 3 4 DH 153 Naim Horo DK 61 para 3 614 See supra para 669 615 Ibid 616 Safet Junuzovi T F p 18507 Safet Junuzovi was Commander of the 1st Battalion from 17 June 1993 to 9 December 1993 617 P 498 618 P 498 according to this document erif Patkovi was Commander of the 2nd Battalion from 11 December 1992 to 21 July 1993 Kasim Pod i succeeded him in this position It should be noted that Elvedin amd i was Commander of the 2nd Battalion 3rd Company from 5 January 1993 until his death on 26 January 1993 P 498 P 131 P 135 619 Kasim Alajbegovi T F p 18692 After this date he became deputy commander of the 3rd Battalion until June 1993 T F pp 18684 18693 620 Kasim Alajbegovi T F pp 18684 18693 621 Kasim Alajbegovi T F p 18709 P 498 It should be noted that in March 1993 Witness Fuad Kulovi was transferred to the 3rd Battalion as an intelligence officer Fuad Kulovi T F p 18807 622 P 498 623 P 405 624 P 143 D emal Merdan T F p 13194 625 P 727 P 706 P 708 626 P 405 P 708 627 See infra paras 377-379 613 Case No IT-01-47-T 98 15 March 2006 578 21623 BIS iii 7th Brigade Command a Formal Appointments 347 When the 7th Brigade was being formed Enver Had ihasanovi appointed Mahmut Karali to the position of 7th Brigade Commander in a document dated 18 November 1992 which also appointed Asim Kori i 7th Brigade Chief of Staff 628 An order by Enver Had ihasanovi dated 11 December 1992 appointed Amir Kubura to the position of Assistant Chief of Staff for Operations and Training 629 348 In an order dated 12 March 1993 Sefer Halilovi Chief of the ABiH Supreme Command Main Staff appointed Asim Kori i the new 7th Brigade Commander while Amir Kubura became 7th Brigade Chief of Staff and Deputy Commander 630 Then in an order dated 6 August 1993 Rasim Deli Commander of the ABiH Supreme Command Main Staff appointed Amir Kubura 7th Brigade Commander 631 Nevertheless the evidence which will be reviewed later bears witness to the fact that Amir Kubura exercised de facto command of the 7th Brigade well before his formal appointment to this position 349 The Chamber points out that Amir Kubura was a career military officer a former officer of the JNA After his training at the Academy for Ground Forces he served five years in the JNA in Djakovica In 1992 he held the rank of captain 632 b Amir Kubura's De Facto Command Between 12 April and 6 August 1993 350 The Prosecution argues that the Accused Kubura exercised de facto command of the 7th Brigade between 12 April 1993 at the latest the date Commander Asim Kori i left and the official appointment of the Accused Kubura to the position of 7th Brigade Commander on 6 August 1993 633 It recalls the military principle whereby the highest ranking officer always heads his unit in the absence of the de jure commander and submitted that it was incumbent upon the Accused Kubura as 7th Brigade Deputy Commander and Chief of Staff to lead the 7th Brigade in the absence of Commander Asim Kori i 634 628 P 124 DK 26 630 DK 62 Annex A 631 DK 25 P 498 632 Joint Statement on the Agreement of Facts Annex A 633 Prosecution Final Brief para 56 634 Prosecution Final Brief para 57 629 Case No IT-01-47-T 99 15 March 2006 577 21623 BIS 351 The Defence for the Accused Kubura argues that the Prosecution did not prove that the Accused Kubura was de facto commander in the absence of Asim Kori i because he assumed all the functions of commander in every circumstance It contends that the Accused Kubura signed documents as chief of staff until August 1993 was designated chief of staff and held the position of chief of staff in Bilimi te 635 It also contends that it was impossible for the Accused Kubura to exercise the duties of commander since he had already been appointed and carried out the functions of deputy commander and chief of staff 636 Moreover the Defence for the Accused Kubura argues that the Accused Kubura did not have effective control of the 7th Brigade security including its military police and recalls the double chain of command within the ABiH 637 352 The Chamber heard several witnesses who were former members of the 7th Brigade They were asked about their knowledge regarding if and when Asim Kori i left the RBiH and whether the Accused Kubura commanded the 7th Brigade during the absence of its official commander The witnesses agreed that Asim Kori i left the RBiH in early April 1993 According to Witness Safet Junuzovi former commander of the 7th Brigade 1st Battalion Asim Kori i left the RBiH in April 1993 and no longer exercised the command functions after his departure 638 As of that moment Amir Kubura was allegedly responsible for the daily operations of the 7th Brigade allegedly signed all documents “for” Asim Kori i and allegedly presided at 7th Brigade Command meetings 639 Witness Safet Junuzovi also underlined the principle of single command 640 Witness Suad Jusovi former commander of the 7th Brigade 1st Battalion 2nd Company confirmed that Asim Kori i left the RBiH in April 1993 641 Witness Kasim Pod i former member of the 7th Brigade 2nd Battalion confirmed this also 642 Witness Semir Terzi former member of the 7th Brigade 1st Battalion Command recalled that Asim Kori i went abroad in early 1993 in April at the latest 643 As of that time Semir Terzi allegedly did not receive any orders or missions from Asim Kori i 644 After Kori i departed the Accused Kubura was allegedly responsible for the 7th Brigade as chief of staff 645 He assigned missions and gave instructions together with his assistant commanders 646 635 Kubura Defence Final Brief para 29 Kubura Defence Final Brief para 31 637 Kubura Defence Final Brief paras 35-37 638 Safet Junuzovi T F pp 18499 and 18557 639 Safet Junuzovi T F pp 18500 18554 18557 18558 and 18559 640 Safet Junuzovi T F p 18558 641 Suad Jusovi T F p 18442 642 Kasim Pod i T F p 18667 643 Semir Terzi T F pp 18279 and 18293 644 Semir Terzi T F p 18279 645 Semir Terzi T F p 18280 646 Semir Terzi T F p 18280 636 Case No IT-01-47-T 100 15 March 2006 576 21623 BIS Witness Semir Terzi referred to him using the title “Chief of Staff” 647 The written statement of Halil Brzina former member of the 7th Brigade Command also indicates that Asim Kori i left the 7th Brigade in April 1993 648 353 Exhibit P 410 a letter from the 7th Brigade Command dated 12 April 1993 signed “for” Commander Asim Kori i ” indicates that the Brigade Commander was away on official business 649 The only exhibits indicating the presence of Asim Kori i in the RBiH after 12 April 1993 are Exhibits DK 11 dated 15 April 1993 and P 791 dated 26 April 1993 These exhibits however mention that Asim Kori i had been summoned by the 3rd Corps Commander without making it possible to establish whether Kori i was in the RBiH at the time he was summoned 354 In view of this evidence the Chamber considers that Asim Kori i left the RBiH in early April 1993 at the latest and no longer exercised the functions of command as of that time 355 The Chamber notes that Article 78 of the Decree-Law on Service in the RBiH Army and Article 14 of the Rules on Service in the RBiH Army regulate the exercise of command in the absence of the commander 650 Article 78 of the Decree-Law on Service in the RBiH Army provides the following “A stand-in shall be assigned for a commander who is temporarily unable to perform his duties A stand-in may also be appointed to a temporarily vacated establishment position The deputising positions from paragraphs 1 and 2 of this Article may last no longer than six months and by decision of the second-level superior -- up to one year from the date the duty is assumed ” Article 14 of the Rules on Service in the RBiH Rules provides the following “If a unit-command is suddenly left without a superior officer the command shall be taken over by his deputy or the most senior officer in that unit-command until a new commander of the unitcommand is appointed by a superior commanding officer 356 While Article 78 of the Decree-Law on Service in the RBiH Army deals with the official appointment of a successor and is therefore not relevant here Article 14 of the Rules on Service in the RBiH Army covers the hypothetical situation when the command of a unit is suddenly left without its hierarchical superior When Expert Witness Vahid Karaveli appeared before the Chamber he stated that this provision did not apply to the departure of Asim Kori i as it was only 647 Semir Terzi T F p 18286 DK 62 para 6 649 P 410 “Our Brigade Commander is away on official business and is unable to accept your invitation ” 650 P 120 p 21 P 243 p 39 648 Case No IT-01-47-T 101 15 March 2006 575 21623 BIS intended for an extraordinary situation in which the commander was killed or captured 651 Nevertheless during cross-examination he admitted that someone had to command the 7th Brigade in the absence of its commander 652 357 The Chamber finds it almost unimaginable that a unit as important as the 7th Brigade was abandoned by its commander and was without a commander for four months particularly in a time of war when it was frequently engaged in combat 653 In view of the principle of single command the Chamber also finds it difficult to believe that the command of the 7th Brigade was exercised by all members of the Command as suggested by Witness Semir Terzi It seems instead that it was incumbent upon the Accused Kubura 7th Brigade Deputy Commander 654 to exercise this function 655 358 These general observations notwithstanding the Chamber considers it necessary to analyse the circumstances in this instance to determine whether the Accused Kubura was de facto commander of the 7th Brigade between early April and 6 August 1993 359 To this end the Chamber examined the exhibits signed by the Accused Kubura after the departure of Asim Kori i First 14 exhibits signed “for Commander Asim Kori i ” between 12 April and 6 August 1993 were examined With the exception of one 656 all the exhibits signed “for Commander Asim Kori i ’ were signed by the Accused Kubura 657 360 To reach this conclusion the Chamber compared the signature of the Accused Kubura with the signatures on these 14 exhibits The Accused Kubura’s signature was identified from documents whose authenticity was never contested and which were tendered into evidence by the Defence for the Accused Kubura These include two documents signed by him as 7th Brigade Chief of Staff 658 651 Vahid Karaveli T F pp 17933 and 17934 652 Vahid Karaveli T E pp 17992-17993 “Q That is most likely the case sir But my point is simply that during that period someone had to be in command of the 7th Muslim Mountain Brigade In the absence of the commander if he's gone someone must be in charge A Generally speaking you're absolutely right because the brigade is a living organism A brigade are people It is not a vehicle that you can just turn the engine off and you abandon it in the middle of the road You have to work with people And obviously what Amir Kubura did was what was supposed to be done and he did it and continued doing it However if I had been in his shoes I would have pestered my superior and I would insist on him dealing with my status I would have wanted things to be legal ” 653 See infra paras 663 667 670 679-681 685 689 699-707 DK 62 Annex A see supra para 37 655 Safet Junuzovi T F p 18558 P 901 p 28 DK 62 Annex A Article 14 of the Rules on Service in the RBiH Army 656 P 564 22 May 1993 signed by an unidentified person 657 P 410 12 April 1993 P 816 12 April 1993 P 727 14 April 1993 P 916 16 April 1993 P 917 18 April 1993 P 729 9 May 1993 P 562 17 May 1993 P 566 30 May 1993 P 426 20 June 1993 P 775 20 June 1993 P 427 20 June 1993 P 475 22 June 1993 P 605 14 July 1993 658 DK 23 10 June 1993 DK 24 11 June 1993 654 Case No IT-01-47-T 102 15 March 2006 574 21623 BIS one document he signed as Commander before his official appointment in August 1993 659 and three orders signed by him as 7th Brigade Commander after his official appointment in August 1993 660 These documents were tendered into evidence by witnesses for the Defence for the Accused Kubura 661 361 The Chamber notes that the 13 exhibits signed “for Commander Asim Kori i ’ by the Accused Kubura deal with different matters Some of them such as a proposal for appointments within the 7th Brigade 662 seem to come within the remit of a chief of staff while others are clearly matters for a brigade commander The Accused Kubura signed three orders engaging the 7th Brigade in combat “for Commander Asim Kori i ” 663 362 Aside from the exhibits signed “for Commander Asim Kori i ” the Accused Kubura signed four exhibits as “Commander Amir Kubura” before his official appointment in August 1993 The first is Exhibit DK 41 a reconnaissance plan dated 5 June 1993 authorised by the Accused Kubura the second is Exhibit P 472 dated 25 July 1993 an order dealing with security matters the third is Exhibit P 503 dated 4 August 1993 an interim combat report and the fourth Exhibit P 502 dated 28 July 1993 deals with the organisation of the NASR Tactical Group “TG” This last exhibit is signed by the Accused Amir Kubura as both “Commander of the NASR TG” and “Commander of the 7th Muslim Mountain Brigade” 363 In addition between 12 April and 6 August 1993 the Accused Kubura signed one exhibit as TG Commander664 and two exhibits as Chief of Staff One of them Exhibit DK 24 is a combat order 665 364 Finally four exhibits were signed “for” the Accused Kubura during the absence of Asim Kori i either as Chief of Staff or as TG Commander 666 365 Analysis of these exhibits shows that the Accused Kubura exercised the function of 7th Brigade Commander during the absence of the commander de jure Asim Kori i This is established by the fact that he signed 13 of the 14 exhibits “for Commander Asim Kori i ” and he 659 DK 41 5 June 1993 DK 43 2 November 1993 DK 44 4 November 1993 DK 59 11 November 1993 661 DK 23 and DK 24 were introduced by Witness D emal Merdan T F pp 13212 and 13213 DK 41 by Safet Junuzovi T F p 18512 DK 43 and DK 44 also by Safet Junuzovi T F pp 18527-18535 DK 59 by Osman Hasanagi T F pp 18876 and 18877 662 P 475 663 P 916 P 917 P 729 664 P 420 5 June 1993 665 DK 23 10 June 1993 DK 24 11 June 1993 666 P 577 6 June 1993 P 811 18 June 1993 P 500 7 July 1993 P 501 20 July 1993 660 Case No IT-01-47-T 103 15 March 2006 573 21623 BIS signed “Commander Amir Kubura” well before his official appointment on 6 August 1993 Furthermore several exhibits signed either by or for Amir Kubura are combat orders exhibits P 916 and P 917 regarding combat in the Zenica area in mid-April 1993 and Exhibits P 420 and P 577 regarding combat in the Ovnak area at the beginning of June 1993 Combat order DK 24 dated 11 June 1993 is another example 366 This finding is confirmed by a document dated 23 July 1993 in which Mahmut Karali proposes that the 3rd Corps Command appoint the Accused Kubura to the position of 7th Brigade Commander 667 One sentence written by hand indicates that the commander of the 7th Brigade is abroad and unable to return It is proposed to appoint the designated commander the Accused Kubura after the commander returns 668 367 Furthermore evidence from international observers indicates that the Accused Kubura was perceived as the commander of the 7th Brigade during the period in question 669 368 The influence that other members of the 7th Brigade Command had on the operations of the 7th Brigade after the departure of Asim Kori i should also be examined in other words whether the command function was shared 670 When examining the exhibits from the period 12 April to 6 August 1993 the Chamber was able to identify the signature of another person This unknown person signed one document “for” Asim Kori i during his absence 671 and three documents “for” Amir Kubura in June and July 1993 672 Nevertheless given the number of exhibits signed by the Accused Kubura this other person seems to have had only secondary importance 369 There is also cause to mention Mahmut Karali commander de jure of the 7th Brigade from 18-19 November 1992 to 12 March 1993 who played an important role within the 7th Brigade even after his command ended He signed Exhibit P 436 dated 23 July 1993 which is a proposal addressed to the 3rd Corps to appoint several people to command positions in the 7th Brigade In the English version of this exhibit the author is denoted as “Brigade Commander Mahmut Karali ” although the original calls him “Brigade Emir Mahmut Karali ” The same observation can be made about Exhibit P 558 dated 18 May 1993 The English version mentions Mahmut Karali “the emir Commander of the 7th Muslim Brigade whereas the original mentions only “emir of the 7th Muslim Brigade” The Chamber considers this to be a translation error since the term “emir” refers 667 P 436 P 436 “The commander is on an authorised trip abroad since he cannot return this is delayed and on his return the appointed commander will be appointed within the Corps ” 669 P 99 P 163 P 233 see also P 791 670 Kubura Defence Final Brief para 30 671 P 564 22 May 1993 672 P 811 18 June 1993 P 500 7 July 1993 and P 501 20 July 1993 668 Case No IT-01-47-T 104 15 March 2006 572 21623 BIS to a religious counsellor and not the commander of a unit 673 Consequently these two exhibits raise no doubts about the fact that the Accused Kubura acted alone as the Commander of the 7th Brigade in the absence of Asim Kori i 370 Based on the above the Chamber concludes that it has been established beyond a reasonable doubt that the Accused Kubura was de facto Commander of the 7th Brigade as of 12 April 1993 and until the time he was officially appointed to the position of commander on 6 August 1993 371 The Chamber furthermore considers that as de facto commander the Accused Kubura exercised effective control over the entire 7th Brigade including its security organ and military police 372 Consequently following combat in Bila Valley in early June 1993 Amir Kubura prohibited members of the 7th Brigade from arresting civilians and destroying or plundering public and private property 674 He also gave the order to respect the Geneva Conventions and to take firm measures against soldiers violating these rules and ordered that written reports be submitted to him in this regard 675 373 Exhibits P 475 P 544 and P 429 show that following Amir Kubura’s proposal Nihad Cati Commander of the 7th Brigade 3rd Battalion was relieved of his duties on 23 June 1993 for having failed to execute an order to prevent any offences or plundering The Accused Kubura also issued an order to his assistant commander for security in which he detailed which measures were to be taken to identify the perpetrators of disciplinary offences in the 3rd Battalion 676 374 The minutes of a meeting of 7th Brigade battalion commanders also demonstrate that Amir Kubura was aware of disciplinary problems in the 7th Brigade and that he was responsible for deciding the procedure to follow in cases of desertion 677 375 Orders P 816 and P 562 show that the security organ in the 7th Brigade was subordinated to the 7th Brigade Commander the Accused Kubura in this instance 673 Kasim Alajbegovi T F p 18742 P 498 P 427 see also P 426 675 P 427 “5 Take firm measures against anyone violating the above — from detention to criminal prosecution in military and special courts Written reports regarding the above should be submitted to me ” 676 P 472 677 P 500 p 3 “Amir KUBURA You need to build and strengthen the military formation and obedience of your subordinates in this field The main reason why we met today is desertion At the next briefing bring lists of soldiers and officers who have left their positions without authorisation The following procedure is to be applied while bringing in soldiers who have left their unit without authorisation N Tali receives the order to bring them in the battalion commander interviews them and brings them to me and I will decide what will be done next ” 674 Case No IT-01-47-T 105 15 March 2006 571 21623 BIS 376 Witness Osman Hasanagi former legal officer in the 7th Brigade Command a position he held as of 7 July 1993 stated that he submitted proposals to the Accused Kubura concerning security measures to take against members of the 7th Brigade and that the Accused Kubura signed them 678 377 Finally the Chamber notes that the Rules for the Work of the Military Security Service within the RBiH Armed Forces states that the members of the Security Service are subordinated to the commander of their unit “Members of the Military Security Service shall be responsible for their work to the commander of the unit in which they serve 679 378 Similarly the Regulations of the Work of the Military Police within the RBiH Armed Forces state that the military police are subordinated to the commander of the unit to which they are attached “7 The military police are commanded and controlled by the senior officer of the military unit or institution incorporating the unit of the military police to which it is attached 8 Professionally the military police are headed by the senior officer of the military security service in which the unit of the military police is incorporated or to which it is attached He is responsible for the combat readiness of the military police unit Decisions on the combat use of a military police unit shall be taken by the unit commander at the proposal of the competent senior officer of the military security service ”680 379 This has been confirmed by witnesses 681 380 It follows that the Accused Kubura was authorised to handle disciplinary matters and it was incumbent upon him to ensure respect for the Geneva Conventions The Chamber rejects the argument of the Defence for the Accused Kubura that the assistant commander for security in the 7th Brigade Command answered to the 3rd Corps security organ alone It concludes that the assistant commander for security also answered to the Accused Kubura as de facto Commander of the 7th Brigade iv Superior-Subordinate Relationship 381 From its creation in November 1992 until April 1993 the 7th Brigade was directly subordinated to the 3rd Corps Command 682 Then with the creation of operations groups it was 678 Osman Hasanagi T F pp 18883 and 18884 P 244 Article 9 680 P 328 Articles 7 and 8 681 Zaim Mujezinovi T E pp 17413-17415 Izet Mahir T E pp 16784 and 16785 679 Case No IT-01-47-T 106 15 March 2006 570 21623 BIS subordinated to OG Bosanska Krajina from mid-April 1993 until mid-July 1993 683 Subsequently the 7th Brigade once again received its orders directly from the 3rd Corps Staff 684 b 303rd Brigade 382 In December 1992 the 1st Brigade from Zenica became the 303rd Mountain Brigade 685 It was based in Zenica686 and had 1 846 soldiers 687 D emal Najetovi was appointed Commander of the 303rd Brigade on 18 November 1992 688 He was then replaced in this position by Suad Hasanovi 689 383 An order dated 30 December 1992 engaged this brigade in the battle against the siege of Sarajevo and to this end re-subordinated it temporarily to OG Visoko of the ABiH 1st Corps 690 Similarly during a joint action on 16 July 1993 some units of the 303rd Brigade were resubordinated to OG Bosna on that date 691 With the exception of several limited operations however the brigade seems to have been independent and subordinated directly to the 3rd Corps Command during the period in question 692 384 The 303rd Brigade had a military police company also based in Zenica One part of the company was in the Mechanical Engineering School and the other was based in town in the offices of Jugoplastika 693 According to Witness Izet Mahir the 303rd Brigade Military Police Company was comprised of 27 to 31 men 694 c 17th Brigade 385 The 17th Brigade was created on 19 November 1992 out of two existing units the 1st and 7th Brigades from Krajina 695 Its headquarters were in Travnik in the former JNA Barracks 696 It 682 P 192 D emal Merdan T F pp 13191 13192 P 141 P 142 P 144 DH 1322 P 747 P 215 DH 1363 684 DH 1322 P 747 P 215 DH 1363 685 Sreto Toma evi T F p 14168 686 C 16 11 July 1993 687 P 330 688 DH 497 P 330 689 Witness Sreto Tomasevi was the chief of staff of this brigade from December 1992 to January 1993 Sreto Tomasevi T F p 14184 690 DH 1704 691 DH 1313 692 P 144 DH 153 P 372 DH 1426 693 Semir Sari T F p 17336 Izet Mahir T E p 16814 694 Izet Mahir T E p 16814 695 P 125 P 378 DH 446 DH 458 DH 493 696 Fikret uski T F p 12050 C 16 683 Case No IT-01-47-T 107 15 March 2006 569 21623 BIS consisted primarily of volunteers and refugees from Krajina 697 It was a “manoeuvre” brigade within the 3rd Corps and took part in actions all over the territory of Bosnia and Herzegovina 698 From November 1992 to April 1993 it had 900 men 699 In view of certain evidence it seems to have consisted of four battalions 700 386 In December 1992 the 17th Brigade was subordinated to OG Visoko of the ABiH 1st Corps 701 In January 1993 the 17th Brigade was put directly under 3rd Corps Command 702 When OG Bosanska Krajina was created the 17th Brigade was subordinated to it 703 387 From the date the 17th Brigade was created until 7 April 1994 Witness Fikret uski was its Commander 704 Esad Grudi was 17th Brigade Assistant Commander for Security 705 388 At the end of June 1993 when the OG Bosanska Krajina Military Police Company was created most of the soldiers from the 17th Brigade military police were transferred to the military police company of OG Bosanska Krajina 706 which was also based in the former JNA Barracks in Travnik 707 d 306th Brigade 389 The 306th Brigade was formed in November and December 1992708 and consisted of four battalions a military police platoon709 and several other units 710 In March 1993 the brigade had 1 974 soldiers 711 390 The brigade’s headquarters were three kilometres from Han Bila in the mine administration building in Rudnik 712 The 1st Battalion was based in the elementary school in Mehuri i The 2nd 697 Fikret uski T F p 12052 Fikret uski T F p 12052 699 C 16 of 11 July 1997 sic p 173 700 DH 897 DH 1940 C 11 dated 5 September 1993 DH 1246 701 DH 1704 DH 779 DH 780 702 C 19 January 1993 703 P 142 P 141 proposal by the Accused Had ihasanovi to create OG Bosanska Krajina 704 Fikret uski T F p 12050 705 DH 1246 DH 1392 DH 1506 706 DH 1922 DH 1920 on 26 June 1993 Witness Osman Menkovi was also transferred from his position in the 17th Brigade military police and attached to the military police of OG Bosanska Krajina T F pp 14665-14666 707 Osman Menkovi T F p 14674 Witness HE T F pp 17020-17021 708 Munir Kari T F p 11438 the brigade was operational in December 1993 see P 403 709 This military police platoon included some 29 police Asim Delali T F pp 16372 16350 710 DH 730 DH 1749 Esed Sipi T F p 14749 711 DH 1749 712 Dervi Sulji T E p 11304 Esed Sipi T F p 14749 Dragan Radi T F p 3539 Munir Kari T F p 11444 Ferid Jasarevi T F p 11543 DH 572 698 Case No IT-01-47-T 108 15 March 2006 568 21623 BIS Battalion was stationed in Krpelji i The 3rd Battalion was deployed in the elementary school in Han Bila The 4th Battalion was in the village of Vi njevo 713 391 From November 1992 until March 1993 the 306th Brigade was subordinated to the 3rd Corps 714 In March 1993 when operations groups were created the 306th Brigade was subordinated to OG Zapad 715 Then according to certain witnesses since the zone of responsibility of the 306th Brigade was too broad 716 it was subordinated to OG Bosanska Krajina in early717 June 1993 718 392 From 18 November 1992 until mid-August 1993719 Witness Esed Sipi headed the 306th Brigade 720 Remzija iljak was Chief of Staff until December 1993 721 Witness Asim Delali was 306th Brigade Assistant Commander for Security 722 Witness Munir Kari was 306th Brigade Assistant Commander for Logistics 723 From November 1992 until early November 1993 Witness Halim Husi was 306th Brigade Assistant Commander for Moral Guidance Information Propaganda and Religious Affairs 724 e 307th Brigade 393 This brigade was created in late 1992 725 It was based in Bugojno726 and consisted of at least four battalions727 and a military police unit 728 The evidence suggests that the 307th Brigade also had anti-sabotage units 729 713 Esed Sipi T F p 14749 Esed Sipi T F p 14754 715 C 18 10 March 1993 Esed Sipi T F p 14755 716 DH 1043 DH 1873 717 DH 1873 C 13 5 June 1993 DH 1119 718 According to Witness Esed Sipi the 306th Brigade was re-subordinated to OG Bosanska Krajina in mid-June 1993 Esed Sipi T F pp 14755 14817 according to Witness HE the 306th Brigade was part of OG Bosanska Krajina at the end of June 1993 and not at the beginning of June 1993 Witness HE T F p 16980 719 Esed Sipi T F p 14800 DH 776 DK 62 Annex A 720 DH 497 721 Remzija iljak T F p 10643 DH 497 DH 776 DK 62 Annex A P 656 722 Asim Delali T F p 16348 Asim Delali took up his duties as soon as the 306th Brigade was formed on 22 December 1992 and remained in this position until 14 February 1996 Asim Delali T F pp 16381-16382 DH 547 DH 723 DH 803 DH 1392 Witness Asim Delali testified on 18 February 2005 for the Had ihasanovi Defence 723 Munir Kari 11425 DH 723 724 Halim Husi T F pp 10864 10877 725 DH 497 726 P 144 DH 768 C 16 11 July 1993 the date on the document is “11 July 1997” but the war diary C 16 describes only one period in 1993 P 378 727 P 768 C 16 dated 11 July 1993 the date on the document is “11 July 1997” but the war diary C 16 describes only one period in 1993 728 DH 708 C 16 dated 31 May 1993 729 P 768 714 Case No IT-01-47-T 109 15 March 2006 567 21623 BIS 394 From 18 November until the end of October 1993 the 307th Brigade was headed first by Tahir Grani 730 and then by Farouk Aganovi aka Jupi 731 As of 8 March 1993 the 307th Brigade was subordinated to the OG Zapad 732 f 314th Brigade 395 The 314th Brigade was created towards the end of 1992 733 In December 1992 several units of the Mehuri i detachment joined the ranks of the 314th Brigade in particular the Patriotic League of Gluha Bukovica a company from Zagra e and a platoon from Skomorje 734 The 314th Brigade was based in Zenica735 and consisted of four battalions 736 Between November 1992 and April 1993 it had 1 800 soldiers 737 On 8 October 1993 the 314th Brigade which was a motorised brigade became a mountain brigade and lost some of its men 738 396 The 314th Brigade was an “independent” brigade subordinated to 3rd Corps Command 739 On 16 December 1993 the 314th Brigade 1st Battalion was subordinated to OG Visoko from the ABiH 1st Corps 740 On 16 July 1993 the 314th Brigade 1st Battalion was subordinated to OG Bosna 741 397 From late 1992 until the end of October 1993 Fuad Smailbegoiv was Commander of the 314th Brigade 742 Witness Hamid Sulji was Commander of the 4th Battalion 3rd Company from December 1992 until 11 May 1993 Then he was appointed 314th Brigade Assistant Commander for Intelligence 743 730 DH 497 P 180 DH 1522 P 180 Tomislav Mikuli T F p 4494 732 P 144 DH 768 733 The Chamber did not receive the document establishing this brigade the brigade is first mentioned in a document dated 18 November 1993 DH 497 734 DH 526 instead of joining the 306th Brigade the Patriotic League of Gluho Bukovica preferred to join the 314th Brigade Remzija iljak T F p 10474 Asim Delali T F p 16348 Esed Sipi T F pp 14744-14745 Hamid Sulji T F p 11904 735 Dervi Sulji T F p 11349 Halim Husi T F p 10878 C 16 11 July 1993 736 DH 1037 C 15 dated 11 April 1993 Hamid Sulji T F p 11877 737 C 16 p 174 DH 1620 this exhibit indicates that in May 1993 the number increased to 2 000 men 738 DH 1482 Osman Menkovi T F pp 14711-14712 according to Witness Osman Menkovi a motorised brigade was a formation with a regulation military police platoon Osman Menkovi T F pp 14711-14712 739 DH 153 DH 773 P 197 740 DH 1645 DH 1699 DH 1700 on the subordination of OG Visoko to the 1st Corps see DH 779 DH 780 741 DH 1313 742 DH 497 P 656 P 330 743 Hamid Sulji T F pp 11905-11906 731 Case No IT-01-47-T 110 15 March 2006 566 21623 BIS 398 The 314th Brigade had a military police platoon that was based in Zenica at the Mechanical Engineering School where the 303rd Brigade Military Police Platoon was also based 744 According to Witness Izet Mahir the 314th Brigade Military Police Platoon had from 27-31 men 745 g El Mujahedin Detachment 399 This unit was created by Rasim Deli ’s order dated 13 August 1993 following a proposal by the Accused Had ihasanovi In another section of this Judgement the Chamber establishes that this detachment was indeed created that it was directly subordinated to the 3rd Corps and that it was based in Zenica while its training camp was located in Mehuri i During combat operations in September October and December 1993 however the unit was placed under the command of OG Bosanska Krajina It consisted of foreign volunteer combatants and was initially headed by Abu Haris 746 C Difficulties Confronting the 3rd Corps 1 Massive Influx of Refugees 400 Many witnesses mentioned the difficulties confronting the ABiH and particularly the 3rd Corps as soon as armed conflicts broke out on the territory of Bosnia and Herzegovina First of all because the VRS “Army of Republika Srpska” had occupied its territory there was a massive influx of refugees to the 3rd Corps zone of responsibility Thirty thousand refugees arrived in the municipality of Travnik primarily from Banja Luka Prijedor and Kotor Varo 747 The town of Zenica took in the largest number of refugees up to 50 000 during the period in question 748 In the middle of 1992 thousands of Muslim refugees749 who had been expelled from Donji Vakuf Prozor and other regions arrived in Bugojno 750 401 In addition owing to combat in Central Bosnia and roads that were closed it was difficult to get food supplies 751 It should be noted that while Muslim refugees fled to the municipalities of Travnik and Zenica in order to escape the fighting the Croatian population deserted certain villages 744 Semir Sari T F p 17336 Izet Mahir T F p 16813 Izet Mahir T E p 16814 746 See infra paras 814 and 438 747 Ahmed Kulenovi T F p 13877 748 DH 1593 Semir Sari T F p 17315 Martin Garrod T F p 8285 Ramiz D aferovi T F p 14210 749 According to Witness Tomislav Mikuli in April 1992 some 12 000 Bosnian refugees arrived in Bugojno from Donji Vakuf in October 1992 a large number of refugees arrived in Bugojno from Jajce Tomislav Mikuli T F p 4491 750 Zdravko @ulj T F p 3633 Tomislav Mikuli T F p 4491 751 DH 1009 745 Case No IT-01-47-T 111 15 March 2006 565 21623 BIS of the Bila and La va Valleys 752 Some refugees had problems with the local population753 and moved into the Croats’ abandoned houses 754 Although feeding and lodging refugees was the responsibility of the civilian authorities they were unable to fulfil this role properly because of the influx of such a large number 755 Furthermore many battalions were made up of refugees 756 2 Problematic Organisation and Insufficient Equipment 402 Many witnesses described the ABiH’s difficulties because combat had already started in the territory of Bosnia and Herzegovina before the Army was set up From the viewpoint of military equipment supplies and manpower the ABiH was clearly at a disadvantage compared to the HVO which benefited from Croatia’s support 757 These issues will be considered in several parts of the Judgement 752 A report from the 3rd Corps security organ dated 13 June 1993 mentions that 9 000 Muslim refugees arrived in Vare whereas 17 000 Croats left Vare on 23 June 1993 DH 1913 753 DH 2088 para 430 754 Jozo Markovi T F p 4434 example of u anj DH 1008 755 Mirsad Mesi T F pp 12890-12891 Osman Hasanagi T F pp 18881-18882 756 See in particular the 306th Brigade Asim Delali T F p 16350 and Fahir amd i T F p 11698 regarding the th 17 Brigade Fikret uski T F p 12052 and Tomislav Raji T F p 2869 Witness Osman Hasanagi explained that most of the soldiers in the 7th Brigade were refugees Since there were no barracks to accommodate them he had to contact the civilian authorities to find lodgings See Osman Hasanagi T F pp 18881-18882 757 Alistair Duncan T F pp 736-7365 Mark Bower T F pp 5183-5184 Peter Williams T F p 5950 Semir Sari T F p 17315 Edib Zlotrg T F p 14990 Haris Jusi T F p 11279 DH 831 Case No IT-01-47-T 112 15 March 2006 564 21623 BIS V MUJAHEDIN A Introduction 403 This case is the first before the Tribunal in which the Prosecution alleges the participation of foreign mujahedin or foreign Muslim fighters in the crimes committed in Central Bosnia during 1992 and 1993 The Chamber is aware that the mujahedin phenomenon may well incite interest particularly in view of the events in the world after 1993 The Chamber however will deal with their presence and alleged participation in the events in Central Bosnia only insofar as they impact the charges against the two Accused 404 The Indictment alleges the participation of foreign mujahedin in some of the crimes with which the Accused are charged murder cruel treatment destruction and plundering in the vicinity of Travnik Zenica and in the Bila Valley in Central Bosnia 405 The mujahedin’s participation in these crimes will be discussed in the sections of the Judgement dealing with the crimes whereas this chapter deals with the mujahedin’s subordination to the Accused The Chamber will examine the relationship between the Accused and the mujahedin To this end it will first analyse the period preceding the creation of the El Mujahedin detachment as a 3rd Corps unit on 13 August 1993 It will then examine the relationship between the mujahedin and the 3rd Corps after the creation of this detachment The Chamber appreciates that an analysis of evidence dealing with the relevant crimes is necessary in order to answer the question of whether the mujahedin were subordinated to the Accused The question will be treated from two different aspects 406 Before the Chamber considers the relationship between the mujahedin and the 3rd Corps at the material time it will clarify certain points concerning the arrival of the mujahedin in Central Bosnia in 1992 their goals and activities their camps and their main leaders 1 Arrival and Country of Origin a Definition of the Term “Mujahedin” 407 An examination of different exhibits contemporary to the material time reveals that the term “mujahedin” was not used uniformly In some cases the term “mujahedin” was used to designate foreign Muslim fighters coming from Arab countries In other cases particularly as understood by Croatian witnesses who appeared before the Chamber the “mujahedin” also included local Bosnian Case No IT-01-47-T 113 15 March 2006 563 21623 BIS fighters who joined the foreigners from Arab countries and tried to resemble them especially in their manner of dress The HVO Croatian Defence Council however often used the term “mujahedin” or MOS Muslim Armed Forces to designate the ABiH Army of BosniaHerzegovina or even the ABiH 3rd Corps 7th Brigade 408 The Indictment uses the term “mujahedin” solely in reference to the foreign Muslim fighters 758 409 The Chamber will use the term “mujahedin” to designate both foreign Muslim fighters and the locals who joined them As explained below 759 the group of fighters based in Poljanice Camp included locals in its ranks – former members of the Travnik Muslim Forces deserters from the ABiH those who had never joined the army and even minors The terms “foreign mujahedin” or “foreign Muslim fighters” will be used to designate foreign fighters who came to Central Bosnia in 1992 and 1993 410 Many documents particularly those from the HVO use the term “Muslim Armed Forces” MOS or “Muslim forces” Like the term “mujahedin” “MOS” is used in various ways It is used to designate the ABiH760 and to designate a specific unit of the ABiH the 7th Brigade 761 Finally some exhibits originating in the ABiH or from international observers mention the term “MOS” to make a distinction between the mujahedin and the ABiH 762 For the purposes of the Judgement the Chamber shall not use the term “MOS” b Arrival of Foreign Mujahedin in Central Bosnia 411 Witnesses for both the Prosecution and Defence agreed that the foreign mujahedin began to arrive in Zenica and Travnik during 1992 particularly in the second half of the year 763 412 At that time the borders of the RBiH Republic of Bosnia and Herzegovina were controlled by the organs of Republika Srpska or HVO authorities 764 which made it very difficult for the RBiH legal authorities more specifically the MUP Ministry of the Interior to control the entry and 758 See e g paras 18-20 of the Indictment See infra paras 419-426 760 P 625 P 632 P 561 P 637 P 805 P 903 761 P 543 762 DH 167 7 DH 207 DH 208 763 Witness BA T F p 715 Franjo Kri anac T F pp 1090 and 1091 Ivanka Tavi T F p 1155 Witness AH T F p 1244 Witness XC T F p 1679 Nenad Bogelji T F pp 2096 and 2097 Ivo Fi i T F p 2238 Witness ZA T F p 2311 Dalibor Ad aip T F p 2394 Tomislav Raji T F p 2807 @ivko Toti T F p 3128 Sulejman Ribo T F p 11066 Enes Ribi T F p 11378 Munir Kari T F p 11435 764 Re ib Begi T F p 12493 759 Case No IT-01-47-T 114 15 March 2006 562 21623 BIS movements of foreigners in the RBiH 765 Foreign mujahedin reached Bosnia via the Republic of Croatia and via Herzegovina where the HVO had established power 766 They frequently arrived as members of humanitarian organisations and did not register with the RBiH authorities 767 c Country of Origin and Physical Appearance of Foreign Mujahedin 413 Most of the foreign mujahedin came from the countries of North Africa the Near East and the Middle East i e Algeria Afghanistan Saudi Arabia Qatar Egypt Iran Pakistan Tunisia Turkey and Yemen 768 Some also came from European countries but how many is not known 769 414 Foreign mujahedin were easily recognisable by their traditional clothing and dark complexion 770 They had long beards and wore turbans or hats Some wore camouflage uniforms or parts of camouflage uniforms while others wore long white robes 771 There were also those with scarves around their head and neck 772 Most of them did not know the Bosnian language and spoke only Arabic 773 The foreign mujahedin carried automatic rifles and rocket launchers Some had sabres or long knives 774 Some witnesses recognised the insignia the foreign mujahedin wore on their shoulders 775 2 Goals and Activities 415 According to the evidence characterising the position of the foreign mujahedin the term “mujahedin” refers to Muslims fighting a jihad or holy war 776 The foreign mujahedin went to Bosnia in order to help their Muslim brothers defend themselves against the Serbian aggressor777 and intended to leave the country once peace had been re-established 778 According to these same 765 Re ib Begi T F p 12492 D emal Merdan T F p 13146 Witness HF T F p 17208 P 220 767 Re ib Begi T F p 12494 P 626 768 P 482 P 112 P 352 Mark Bower T F pp 5136 and 5137 Guy Chambers T F p 6036 769 P 368 P 482 770 Franjo Kri anac T F p 1090 Munir Kari T F p 11435 Anða Pavlovi T F p 1306 Witness XC T F p 1679 Witness XD T F p 1746 Ivo Fi i T F p 2238 Tomislav Raji T F p 2813 Mirko Ivki T F p 4578 771 Witness AH T F p 1244 Tomislav Raji T F pp 2812 and 2813 Dalibor Ad aip T F p 2395 Ivo Mr o T F p 2484 Witness ZR T F p 3070 @ivko Toti T F p 3176 Mirko Ivki T F p 4575 Vaughan Kent-Payne T F pp 4796 4808 and 4889 Witness ZO T F p 7745 Andrew Hogg T F pp 7868 and 7869 P 92 under seal para 4 772 Franjo Kri anac T F pp 1091 1116 and 1104 Witness AH T F p 1244 Witness XA Tomislav Raji T F p 2813 Mirko Ivki T F p 4578 773 Katica Kova evi T F p 906 Witness AH T F p 1244 Vaughan Kent-Payne T F p 4778 774 Witness XA T F p 1421 Witness XD T F p 1747 Mirko Ivki T F pp 4575 and 4576 Cameron Kiggell T F p 4981 Mark Bower T F p 5137 775 Witness XD T F pp 1748-1750 recognised insignia numbers 1 and 22 on Exhibit P 4 Cameron Kiggell T F p 4981 recognised insignia numbers 9 and 15 on Exhibit P 4 776 P 112 pp 2 and 6 P 482 p 9 777 P 112 p 3 P 482 p 9 778 P 112 p 3 766 Case No IT-01-47-T 115 15 March 2006 561 21623 BIS sources the foreign mujahedin also wanted to spread their beliefs which they felt were the most faithful expression of Islamic texts 779 416 Most foreign mujahedin in Central Bosnia seem to have arrived as members of humanitarian organisations Defence witnesses agreed that during the first phase they were involved in humanitarian activities 780 They provided quite significant aid to the local Muslim population particularly food and organised classes in religious instruction 781 417 Starting in the second half of 1992 when conflicts broke out in Central Bosnia foreign mujahedin became fighters 782 They furnished the local population with weapons and uniforms and provided military training 783 As explained below the foreign mujahedin took part systematically in combat side by side with the ABiH 784 418 Given their humanitarian involvement the foreign mujahedin initially enjoyed a degree of trust and had the support of the local population 785 Young men even minors joined them ABiH soldiers deserted their own units to join the ranks of the foreign mujahedin especially in order to benefit from their material support 786 Some of the mujahedin married girls from the region 787 Over time however the foreign mujahedin tried to promote their view of fundamental Islam They ordered the Bosnian women to cover their heads condemned the consumption of alcohol and insisted that the local Muslims practice their religion The foreign mujahedin burst into cafés and restaurants that served alcohol and if they saw a woman or young girl dressed in what they considered inappropriate fashion they voiced their strong opposition As a result of this rigid attitude relations between the foreigners and the local population deteriorated 788 779 P 112 p 7 Halim Husi T F p 10875 Dervi Sulji T F pp 11305 and 11332 Munir Kari T F pp 11435 and 11437 Fikret uski T F p 12137 Esed Sipi T F p 14788 781 Halim Husi T F p 10875 782 Enes Ribi T F pp 11378 and 11379 Ferid Ja arevi T F p 11551 Witness HF T F p 17226 783 Halim Husi T F pp 10876 and 10929 Sulejman Ribo T F p 11041 784 See infra paras 529-546 785 Halim Husi T F pp 10875 and 10884 786 Munir Kari T F p 11437 Sulejman Ribo T F p 11041 Fahir amd i T F pp 11703 11755 and 11756 Esed Sipi T F p 14789 see infra paras 600-604 787 Sejad Jusi T F p 11122 Enes Ribi T F pp 11380 and 11405 Munir Kari T F p 11450 Witness HB T F p 12588 788 Guy Chambers T F pp 6036 and 6110 Vlado Adamovi T F pp 9490 and 9491 Remzija iljak T F pp 10489 and 10664 Halim Husi T F p 10885 Sulejman Ribo T F p 11043 Witness HF T F p 17205 Munir Kari T F p 11437 Ferid Ja arevi T F p 11549 Fikret uski T F p 12137 Esed Sipi T F p 14788 Asim Delali T F pp 16376 and 16377 Sejad Jusi T F pp 11122 and 11123 see also Exhibit DH 271 780 Case No IT-01-47-T 116 15 March 2006 560 21623 BIS 3 Mujahedin Camps a Poljanice Camp 419 Poljanice Camp was located next to the village of Mehuri i in the northern part of the Bila River Valley 789 The Bila Valley is north-west of Travnik north of the main road linking the towns of Zenica and Travnik 790 It was part of the 306th Brigade’s zone of responsibility 791 420 The foreign mujahedin arrived in Mehuri i in the second half of 1992 792 The War Presidency of the community of Mehuri i which was a civilian authority allowed around a dozen foreign mujahedin to occupy the second and third floors of the elementary school on the grounds that they were representatives of humanitarian organisations providing aid to the civilian population namely food and other essential items 793 These mujahedin left the primary school when the 306th Brigade 1st Battalion took up residence there in late 1992 or early 1993 794 Nevertheless they kept one or two offices in the school 795 421 They then moved to the Savi houses in Poljanice a hamlet about 500 metres from the village of Mehuri i 796 This mujahedin camp seems to have consisted of at least one house and a stable 797 and there was also a large meadow used by the mujahedin for exercise and prayer 798 There was no ramp or barricade at the camp just some sort of wooden fence 799 Nevertheless 789 P 936 P 98 P 936 DH 82 DK 28 791 See infra paras 581-582 792 Fahir amd i T F p 11693 Sulejman Ribo T F p 11066 P 482 T F p 8520 793 Fahir amd i T F pp 11694-11696 Halim Husi T F p 10873 Sulejman Ribo T F p 11039 Sejad Jusi T F p 11121 Dervi Sulji T F pp 11305 and 11332 Munir Kari T F pp 11436 and 11437 Ferid Ja arevi T F pp 11547 and 11548 Hamid Sulji T F pp 11879 and 11880 Salim Tarak ija T F p 11793 Esed Sipi T F pp 14787 14803 14825 Asim Delali T F p 16354 Remzija iljak T F pp 10608-10610 794 Halim Husi T F pp 10883 and 10910 Dervi Sulji T F pp 11306 and 11307 Ferid Ja arevi T F p 11549 Fahir amd i T F pp 11697 and 11764 Esed Sipi T F pp 14787 14803 and 14825 Asim Delali T F pp 16354 and 16382 Hamid Sulji T F p 11912 Salim Tarak ija T F p 11793 Suad Menzil T F p 14098 Esed Sipi T F pp 14787 14803 and 14825 795 Remzija iljak T F pp 10488 10611-10612 796 P 934 map of Mehuri i Witness Sulejman Ribo put a number four on the spot where the Poljanice Camp was located see Sulejman Ribo T F p 11086 Remzija iljak T F p 10489 Halim Husi T F pp 10883 and 10910 Sulejman Ribo T F pp 11042 11077 and 11078 Sead Jusi T F p 11121 Dervi Sulji T F pp 11306-11308 Ferid Ja arevi T F p 11549 Fahir amd i T F p 11697 Hamid Sulji T F pp 11881 and 11912 Salim Tarak ija T F p 11793 Suad Menzil T F pp 14098 14138 and 14141 Esed Sipi T F pp 14787 14803 and 14825 Asim Delali T F p 16354 797 Anða Pavlovi T F p 1329 witness detained in the camp after the attack on Mileti i DH 2092 para 9 statement by Dedo Sulji detained in the camp after the attack on Mileti i Esed Sipi T F p 14794 Ahmed Kulenovi T F p 13924 who spoke about a wooden shack Vezir Jusufspahi T F p 14042 who spoke about a cottage Asim Delali T F p 16385 who spoke about two houses and a hut Witness HE T F p 17011 who spoke about two or three houses and a garage yet these witnesses never entered the camp 798 Witness HE T F p 17011 799 Ahmed Kulenovi T F p 13924 Esed Sipi T F p 14794 790 Case No IT-01-47-T 117 15 March 2006 559 21623 BIS according to witnesses who tried to enter the camp there was an armed guard at the entrance who prevented any access 800 422 Testimony about the number of mujahedin based at the camp is quite divergent The witnesses all mentioned how difficult it was to evaluate the number of fighters particularly because they moved about a great deal and wore traditional Arab clothing making it hard for the locals to identify them 801 Witness Sulejman Ribo stated that during the last six months of 1992 there were around 100 foreign mujahedin in Mehuri i He estimated that their number increased during 1993 and that a number of local men joined their ranks 802 He personally knew of a dozen local Muslims from the Mehuri i area who joined the foreign mujahedin 803 In addition a large number of refugees expelled from other parts of BiH came to the municipality of Travnik and joined the foreign mujahedin at Poljanice Camp 804 Witness HB thought that there were around 150 fighters in the camp while Witness HE mentioned 50 foreign fighters and 50 local fighters 805 Witnesses Esed Sipi and Asim Delali both former members of the 306th Brigade mentioned that members of the 306th Brigade deserted in order to join the foreign mujahedin They estimated that there were about 50 deserters 806 When Witness Ahmed Kulenovi went to the camp with Mehmed Alagi in August 1993 he saw five or six armed individuals and eight to ten uniformed unarmed persons 807 He did not know if there were any other fighters 808 423 The Chamber notes that according to these witnesses there were different groups of fighters in the camp First there was the group of foreign Muslim fighters most often described by the witnesses as “mujahedin” then there were the Bosnians either from the local area or other regions of BiH The locals included those who had been part of the ABiH and had left their units to join the mujahedin and those who had never been in the army among them minors and joined the soldiers at Poljanice Camp directly 809 Former members of the Travnik Muslim Forces were also in the 800 Esed Sipi T F p 14794 Asim Delali T F p 16359 Sulejman Ribo T F p 11070 Sejad Jusi T F p 11144 802 Sulejman Ribo T F p 11070 803 Sulejman Ribo T F p 11073 804 Sulejman Ribo T F pp 11073 and 11074 805 Witness HB T F p 12615 Witness HE T F p 17031 806 Esed Sipi T F p 14820 Asim Delali T F pp 16355 16356 16385 and 16386 see also Fahir amd i T F pp 11702 11756 and 11757 807 Ahmed Kulenovi T F p 13921 808 Ahmed Kulenovi T F p 13972 809 The problem of desertions will be discussed in greater detail in the section on the de jure superior-subordinate relationship and in the section on the 306th Brigade and the mujahedin See infra paras 486-487 and 600-604 801 Case No IT-01-47-T 118 15 March 2006 558 21623 BIS camp both those who had been in regular ABiH units and those who joined the mujahedin at the camp directly 810 424 A number of witnesses recalled the names of some of the mujahedin based at the camp Several mentioned a man called Ramadan in Mehuri i who spoke B C S and served as an interpreter According to Witness Sulejman Ribo a man named Osman Tahirovi worked at the camp as a cook 811 He also recalled that Ramo Durmi was one of the first to join the ranks of the mujahedin in Mehuri i and could enter and leave the camp at will 812 425 All the witnesses mentioned that the mujahedin moved about the region frequently most often in Toyota all-terrain vehicles They rarely went on foot 813 Witness Sulejman Ribo estimated that the mujahedin had ten vehicles 814 These vehicles did not have registration plates 815 Several witnesses stated that they did not see any insignia on the mujahedin based at the camp 816 426 The mujahedin at the camp were involved in different activities 817 Among other things they provided military training for volunteers who agreed to stay at the camp 818 They also went on reconnaissance missions and fought on the front lines against the Serbian and Croatian forces which made it difficult to estimate the number of mujahedin who were present in the Mehuri i area b Ora ac Camp 427 In 1993 the village of Ora ac was part of the municipality of Travnik which was in the zone of responsibility of the ABiH 3rd Corps 819 According to Witness HE Ora ac Camp was located in the zone of responsibility of OG Bosanska Krajina 820 Ora ac was a small Croatian village with 35 houses 821 The Croatian villagers seem to have left Ora ac between 24 April 1993 810 Fikret uski T F pp 12085 12086 and 12107 see also DK 15 P 695 P 576 Sulejman Ribo T F pp 11075 and 11076 812 Sulejman Ribo T F pp 11076 and 11088 813 Andrew Hogg T F pp 7835 and 7836 Sulejman Ribo T F pp 11069 and 11072 Dervi Sulji T F p 11304 Witness HB T F pp 12615 and 12616 Ahmed Kulenovi T F pp 13934 and 13935 Asim Delali T F p 16390 814 Sulejman Ribo T F p 11071 815 Sulejman Ribo T F p 11072 816 Sulejman Ribo T F p 11072 Ahmed Kulenovi T F p 13935 Esed Sipi T F p 14803 817 See infra paras 530-540 and 590-596 818 Halim Husi T F pp 10876 and 10929 According to this witness the training was not on a high level but rather learning how to handle a weapon P 482 T F p 8522 see also p 8542 referring to the period after the creation of the El Mujahedin unit 819 Joint Statement on Agreement of Facts No 7 Annex B 820 Witness HE T F p 10732 821 Tomislav Raji T F p 2813 P 760 admitted with only descriptive comment 811 Case No IT-01-47-T 119 15 March 2006 557 21623 BIS and 8 June 1993 following the murders committed in Mileti i on 24 April 1993 822 They left to find a larger village where they hoped to be safe from attack 823 The mujahedin moved to Ora ac in the second half of 1993 824 They constructed a four-story 428 building made of breeze blocks 825 They also moved into the houses of Croatian villagers 826 Videocassette P 761 showed the different buildings that were used by the mujahedin at this camp including a building for meetings and prayers and a detention centre 827 429 During their detention in Ora ac Camp in October 1993 witnesses Ivo Fi i Z12 and Z13 saw both foreign and local mujahedin there 828 It is not clear how many mujahedin stayed at the camp 430 The mujahedin maintained their camp in Ora ac until at least 1996 829 c Travnik 431 Several witnesses stated that they saw foreign mujahedin in the town of Travnik starting in the second half of 1992 830 Foreign mujahedin were noticed in several places in town particularly in the offices of different humanitarian organisations they had created and in the vicinity of the mosques 831 d Zenica 432 The witnesses who appeared before the Chamber also mentioned the presence of foreign mujahedin in the town of Zenica 832 They were spotted at Travni ka Street no 34 833 822 Tomislav Raji T F p 2813 Tomislav Raji T F pp 2813 and 2814 824 Tomislav Raji T F p 2814 Raji went to Ora ac for the first time in 1996 and it was only then that he saw the mujahedin p 2894 Nevertheless he knew of the mujahedin’s presence in Ora ac in 1993 through his work and conversations with representatives of the international community p 2995 Witness HE T F pp 17010 and 17011 P 394 under seal para 11 825 Tomislav Raji T F p 2814 826 Tomislav Raji T F p 2814 827 P 761 admitted only with descriptive comment P 52 is a photograph of the village 828 Ivo Fi i T E p 2252 P 394 under seal paras 12 14 and 17 P 395 under seal paras 16 26 31 33 and 36 829 Tomislav Raji T F p 2835 Witness Tomislav Raji testified to having seen mujahedin during a visit to Ora ac in 1996 830 Ivanka Tavi T F pp 1155 and 1156 Witness AH T F p 1244 Ivo Fi i T F p 2238 Witness XD T F p 1746 Remzija iljak T F pp 10579 and 10608 Hamed Mesanovi T F p 10724 831 Ivanka Tavi T F p 1156 Tomislav Raji T F pp 2811 and 2812 Dalibor Ad aip T F p 2395 Mirko Ivki T F p 4577 Andrew Hogg T F p 7830 Samir Konjali T F pp 12777 12778 and 12813 Ahmed Kulenovi T F pp 13900 13915 and 13916 832 Nenad Bogelji T F pp 2096 and 2097 Mijo Markovi T F p 2362 @ivko Toti T F pp 3125-3127 Witness ZN T F p 5271 Witness ZP T F pp 8812 and 8813 Fehim Muratovi T F p 15048 See also Exhibits P 430 P 431 P 585 See DH 104 for a detailed map of Zenica 823 Case No IT-01-47-T 120 15 March 2006 556 21623 BIS 433 Furthermore foreign mujahedin were observed at the Zenica Music School 834 In late April 1993 Witness XA stated that he saw three or four foreigners on the upper floor of the school speaking Arabic They wore full beards and carried rifles 835 Scarves with Arabic letters were on the butts of the rifles 836 There were inscriptions in Arabic above the door of what seemed to serve as a dormitory the witness was able to read Hezbollah in Latin script 837 Thanks to the intelligence service of his unit @ivko Toti learned that some of the foreign mujahedin were based at the Zenica Music School 838 They were armed wore uniforms and came from North Africa Syria Saudi Arabia and Jordan 839 According to this witness they were seen in Zenica from late 1992 until 1993 840 Other witnesses spoke of local mujahedin at the school who wore long beards 841 434 After the fighting on 18 April 1993 the mujahedin also moved into the Vatrostalna building in Podbre je in the vicinity of Zenica former headquarters of the Jure Fran eti Brigade Command 842 Later on this building seems to have been the base of the El Mujahedin unit 843 Since the mujahedin moved about a great deal it is very difficult to know how many were based in this building 844 e Arnauti 435 Starting sometime around October 1992 there was also a training camp run by Turkish mujahedin in Arnauti about twenty kilometres from Zenica 845 It seems that the mujahedin based in this camp took part in fighting on Mt Zmajevac south of Zenica on 18 April 1993 846 f Bijelo Bu je 436 Throughout 1993 the mujahedin were also present in Bijelo Bu je 847 They seem to have been part of the group of mujahedin stationed in Poljanice and Zenica 848 833 Witness ZA T F p 2315 Nenad Bogelji T 2098 P 401 under seal para 16 see P 7 for a photograph of the Music School 835 Witness XA T F pp 1444 and 1445 836 Witness XA T F pp 1444 and 1447 837 Witness XA T F p 1445 838 @ivko Toti T F pp 3126 and 3127 839 @ivko Toti T F p 3127 840 @ivko Toti T F p 3128 841 P 402 under seal paras 20 21 and 23 842 Fehim Muratovi T F p 15055 P 782 See DH 2080 a detailed map of Zenica marked by Witness Semir Sari 843 Fehim Muratovi T F p 15055 P 482 T F p 8542 844 Fehim Muratovi T F p 15056 845 Witness BA T F pp 715 and 716 @ivko Toti T F pp 3126 and 3127 Cameron Kiggell T F pp 5005 5006 5008 and 5078 P 371 Annex G of 8 May 1993 P 352 p 17 P 100 846 P 462 P 558 834 Case No IT-01-47-T 121 15 March 2006 555 21623 BIS g Ravno Rostovo 437 Apparently there were mujahedin in Ravno Rostovo northeast of Bugojno although the Chamber does not know precisely which group it was 849 4 Leaders of the Mujahedin 438 According to Exhibit P 482 Abu Abdel Aziz originally from the Arabian Peninsula was the first leader of the foreign mujahedin in Central Bosnia in 1992 850 He left BiH at the beginning of 1993 in order to find funds to support the mujahedin At that time Wahiudeen an Egyptian allegedly took over command of the mujahedin 851 According to the same Exhibit P 482 after the abduction of @ivko Toti on 15 April 1993 Wahiudeen handed over the command of the mujahedin to Abu Haris originally from Libya so he could concentrate on military affairs Abu Haris negotiated a prisoner exchange with representatives of the ECMM European Community Monitoring Mission and the HVO 852 He then became head of the El Mujahedin unit in the summer of 1993 and Wahiudeen was its military commander 853 Wahiudeen was killed in an HVO ambush near Novi Travnik in early October 1993 854 Abu Haris was killed in @ep e in 1995 855 At some point Abu Mali became the commander of the mujahedin 856 439 The names of other mujahedin both foreign and local are known in particular Ramo Durmi Ramadan El-Suri and Maktauf These men and their involvement in the facts of this case will be discussed below 857 5 Nature of the Allegations Against the Two Accused a Scope of the Indictment 440 Firstly the Chamber has before it the question of whether the mujahedin whom the Indictment alleges took an active part in certain crimes were the perpetrators of these crimes and 847 P 775 DH 1360 C 5 DK 15 DK 15 P 482 p 22 849 Witness HF T F p 17239 P 574 P 543 850 P 482 T F p 8520 P 112 851 P 482 T F p 8535 852 P 482 T F p 8537 853 P 482 T F p 8542 and T E p 8538 see also P 656 854 P 482 T F p 8547 DK 15 This incident preceded the abductions that led to the detention of several civilians at Ora ac Camp in mid-October 1993 855 Witness HE T F p 10736 856 Witness HF T F pp 17253 and 17254 P 296 857 See infra paras 593 625-641 745 779-781 1077 and 1452 848 Case No IT-01-47-T 122 15 March 2006 554 21623 BIS were subordinated to the Accused Counts 3 and 4 allege that mujahedin participated in the cruel treatment at the Zenica Music School and Ora ac Camp including the beheading of Dragan Popovi at Ora ac Camp In addition count 7 of the Indictment charges the mujahedin with regard to damage to the church in Travnik 441 Secondly the Indictment does not specifically mention the participation of mujahedin in the commission of certain crimes From the very beginning of the case the Prosecution has alleged that mujahedin took part in acts of violence as members of the 7th Brigade and submitted evidence to support this assertion Several examples of this type include the allegations of murder committed in Mileti i and Maline in count 1 paragraphs 39 b 39 c and 40 of the Indictment 858 the allegations of destruction and plunder committed in Mileti i and Maline in counts 5 and 6 paragraphs 44 and 45 of the Indictment 859 and the allegations of destruction and wilful damage to institutions dedicated to religion committed in Gu a Gora as set out in count 7 paragraph 46 of the Indictment 860 442 The key question in this case is whether the Indictment sets out with sufficient clarity that mujahedin took part in the crimes in Mileti i Maline and Gu a Gora while subordinated to the Accused 443 It should be recalled that the Indictment must be read and interpreted as a whole and not as a series of isolated paragraphs 861 Paragraphs 39 b 39 c 44 45 and 46 must therefore be interpreted in view of the part of the Indictment dealing with the context 444 There is good reason to quote paragraphs 18 19 and 20 of the Indictment 18 Foreign Muslim fighters who referred to themselves as Mujahedin or Holy Warriors began arriving in Bosnia and Herzegovina sometime during the middle of 1992 The Mujahedin 858 Paragraph 39 b of the Indictment states that the murders alleged against the Accused in count 1 took place on 24 April 1993 in Mileti i “after troops of both the 7th Muslim Mountain Brigade and the 306th Mountain Brigade had launched the attack on Mileti i…” Although the paragraph does not mention mujahedin the Prosecution alleged at trial that they took part in the attack against Mileti i and in the murders committed there Prosecution Opening Statement T F pp 383 386 and 387 Prosecution Response to Motions for Acquittal paras 60 147 149 154 156 158 161 and 163 Prosecution Final Brief para 189 859 Paragraph 39 c of the Indictment states that the murders alleged against the Accused in Count 1 took place on 8 June 1993 in Maline Biko i and that the forces of the 7th Muslim Mountain Brigade and the 306th Mountain Brigade took part During trial however the Prosecution asserted that units of the 7th Brigade and 306th Brigade with mujahedin operating in association with these brigades were the direct perpetrators of the massacres in Maline and Biko i Prosecution Response to Motions for Acquittal paras 62 and 64 Prosecution Final Brief para 194 860 In paragraph 46 of the Indictment the Accused Had ihasanovi is charged with destruction or wilful damage to institutions dedicated to religion in two places It is alleged that the 7th Muslim Mountain Brigade the 306th Mountain Brigade and the 17th Krajina Mountain Brigade were implicated in the incident in Gu a Gora Travnik municipality in June 1993 During trial however the Prosecution presented evidence to prove that mujahedin were the perpetrators of this destruction Prosecution Response to Motions for Acquittal para 109 861 See supra paras 266-269 Case No IT-01-47-T 123 15 March 2006 553 21623 BIS who were principally from Islamic countries were prepared to conduct a Jihad or Holy War in Bosnia and Herzegovina against the enemies of the Bosnian Muslims 19 After its formation on 19 November 1992 the 7th Muslim Mountain Brigade incorporated and subordinated Mujahedin within its structure 20 The Mujahedin were heavily involved in the 7th Muslim Mountain Brigade’s combat activities and frequently spearheaded its operations 445 Paragraphs 18 to 20 allege that mujahedin were incorporated into and subordinated to the 7th Brigade after it was created and were extensively associated with its combat operations A joint reading of the paragraphs dealing with the crimes and those dealing with the background makes it clear that mujahedin allegedly participated in the crimes charged in paragraphs 39 b 39 c 44 45 and 46 since they were purportedly part of the 7th Brigade 446 It should also be noted that the Accused were aware of the allegations against them even before the beginning of the trial In their respective pre-trial briefs they responded to the accusations that mujahedin were subordinated to them 862 Moreover submissions filed during the trial showed that the Defence was neither surprised nor prejudiced since it responded to the allegations that mujahedin were the perpetrators of the crimes committed in Mileti i Maline and Gu a Gora The Accused systematically denied they had any control over the mujahedin who were presumed to be the perpetrators of these crimes 863 447 The Chamber therefore finds that the Accused were sufficiently aware that all references to the 7th Brigade in the Indictment refer equally to the mujahedin particularly for the crimes alleged in paragraphs 39 b 39 c 44 45 and 46 of the Indictment Conversely any reference in the Indictment to other 3rd Corps units does not imply the participation of mujahedin in the crimes charged b Identity of the Mujahedin 448 The allegations implicating mujahedin raise another question for the Chamber The Defence contends that the identity of the alleged perpetrators was not established with enough precision to determine whether they were subordinated to the Accused and were actually under their authority 864 The Defence for the Accused Had ihasanovi criticises the Prosecution for its “simplistic and naïve approach to the mujahedin phenomenon” since mujahedin in Central Bosnia in the period covered by the Indictment cannot be seen as a distinct group of individuals present in 862 Had ihasanovi Defence Pre-Trial Brief paras 46 and 47 Kubura Pre-Trial Brief paras 30 and 31 Amir Kubura’s Motion for Acquittal paras 22 27 32 and 33 Reply of Enver Had ihasanovi to the Prosecution’s Response to the Motions for Acquittal para 24 Had ihasanovi Defence Final Brief paras 203 231 243 252 256 408 477 593 642 ff and 658 b Kubura Defence Final Brief paras 7 13 51 53 113 and 114 863 Case No IT-01-47-T 124 15 March 2006 552 21623 BIS that territory for the same reasons with the same goals in a coordinated effort 865 In similar fashion the Defence for the Accused Kubura criticises the Prosecution for its lack of precision with regard to which of the foreign fighters were allegedly incorporated into and subordinated to the 7th Brigade 866 449 The Chamber does in fact note that the Indictment does not set out precisely which mujahedin or groups of mujahedin allegedly committed the crimes charged With the exception of information in paragraphs 18 to 20 cited above the Indictment furnishes no information regarding the origin identity or organisation of the mujahedin in Central Bosnia 450 As an examination of the evidence by the Chamber will subsequently show several groups of mujahedin were active in Central Bosnia at the material time 867 The Chamber will primarily concentrate on the group of mujahedin based at Poljanice Camp near Mehuri i in Bijelo Bu je close to Travnik in Ora ac in the valley of the Bila and in Zenica 868 An examination of the evidence will show that this group of mujahedin was the one implicated in the crimes the Chamber must judge c Alleged Relationship Between the Mujahedin and the ABiH 451 The Prosecution alleges a specific relationship between the mujahedin and 3rd Corps units With regard to the crimes committed in Mileti i Maline the Zenica Music School and Gu a Gora it alleges explicitly or implicitly that the mujahedin who committed these crimes were subordinated to the 7th Brigade 869 As to the crimes committed in Ora ac it alleges the participation of mujahedin subordinated to “ABiH 3rd Corps OG Bosanska Krajina” 870 Finally the Prosecution alleges that the destruction in Travnik was the work of “mujahedin subordinated to the ABiH 3rd Corps and or 17th Krajina Mountain Brigade” 871 864 Had ihasanovi Defence Final Brief paras 134 ff particularly 150 183 ff Kubura Defence Final Brief paras 7-9 Reply of Enver Had ihasanovi to the Prosecution’s Response to the Motions for Acquittal para 27 866 Amir Kubura’s Motion for Acquittal paras 23 and 24 Kubura Defence Final Brief paras 7-9 867 See infra para 545 868 It seems that this same group of mujahedin also had a base in Ravno Rostovo at least if the HVO allegations are correct that the four Croatian officers abducted on 13 April 1993 were taken to Ravno Rostovo by mujahedin see infra para 502 The evidence dealing with the abduction of Croatian officers in April 1993 shows that the group of mujahedin based at Poljanice was responsible See the section about with the abduction of @ivko Toti See infra paras 505-514 869 Paras 39 b 39 c 40 41 a and 42 a and 46 of the Indictment 870 Paras 41 b bc and 42 e 43 e of the Indictment 871 Para 46 of the Indictment 865 Case No IT-01-47-T 125 15 March 2006 551 21623 BIS 452 The Chamber must therefore establish whether the group of mujahedin at Poljanice Camp among other places took part in the crimes alleged in the Indictment and whether that group was subordinated to the Accused at the material time i e subordinated to 3rd Corps units which the Indictment alleges took part in the crimes 6 Different Sources Concerning the Mujahedin 453 The Chamber has examined extensive evidence on the mujahedin particularly concerning their relations with the 3rd Corps and the two Accused The number of exhibits tendered and witnesses who appeared before the Chamber makes it impossible for this Judgement to discuss each exhibit and analyse each testimony At this phase several general remarks are called for on the different sources of the evidence 454 First the Chamber notes that not a single witness belonging to the mujahedin camp at Poljanice or the El Mujahedin unit was summoned to appear before the Chamber and no internal document of the El Mujahedin unit was tendered into evidence The Chamber has seen only a few exhibits indicating the mujahedin’s position a videocassette and the transcript of a conversation between Abu Abdel Aziz the first leader of the mujahedin and Witness Andrew Hogg in late 1992 872 These two exhibits deal inter alia with the different individuals engaged in combat in BiH the “martyrs” who lost their lives the training camps and the combat activity of foreign mujahedin The only piece of evidence originating from foreign mujahedin is a letter concerning the abduction of @ivko Toti 873 The Chamber considers that this lack of information originating from the mujahedin has prevented it from gaining an overview of the mujahedin’s involvement in BiH and their relations with the ABiH during 1992 and 1993 455 The Chamber heard witnesses of Croatian ethnicity who were often the victims of crimes alleged in the Indictment At the material time most of them were low-ranking HVO members Others were civilians very often farmers While these witnesses were in general completely credible with regard to the sequence of events where they were present they had limited knowledge of the internal structures of the ABiH and the status of the mujahedin Most could make no distinction between members of the ABiH and the mujahedin particularly those mujahedin whose physical appearance was the same as that of ABiH soldiers According to the Croatian witnesses every Muslim soldier was a member of the ABiH 872 873 P 482 and P 112 See also P 598 P 109 P 417 See also DK 15 which is a statement given to the HVO by a local mujahedin Case No IT-01-47-T 126 15 March 2006 550 21623 BIS 456 The exhibits from the HVO impart the same confusion They frequently use the term “mujahedin” “MOS” “ABiH” and “7th Brigade” interchangeably While Croatian sources seem to have had information on the structure of the ABiH at times they seemed unwilling to give a faithful description of the facts Documents from the HVO must be evaluated in view of the tension that existed between the HVO and ABiH at the time The documents show a propensity for propaganda and thus depict the ABiH in a poor light 874As shown by Exhibit DH 1175 the HVO made a conscious decision to characterise the ABiH as “Muslim forces” 457 The documents from the ABiH provide a varied and contradictory picture of the degree of cooperation that existed between the mujahedin and the ABiH Without going into the difficulties of interpreting these exhibits at this point the Chamber considers them to be a reliable source of information particularly since they were written at the material time The Defence called many witnesses who were former members of the ABiH in order to explain the contents of these exhibits to the Chamber Their testimony helped the Chamber to better understand the relations between the ABiH and the mujahedin Nevertheless on more than one occasion the Chamber was confronted with the situation of witnesses maintaining the opposite of what was indicated in an exhibit 875 458 Finally the Prosecution and the Defence for the Accused Had ihasanovi both called international observers to testify particularly members of UNPROFOR and ECMM Additionally the Chamber admitted into evidence reports from international organisations The scope and probative value of this evidence will be discussed later 876 B Mujahedin and the ABiH - Arguments of the Parties 459 The arguments of the Parties have guided the Chamber in analysing the evidence Given the large number of submissions presented by the Parties however the Chamber will not systematically discuss each one in detail but will limit itself to recalling the main arguments 1 Arguments of the Prosecution 460 The Prosecution claims that mujahedin provided support to the ABiH from their arrival in Central Bosnia in mid-1992 and throughout the period covered by the Indictment 877 It asserts that mujahedin were incorporated into and subordinated to 3rd Corps units particularly the 7th Brigade after its creation on 19 November 1992 and that mujahedin were finally brought together in a 874 See for example P 649 See infra paras 736 740 1413-1422 876 See infra paras 566-579 877 Indictment paras 18-21 Prosecution Final Brief para 86 875 Case No IT-01-47-T 127 15 March 2006 549 21623 BIS single unit subordinated to the 3rd Corps the El Mujahedin detachment 878 According to the Prosecution the Accused exercised de facto control over the mujahedin before the creation of the El Mujahedin unit 879 Once it was created on 13 August 1993 the El Mujahedin unit is alleged to have become a formation under the de jure responsibility of the 3rd Corps Command 880 2 Arguments of the Defence for the Accused Had ihasanovi 461 The Defence for the Accused Had ihasanovi denies any subordination of the mujahedin to rd the 3 Corps 881 both before and after the creation of the El Mujahedin detachment 882 and maintains inter alia that the identity of the mujahedin presumed to be the perpetrators of the crimes alleged in the Indictment was not established with enough precision to determine whether they were subordinated to the Accused Had ihasanovi and came under his effective authority 883 According to the Defence for the Accused Had ihasanovi the identity of the real perpetrators or the group to which they belonged was not established 884 It criticises the Prosecution for having adopted a “simplistic and naïve approach to the mujahedin phenomenon” i e the mujahedin in Central Bosnia during the period covered by the Indictment cannot be seen as a distinct group of individuals present in this territory for the same reasons with the same goals in a coordinated effort 885 3 Arguments of the Defence for the Accused Kubura 462 Like the Defence for the Accused Had ihasanovi the Defence for the Accused Kubura denies any subordination of the mujahedin to the Accused Kubura 886 It criticises the Prosecution for not having stated its case regarding the alleged subordination of the mujahedin to the ABiH and for having presented four different versions of this subordination It points to the lack of precision in the arguments regarding the identity of the mujahedin involved 887 The Defence for the Accused Kubura asserts that this case is concerned solely with the mujahedin in Mehuri i Camp since it will 878 Indictment paras 18-21 Prosecution Final Brief paras 87 94 102 129 and 142 Nevertheless the Chamber notes that the Prosecution’s theory regarding the mujahedin’s participation in the combat operations of the 3rd Corps was not always clear While the Indictment alleges that the mujahedin were incorporated into and subordinated to the 7th Brigade the Prosecution Response to the Motions for Acquittal speaks only of cooperation between 3rd Corps units and the mujahedin Prosecution Response to the Motions for Acquittal paras 60 and 64 880 Indictment paras 33-35 and 37-38 Prosecution Final Brief paras 87 88 and 142 881 Had ihasanovi Defence Final Brief paras 186 187 and 190 882 Had ihasanovi Defence Final Brief paras 272 277 and 282 883 Had ihasanovi Defence Final Brief paras 134 ff particularly 150 and 183 884 Had ihasanovi Defence Final Brief paras 150 183-186 885 Reply of Enver Had ihasanovi to the Prosecution’s Response to the Motions for Acquittal para 27 886 Kubura Defence Final Brief paras 8 108-111 and 113-125 887 Kubura Defence Final Brief paras 6-9 879 Case No IT-01-47-T 128 15 March 2006 548 21623 BIS be established that the alleged crimes were committed from there 888 Consequently it argues that it is incumbent upon the Prosecution to prove that the mujahedin in Mehuri i Camp presumed to be the perpetrators of the alleged crimes were subordinated to the Accused Kubura either as members of the 7th Brigade or as groups or individuals 889 It maintains that the Prosecution could support its argument only by showing that all the mujahedin in Central Bosnia were under the effective control of the Accused Kubura during the period covered by the Indictment 890 C Mujahedin and the 3rd Corps – De Jure Nexus Before the Creation of the El Mujahedin Detachment 1 Introduction 463 As explained above the group of fighters at Poljanice Camp near Mehuri i in 1993 comprised several categories of individuals 891 First there were foreign Muslim fighters primarily from Islamic countries A second category consisted of former members of the Travnik Muslim Forces Third there were those who had left the regular units of the ABiH particularly the 306th and 7th Brigades And last there were Bosnians who had never joined the ABiH It must be determined whether the first three groups were de jure part of the ABiH and more specifically the 7th Brigade before the creation of the El Mujahedin unit in August 1993 The Chamber’s analysis will start with foreign Muslim fighters 2 Foreign Muslim Fighters a The Expression “Volunteers in Our Armies” 464 A number of ABiH documents use the term “foreigner volunteers” or similar expressions to describe foreign fighters coming from Islamic or other countries In a letter to Tihomir Bla ki dated 2 April 1993 the Accused Had ihasanovi protested against “violent treatment of foreign nationals volunteers in the BH Army by members of the HVO” 892 Bla ki ’s reply of 3 April 1993 clearly indicates that four mujahedin were involved 893 The first paragraph of the Accused Had ihasanovi ’s letter of protest contains the following general preliminary remarks “In the course of the defensive war waged in Bosnia and Herzegovina so far a considerable number of volunteers from countries of Europe and the world have sided with the defence forces 888 Kubura Defence Final Brief para 113 Kubura Defence Final Brief paras 108-111 and 114-125 123 890 Kubura Defence Final Brief para 123 891 See supra paras 422-423 892 P 541 893 P 541 889 Case No IT-01-47-T 129 15 March 2006 547 21623 BIS particularly with the Army of the Republic of Bosnia and Herzegovina The majority of volunteers joined the armed resistance against the aggressor and a certain number of them were involved in providing humanitarian medical and all other forms of aid needed for waging a defensive war and 894 survival of the population under blockade ” The letter then refers again to “volunteers from other countries who had either joined the BH Army or were favourably disposed towards it” “foreign nationals – members of the BH Army” and “BH Army volunteers” 895 In a report dated 13 June 1993 addressed to the ABiH Supreme Command Main Staff the Accused Had ihasanovi drew the Main Staff’s attention to difficulties the 3rd Corps was having with some of the foreigners He mentions “volunteers from foreign countries Arabs and Turks ” 896 Rasim Deli ’s response of 16 June 1993 uses the same formulation 897 On 12 August 1993 the Accused Had ihasanovi proposed to the Supreme Command Main Staff the creation of the El Mujahedin detachment This proposal speaks of the need to organise “foreign volunteers in the RBiH Army in the zone of responsibility of the 3rd Corps ”898 Deli ’s corresponding order of 13 August 1993 mentions “foreign volunteers currently on the territory of the 3rd Corps zone of responsibility” 899 Then in a letter signed on behalf of Had ihasanovi dated 24 or 26 August 1993 addressed to subordinated units the 3rd Corps Command asks for information about a Tunisian allegedly sent in October 1992 with a group of mujahedin from Italy to RBiH where he signed up as a volunteer for the RBiH Army 900 465 Several documents from the 7th Brigade may also be cited to support the fact that the ABiH used the term “foreign volunteers” For example a report from the assistant commander for morale of this brigade mentions that the HVO arrested “foreign citizens who are members of the BH Army i e volunteers who are in our unit” 901 466 The Chamber notes several differences in the formulation used in the above-mentioned documents and in other documents as well While all these documents except one speak of foreign volunteers they vary with regard to the relations between these foreign volunteers and the ABiH Three categories of documents can be distinguished First there are documents that mention foreign volunteers but explicitly deny that they are part of the ABiH The report by the Accused Had ihasanovi dated 13 June 1993 is one such example It mentions that foreign volunteers had 894 P 541 P 541 896 DH 165 1 897 P 270 DH 165 2 898 P 438 DH 165 5 899 P 439 DH 165 6 900 P 615 901 P 461 See also P 409 and P 523 895 Case No IT-01-47-T 130 15 March 2006 546 21623 BIS been in the Zenica area since the beginning of the war and adds “who have not entered the ranks of the BH Army in spite of being invited to” 902 Further on the report says “ t hey do not want to make public the decision regarding … their eventual entry into the RBH Army’s ranks” 903 Similarly authorisation granted by the ABiH Supreme Command to Sakib Mahmuljin dated 23 July 1993 speaks of negotiations with representatives of the “Mujahedin unit” on incorporating this unit in the ABiH which seems to imply that the unit was not part of the ABiH at this point 904 A second category of documents explicitly confirms that foreign volunteers were part of the ABiH The letter of protest from the Accused Had ihasanovi to Colonel Bla ki dated 2 April 1993 speaks of “foreign nationals – members of the BH Army” and “volunteers in the BH Army” 905 Another example is the proposal by the Accused Had ihasanovi dated 12 August 1993 which mentions “all foreign volunteers in the RBH Army” 906 Finally a third category consists of documents that make no explicit reference to relations between foreign volunteers and the ABiH These are two orders by Rasim Deli dated 16 June 1993 and 13 August 1993 907 467 All these texts give rise to the question of whether foreigners could serve in the ABiH and under which conditions b Legislation on Foreign Volunteers 468 Pursuant to Article 3 of the Decree-Law of 1 August 1992 on service in the ABiH only citizens of RBiH had the right and duty to serve in the national army 908 Article 31 of this DecreeLaw however provided that foreigners may join the ranks of the army in times of war 909 Article 4 of the Decree-Law of 14 April 1993 amended this article and sets out that foreigners may be promoted to higher ranks 910 Article 46 of the Decree dated October 1992 dealt more specifically with the procedure for incorporating foreign volunteers into the army 911 This article provided that a municipal secretariat for national defence was to determine the position a volunteer would hold in 902 DH 165 1 DH 165 1 904 DH 165 4 905 P 541 906 P 438 DH 165 5 See also P 409 and P 461 two documents from the 7th Brigade 907 P 270 DH 165 2 P 439 DH 165 6 908 P 120 DH 437 Decree-Law on Service in the Army of the Republic of Bosnia and Herzegovina Official Gazette 11 92 909 This article seems to refer particularly to citizens of other republics of the former SFRY see for example D emal Merdan T F pp 13740-13741 Munir Kari T F pp 11542-11533 and Hajrudin Hubo T F p 15589 A state of war was proclaimed on 20 June 1992 P 362 DH 420 910 P 145 Decree-Law on Changes and Amendments to the Decree-Law on Military Service in the Republic of Bosnia and Herzegovina Accordingly on 5 August 1994 five members of the El Mujahedin unit were promoted to the rank of captain P 296 911 DH 2015 Decree on the Criteria and Standards for the Assignment of Citizens and Material Resources to the Armed Forces and for Other Defence Needs Official Gazette 19 1992 903 Case No IT-01-47-T 131 15 March 2006 545 21623 BIS times of war after having received a written and signed statement that he wanted to join the army of his own accord The municipal secretariat would then enter the volunteer in the register of conscripts and issue him a service book with his wartime duty station The word “volunteer” was to be clearly indicated on it 469 It is of interest to note that foreigners could obtain Bosnian citizenship by means of naturalisation pursuant to Articles 8-12 of the Decree-Law on Citizenship dated 6 October 1992 912 An amendment to the Decree-Law dated 23 April 1993 however stipulates that foreign members of the army … shall acquire citizenship of the Republic of Bosnia and Herzegovina by birth … 913 which implies that they no longer needed to satisfy the requirements of Article 8 of the Decree-Law on Citizenship dated 6 October 1992 c Engaging Foreign Volunteers in the Army 470 With regard to documents mentioning foreign volunteers and the procedure allowing them to be incorporated into the ABiH and even become naturalised Bosnians it would be useful at this point to consider whether foreign Muslim fighters at Poljanice Camp actually went to the municipal TO offices914 or other competent authorities during 1992 or later and signed up as volunteers thus officially joining the ABiH 471 Some of the evidence suggests such an integration Most of the above-cited documents mentioning “foreign volunteers”915 seem to suggest that Muslim fighters had officially joined the army A videocassette recorded by these foreign fighters says that in 1992 t he mujahedin began by joining the civil defence units due to the lack of an independent military leadership at that time 916 A report by the HVO military police dated 9 March 1993 mentions that two mujahedin holding military identity cards issued by the ABiH had been taken prisoner 917 A daily operations report of 1er April 1993 signed by the commander of the 3rd Corps 306th Brigade mentions discovering the body of a foreign citizen wearing an ABiH uniform the day before near Zabilje 918 Witness @ivko Toti spoke of an incident where a mujahedin wearing TO insignia was killed by 912 DH 476 Decree-Law on Citizenship of the Republic of Bosnia and Herzegovina Official Gazette 18 1992 Article 29 of the Decree-Law however offered special possibilities for citizens of other republics of the former SFRY to obtain RBH citizenship See also DH 2044 para 54 913 DH 994 Decree-Law on the Amendment of the Decree-Law on Citizenship of the Republic of Bosnia and Herzegovina Official Gazette 11 1993 See also DH 2044 para 54 914 See infra para 482 915 See supra paras 464-467 916 P 482 p 10 T F p 8521 917 P 626 918 P 660 This incident is also mentioned in Had ihasanovi ’s letter of protest addressed to Bla ki on 2 April discussed supra para 464 Case No IT-01-47-T 132 15 March 2006 544 21623 BIS HVO members at a check-point 919 He also stated that in late 1992 and early 1993 mujahedin were seen driving cars with TO registration plates 920 472 Conversely as confirmed by several witnesses the mujahedin seem to have had access to false papers Witnesses HE Suad Menzil and Fehim Muratovi for example noted that the mujahedin were provided with a wide variety of identity cards 921 An HVO military police report of 9 March 1993 notes the same thing adding that these documents were often forged Several exhibits tendered during the trial clearly show that false papers were frequently used in Central Bosnia in 1993 922 473 The Chamber also notes that witnesses who were former members of the Mobilisation and Personnel Section within the 3rd Corps Staff opposed the integration of foreigners into the ranks of the army Witness Hajrudin Hubo stated that he had received no information during the second half of 1993 indicating that foreign fighters were part of municipal TO units or other 3rd Corps units 923 He added that during that period no one in the Personnel Section was specifically tasked with obtaining information on foreigners 924 Witness Mustafa Popari stated that before his departure in November 1993 he had never received or seen lists of members of the El Mujahedin detachment or lists containing “Arab” names 925 474 Other members of the 3rd Corps testified that it was difficult to obtain information about the identity or other personal information about foreign Muslim fighters 926 Several witnesses who held leadership positions in the Travnik Municipal TO from April 1992 to March 1993 stated that no foreign Muslim fighter had joined that institution 927 475 Witness Hajrudin Hubo however confirmed the existence of a list of names of members of the El Mujahedin unit that he compiled on 7 May 1995 He allegedly drew it up in his capacity as Head of Personnel within the 3rd Corps Staff The list was submitted to the witness by the 919 T F p 3128 Owing to the fact that the document and the witness both noted a joint commission tasked to investigate the incident it probably concerns the same event According to @ivko Toti D emal Merdan who was a member of this joint commission stated that the victim was not part of the army @ivko Toti T F p 3128 920 @ivko Toti T F p 3128 921 Witness HE T F pp 17027-8 saw foreigners carrying UNHCR identity cards On another occasion Abu D afer showed him four or five passports Suad Menzil T F p 14102 saw Croatian identity cards Fehim Muratovi T F p 14959 noted that some of them had Danish or British passports 922 DH 161 5 DH 1456 DK 30 Witness ZA T F pp 2341 2350 923 Hajrudin Hubo T F pp 15627 15642 and 15645 924 Hajrudin Hubo T F p 15628 925 Mustafa Popari T F pp 14492 14517-8 926 Witness HD T F pp 15488 14591-14592 Witness HF T F pp 17201-17203 See also the requests for information from 3rd Corps units of 24 August 1993 P 797 and 10 December 1993 P 294 Case No IT-01-47-T 133 15 March 2006 543 21623 BIS Prosecution during his appearance before the Chamber on 4 February 2005 that is about six months after the Prosecution finished its case Pursuant to an oral decision by the Chamber on 29 November 2004 concerning the admission of new Prosecution documents at that stage of the trial the list was not admitted into evidence 928 It was admitted only to refresh the witness’s memory or to impeach his credibility 929 In this regard any reading of one or several paragraphs of the document by Witness Hubo during his court appearance does not mean that the passages were tendered into evidence Similarly these paragraphs cannot be used as corroboration 930 476 Witness Hajrudin Hubo testified that he had compiled the list at the request of the 3rd Corps Security Service and submitted it to them 931 He stated that the list contained the names of 252 members of the El Mujahedin detachment with their date of entry and registration in the army According to the dates mentioned some of the members joined the army in 1992 and 1993 The witness expressed doubts however regarding the accuracy of the list 932 The list was allegedly copied from a list obtained from a representative of the El Mujahedin detachment933 which according to the witness did not have a personnel section 934 In addition the information received from the El Mujahedin detachment seems to be much less detailed than similar information from other units It only mentioned pseudonyms instead of establishing the actual identity of the individuals and provided no other information 935 Finally the witness was unable to verify any information provided by the El Mujahedin detachment representative such as dates of entry into the army or dates of registration from information in the army archives or other official archives 936 477 Among the evidence suggesting that foreign Muslim fighters actually did enter the ranks of the ABiH before the creation of the El Mujahedin detachment documents from the army referring 927 Ahmed Kulenovi T F p 13900 Hamed Mesanovi T F p 10725 Haso Ribo T F pp 10805 10827-10828 Remzija iljak T F pp 10469-10470 Zijad aber T F pp 10387-10388 noted the presence of several Arabs among the Travnik Muslim Forces who were not part of the Territorial Defence See also infra para 644 928 Oral decision of 29 November 2004 T F pp 12521-12527 See also supra para 278 929 Exhibit P 950 limited access 930 Paragraphs 94-98 of the Prosecution Final Brief attach too much importance to document P 950 931 Hajrudin Hubo T F pp 15641 15646 932 Hajrudin Hubo T F p 15632 933 Hajrudin Hubo T F pp 15630 15645 934 Hajrudin Hubo T F p 15635 935 Hajrudin Hubo T F pp 15623 15646 and 15647 936 Hajrudin Hubo T F p 15648 In its Closing Arguments T F pp 19243-19244 the Defence for the Accused Had ihasanovi seems to suggest that a number of the dates of entering and being registered in the ABiH mentioned in the list of Witness Hubo were falsified in order to make it easier for foreign soldiers to obtain Bosnian citizenship pursuant to the Decree-Law of 23 April 1993 amending the Decree-Law on Citizenship of 6 October 1992 see also T F pp 15649-15650 It is the Chamber’s opinion however that the Decree-Law of 23 April 1993 did not require that a foreign volunteer had to have joined the ABiH or be registered before the date that this Decree-Law went into force on 10 May 1993 Case No IT-01-47-T 134 15 March 2006 542 21623 BIS to the existence of “foreign volunteers” are the most important by far 937 Nevertheless it is not easy to determine just how important they are The report of 13 June 1993 from the Accused Had ihasanovi to the Supreme Command Main Staff is one example After mentioning that foreign volunteers had been in the Zenica area since the beginning of the war the report states that they did not join the ranks of the ABiH although they had been invited to do so 938 Further on the report says that these volunteers did not want to make their decision public regarding any eventual entry into the ranks of the ABiH 939 At first glance these remarks seem to contradict each other how could they be “foreign volunteers” without joining the army Given the fact that Article 46 of the Decree of 26 October 1992 uses the term “foreign volunteers” to designate individuals who wanted to join the army 940 it seems contradictory to speak of “foreign volunteers” who do not want to join the army Furthermore the Chamber has already noted that documents bearing on the presence of foreign volunteers in Central Bosnia formulate the relations of these persons with the ABiH in a variety of ways 941 478 It is not impossible that such texts endeavour to make a distinction between foreigners who became de jure members of the ABiH without joining 3rd Corps units and foreigners who did join those units It is also not impossible that these texts use expressions such as “foreign volunteers” in a more factual than legal sense The Chamber did not hear witnesses who were able to resolve these interpretation problems Finally it has no official documents from the material time such as military identity cards issued pursuant to Article 46 of the Decree of 26 October 1992 942 or official enrolment lists dating from the time of the events that show that foreign Muslim fighters were enrolled as volunteers with competent authorities in 1992 and 1993 before the creation of the El Mujahedin detachment The Chamber bears in mind the doubts of Witness Hajrudin Hubo regarding the reliability of the list compiled in May 1995 which seem to be grounded d Conclusion 479 In view of all the above evidence the Chamber cannot find beyond a reasonable doubt that the foreigners at Poljanice Camp became de jure members of the ABiH before the creation of the El Mujahedin detachment 937 See supra paras 464-467 DH 165 1 “who have not entered the ranks of the BH Army in spite of being invited to ” 939 DH 165 1 “They do not want to make public the decision regarding … their eventual entry into the RBH Army’s ranks ” 940 DH 2015 Decree on the Criteria and Standards for the Assignment of Citizens and Material Resources to the Armed Forces and for Other Defence Needs Official Gazette 19 1992 Article 46 See also supra para 468 941 See supra para 466 942 DH 2015 Decree on the Criteria and Standards for the Assignment of Citizens and Material Resources to the Armed Forces and for Other Defence Needs Official Gazette 19 1992 Article 46 See also supra para 468 938 Case No IT-01-47-T 135 15 March 2006 541 21623 BIS 3 Former Members of the Travnik Muslim Forces 480 On 10 May 1992 a unit called the Travnik Muslim Forces was created in Travnik 943 A list of 80 individuals who were allegedly members of these forces was sent to the Travnik Municipal TO on 15 September 1992 944 It seems however that the Travnik Municipal TO commander knew of the existence of the Travnik Muslim Forces as of July 1992 at the latest when he informed the district TO in Zenica of the formation of a “paramilitary unit” operating in Travnik under the name “Muslim Forces” 945 The first commander of the Travnik Muslim Forces was Asim Kori i who would later become the commander of the 7th Brigade When Asim Kori i left the Travnik Muslim Forces Emir Red i aka “Major Tara”946 succeeded him as commander 481 In order to determine whether former members of the Travnik Muslim Forces at Poljanice Camp joined the ABiH and more specifically the 7th Brigade de jure and as such were subordinated to the two Accused the relations between these forces and the Travnik Municipal TO during 1992 must be examined Then the question arises as to whether these individuals joined the 7th Brigade after its creation on 19 November 1992 or other 3rd Corps units 947 482 On 9 April 1992 several days after the European Community recognised the RBiH 948 the RBiH government adopted a decision concerning the integration of the armed forces on its territory 949 This decision stipulated that all units and armed individuals were to present themselves to municipal or district TO staffs in order to be placed under a single command and receive the same military insignia The individuals or formations that did not respond to the call would be considered paramilitary formations and be liable to sanctions Municipal TO staffs were to register any group or individual that appeared and assign them positions Pursuant to the Decree of 4 July 1992 TO staffs became an integral part of the ABiH 950 483 Witness Semir Terzi stated that the Travnik Muslim Forces were incorporated into the Travnik Municipal TO 951 After a videocassette was shown he testified that it was an oath taking ceremony which was allegedly ordered by the Travnik TO Staff and had taken place on 21 August 943 Semir Terzi T F pp 18230 18234 P 695 945 P 701 Haso Ribo T F pp 10808-10810 10820-10822 10857-10860 946 Haso Ribo T F pp 10809-10810 10822-10823 Semir Terzi T F pp 18235 18268 947 P 125 948 DH 2088 para 288 949 DH 1651 Decision on the Integration of All Armed Forces on the Territory of the Republic of Bosnia and Herzegovina 950 DH 210 951 Semir Terzi T F p 18230 944 Case No IT-01-47-T 136 15 March 2006 540 21623 BIS 1992 952 Several people with positions in this Staff at the time however appeared before the Chamber and denied that members of the Travnik Muslim Forces joined the ranks of the TO during this period 953 Their testimony was corroborated by two documents from that time 954 Nevertheless it seems there was some degree of military cooperation between these forces and the Travnik TO particularly in the combat in November 1992 in the area of Karaula 955 484 Following a proposal by Witness D emal Merdan Commander of the Zenica District TO at the time 956 on 19 November 1992 the ABiH Supreme Command Main Staff issued an order to create the 7th Brigade 957 The order stipulated that the brigade would be formed out of ABiH units engaged on the Mt Vlasi plateau Merdan’s proposal spoke of “Muslim forces” engaged on the plateau Several witnesses testified that neither the proposal nor the order made it possible to conclude that members of the Travnik Muslim Forces were automatically incorporated into the 7th Brigade For example Witness Merdan stated that his proposal was not aimed at the Travnik Muslim Forces but used the expression “Muslim forces” in a less specific sense 958 Several witnesses confirmed that a considerable number Travnik Muslim Forces members actually did join the 7th Brigade while others joined other brigades 959 Some never joined the ranks of the ABiH 960 Witness Semir Terzi estimated that about 40 to 60 per cent of the members of the Travnik Muslim Forces joined the 7th Brigade He also mentioned several members of these forces who did not join the 7th Brigade 961 485 Based on the aforesaid the Chamber finds that it has not been established that the Travnik Muslim Forces were part of the Travnik Municipal TO before the formation of the 7th Brigade in November 1992 nor has it been established that all those who were part of the Travnik Muslim Forces joined either the 7th Brigade after it was created or other 3rd Corps units It follows therefore that the mere fact that a mujahedin at Poljanice Camp was a member of the Travnik Muslim Forces in 1992 does not necessarily lead to the conclusion that he became a member of the 3rd Corps or 7th 952 P 762 Semir Terzi T F pp 18235-18236 and 18294 Zijad aber T F pp 10296 10397-10398 Hamed Mesanovi T F pp 10725-10726 Haso Ribo T F pp 1080810811 See also D emal Merdan T F pp 13190-13191 954 DH 1663 list of units under the command of the Travnik Territorial Defence dated 20 May 1992 This list does not mention the MOS See also P 701 955 Zijad aber T F pp 10397-10398 Fikret uski T F pp 12085 12156-12158 Semir Terzi T F p 18274 See also supra para 531 956 P 124 957 P 125 958 D emal Merdan T F p 13191 959 Zijad aber T F pp 10411 10415-10416 Haso Ribo T F pp 1810-1811 960 Zijad aber T F pp 10411 10415-10416 Fikret uski T F pp 12116 12155 Haso Ribo T F pp 1810-1811 10819 Remzija iljak T F p 10630 961 Semir Terzi T F pp 18234 18236 18266 953 Case No IT-01-47-T 137 15 March 2006 539 21623 BIS Brigade and was thus de jure subordinated to the 3rd Corps Commander or the 7th Brigade Commander 4 Persons Who Left ABiH Regular Units 486 As previously established 962 a number of persons who left 3rd Corps regular units were at Poljanice Camp Although some witnesses for the Defence for the Accused Had ihasanovi stated that the soldiers who deserted the ABiH no longer fell under the responsibility of the ABiH the relevant texts present a completely different picture Articles 88 to 92 of the Decree-Law on Service in the ABiH do not specify that absence without leave unit or desertion are offences justifying the demobilisation of a soldier 963 According to RBiH legislation absence from a unit without leave and desertion are crimes within the remit of military courts 964 487 The Chamber may therefore find in both these situations that a person remains under the de jure command of the unit he left even if he is no longer under its effective control 5 Conclusion 488 In view of all the evidence analysed above the Chamber finds that it has not been established beyond a reasonable doubt that the foreign Muslim fighters at Poljanice Camp became de jure members of the ABiH before the creation of the El Mujahedin detachment As for former members of the Travnik Muslim Forces at Poljanice Camp the Chamber finds the mere fact that a mujahedin present at Poljanice Camp was a member of the “Travnik Muslim Forces” in 1992 does not make it possible to conclude that he automatically became a member of the 3rd Corps or 7th Brigade and was thus subordinated de jure to the 3rd Corps Commander or the 7th Brigade Commander With regard to soldiers who were absent from their unit without leave or deserted 3rd Corps units to join the mujahedin at Poljanice Camp the Chamber finds that they remained de jure subordinated to the commander of the unit they left 962 See supra paras 422-423 P 120 DH 437 Decree-Law on Service in the Army of the Republic of Bosnia and Herzegovina 964 Asim Delali T F p 16386 963 Case No IT-01-47-T 138 15 March 2006 538 21623 BIS D Mujahedin and the 3rd Corps - De Facto Nexus Before the Creation of the El Mujahedin Unit 1 Mujahedin and the 3rd Corps a Mujahedin Arrested by the HVO and the Abduction of @ivko Toti 489 The Prosecution maintains that mujahedin were de facto subordinated to the 3rd Corps and 7th Brigade as of late 1992 In support of its case it puts forward the fact that the 3rd Corps and 7th Brigade complained about the HVO’s treatment of foreigners in their zone of responsibility 965 It also states that the abduction of @ivko Toti Commander of the Jure Franceti Brigade by the mujahedin shows that they were incorporated into ABiH units 966 490 The Chamber will first examine the sequence of events dealing with this argument The relevant period starts in February 1993 when the HVO first arrested some mujahedin and ends on 17 May 1993 the day that mujahedin were exchanged for @ivko Toti The Chamber will then determine whether these events prove beyond a reasonable doubt that the mujahedin were subordinated to the 3rd Corps and the 7th Brigade i Arrest of Mujahedin and Abduction of HVO Soldiers 491 On 16 February 1993 the HVO arrested three foreign nationals two Tunisians and an Algerian who were travelling from Travnik to Split 967 The Accused Had ihasanovi lodged a complaint with the HVO about the treatment of the foreigners requesting their immediate release His letter of protest noted that these three foreigners residents of Milan were in Bosnia as civilians working for humanitarian organisations He asserted that they had passports and other documents allowing them to stay and that they did not carry weapons 968 In a letter dated 2 March 1993 addressed to the 3rd Corps Ahmet Adilovi 7th Brigade Assistant Commander for Morale Information and Propaganda and Religious Affairs referred to this same incident and requested that the 3rd Corps use its authority to obtain the release of the three foreigners 969 492 On 10 March 1993 in Vitez the HVO arrested and detained Jusuf Abdulah originally from Kuwait 970 The Accused Had ihasanovi responded by sending a letter of protest to the HVO971 in 965 Prosecution Final Brief paras 156-159 Prosecution Final Brief paras 108-114 967 P 575 968 P 575 969 P 531 970 DH 770 971 DH 770 966 Case No IT-01-47-T 139 15 March 2006 537 21623 BIS which he indicated that Jusuf Abdulah was part of a mission seeking to re-establish peace and did not deserve such treatment The Accused Had ihasanovi demanded his immediate release 493 On 31 March 1993 four foreign nationals were arrested at an HVO check-point They were allegedly beaten there and then taken to the prison in Busova a 972 The same day the body of one of the foreigners was found between the villages of Zabilje and Pokraj i i 973 On 2 April 1993 the Accused Had ihasanovi sent a letter of protest to Tihomir Bla ki 974 This letter is entitled “Violent treatment of foreign nationals volunteers in the BH Army by members of the HVO” It mentions that a considerable number of foreign volunteers had sided with the BiH defence forces in particular the ABiH and indicated that most of these foreign volunteers had joined the armed resistance against the aggressor 975 while others were involved in humanitarian aid The Accused Had ihasanovi complained that following the outbreak of fighting between the ABiH and HVO HVO members had “persecuted” foreign volunteers who had either joined the ABiH or sided with it In his response on 3 April 1993 Tihomir Bla ki mentioned that the death of one of the foreign mujahedin on 31 March 1993 resulted from the fact that the foreign mujahedin had refused to allow their car to be inspected at the Puti evo check-point and had brandished their weapons Then one of the mujahedin attacked a member of the HVO and was killed Tihomir Bla ki proposed that the question of the mujahedin be resolved through the official institutions of the HVO and ABiH 976 494 On 2 April 1993 Asim Kori i 7th Brigade Commander also sent a letter of “warning” to Dario Kordi in which he complained about the HVO’s treatment of foreign nationals who were volunteers in the army particularly those from Arab countries He asked that all detained foreign nationals either civilians or members of the ABiH be released and said that if they were not Dario Kordi could expect retaliatory measures 977 495 On 7 April 1993 the HVO again arrested three “Arab” nationals and took them to Kaonik 978 In reply on 12 April 1993 Ahmet Adilovi submitted a report to the commission for talks with HVO representatives979 entitled “Report on members of our brigade taken prisoner by HVO members” In the report Ahmet Adilovi complained that the HVO had been arresting 972 P 541 P 541 and P 660 974 P 541 975 The contents of the letter indicate that this is the Serbian aggressor 976 P 541 977 P 409 978 P 461 979 P 461 973 Case No IT-01-47-T 140 15 March 2006 536 21623 BIS foreign nationals who were either members of the ABiH or volunteers in the 7th Brigade 980 He summarized the events that had taken place during previous months and sought the release of these foreigners whom he listed by name and country of origin According to the report the foreign nationals were from Pakistan Algeria Tunisia Egypt Saudi Arabia Kuwait and Albania There were also “three Iranians or Turks ” 981 496 On 13 April 1993 four Croatian officers member of the Stjepan Toma evi Brigade were abducted in Novi Travnik 982 497 Then on 15 April 1993 Witness @ivko Toti Commander of the Jure Franceti Brigade was abducted in Zenica During this incident his four bodyguards and one civilian were killed 983 498 Several days later the Zenica radio station was attacked and two Croatian journalists were taken hostage 984 499 As of 15 April 1993 the HVO held the 7th Brigade and the 3rd Corps responsible for these abductions 985 In several exhibits the HVO alleged that the 7th Brigade or “MOS” was responsible for these abductions and that their ranks included foreign mujahedin According to the exhibits the 3rd Corps claimed it was unable to control the mujahedin something the HVO felt did not reflect the truth 986 500 In response to these events the ABiH HVO mujahedin and international community engaged in negotiations that resulted in the exchange of seven Croatian prisoners for 11 mujahedin prisoners on 17 May 1993 ii Efforts to Find the Croatian Hostages 501 On 13 and 14 April 1993 the Accused Had ihasanovi issued orders to create a military police patrol composed of ABiH and HVO members and to set up joint commissions tasked with finding the abducted soldiers and arresting and detaining the perpetrators of the abductions 987 980 P 461 “Recently there have been an increasing number of cases of HVO members at certain check-points unlawfully taking prisoner foreign citizens who are members of the BH Army i e volunteers who are in our unit ” see also P 662 and C 8 981 P 461 982 P 194 P 218 P 625 P 680 983 @ivko Toti T F pp 3140 3141 3142 3162 and 3168 Dieter Schellschmidt T F p 7905 DH 2080 DH 340 DH 42 984 P 155 985 Witness HF T F pp 17174 P 594 P 543 P 805 986 P 543 P 594 and P 805 987 P 194 P 857 Case No IT-01-47-T 141 15 March 2006 535 21623 BIS 502 The joint commission of Busova a consisted of Witness D emal Merdan and Franjo Naki an HVO representative and Witness Lars Baggesen and Juan Valentin both representatives of the ECMM The commission travelled to all the places where the HVO claimed the Croatian hostages might have been taken 988 According to Witness D emal Merdan the 3rd Corps was not involved in the abductions 989 In order to help the international community and the HVO find the Croatian hostages the 3rd Corps provided access to all the places the joint commission wanted to visit 990 Among other places on 14 April 1993 the joint commission went to Ravno Rostovo where a company of the 7th Brigade 1st Battalion was stationed 991 The investigation team found no trace of the hostages 992 503 On 15 April 1993 the military court investigating judge and the Zenica district military prosecutor along with members of the Zenica CSB Security Services Centre the 3rd Corps and HVO military police visited the place where @ivko Toti had been abducted 993 Subsequently the investigating judge compiled a report of the visit and requested that other investigation measures be undertaken 994 iii Combat on Mt Zmajevac 504 While representatives of the HVO ABiH and the international community tried to find the Croatian hostages and resolve the crisis set off by arresting the mujahedin and abducting the Croatian officers on 18 April 1993 the ABiH attacked the HVO on Mt Zmajevac south of Zenica 995 The ABiH came out the winner of this attack 996 As will be explained below foreign mujahedin were engaged on the side of the ABiH during the combat 997 iv Negotiating an Exchange 505 On 19 April 1993 two mujahedin contacted ECMM headquarters in Zenica and delivered a letter stating that mujahedin were responsible for the abductions It also said they wanted the release of “their brothers” placed in detention by the HVO 998 In the letter the mujahedin made the ECMM responsible for the prisoner exchange and declared that if the exchange could not take place the 988 Lars Baggesen T F pp 7012 7053-7055 and 7091 D emal Merdan T F pp 13152 and 13153 D emal Merdan T F p 13152 990 Dieter Schellschmidt T F pp 7924 and 7925 D emal Merdan T F pp 13152 13153 and 13157 991 D emal Merdan T F pp 13409 and 13410 992 D emal Merdan T F pp 13153 13409 993 Semir Sari T F pp 17326 17327 17328 17354 and 17379 Zaim Mujezinovi T F p 17479 DH 340 994 DH 340 995 P 550 see infra para 532 996 P 550 and P 782 997 P 462 and P 558 989 Case No IT-01-47-T 142 15 March 2006 534 21623 BIS ECMM would be responsible for the death of the Croatian officers 999 The two messengers left the name of a contact Abu Haris and a telephone number 1000 506 The ECMM immediately informed all interested parties its own headquarters the 3rd Corps the 3rd Corps Military Police HVO headquarters in Vitez the president of the HDZ Croatian Democratic Union in Zenica the British Battalion in Vitez and the ICRC in Zenica 1001 The ECMM proposed to act as mediator The mujahedin and the HVO agreed to exchange lists of prisoners letters and videocassettes via the ECMM 1002 Furthermore two representatives of the ECMM a Greek observer and Witness Dieter Schellschmidt held several meetings with the mujahedin at Hotel Internacional in Zenica the ECMM headquarters 1003 The representative of the mujahedin a man of Arab origin who according to Witness Dieter Schellschmidt was very learned distinguished and polite never revealed his name 1004 According to the ECMM observers the vehicle that brought the mujahedin to the negotiations at Hotel Internacional had been seen at 7th Brigade headquarters 1005 507 On 21 April 1993 at 3rd Corps headquarters Sefer Halilovi raised several issues regarding the mujahedin with 3rd Corps officers including the Accused Had ihasanovi D emal Merdan and officers of subordinated units 1006 508 The 3rd Corps and the 7th Brigade informed the HVO and the international observers that they were not involved in the abduction of the Croats 1007 Nevertheless the 3rd Corps proposed to act as mediator through the 7th Brigade liaison officer 1008 509 Several letters and videocassettes were exchanged between the HVO and the mujahedin via the 3rd Corps and the ECMM 1009 The ECMM warned the 3rd Corps that it would be held responsible for the actions of the mujahedin and should make an effort to negotiate the release of 998 Lars Baggesen T F pp 7013 7014 and 7064 P 109 P 155 DH 193 Lars Baggesen T F p 7014 P 109 1000 Lars Baggesen T F pp 7061 and 7062 1001 D emal Merdan T F p 13154 P 155 1002 P 155 1003 Lars Baggesen T F pp 7016 7017 and 7064 Dieter Schellschmidt T F pp 7907 and 7908 1004 Dieter Schellschmidt T F p 7908 1005 Lars Baggesen T F p 7017 and 7018 P 155 1006 P 923 7 1007 Dieter Schellschmitdt T F p 7954 Robert Stewart T F p 15186 P 155 see also the following Croatian documents P 543 P 623 DH 923 P 805 1008 P 155 1009 P 155 999 Case No IT-01-47-T 143 15 March 2006 533 21623 BIS the hostages In answer to a question from the ECMM the 3rd Corps replied that the mujahedin were not authorised to speak on behalf of the ABiH 1010 510 On the evening of 11 May 1993 a mujahedin messenger proposed an exchange to the ECCM the five HVO officers and two Croatian journalists taken hostage for 11 Arab prisoners He proposed that the exchange be made simultaneously at three different locations The HVO was to propose the dates hours and places for the exchange 1011 He asked that the HVO the ABiH the “Arab group” the ICRC UNPROFOR and ECCM be present at the exchange 1012 511 This proposal was presented to the HVO on 12 May 1993 and it was agreed that the exchange would take place on 17 May 1993 at the following locations in front of Hotel Internacional in Zenica in front of the PTT building in Travnik and at the steelworks close to the prison in Kaonik 1013 The ECMM acted as mediator protected by the UNPROFOR British Battalion 1014 512 Witness Dieter Schellschmidt supervised the exchange of the Arab fighters for @ivko Toti and the two Croatian journalists in front of Hotel Internacional in Zenica 1015 During the exchange he noted that there were no members of the military police or civilian police to provide security Conversely there was a large number of soldiers mostly wearing masks but without military insignia 1016 They were armed “to the teeth” equipped with light arms anti-tank rocket launchers and a 20 mm triple-barrel gun mounted on a five-ton truck 1017 According to Witness Dieter Schellschmidt and his colleagues at ECMM this materiel belonged to the 7th Brigade 1018 In addition Dieter Schellschmidt saw green flags on one of the vehicles that brought the Croatian hostages to these places This colour was allegedly used by the 7th Brigade to show they were faithful to Islam 1019 1010 P 155 P 155 1012 P 155 1013 Lars Baggesen T F p 7019 and 7020 Dieter Schellschmidt T F pp 7908 and 7909 P 155 1014 Dieter Schellschmidt T F p 7911 1015 Dieter Schellschmidt T F pp 7909 and 7910 P 483 DH 182 P 155 1016 Dieter Schellschmidt T F p 7910 P 155 1017 P 155 nevertheless during his testimony Witness Dieter Schellschmidt spoke of a four-barrel gun T F pp 7910 and 7911 1018 Dieter Schellschmidt T F pp 7911 and 7945 see also P 155 1019 Dieter Schellschmidt T F p 7946 1011 Case No IT-01-47-T 144 15 March 2006 532 21623 BIS 513 After the Arab hostages had been released and handed over to the Arab group they got into two trucks and headed in the direction of the 7th Brigade barracks 1020 The Croatian hostages were handed over to the ECMM 1021 514 The next day Witness Dieter Schellschmidt was visited by a representative of the Arab group who thanked him for the proper conduct of the exchange 1022 v The Chamber’s Analysis of These Events 515 Witness Dieter Schellschmidt testified that the 7th Brigade was probably implicated in the abduction of @ivko Toti and the other Croatian officers 1023 He based this conclusion on what he observed during the exchange in front of Hotel Internacional in Zenica 1024 516 Dieter Schellschmidt admitted however that the investigation into the abduction of the Croatian officers did not indicate a link with the 7th Brigade This is reflected in paragraph 2 of his report where he notes that four Croatian officers were kidnapped by “unknown persons ”1025 517 In addition Dieter Schellschmidt admitted that he never visited 7th Brigade headquarters or barracks1026 and so acknowledged that he never saw the 20 mm triple-barrel gun at 7th Brigade facilities but rather on the streets of Zenica 1027 He reached the conclusion that the gun belonged to the 7th Brigade following conversations with his colleagues at ECMM 1028 518 The Chamber notes that Exhibits P 462 and P 558 reporting on combat on Mt Zmajevac indicate that the 7th Brigade was unable to remove and register all the war booty owing to the chaos that reigned 1029 According to Exhibit P 462 “the Turks were driving off whatever they wanted” 1030 Exhibit P 558 from the 7th Brigade mentions that a triple-barrel gun had not been reported and had disappeared It says that “Arabs did not permit access to one ammunition and explosives depot and concludes inter alia that “ all these problems are the result of the presence of Turks Arabs and 1020 Dieter Schellschmitdt T F pp 7911 and 7944 Dieter Schellschmitdt T F p 7911 1022 Dieter Schellschmidt T F p 7011 1023 See supra para 512 1024 See supra para 512 1025 Dieter Schellschmidt T F p 7942 P 155 paragraph 2 “On the 14th of April 4 four HVO officers returning from the front line were kidnapped by unknown persons in the area of Travnik” 1026 Dieter Schellschmidt T F p 7955 1027 Dieter Schellschmidt T F p 7956 1028 Dieter Schellschmidt T F p 7956 1029 P 462 and P 558 1030 P 462 1021 Case No IT-01-47-T 145 15 March 2006 531 21623 BIS Guerrillas ”1031 These exhibits raise doubts that the materiel used by the mujahedin in Zenica belonged to the 3rd Corps or the 7th Brigade It is possible that the mujahedin removed this materiel after the HVO defeat on Mt Zmajevac and that it did not pass by 7th Brigade facilities 1032 519 As regards the green flags seen by Witness Dieter Schellschmidt during the exchange in front of Hotel Internacional the Chamber observes that according to this same witness the colour green was used by several units in Bosnia at the time not only by the 7th Brigade 1033 520 It should also be noted that representatives of the ECMM started to look for links between the abduction of the Croats and the 7th Brigade only after allegations by the HVO Witness Lars Baggesen testified that the HVO claimed the mujahedin were a group from the 7th Brigade and the ECMM representatives had tried in vain to establish a link between them 1034 The only link they managed to identify was the vehicle that brought the mujahedin to the negotiations in Zenica The vehicle had been seen in front of 7th Brigade headquarters 1035 although Witness Baggesen could not remember the details of where it was seen 1036 During cross-examination he did not remember having seen the car himself or having heard about it during a discussion with his colleagues 1037 521 The evidence including that from the HVO demonstrates that the 3rd Corps denied all involvement in events as soon as the first abduction took place It shows that the role played by the 3rd Corps during the exchange negotiations was very limited and was more that of a mediator The 3rd Corps did not make any requests did not compile any list of prisoners to be exchanged and did not attend the meetings between the ECMM and the mujahedin at Hotel Internacional in Zenica 1038 522 According to a videocassette from the mujahedin Exhibit P 482 the abductions were carried out by mujahedin in Zenica under the command of Wahiudeen as a reaction to the HVO’s arrest and detention of some mujahedin 1039 It indicates that the mujahedin first contacted “Bosnian Muslim Forces”1040 and the UN to discuss how to obtain the prisoners’ release but that “there was 1031 P 558 On the implication that mujahedin took part in ABiH combat see infra para 532 1033 Dieter Schellschmidt T F p 7960 1034 Lars Baggesen T F pp 7019 and 7092 1035 P 155 1036 Lars Baggesen T F pp 7018 I can remember that it was discussed later on because the same car that was used by the two mujahedin was later on observed at one of the 7th Muslim Brigade's – I can't recall if it was at the headquarters or their compound at the music school in Zenica or if it was in Ravno Rostovo but at one of those places this vehicle was observed in front of the -- the building see also T F pp 7090 and 7091 1037 Lars Baggesen T F p 7091 1038 Lars Baggesen T F pp 7091 and 7092 Dieter Schellschmidt T F p 7942 P 155 1039 P 482 and T F pp 8535 and 8536 1040 P 482 and T F p 8535 1032 Case No IT-01-47-T 146 15 March 2006 530 21623 BIS no response ”1041 The mujahedin therefore decided to carry out special training to put their abduction tactic into practice 1042 Then they were divided into two groups 1043 The first group abducted the four Croatian officers who were members of the Stjepan Tomasevi Brigade in Novi Travnik on 13 April 1993 1044 The second group abducted Witness @ivko Toti in Zenica on 15 April 1993 1045 523 Exhibit P 482 also mentions the following The UN accused the Mujahedin of being terrorists and war criminals The command then came from the Bosnian Army to release the Croatian prisoners but it was not obeyed 1046 524 The Chamber therefore finds that the involvement of the 3rd Corps and the 7th Brigade in the abduction of the Croats has not been proved The Prosecution’s submission that the abduction of @ivko Toti demonstrated the mujahedin’s subordination to the 3rd Corps does not hold up under analysis 525 The Chamber however finds it difficult to reconcile the lack of ABiH involvement in negotiating the exchange with the exhibits that mention “foreign nationals volunteers in the BH Army” 526 The detention of foreign nationals by the HVO provoked strong reactions from the ABiH The Chamber considers that these bear witness to a preoccupation with the fate of the detained foreigners Furthermore the letters and reports sent by the 3rd Corps and the 7th Brigade suggest that the foreigners were part of the ABiH In his letter of protest dated 2 April 1993 the Accused Had ihasanovi indicated that a considerable number of foreign volunteers had taken up arms with the ABiH 1047 Similarly the letter sent to Dario Kordi by Asim Kori i on 2 April 1993 mentions “foreign nationals volunteers in our ranks particularly those from Arab countries ”1048 Finally the report by Ahmet Adilovi of 12 April 1993 mentions “foreign citizens who are members of the BH Army i e volunteers who are in our unit 1049 1041 P 482 and T F p 8535 P 482 and T F p 8536 1043 P 482 and T F p 8536 1044 P 482 and T F p 8536 P 194 P 218 P 625 P 680 1045 @ivko Toti T F pp 3140 3141 3142 3162 and 3168 Dieter Schellschmidt T F p 7905 P 482 and T F pp 8536 and 8537 DH 2080 DH 340 DH 42 1046 P 482 and T F pp 8536 and 8537 1047 P 541 see supra para 493 1048 P 409 see supra para 494 1049 P 461 see supra para 495 1042 Case No IT-01-47-T 147 15 March 2006 529 21623 BIS 527 These exhibits show that there was a close relationship between the foreign Muslim fighters and the ABiH in February March and April 1993 They indicate that the 3rd Corps and the 7th Brigade valued foreign mujahedin as fighters As will be explained in the section of the Judgement on joint combat the foreign mujahedin took part in battle on the side of the ABiH as of late 1992 At first they fought against the Serbian forces and then when conflicts broke out between the ABiH and the HVO they also fought against the HVO There is good reason to take note of combat on 18 April 1993 on Mt Zmajevac south of Zenica As far as the Chamber is able to ascertain this was the first time that foreign mujahedin joined the ABiH in fighting against the HVO 528 After the abduction of the Croats the ABiH started to deny any links with them Indeed this about-face does not seem very credible The Chamber recalls however that there is a difference between cooperation during combat and the subordination of certain elements to the army In order for there to be de facto subordination pursuant to Article 7 3 of the Statute it must be established that the Accused exercised effective control over the mujahedin 1050 Effective control cannot be assumed but must be proved beyond a reasonable doubt The use of the term “foreign volunteers” in the exhibits from the 3rd Corps and 7th Brigade indicates that the foreigners’ participation was opportune It is possible that the 3rd Corps hoped to place them under its control or did not have the determination needed to do so The Chamber finds that merely using the term “foreign volunteers” for foreign mujahedin does not mean that the 3rd Corps or the 7th Brigade had effective control over them b Joint Combat 529 The Prosecution maintains that the mujahedin took part in combat operations with 3rd Corps units from the time of their arrival in Central Bosnia in the summer of 1992 until at least December 1993 1051 The Defence for the Accused Had ihasanovi denies any such joint actions and maintains that a joint combat action does not in and of itself imply subordination between the participants 1052 530 In this Judgement the Chamber notes that on 18 April 1993 the HVO and ABiH armed forces fought each other on Mt Zmajevac south of Zenica and that the mujahedin fought side by side with the ABiH 1053 This was not an isolated action The Chamber has examined a large number of exhibits indicating that foreign and local mujahedin took part in combat with ABiH units as of the second half of 1992 It is thus appropriate to discuss the evidence dealing with the combat carried out jointly by the ABiH and the mujahedin before the creation of the El Mujahedin unit in 1050 See supra paras 76-89 Prosecution Final Brief paras 115 and ff Prosecution Closing Arguments T F pp 18986-19002 1052 Had ihasanovi Defence Closing Arguments T F pp 19186-19190 1051 Case No IT-01-47-T 148 15 March 2006 528 21623 BIS August 1993 The Chamber would also note that mujahedin continued to take part in combat after August 1993 and their participation even intensified 1054 531 Some of the evidence indicates that mujahedin took part in combat before the period relevant to the Indictment Furthermore an Arab national named Abu Sahar was allegedly killed during combat at Visoko in the summer of 1992 1055 Then in November 1992 between 15 and 20 mujahedin from the village of Gradina took part in defending Karaula against the Serbian forces 1056 In December 1992 the 7th Brigade fought at Visoko against the Serbian forces 1057 Exhibits P 513 P 514 and P 519 all documents from the 7th Brigade note the participation of Arabs and Turks in combat Exhibit P 513 is a combat report from the 7th Brigade 2nd Battalion 1st Company and states that “the Travnik people were advancing fast with the Arabs down towards the Gerila where they linked up” 1058 The Prosecution claims that the expression “Travnik people” refers to members of the 7th Brigade 1st Battalion stationed in Travnik under the command of Ramo Durmi Commander of the 1st Company 1059 This allegation is supported by Exhibit P 514 a report by Ramo Durmi on combat at Visoko1060 in which he describes how several fighters including “Arabs” acted on their own initiative and that the “Arabs” and “Turks” disobeyed the order to withdraw 1061 In Exhibit P 519 a document dealing with the operation at Visoko and signed on behalf of Asim Kori i 7th Brigade Commander the 7th Brigade asked the 3rd Corps to return DM 40 000 claiming “the money was found on the mujahedin Arabs and Turks who were killed ” and had been stolen by members 1053 See supra para 504 Combat from the period after the creation of El Mujahedin unit will be discussed in another part of the Judgement see infra paras 823-831 1055 D email Ibranovi T F p 18415 1056 Fikret uski T F pp 12048 12049 12084 12085 12156 12157 and 12178 D emal Merdan T F p 13146 Zijad aber T F pp 10396-10398 These witnesses explained to the Chamber that although at the time the mujahedin were not under the chain of command of the TO they complied with its discipline and courageously fought the Serbian forces Fikret uski T F p 12085 D emal Merdan T F p 13146 1057 P 408 1058 P 513 “I heard on the radio that Vi egrad had also fallen and that the Travnik people were advancing fast with the Arabs down towards the Gerila where they linked up as I found out later ” 1059 Prosecution Final Brief para 116 footnote 346 1060 See also Exhibit P 498 a list of the composition of the 7th Brigade mentioning that at the time Ramo Durmi was the Commander of the 7th Brigade 1st Battalion 1st Company 1061 P 514 “Some Mujahids including Arabs moved towards the elevation 744 and text missing without my order Then they came down to the village and started torching I caught up with two Mujahids and informed emir Heldi that he and the Mujahids must withdraw However the Arabs went even further to the right Emir Heldi and his group returned before midday but Abu Talha deceased with the Arabs and the Turks remained deep on the right side ” The Chamber notes that in this exhibit Ramo Durmi used the term “mujahedin” in a general sense to designate all the members of the 1st Company both local and foreign members 1054 Case No IT-01-47-T 149 15 March 2006 527 21623 BIS of the Visoko municipal TO at the end of combat 1062 These exhibits thus demonstrate that foreign mujahedin took part in combat at Visoko side by side with the 7th Brigade in late 1992 1063 532 On 18 April 1993 7th Brigade units attacked the HVO on Mt Zmajevac south of Zenica 1064 On 25 April 1993 the 7th Brigade 2nd Battalion Assistant Commander for Security sent a report to his superiors about war booty taken during this combat operation 1065 In it he complains about the conduct of 7th Brigade members who allegedly removed war booty for themselves and also mentions “Turks” taking away whatever they wanted 1066 The distribution of war booty was also discussed at a meeting of 7th Brigade commanders and soldiers on 13 May 19931067 when members of the 7th Brigade Command raised the issue of war booty being stolen According to the 7th Brigade Command all these problems resulted from the presence of “Turks” “Arabs” and “Guerrillas” 1068 During the meeting Ahmed Adilovi was tasked with holding talks with the “Arabs” about the war booty they had taken 1069 Nevertheless it is interesting to note that the 3rd Corps war diary does not mention foreign Muslim fighters on 18 April 1993 1070 533 Several Prosecution and Defence witnesses recalled combat in the Bila Valley and the surroundings of Ovnak in early June 1993 1071 The mujahedin’s participation in this combat will be discussed in the section of the Judgement dealing with the respective counts of the Indictment 1072 534 Around 16 June 1993 combat took place between the ABiH 7th Brigade 1st Battalion the 17th Brigade and the 312th Brigade against the HVO and Serbian forces in the Bijelo Bu je sector 1073 Exhibits P 775 and DH 1360 provide evidence that mujahedin took part in this combat Exhibit P 775 a 7th Brigade report dated 20 June 1993 notes that “ d uring the action four soldiers – foreign citizens Arabs – were killed as well as three soldiers from the 312th Motorised Brigade and one soldier from the 17th Brigade 3rd Battalion” 1074 Exhibit DH 1360 is a report dated 2 August 1993 on an inspection of the 312th Brigade by the 3rd Corps Command Operations and Training At 1062 P 519 This is also confirmed by Exhibit P 482 T F p 8529 1064 C 15 pp 120 and 121 P 782 and P 550 1065 P 462 1066 P 462 “It was impossible to keep everything under control because the Turks were driving off whatever they wanted … ” 1067 P 558 1068 P 558 “All these problems are the result of the presence of Turks Arabs and Guerrillas ” 1069 P 558 “Effendi Ahmed Adilovi is charged with holding talks with the Arabs about the war booty which they took ” 1070 C 15 pp 120 and 121 1071 Witness HF T F pp 17238-17240 Berislav Marjanovi T F p 2699 P 397 under seal para 7 Drago Pe a T F p 1872 Witness XB T F p 1640 Witness ZA T F p 2329 1072 See infra paras 1115-1127 and 2002-2006 1073 Fikret uski T F pp 12072 12073 and 12122 Suad Jusovi T F pp 18464 18466 P 586 P 775 and C 13 p 9 1063 Case No IT-01-47-T 150 15 March 2006 526 21623 BIS the time the brigade had a command post in Bijelo Bu je The following is noted under the title “Proposed Measures” “Given that a relatively small unit 30 soldiers of Arabs who remained behind after the 7th Muslim Mountain Brigade left this area is operating autonomously in the Bijelo Bu je sector the proper people from 3rd Corps Command and the officers of the OG Bosanska Krajina should hold talks with these soldiers and propose their re-subordination to the 312th Motorised Brigade or if not pull this unit out of the 312th Motorised Brigade’s zone of responsibility 1075 Witness HF also confirmed that mujahedin were at the front line in Bijelo Bu je 1076 535 On 24 June 1993 ABiH units that is the 307th Brigade 308th Brigade 17th Brigade and 7th Brigade fought against Croatian and Serbian forces in the Mravinjac sector 1077 A report signed by Selmo ikoti Commander of OG Zapad refers to “one killed foreigner from the 7th Muslim Mountain Brigade ” 1078 The report also indicates that a tank was captured during the action The involvement of the mujahedin on Mravinjac is corroborated by Exhibit P 598 which mentions that “ t he Arabs on Mravinjac captured a tank ”1079 1080 536 Exhibit P 924 3 and its revised version C 3 also deal with combat in the Mravinjac sector This is an extract from the 3rd Corps war diary dated 23 June 1993 stating that a meeting by 3rd Corps officers had been held on 23 June 1993 During this meeting the Accused Kubura informed the 3rd Corps of the fact that the 7th Brigade 1st Battalion was preparing an attack on Mravinjac Later on under the title Hiring foreign nationals he asks the following Will we continue to hire them because they receive ammunition Will they go to Mount Igman or will they continue to conduct combat operations in the zone of operations of the 3rd Corps 537 Other exhibits testify to the fact that mujahedin took part in combat with 3rd Corps units in particular the 7th Brigade In early July 1993 the 333rd Brigade conducted combat operations at Ka uni south-east of Busova a 1081 All the exhibits dealing with this indicate that the 333rd Brigade needed reinforcements and asked the 3rd Corps Command for authorisation to use a unit composed of foreign mujahedin Exhibit P 603 dated 10 July 1993 which is the reply of the Accused Had ihasanovi to this request stipulates that “ s ince the mentioned unit is not part of the BH 1074 P 775 The revised version of DH 1360 was submitted as evidence under reference number C 5 1076 Witness HF T F p 17227 Yes Well there were some in the Bijelo Bu je area because it was a very difficult part of the front line They would go there on their own initiative and carry out some operations that were of more disadvantage to us than any real use because they would only provoke artillery fire and such like 1077 Fikret uski T F pp 12122 and 12123 P 790 C 3 p 5 1078 P 790 “According to the reports which our units sent directly to the command post we have one missing yesterday afternoon one killed foreigner from the 7th Muslim Mountain Brigade and six wounded ” 1079 P 598 1080 The war diary of OG Bosanska Krajina dated 24 June 1993 also mentions the fact that a tank was captured during the seizure of the Mravinjac elevation although without mentioning the presence of Arab fighters C 13 p 9 1075 Case No IT-01-47-T 151 15 March 2006 525 21623 BIS Army we cannot issue any orders to it” 1082 Nevertheless later on in Exhibit P 603 the Accused Had ihasanovi gave his authorisation to use the unit and asked the 333rd Brigade to submit reports should the unit be engaged 1083 In Exhibit P 924 4 a report dated 11 July 1993 the 333rd Brigade informed the 3rd Corps that it did not have sufficient manpower to retake control of the lost territory and had asked “Arabs” to resolve the problem 1084 Finally in Exhibit P 434 dated 12 July 1993 the Accused Had ihasanovi asked the 7th Brigade if it had reserve troops in particular the 3rd Battalion 3rd Company that could be engaged in the zone of responsibility of the 333rd Brigade 1085 The exhibit indicates that the 333rd Brigade needed reinforcements that the “Arabs” were ready to conduct combat operations in the zone of responsibility of the 333rd Brigade but that their engagement depended on the presence of a 7th Brigade unit namely the 7th Brigade 3rd Battalion 3rd Company 1086 538 Furthermore during a 7th Brigade meeting on 24 July 1993 the Accused Kubura said that “ t he AbduLatif platoon does not feel like participating in this operation ”1087 According to Exhibit P 789 minutes of a 7th Brigade meeting on 2 July 1993 the Abdul Atif platoon1088 was subordinated to the 7th Brigade 3rd Battalion 1089 According to Exhibit P 656 of 21 October 1993 which is an HVO document the Abdul Atif unit was stationed at Visoko and consisted of mujahedin 1090 539 Exhibit P 610 dated 4 August 1993 a report by Ahmet Adilovi 7th Brigade Assistant Commander for Morale Information and Propaganda and Religious Affairs speaks clearly of the engagement of mujahedin side by side with the 7th Brigade “To date they have got used to the Arabs and also some Turks taking part in combat operations with them Their presence makes them more secure and the Arabs were frequently of decisive importance for the success of an action so the soldiers of the 7th Muslim Mountain Brigade 1st Battalion want them engaged again in combat operations with members of the 7th Brigade 1st Battalion ” 1081 P 924 4 P 603 1083 P 603 “We approve the use of this unit on the mentioned axis as previously agreed ” 1084 P 924 4 1085 P 434 1086 P 434 1087 P 500 “The AbduLatif platoon does not feel like participating in this operation It will be investigated whether this is due to fear or maybe lack of combat experience and certain measures will be taken ” It is not clear which combat operation is involved perhaps one in the vicinity of Visoko 1088 This platoon is spelled in several ways Abdul Atif P 656 AbduLatif P 500 and ABULATIF» P 789 1089 P 789 ’ABULATIF’ detachment We number 25 people reconnaissance conducted along the Visoko-Kiseljak route especially elevation Obje enjak The detachment is subordinated to 7th Muslim Mountain Brigade 3rd Battalion ” 1090 According to this document the Abdul Atif platoon operated within the 3rd Corps and included 400 soldiers both locals and foreigners It was commanded by Abdul Atif The Command consisted of foreign nationals from Arab countries The Igasa humanitarian organisation and the Iranian embassy in Zenica allegedly took care of equipping and financing the unit 1082 Case No IT-01-47-T 152 15 March 2006 524 21623 BIS 540 A combat report by the Accused Had ihasanovi dated 9 August 1993 addressed to the Supreme Command Main Staff indicates that a joint combat action had been planned for 8 August 1993 on the Petrovi i-Mi i i-trig point 323 axis 1091 The report goes on to say that the mujahedin from Travnik and Zavidovi i were supposed to take part in the action with units of the 314th Brigade The Accused Had ihasanovi however explains that he had to order the action stopped since “ t he Muslim forces or mujahedin brought from Travnik as well as the part of Muslim forces from Zavidovi i did not want to carry out a combat order” 1092 The mujahedin had allegedly initially taken part in reconnaissance activities without giving any sign that they might refuse to carry out the task they had been assigned Suddenly on the evening of 8 August 1993 they refused to engage in combat at night The next morning they again refused to carry out the combat order and stated they did not have confidence in the army and were afraid they would be betrayed In his report the Accused Had ihasanovi says that he planned to send the mujahedin back where they came from 541 The exhibits cited above testify to the mujahedin’s engagement side by side with the ABiH th the 7 Brigade in particular Nevertheless they do not make it possible to conclude beyond a reasonable doubt that mujahedin took part in combat as subordinated to the Accused Mention of mujahedin in ABiH documents is most often accompanied by complaints about them For example in Exhibit P 514 Ramo Durmi says that the “Arabs” and “Turks” disobeyed the order to withdraw Exhibits on the combat on Mt Zmajevac and the distribution of war booty show that 7th Brigade commanders had no authority whatsoever over the mujahedin who took whatever they wanted 1093 It is interesting to note that the 7th Brigade Command tasked Ahmet Adilovi with “holding talks” with the “Arabs” about the war booty they had taken The choice of words indicates an approach which is not particularly authoritarian Exhibit P 603 on combat operations conducted by the 333rd Brigade in July 1993 provides another example in which the Accused Had ihasanovi expressly states that the mujahedin were not part of the ABiH and that he could not give them orders Furthermore the choice of words in Exhibit P 500 on the participation of the Abdul Latif platoon in a combat operation indicates that the mujahedin were not incorporated into the hierarchy of the 7th Brigade The exhibit states that the platoon “did not want” to take part in an operation Exhibit DH 1360 dated 2 August 1993 should also be noted as it suggests “holding talks” with the Arab unit in the Bijelo Bu je sector and “proposing” that it be subordinated to the 312th Brigade Again the words seem too weak to suggest that the mujahedin were subordinated to the ABiH Finally 1091 P 477 P 477 1093 P 462 and P 558 1092 Case No IT-01-47-T 153 15 March 2006 523 21623 BIS Exhibit P 477 a combat report by the Accused Had ihasanovi dated 9 August 1993 states that the mujahedin refused to carry out orders from the 3rd Corps 542 Several witnesses for the Defence confirmed that the mujahedin joined the ABiH in combat against the Serbian and Croatian forces Witness Fikret uski stated that in 1992 the mujahedin took part in combat with TO units and fought courageously against the Serbs 1094 According to Witness Sulejman Ribo the mujahedin were present in the Mehuri i sector where they carried out military activities such as training and reconnaissance They even took part in combat sometimes 1095 More generally Witness HF testified that the mujahedin went to the front line to join ABiH combat operations both offensive and defensive 1096 Witness ZA was a member of a unit based in Zenica that was incorporated into the 3rd Corps in late 1992 or early 1993 1097 He stated that mujahedin took part in combat with the 3rd Corps 1098 and that they brought him radios transmission material antennas and other equipment to be repaired both before the creation of the 3rd Corps in 1992 and after its creation in 1993 1099 Before military operations he would recharge their batteries 1100 The 3rd Corps also lent them loudspeakers 1101 543 Nonetheless except for Witness ZA these witnesses all denied that the mujahedin were incorporated into the ABiH Witness HF said that he did not know how the mujahedin were informed about ABiH combat actions since these were not joint actions planned in advance and noted that the mujahedin even wanted to put members of the ABiH under their control so that they would fight according to mujahedin principles 1102 Witness Fikret uski stated that the mujahedin were not part of the TO structure and that the ABiH had no information regarding their number or their commanders 1103 Witness Sulejman Ribo noted that the mujahedin did not want to be subordinated to the ABiH and said they operated as independent groups 1104 544 The Chamber notes the absence of evidence indicating that the mujahedin sent combat reports or other reports on their activities to people in command of the combat in which they had participated The Chamber also notes an almost total lack of any reference to the military activities 1094 Fikret uski T F p 12085 Sulejman Ribo T F pp 11067 and 11068 Witness HF T F number omitted 1096 Witness HF T F pp 17203 17232 17235 and 17238 1097 Witness ZA T F pp 2310 and 2311 1098 Witness ZA T F p 2315 1099 Witness ZA T F pp 2317 2318 and 2334 1100 Witness ZA T F p 2317 1101 Witness ZA T F pp 2318 and 2319 1102 Witness HF T F pp 17203 17235 17236 17241 and 17242 1103 Fikret uski T F pp 12085 and 12086 1104 Sulejman Ribo T F p 11067 1095 Case No IT-01-47-T 154 15 March 2006 522 21623 BIS of the mujahedin in the war diaries and operations books which is a notable contrast to the situation prevailing after the formation of the El Mujahedin detachment in August 1993 1105 545 The Chamber furthermore observes that the evidence relating to joint combat seems to indicate different groups of mujahedin While most of the mujahedin engaged in combat seem to have belonged to the group of mujahedin based at Poljanice Zenica and Travnik the Chamber is not certain about the mujahedin stationed in Arnauti who took part in combat on Mt Zmajevac or the Abdul Atif platoon that was based at Visoko In addition the report by the Accused Had ihasanovi dated 9 August 1993 mentions mujahedin from Zavidovi i 1106 As the Chamber is concerned primarily with the group of mujahedin based at Poljanice and Travnik the probative value of the evidence dealing with other mujahedin engagement in combat is limited 546 It should also be noted that with the exception of Exhibits P 514 and P 477 1107 none of the evidence on joint combat mentions any orders addressed to the mujahedin Moreover the mujahedin refused to carry out the orders referred to in these two exhibits 1108 c Involvement of the 3rd Corps in the Creation of the El Mujahedin Detachment 547 Both the Prosecution and the Defence for the Accused Had ihasanovi refer to the developments leading to the creation of the El Mujahedin detachment to support their case 1109 In the view of the Prosecution the creation of the El Mujahedin detachment which it attributes to the 3rd Corps demonstrates the close relationship between them The Defence for the Accused Had ihasanovi considers that the order to create this unit was no more than an attempt by the ABiH to put the mujahedin under the control of the 3rd Corps 1110 548 The Chamber will now examine the evidence dealing with the order to create the El Mujahedin detachment dated 13 August 1993 In view of the quantity of this evidence in particular witness testimony the Chamber cannot mention everything it examined and evaluated It will briefly summarise the initial developments leading to the creation of the El Mujahedin detachment 1105 See infra paras 826-831 P 477 1107 Exhibit P 514 relates to the combat operation at Visoko in December 1992 see supra para 531 whereas Exhibit P 477 is a report by the Accused Had ihasanovi dated 9 August 1993 on a combat operation on the Petrovi i-Mi i i-trig point 323 axis see supra para 540 1108 See supra paras 531 and 540 1109 Prosecution Final Brief paras 129-143 Had ihasanovi Defence Final Brief paras 231-291 1110 Had ihasanovi Defence Final Brief para 269 1106 Case No IT-01-47-T 155 15 March 2006 521 21623 BIS and then focus on exhibits from June July and August 1993 several of which mention “foreign volunteers” 1111 i Developments Leading to the Creation of the El Mujahedin Detachment 549 The abduction of @ivko Toti and other Croatian officers in mid-April 1993 was followed by four murders in Mileti i on 24 April 1993 1112 Both crimes were attributed to the mujahedin 1113 According to witnesses who were former members of the ABiH as of that moment the risk posed by the mujahedin became a concern to the 3rd Corps and the ABiH Supreme Command 1114 During a meeting of ABiH commanders that included the Accused Had ihasanovi and D emal Merdan at 3rd Corps headquarters on 21 April 1993 Sefer Halilovi raised certain questions about the mujahedin 1115 In addition the mujahedin issue was apparently broached as well during a meeting of the 3rd Corps Command and the ABiH Supreme Command Main Staff in Zenica in late April 1993 1116 The 3rd Corps security organ had apparently intensified its search for information on the mujahedin 1117 In May 1993 there was another meeting of 3rd Corps and Supreme Command representatives in Zenica in which it was suggested that two members of the Supreme Command Main Staff be charged with resolving the mujahedin problem 1118 550 There is also cause to mention the visit to Poljanice Camp by members of the 306th Brigade Command 1119 On 11 May 1993 witnesses Esed Sipi and Asim Delali went to Poljanice to contact the mujahedin and discuss their destructive behaviour 1120 The mujahedin refused to meet with them and let them know that they were in the process of negotiating the formation of an 8th Muslim Brigade with the highest representatives of the ABiH 1121 551 On 23 May 1993 at the latest Sefer Halilovi commander of the ABiH at the time tasked Rasim Deli with making sure that the mujahedin left Zenica via Mt Igman within 48 hours Sakib Mahmuljin was to provide assistance 1122 1111 DH 165 1 13 June 1993 DH 165 2 16 June 1993 DH 165 5 12 August 1993 DH 165 6 13 August 1993 P 615 24 or 26 August 1993 1112 See paras 496-500 and 1068-1074 1113 See paras 496-500 and 1068-1074 1114 D emal Merdan T F p 13150 Witness ZP T F pp 8886 8891 8892 and 9065 Witness HF T F p 17174 Witness HD T F pp 15484 and 15486 1115 P 923 7 1116 Witness ZP T F pp 8880 8885 8886 8891 8892 and 9036 1117 Witness HF T F p 17174 Witness HD T F pp 15484 and 15486 1118 D emal Merdan T F pp 13158 and 13159 Witness ZP T F pp 9067 and 9068 1119 The Chamber recalls that Poljanice Camp was in the 306th Brigade zone of responsibility 1120 Esed Sipi T F pp 14794 14802 Asim Delali T F pp 16359 and 16360 1121 Esed Sipi T F p 14795 Asim Delali T F p 16360 DH 1007 1122 Witness ZP T F pp 8881 8882 9068 and 9147 P 431 Case No IT-01-47-T 156 15 March 2006 520 21623 BIS 552 On 13 June 1993 in a written report to Rasim Deli Commander of the Supreme Command Main Staff 1123 and Sefer Halilovi Chief of Staff 1124 the Accused Had ihasanovi noted “there have been volunteers from foreign countries Arabs and Turks as well as a group of Bosnians trained by them the so-called Gerila Guerrillas who have not entered the ranks of the BH Army in spite of being invited to ”1125 In the report the Accused Had ihasanovi indicated that “foreign volunteers” and the Muslims allied with them wished to communicate exclusively with top officials of the ABiH and not with the 3rd Corps 1126 The Accused Had ihasanovi spoke of their unlawful combat methods and said he did not want to be held accountable for their actions He asked the Supreme Command for its views and opinions on how to solve the problem 1127 The Accused Had ihasanovi maintained it was a well-known fact that these persons had the support of certain state organs and high-ranking clergymen 1128 553 The remarks in this letter deal with the unlawful combat methods of the mujahedin and the Accused Had ihasanovi wrote that he did not want to be held accountable for their actions By making this declaration he seemed to be alluding to the crimes international or other that had been committed or might be committed by the mujahedin In fact the Accused Had ihasanovi had knowledge of the abduction of @ivko Toti by the mujahedin and the murder of four men on 15 April 1993 1129 He was also informed that the mujahedin had committed murders in Mileti i on 24 April 1993 1130 Several days after 9 June 1993 3rd Corps Deputy Commander D emal Merdan met the mujahedin in Gu a Gora at which time they declared their intention to demolish the monastery 1131 Nevertheless the Chamber is unable to establish that as of 13 June 1993 the Accused Had ihasanovi knew that it was the mujahedin who had committed the murders in Maline 1123 He was appointed commander on 8 June 1993 DH 73 DH 165 1 1125 DH 73 DH 165 1 “In the general area of Zenica municipality since the beginning of the war there have been volunteers from foreign countries Arabs and Turks as well as a group of Bosnians trained by them the so-called Gerila Guerrillas who have not entered the ranks of the BH Army in spite of being invited to ” 1126 DH 73 DH 165 1 “They do not want to make public the decision regarding their actions and eventual entry into the RBH Army's ranks and wish to communicate exclusively with top officials of the RBH Army Staff and not with the 3rd Corps commander whose only duty in their opinion is to arrange for them a meeting with the said people 1127 DH 73 DH 165 1 “They were in this territory even before the formation of the 3rd Corps In fighting to date they have been acting outside the usual context and lawful methods of combat which is directly detrimental to the BH state and especially to the RBH Army … In this connection I am requesting YOUR STANCES AND OPINIONS regarding the solution to this problem since these units are situated in the zone of responsibility of the 3rd Corps and I do not want to be held accountable for the consequences of their actions 1128 DH 73 DH 165 1 “It is a known fact that some state organs and high-ranking Muslim clergymen are behind them 1129 See supra paras 501-503 and 505-507 1130 See infra para 1085 1131 See infra para 2002 1124 Case No IT-01-47-T 157 15 March 2006 519 21623 BIS on 8 June 1993 1132 In his testimony Witness D emal Merdan did not confirm or was unable to confirm the accuracy of such an interpretation 1133 554 On 16 June 1993 Rasim Deli ordered the 3rd Corps Commander “Send these groups of foreign volunteers and a group of Muslims to Igman and merge them with the Supreme Command Staff independent detachment in Zuka’s unit In case they do not accept it show them no hospitality and eventually disarm them ” 1134 555 In a telephone conversation on 16 June 1993 the Accused Had ihasanovi told Sefer Halilovi that he could not carry out this order in full because disarming the mujahedin would mean opening up a third front He asked Halilovi to send only the first part of the order about transferring the foreigners to Mt Igman 1135 556 On 23 July 1993 Rasim Deli authorised Sakib Mahmuljin on behalf of the Commander of the ABiH Supreme Command Main Staff to undertake negotiations and implement the necessary measures with representatives of the “Mujahedin unit” of Zenica in order to incorporate it into the ABiH engage it in joint combat against the Serbs and re-subordinate it to the 3rd Corps Command 1136 557 On 12 August 1993 the 3rd Corps Command sent a proposal to the Supreme Command Main Staff suggesting to “ o rganise all foreign volunteers in the RBH Army in the zone of responsibility of the 3rd Corps into a detachment ”1137 In the proposal the Accused Had ihasanovi 1132 See infra paras 1129-1133 D emal Merdan T F pp 13692-13696 13830 1134 DH 165 2 P 270 “Since the beginning of the war volunteers from foreign countries and a group of Bosnians united in a so-called GERILA guerrilla unit have been staying on the territory of Zenica … I hereby ORDER 1 Send these groups to Igman and merge them with the VK independent detachment in Zuka’s unit In case they do not accept it show them no hospitality and eventually disarm them 2 ” 1135 DH 165 3 P 807 All right all right Regarding the information that we have received about those foreigners … S Yes It cannot be done that way S Really No way It is my third front line S No no but try It is ordered here two of them have signed it go Do you understand me Try to send one order without that second part ordering only to send them up there S Yeah “ ” is for edo the nickname of the Accused Had ihasanovi 1136 DH 165 4 P 202 Authorising Mr Sakib MAHMULJIN a member of the 3rd Corps Command to carry out on behalf of the commander of the RBH Armed Forces General Staff necessary negotiations and arrangements with the representatives commanders of the Mujahedin unit from Zenica regarding the following issues 1 The inclusion of the Mujahedin unit in the RBH Army 2 The use of the unit in joint struggle against the Chetniks and the manner of its resubordination to the 3rd Corps Command The authorization is issued with the aim of solving problems on the territory of Zenica in connection with the above-mentioned formation and cannot be used for other purposes ” 1137 DH 165 5 P 438 Proposal formation of a detachment of foreign citizens Given the need to organise and make use of foreign volunteers as well as their written request to 3rd Corps Command and on the basis of your authorisation no 1 297-54 of 23 July 1993 we are sending you the following PROPOSAL 1 Organise all foreign volunteers in the RBH Army in the zone of responsibility of the 3rd Corps into a detachment We will submit a proposed establishment for this unit shortly 2 Mobilisation collection point for this detachment would be in the village of Mehuri i Travnik municipality 3 The name of the detachment is El Mujahedin its number and VJ military unit number are to be determined by the Supreme Command Staff 4 Logistics support will be regulated by the logistics services of the 3rd Corps 5 We request urgency 1133 Case No IT-01-47-T 158 15 March 2006 518 21623 BIS refers to the “need to organise and make use of foreign volunteers” to the written request of the foreign volunteers sent to 3rd Corps Command and to the authorisation given by Rasim Deli on 23 July 1993 He proposed the village of Mehuri i as the mobilisation assembly point and to call the new detachment El Mujahedin 558 Based on this proposal on 13 August 1993 the Supreme Command Main Staff ordered the creation of the El Mujahedin detachment in the 3rd Corps zone of responsibility 1138 The order says “Replenish the “El Mujahedin” detachment with foreign volunteers currently on the territory of the 3rd Corps zone of responsibility These people keep the weapons and other equipment which has already been issued to them 1139 The order clearly states that the task is to be put into effect immediately and completed no later than 31 August 1993 ii Analysis of the Events by the Chamber 559 The Chamber will now determine the conclusions to be drawn from the relationship between the 3rd Corps and the mujahedin in respect of the developments discussed above 560 The first question that arises is whether or not the “foreign volunteers” or “volunteers from foreign countries” mentioned in five different documents belonged to the ABiH An analysis of the five documents reveals contradictions Two indicate that the mujahedin were not part of the army before the creation of the El Mujahedin detachment In letter DH 165 1 dated 13 June 1993 the Accused Had ihasanovi says explicitly that the “volunteers from foreign countries” and the locals allied with them had not joined the ranks of the ABiH 1140 The fact that on 23 July 1993 Rasim Deli authorised Sakib Mahmuljin to initiate negotiations with the “Mujahedin unit” in order to incorporate it in the ABiH disproves that the unit already formed part of the ABiH at the time 1141 Conversely the 3rd Corps proposal of 12 August 1993 on the creation of the El Mujahedin unit speaks of “foreign volunteers in the RBH Army in the zone of responsibility of the 3rd Corps” emphasis added ”1142 which would seem to indicate that the mujahedin were part of the ABiH and it was only a matter of regrouping them in a unit of their own Finally the two orders by Rasim Deli dated 16 June and 13 August 1993 do not explicitly deal with the question of whether these volunteers joined the ranks of the army The Supreme Command and 3rd Corps position on whether the foreign volunteers were part of the ABiH is therefore not clear from the five documents the first 1138 DH 165 6 P 439 DH 165 6 P 439 1140 See supra para 552 1141 DH 165 4 P 202 1142 DH 165 5 P 438 1139 Case No IT-01-47-T 159 15 March 2006 517 21623 BIS and second of which contradict the third These five documents do not allow the Chamber to draw any conclusions as to the relationship between the 3rd Corps and the mujahedin 561 The authorisation given to Sakib Mahmuljin again speaks of “re-subordination”1143 of the El Mujahedin detachment to the 3rd Corps 1144 The Prosecution maintains that the term “resubordination” indicates that the unit had been previously subordinated to the 3rd Corps 1145 The Chamber does not agree with this interpretation which is contradicted by many other documents using the same term and the explanations of this term by several witnesses Analysis of the evidence leads the Chamber to find that the use of the term “re-subordination” in the text of the authorisation given to Sakib Mahmuljin does not necessarily imply that the unit had been previously subordinated to the 3rd Corps 1146 The term “re-subordination” in the text of this authorisation indicates that a unit was to be created within the ABiH and that Mahmuljin would determine how the unit would be made available to the 3rd Corps 562 Finally the order to create the El Mujahedin detachment dated 13 August 1993 stipulated that the foreign volunteers in the 3rd Corps zone of responsibility were to keep the weapons and equipment previously issued to them 1147 It is hard to understand why the ABiH would have issued weapons and equipment to the mujahedin if they were not part of the ABiH particularly given the fact that the ABiH did not have enough weapons to arm its own soldiers Indeed Witness Mustafa Popari author of the 3rd Corps proposal to the Supreme Command dated 12 August 1993 said he had been informed that the foreigners had their own weapons and the army did not have weapons for them 1148 Witness D emal Merdan stated that he did not know who had issued weapons to these people 1149 1143 DH 165 4 See supra para 556 1145 Prosecution Final Brief para 135 footnote 420 1146 An analysis of the documents and testimony leads the Chamber to find that in the terminology used by the ABiH the term “re-subordination” is not differentiated from the term “subordination” The difference between them is something else In standard ABiH terminology the term “re-subordination” refers to a situation in which a unit not normally subordinated to another unit is put under the latter’s command for a limited time and a specific purpose Thus the company of a brigade can be “re-subordinated” to another brigade for a certain time in order to take part in combat operations without becoming a company of that brigade This explains for example why the El Mujahedin detachment was “re-subordinated” to the 306th Brigade and then OG Bosanska Krajina in August and September 1993 without ever having been previously subordinated to these formations see P 792 DH 165 7 and P 440 Other examples are found in documents P 704 and P 736 See in particular the testimony of Remzija iljak T F pp 10624-10627 1147 DH 165 6 P 439 The translation of this exhibit was confirmed by the Conference and Language Services Section see C9 1148 Mustafa Popari T F p 14490 1149 D emal Merdan T F pp 13669-13700 1144 Case No IT-01-47-T 160 15 March 2006 516 21623 BIS 563 Several witnesses were asked to comment on Exhibit DH 165 1 1150 For Witnesses ZP and Robert Stewart this letter clearly indicates that the Accused Had ihasanovi had no direct contact with the mujahedin that they came under an authority superior to the 3rd Corps and that the Accused Had ihasanovi was asking for the Supreme Command’s assistance in resolving the problems related to the mujahedin Conversely for Witness Alastair Duncan the document suggests 3rd Corps subterfuge 1151 According to him the Accused Had ihasanovi used the mujahedin to step up attacks and make breakthroughs 1152 The Chamber also heard witnesses on Exhibit DH 165 2 the order by Rasim Deli dated 16 June 1993 1153 According to Witness D emal Merdan Zuka’s unit referred to in the exhibit was part of the Supreme Command not the 3rd Corps He said that Zuka’s unit was attached to the ABiH Supreme Command Main Staff 1154 Exhibits DH 165 4 and DH 165 5 raised the question of who was behind the proposal to create the El Mujahedin detachment DH 165 5 The proposal came from the 3rd Corps and bore the name of the Accused Had ihasanovi but Witness Mustafa Popari asserted that Sakib Mahmuljin was the inspiration behind the document 1155 He was part of the Supreme Command not the 3rd Corps 1156 Finally several Defence witnesses claimed that Exhibit DH 165 6 the order to create the El Mujahedin detachment showed that “foreign volunteers” were present in the 3rd Corps zone of responsibility but were not part of the army when Rasim Deli issued the order on 13 August 1993 1157 564 The Chamber also examined Exhibit P 482 which is filmed footage from the mujahedin According to this exhibit the mujahedin took part in combat operations with the 3rd Corps before the creation of the El Mujahedin unit Then in mid-June 1993 the mujahedin decided to stop taking part in combat operations with the ABiH until such time as they were recognised as an independent battalion “The Mujahedin leadership got together to establish the reasons for the defeats and withdrawals They found that the main reason was the lack of correct and sound Islamic belief amongst the members of the Bosnian Army In addition to this there were traitors amongst the ranks of the army a lack of good military planning and chaotic organisation during operations The Shura Council for the Mujahedin decided to stop taking part with the Army in any of the military 1150 Alastair Duncan T F pp 7388-7393 Witness ZP T F pp 9069 and 9070 Robert Stewart T F pp 15333 and 15334 1151 Witness ZP T F pp 9069 and 9070 Robert Stewart T F pp 153333 and 15334 Alastair Duncan T F pp 73867390 P 101 1152 Alastair Duncan T F pp 7298 and 7299 1153 Alastair Duncan T F pp 7393-7396 D emal Merdan T F pp 13163 and 13164 1154 D emal Merdan T F pp 13163 and 13164 1155 Mustafa Popari T F pp 14484 14485 and 14508 1156 Mustafa Popari T F p 14482 D emal Merdan T F p 13165 1157 Witness ZP T F p 9072 D emal Merdan T F p 13168 Mustafa Popari T F p 14489 Case No IT-01-47-T 161 15 March 2006 515 21623 BIS operations until the Mujahedin were recognised as an independent Battalion within the Bosnian Army 1158 It should be noted that the exhibit speaks of taking part in military operations “with” the ABiH and not “as part of the ABiH” which would seem to indicate that the mujahedin did not consider themselves subordinated to the ABiH Nevertheless since the Chamber does not know its origin the probative value of this exhibit is limited 565 The evidence discussed above leads the Chamber to find that it has not been established that the mujahedin were members of the ABiH and the 3rd Corps Furthermore in view of the ambiguities in Exhibits DH 165 1 to DH 165 6 the witness testimony regarding them and the contents of Exhibit P 482 the Chamber is not satisfied that the developments leading to the creation of the El Mujahedin detachment show that the 3rd Corps exercised de facto effective control of the mujahedin before the creation of the El Mujahedin unit d Observations of International Observers 566 The Chamber heard the witness testimony of 18 members of international organisations stationed in Central Bosnia in 1993 primarily members of the UNPROFOR British Battalion Britbat and the ECMM European Community Monitoring Mission These witnesses gave their personal observations on the presence of the mujahedin in Central Bosnia at the time they were stationed there and shared their conclusions with the Chamber in respect of the relations that existed between the mujahedin and the ABiH The Chamber is unable to repeat all the testimony at this time and will limit itself to several examples 567 Witness Robert Stewart was the first Britbat commander in Central Bosnia between August 1992 and May 1993 1159 According to him the mujahedin were not part of the ABiH and had not been placed under the control of the 3rd Corps 1160 He stated that he received his information from a reliable source but refused to disclose the identity of the source 1161 This person apparently met the mujahedin twice once in the sector north of Vitez and once east of Zenica They were in groups of 1158 P 482 and T F p 8542 The exhibit continues The Bosnian Army acknowledged the role that the Mujahedin had played so far and their need for men of this kind Therefore the Bosnian Army leadership agreed to their request and recognised the Mujahedin Battalion as a part of the Bosnian Army over which the banner of inaudible could be raised This gave them the ability to choose their soldiers based on the Islamic Sharia Thus began a new stage in the war with an increasing responsibility and a need for planning and organisation The Head Office for the Battalion was in Zenica The training camp was inaudible training camp in the village of Mehuri i The leader of the battalion was Abul-Harith the Libyan may Allah have Mercy upon him 1159 Robert Stewart T F pp 15130 and 15138 1160 Robert Stewart T F pp 15193 and 15336 1161 Robert Stewart T F p 15194 Case No IT-01-47-T 162 15 March 2006 514 21623 BIS 15 to 20 accommodated in civilian houses and wore civilian dress The witness said his source did not see any ABiH soldiers in the vicinity 1162 568 Witness Bryan Watters was the Britbat deputy commander from early February to mid-May 1163 1993 He had the impression that the mujahedin were concentrated within the 7th Brigade that adhered to a strict interpretation of Islam 1164 He did not know if the mujahedin were part of the 3rd Corps but they seemed to share its same military objectives and worked parallel with it 1165 He stated however that he never met the mujahedin or commanders of the 7th Brigade personally 1166 He received information through discussions with his colleagues and through representatives of the HVO and ABiH 1167 569 Witness Alastair Duncan was the second Britbat commander He was stationed in Central Bosnia from mid-May to November 1993 1168 During his appearance before the Chamber he stated that when he was assigned to BiH he received reports that local and foreign mujahedin were operating in the zone of responsibility of the 3rd Corps 1169 Of all the information he received he said that information on the mujahedin was the most difficult to verify and prove 1170 He was at the command post and never met any foreign mujahedin 1171 He did not know how they had arrived in BiH whether they had anything to do with Muslim leaders in Bosnia or how they were financed 1172 He had heard nothing about Abu Haris or the El Mujahedin unit 1173 He could not get a clear picture of the relations between the mujahedin and the 3rd Corps 1174 At the time it was said that the mujahedin and their operations were uncontrollable and that they were not under the command of the 3rd Corps 1175 Nevertheless the witness was of the opinion that the mujahedin were in fact under the control of the 3rd Corps since it supplied them with resources food and ammunition 1176 1162 Robert Stewart T F p 15193 Bryan Watters T F pp 7480 7481 and 7486 1164 Bryan Watters T F p 7513 1165 Bryan Watters T F p 7562 1166 Bryan Watters T F pp 7512 7513 and 7568 1167 Bryan Watters T F pp 7513 and 7567 1168 Alastair Duncan T F pp 7258-7260 1169 Alastair Duncan T F pp 7293 7294 and 7380 1170 Alastair Duncan T F pp 7293 and 7294 1171 Alastair Duncan T F p 7293 1172 Alastair Duncan T F pp 7381-7383 1173 Alastair Duncan T F p 7407 1174 Alastair Duncan T F p 7294 1175 Alastair Duncan T F pp 7294 and 7295 1176 Alastair Duncan T F p 7295 1163 Case No IT-01-47-T 163 15 March 2006 513 21623 BIS 570 Witness Vaughan Kent-Payne a member of Britbat in Central Bosnia for seven months starting in mid-April 1993 reached the conclusion that the foreign mujahedin were used as the spearhead for all 3rd Corps attacks He thought they were part of the 7th Brigade 1177 Even though they were undisciplined and out of control they acted as part of the 3rd Corps 1178 The witness said he received information from the military information cell that gathered intelligence from patrols on the ground 1179 He did not have direct contact with 7th Brigade officers and met its members only once 1180 571 Witness Cameron Kiggell was the Britbat officer responsible for liaising between Britbat and the 3rd Corps in Zenica between May and August 1993 and had regular contacts with 3rd Corps officers 1181 He met the Accused Had ihasanovi his second-in-command D emal Merdan and other members of 3rd Corps Command almost on a daily basis at 3rd Corps headquarters in Zenica 1182 He also met the Accused Kubura 1183 The witness met foreign mujahedin on three occasions The first time was in a café in Zenica in May 1993 Then at the end of May 1993 he met three mujahedin from Turkey 1184 Finally in early June 1993 he attended a meeting between a Norwegian humanitarian organisation and the mujahedin in Arnauti during which he learned that the mujahedin had a training camp in the area 1185 He did not enter the camp however and did not know who was being trained there 1186 The witness thought that the mujahedin were under the effective control of the 3rd Corps because they were found at places where the 3rd Corps was concentrating its efforts 1187 He believed that labelling the mujahedin as uncontrollable was a convenient means of deflecting criticism away from the 3rd Corps 1188 Nevertheless he did not think that the three Turkish mujahedin he met in May 1993 were under the control of the ABiH 1189 With regard to the mujahedin in Arnauti he stated that he did not see any insignia or other elements 1177 Vaughan Kent-Payne T F pp 4816 and 4817 Vaughan Kent-Payne T F p 4817 1179 Vaughan Kent-Payne T F pp 4829-4832 4862 4867 4872 and 4922 1180 Vaughan Kent-Payne T F p 4922 1181 Cameron Kiggell T F pp 4972 4973 and 5101 1182 Cameron Kiggell T F p 4978 1183 Cameron Kiggell T F p 4979 1184 Cameron Kiggell T F p 5065 DH 108 1185 Cameron Kiggell T F pp 5005-5008 1186 Cameron Kiggell T F p 5079 1187 Cameron Kiggell T F pp 5022 and 5023 see also P 101 1188 Cameron Kiggell T F pp 5023 and 5024 see also P 101 1189 Cameron Kiggell T F p 5065 DH 108 1178 Case No IT-01-47-T 164 15 March 2006 512 21623 BIS attaching them to the ABiH 1190 None of the mujahedin he encountered made it possible to connect them to the 7th Brigade 1191 572 Witness Mark Bower also a member of Britbat in the Zenica area from 24 April to 6 November 1993 testified to the presence of foreign mujahedin in the area and said that they were in the ranks of the 7th Brigade1192 and acted as a well-formed unit within the 7th Brigade 1193 The witness met them frequently on the ground The foreign mujahedin were constantly on the move and it was impossible to predict where they were going to be 1194 Members of Britbat had the impression that the foreign mujahedin within the 7th Brigade were a mobile force a main effort force used to spearhead the main effort attack 1195 They reached this conclusion after seeing how the situation started to appear and how the overall campaign was being conducted 1196 In addition the 3rd Corps took part in organising the exchange of foreign mujahedin both prisoners and deceased 1197 Towards the end of his mission in Central Bosnia the witness noted that the mujahedin were exchanged for HVO soldiers at the same time as other ABiH soldiers 1198 573 Witness Peter Williams was the Britbat commander from mid-November 1993 to May 1994 The witness never discussed the issue of the mujahedin directly with ABiH representatives but reference was often made to uncontrollable elements 1199 According to him there was a group of foreign mujahedin within the 7th Brigade 1200 The witness stated that at the time members of Britbat assumed that all the groups calling themselves “operations group” or “brigade” fell within the formal the structure of the army and that the 7th Brigade was subordinated to the 3rd Corps 1201 He explained that it was very difficult if not impossible for members of Britbat to consider that there could be a well-armed well-motivated unit such as the 7th Muslim Brigade or mujahedin operating within the 3rd Corps zone of responsibility without being directly subordinated to the 3rd Corps Commander 1202 The witness admitted however that he never spoke to the mujahedin or to any 7th Brigade Commander 1203 1190 Cameron Kiggell T F p 5106 Cameron Kiggell T F pp 5097-5099 1192 Mark Bower T F pp 5135 and 5136 1193 Mark Bower T F p 5136 1194 Mark Bower T F p 5137 1195 Mark Bower T F p 5138 1196 Mark Bower T F pp 5180 and 5211 1197 Mark Bower T F pp 5141 5192 5193 and 5227 1198 Mark Bower T F pp 5224 and 5227 1199 Peter Williams T F p 5925 1200 Peter Williams T F p 5972 1201 Peter Williams T F p 5973 1202 Peter Williams T F pp 5975 and 5976 1203 Peter Williams T F pp 5997 and 6001 1191 Case No IT-01-47-T 165 15 March 2006 511 21623 BIS 574 Witness Guy Chambers was stationed in Central Bosnia as a military information officer at UNPROFOR headquarters from September 1993 to April 1994 1204 He also stated that the mujahedin were part of the 7th Brigade 1205 According to his testimony the mujahedin were accommodated in Mehuri i and placed under the command of a man named “Abuh Hamza” who in turn was under the command of the 7th Brigade 1206 The witness admitted however that he had no hard evidence of this 1207 He recognised that the information about who commanded the mujahedin was imprecise and that some of the mujahedin may have been under the command of the 3rd Corps without being under its effective control 1208 The witness explained that he received information from the members of Britbat and other international representatives on the ground and that he had no knowledge of the internal structure of the 7th Brigade 1209 He stated that UNPROFOR was only an observer of the war in Central Bosnia and as it was not directly involved in the conflict remained unconcerned with the intentions of the warring factions 1210 He thought he had an overview of the “mujahedin question” but stated that the command and control element was still unresolved in his mind 1211 575 Witness Martin Garrod director of EMMC centres in Mostar and Zenica from June 1993 to April 1994 expressed a more doubtful opinion regarding the status of the mujahedin within the 3rd Corps According to him the 3rd Corps Command claimed that the mujahedin were under its control but he was not personally convinced of this 1212 576 The picture painted by international witnesses varies considerably Most of them established a link between the mujahedin and the 7th Brigade but they could not confirm that the mujahedin were under the command and effective control of the 3rd Corps Nevertheless the witnesses noted that the mujahedin operated in the 3rd Corps zone of responsibility and seemed to have been used as a spearhead 577 The Chamber notes that the international witnesses were present in Central Bosnia as neutral observers and that consequently their testimony is not biased As stated by Witness Guy Chambers international observers were not involved in the war in Central Bosnia While this neutral position 1204 Guy Chambers T F pp 6025 and 6026 Guy Chambers T F p 6037 He seems to use the terms mujahedin and 7th Brigade interchangeably at times T F pp 6130 and 6131 1206 Guy Chambers T F p 6037 1207 Guy Chambers T F pp 6135 and 6136 1208 Guy Chambers T F pp 6136 and 6101 1209 Guy Chambers T F pp 6035 6036 6046 6047 6092 6134-6139 1210 Guy Chambers T F p 6130 1211 Guy Chambers T F p 6130 1212 Sir Martin Garrod T F pp 5674 5675 8253 8254 and 8275 1205 Case No IT-01-47-T 166 15 March 2006 510 21623 BIS makes the witnesses very credible it is short on detailed information about the internal organisation of the ABiH and HVO particularly the chain of command 578 The witnesses explained to the Chamber the information gathering system put in place by UNPROFOR 1213 Its information came from observations on the ground or from what was learned from representatives of the warring factions The international observers did not have access to the archives of the warring parties the headquarters of the 7th Brigade or the mujahedin camps They had very little contact with 7th Brigade commanders and were unable to observe their combat operations up close In addition with rare exceptions international observers did not attend meetings where the mujahedin were present 579 The witnesses have differing opinions as to the relations between the 3rd Corps and the mujahedin The international observers are uncertain about the nature of these relations Consequently a distinction should be made between facts directly observed by the witnesses appearing before the Chamber and their conclusions regarding relations between the mujahedin and the ABiH These conclusions will be primarily taken into account when they have been corroborated by other evidence e Conclusion 580 The evidence analysed in this section of the Judgement on the relationship between the mujahedin and the 3rd Corps is not sufficient in itself to conclude that the mujahedin at inter alia Camp Poljanice were de facto subordinated to the 3rd Corps Command 2 Mujahedin and the 306th Brigade a Introduction 581 The Chamber examined a great deal of evidence testifying to the presence of mujahedin in the zone of responsibility of the 306th Brigade particularly at Poljanice Camp in Mehuri i 1214 This evidence indicates that the mujahedin carried out various military activities there ranging from recruitment and training soldiers to reconnaissance missions and mine clearing The Prosecution claims that this evidence is proof of a relationship between the 306th Brigade and the mujahedin 1215 1213 Robert Stewart T F pp 15195 15204 15205 15254 and 15293 Bryan Watters T F pp 7492-7500 7546 and 7566 Mark Bower T F pp 5125 5126 5172 5174 and 5179 Peter Williams T F pp 5910 5912 5913 5920 5943 5495 and 5958-5960 Guy Chambers T F pp 6029 6030 6146 6151 6154 and 6155 1214 See supra paras 419-421 1215 See Prosecution Final Brief paras 105 and 107 and Prosecution Response to Motions for Acquittal para 48 The Prosecution submits that the mujahedin equipped and trained 3rd Corps soldiers in their training camps particularly Poljanice Camp in Mehuri i It maintains that men in the 306th Brigade zone of responsibility went to the mujahedin to receive training weapons and uniforms before going back to their respective units This allegedly proves that there Case No IT-01-47-T 167 15 March 2006 509 21623 BIS The Chamber notes that the Indictment does not allege that mujahedin were incorporated into and subordinated to the 306th Brigade Close cooperation between the mujahedin and members of the 306th Brigade however could assist the Chamber in understanding the involvement of the 306th Brigade in the crimes committed in Mileti i and Maline and more generally the attitude of the 3rd Corps Command towards the mujahedin b Units Present in Mehuri i during 1992 and 1993 582 In 1992 the village of Mehuri i was part of the territory under the command of the Travnik TO A nine-member unit of the TO staff and a company of 176 men were based there 1216 Fahir amd i was the commander 1217 The Travnik District TO Staff occupied part of the elementary school in Mehuri i 1218 With the creation of the 306th Brigade at the end of the year Mehuri i became the base of this brigade’s 1st Battalion Members of the 306th Brigade stayed in the elementary school until July or August 1993 1219 583 As explained in the section of the Judgement on Poljanice Camp the mujahedin arrived in Mehuri i in the second half of 1992 and were first accommodated in the elementary school Once the 306th Brigade 1st Battalion moved there in early 1993 the mujahedin left for Poljanice a neighbouring village 1220 c Evidence of a General Nature 584 The Chamber heard testimony from many former members of the 306th Brigade all called by the Defence for the Accused Had ihasanovi These witnesses agreed that there was no connection between the 306th Brigade and the mujahedin regardless of the fact that the 306th Brigade 1st Battalion was based near the mujahedin 585 Witness Esed Sipi commander of the 306th Brigade during the first part of 1993 stated that the mujahedin were never under the control of the 306th Brigade 1221 and that the brigade’s command never issued orders to them 1222 He said he never received any reports from the were strong ties between inter alia 306th Brigade soldiers and the mujahedin at Poljanice Camp Conversely the Defence for the Accused Had ihasanovi disputes any relationship between the 3rd Corps including the 306th Brigade and the mujahedin see Had ihasanovi Defence Final Brief paras 229 ff 1216 DH 1663 1217 Fahir amd i T F p 11686 1218 DH 1663 Fahir amd i T F pp 11687 11694 1219 Halim Husi T F p 10883 Dervi Sulji T F pp 11303-11304 Vezir Jusufspahi T F pp 14044-14045 1220 See supra paras 419-421 1221 Esed Sipi T F pp 14798-14799 1222 Esed Sipi T F p 14903 Case No IT-01-47-T 168 15 March 2006 508 21623 BIS mujahedin1223 and that the 306th Brigade had no foreigners in its ranks 1224 Other witnesses confirmed these statements Witness Remzija iljak 306th Brigade chief of staff during the same period said that the 306th Brigade had “nothing to do” with the mujahedin1225 and that they were never subordinated to the 306th Brigade before the creation of the El Mujahedin unit 1226 Witnesses Hasan Zukanovi 1227 306th Brigade 1st Battalion Assistant Commander for Security and Fahir amd i 1228 2nd Battalion Commander both affirmed that the mujahedin were not part of their respective units Witnesses Ferid Ja arevi 1229 Munir Kari 1230 Dervi Sulji 1231 and Salim Tarak ija 1232 all former members of the 306th Brigade testified in similar fashion 586 Documents contemporary to the facts of the case that deal with the 306th Brigade and the mujahedin generally corroborate the testimony of these witnesses and make an explicitly or implicitly clear distinction between the 306th Brigade and the mujahedin 1233 This distinction underscores the fact that the mujahedin were not part of the 306th Brigade and were neither subordinated to it nor placed under its control 587 One exception to this assertion however appears in a handwritten excerpt from the 3rd Corps war diary of 24 April 1993 1234 The excerpt concerns the 306th Brigade and says that “ t he HVO opened fire at our patrol wounding a member of the unit an Arab” from the Simulje sector 1235 Later the diary says that “ a fter the wounding about 30 abandoned the unit heading for the village of Ora ac” 1236 The terms employed in the excerpt suggest that the 306th Brigade and the mujahedin conducted joint patrols 588 The Chamber notes that none of the former members of the 306th Brigade called to testify before it on the events in Mileti i on 24 April 1993 was questioned by the Parties in order to explain this excerpt The 306th Brigade war diary says only that an Arab was wounded in the stomach on 24 1223 Esed Sipi T F p 14904 Esed Sipi T F pp 14841-14842 1225 Remzija iljak T F pp 10614 10632 1226 Remzija iljak T F pp 10545 10553 10667 1227 Hasan Zukanovi DH 2091 para 8 1228 Fahir amd i T F p 11702 1229 Ferid Ja arevi T F p 11551 1230 Munir Kari T F p 11526 1231 Dervi Sulji T F p 11339 1232 Salim Tarak ija T F p 11833 1233 P 663 P 664 P 665 P 666 DH 923 DH 1007 DH 1053 DH 2078 under seal 1234 P 557 P 923 6 1235 This incident preceded events in Mileti i on the same day and probably provoked them See infra para 1067 1236 P 557 P923 6 “The HVO opened fire at our patrol wounding a member of the unit an Arab from the place name illegible sector tt 870 After the wounding about 30 word illegible abandoned the unit heading for the village of Ora ac ” 1224 Case No IT-01-47-T 169 15 March 2006 507 21623 BIS April 1993 1237 It should likewise be noted that a combat report from OG Bosanska Krajina written on the evening of 24 April 1993 requested that the 3rd Corps put the mujahedin under its immediate control 1238 589 An initial observation may be made based on these elements one document only an excerpt from the 3rd Corps war diary makes a link between the 306th Brigade and the mujahedin and no other evidence corroborates its contents d Military Activity of the Mujahedin in the 306th Brigade Zone of Responsibility 590 Several witnesses testified about military activity in the vicinity of Mehuri i carried out by the mujahedin from Poljanice Camp 591 Witness Sulejman Ribo a member of the 312th Brigade doing his military service on part of the front against the Serbian forces not far from Mehuri i noted that mujahedin sometimes took part in combat as autonomous groups and did not want to be put under the chain of command in the area of Mehuri i The witness also stated that the mujahedin did not want to take a zone of responsibility and acted primarily as irregulars 1239 592 As explained elsewhere in the Judgement the mujahedin took part in fighting between the ABiH and the HVO on the side of the ABiH in the Bila Valley in early June 1993 1240 Witness Remzija iljak however said that little information was available on how the mujahedin conducted combat operations and that one of their common practices was to go straight to the areas liberated by the army to take war booty 1241 593 The mujahedin took part in reconnaissance operations and mine clearing First Witness Esed Sipi told the Chamber that the mujahedin conducted reconnaissance missions of certain positions held by the HVO around 17 April 1993 1242 Second a report dated 5 May 1993 addressed to the 3rd Corps and signed by Witness Esed Sipi refers to “arbitrary acts” committed by the mujahedin among others 1243 such as daily instances of opening fire on the HVO and then retreating The report also states that the status of the mujahedin was not known Third according to another report by Witnesses Esed Sipi dated 24 May 1993 the HVO issued a protest against the mujahedin’s initiative to clear a minefield near HVO positions which would have led to an armed 1237 P 556 P 926 1 C 18 “An Arab was wounded in the stomach in the area of Lacin above Suhi Dol ” DH 915 1239 Sulejman Ribo T F pp 11067-11068 See also T F pp 11093 11907-11099 1240 See infra para 1070 1241 Remzija iljak T F p 10643 1242 Esed Sipi T F pp 14844-14845 1238 Case No IT-01-47-T 170 15 March 2006 506 21623 BIS confrontation between the mujahedin and the HVO 1244 Witness Remzija iljak explained that it had been an independent initiative by the mujahedin 1245 Finally a report dated 28 May 1993 by Witness Asim Delali speaks of a confrontation between the mujahedin and the HVO on 25 May 1993 following an unauthorised reconnaissance mission by the mujahedin from Mehuri i The report indicates the mujahedin from Mehuri i were not under the control of the 306th Brigade and answered to the command of Ramo Durmi 1246 594 The Chamber finds that these examples testify to spontaneous and independent initiatives by the mujahedin who had received neither the authorisation nor the approval of the 306th Brigade Furthermore the Chamber notes that the initiatives were destabilising factors that threatened relations between the HVO and the ABiH It was therefore not in the interests of the 306th Brigade to encourage such actions 1247 595 Bearing this context in mind the above incident from the 3rd Corps war diary of 24 April 19931248 might also indicate a spontaneous and independent initiative by the mujahedin in spite of the fact that the diary speaks of “our patrol” and a “member of the unit” 596 Witness Remzija iljak stated that during the day of 24 April 1993 a group of mujahedin left to carry out reconnaissance on the terrain above Poljanice Camp that had been mined by the HVO The witness made no reference to members of the 306th Brigade in this regard 1249 e Logistical Support 597 Several former members of the 306th Brigade denied that the 306th Brigade received logistical support from the mujahedin Witness Munir Kari 306th Brigade Assistant Commander for Logistics stated that he never observed the mujahedin providing the 306th Brigade with logistical support He also denied that the 306th Brigade provided material support to the mujahedin based at Poljanice Camp 1250 1243 P 663 DH 1053 See also infra para 746 1245 Remzija iljak T F p 10660 1246 DH 1071 1247 See P 664 DH 1503 1248 See supra paras 587-588 1249 Remzija iljak T F pp 10652-10654 1250 Munir Kari T F p 11459 similar statements were made by witnesses Fahir amd i T F p 11697 and Dervi Sulji T F p 11339 1244 Case No IT-01-47-T 171 15 March 2006 505 21623 BIS f Training 598 A report by Vezir Jusufspahi 1251 dated 2 August 1993 on an inspection of the 306th Brigade indicated that “ a communication was also sent to all villages from the Muslim forces stationed in Mehuri i village calling soldiers for a 40-day training” 1252 Witnesses Vezir Jusufspahi 1253 and Remzija iljak1254 both explained that this was not an invitation intended for the 306th Brigade but for the local population and that the 306th Brigade was not at all behind this initiative Witness Halim Husi also confirmed that the foreigners in Poljanice Camp were not involved in training the 306th Brigade 1255 The fact that members of the 306th Brigade joined the mujahedin independently and on an individual basis to receive military training will be discussed below 1256 g Access to Poljanice Camp 599 All the witnesses who were former members of the 306th Brigade agreed that the 306th Brigade had practically no access to Poljanice Camp and infrequent contacts with its inhabitants 1257 h Recruitment of Local Men by the Mujahedin 600 More than one testimony and several documents dealt with both the mujahedin’s recruitment of young civilians and ABiH soldiers and the weapons and training they received in Poljanice Camp In spite of some divergence among the witness statements with regard to the extent and importance of this recruitment and its consequences for the 306th Brigade the witnesses agreed that the recruitment did not indicate that there was cooperation between the 306th Brigade and the mujahedin 601 Witness Esed Sipi spoke of a recruitment campaign conducted by the mujahedin in the villages of the 306th Brigade zone of responsibility1258 in which they were looking to recruit young men and sometimes even minors who were promised money weapons and other goods 1259 Ferid Ja arevi also asserted that the mujahedin recruited young men by offering them military training after which they would receive rifles 1260 Sulejman Ribo who was originally from the Mehuri i area 1251 He succeeded Esed Sipi as 306th Brigade Commander 1252 P 491 DH 270 C 10 1253 Vezir Jusufspahi T F p 14052 1254 Remzija iljak T F pp 10657-10658 1255 Halim Husi T F p 10933 1256 See infra paras 600-604 1257 See for example Fahir amd i T F p 11697 Asim Delali T F p 16359 Vezir Jusufspahi T F p 14037 Remzija iljak T F p 10489 Hasan Zukanovi DH 1091 para 9 1258 Esed Sipi T F p 14789 1259 Esed Sipi T F p 14789 1260 Ferid Ja arevi T F p 11551 Case No IT-01-47-T 172 15 March 2006 504 21623 BIS had the opportunity to speak with these recruits and recalled that they were motivated to associate with the mujahedin by the desire to receive training uniforms and weapons 1261 602 According to witnesses Ferid Ja arevi and Sulejman Ribo a number of young men recruited by the mujahedin went back to their original units after finishing their training 1262 Fahir amd i 1263 Asim Delali 1264 and Remzija iljak 1265 however asserted that few of these recruits went back to their original unit 603 The witnesses agreed that the 306th Brigade was not behind the mujahedin’s recruitment campaign Esed Sipi explained that the mujahedin made direct contact with the local population without the intermediary of 306th Brigade members1266 and that the mujahedin’s recruitment of soldiers had a negative impact on the 306th Brigade 1267 He estimated that about 50 soldiers had left the ranks of the 306th Brigade to join the mujahedin based at Poljanice Camp or other units 1268 and that it had been practically impossible to find these soldiers in order to arrest them 1269 Similarly Asim Delali confirmed that there had been some 40 or 50 desertions in the 306th Brigade which effectively diminished its manpower 1270 He added that a number of criminal complaints had been lodged against the deserters with the District Military Court in Travnik 1271 although the court did not follow up 1272 Finally a number of exhibits written at the time also signal the harmful consequences of 306th Brigade deserters who joined the mujahedin 1273 604 In view of the varying testimony and exhibits the recruitment of young men in the 306th Brigade zone of responsibility by the mujahedin does not imply that there was a connection between the mujahedin and the 306th Brigade 1261 Sulejman Ribo T F p 11041 referring to the second half of 1992 Hamid Sulji T F pp 11909 11929-11930 gives the example of a man named Avdija Kadri who underwent training in mid-1993 1262 Sulejman Ribo T F p 11041 who stated that young recruits joined the units of the Mehuri i detachment Ferid Ja arevi T F p 11551 1263 Fahir amd i T F pp 11756-11757 1264 Asim Delali T F p 16386 1265 Remzija iljak T F pp 10489-10490 10665 1266 Esed Sipi T F pp 14789 and 14819 1267 Esed Sipi T F p 14840 1268 Esed Sipi T F p 14820 1269 Esed Sipi T F pp 14820 and 14840 1270 Asim Delali T F pp 16355 16356 16385 and 16386 1271 Asim Delali T F p 16386 1272 Asim Delali T F p 16386 He added that later some of the deserters rejoined 306th Brigade units 1273 DH 1007 DH 2078 P 491 DH 270 C 10 On the last document see Vezir Jusufspahi T F pp 14052-14057 Case No IT-01-47-T 173 15 March 2006 503 21623 BIS i Conclusion 605 The Chamber finds that the evidence discussed above does not show that the mujahedin were part of the 306th Brigade or under the brigade’s effective command or control nor does it establish the existence of close links between the 306th Brigade and the mujahedin 3 Mujahedin and the 17th Brigade 606 In paragraph 46 of the Indictment the Prosecution alleges that the mujahedin were subordinated to the 3rd Corps and or the 17th Brigade The Prosecution however has presented no evidence to substantiate the fact that the mujahedin were subordinated to the 17th Brigade Its Final Brief is silent on this matter 607 The 17th Brigade was created on 27 November 1992 and was stationed in Travnik 1274 Witness Fikret uski was appointed commander of the brigade a position he held from its creation until 7 April 1994 1275 The 17th Brigade was composed of Bosnian volunteers residing in Western Europe and displaced persons from Krajina 1276 608 Witness Fikret uski explained that the 17th Brigade had little contact with the mujahedin In November 1992 that is before the creation of the 17th Brigade 15 to 20 foreign mujahedin fought with the men commanded by Fikret uski in the defence of Karaula 1277 although he indicated that he had not given them any orders He had had no communication with the mujahedin who had fought in an isolated manner 1278 609 As regards the allegations in paragraph 46 of the Indictment the Chamber has noted elsewhere in the Judgement that the destruction of the church in Travnik was the work of the mujahedin1279 and no evidence has incriminated the members of the 17th Brigade or any other 3rd Corps unit 610 In October 1993 the 17th Brigade had problems with the mujahedin when one of its members was captured by the mujahedin for having drunk alcohol He was detained at Poljanice Camp for several days and mistreated 1280 Fikret uski was only able to obtain his release by sending a message through the Mufti of Travnik Nusret Efendija Avdibegovi The message 1274 Fikret uski T F pp 12049 and 12050 Fikret uski T F p 12050 1276 Fikret uski T F p 12054 see also P 330 1277 Fikret uski T F pp 12157 12178 and 12084 1278 Fikret uski T E pp 12157 and 12158 1279 See infra para 2016 1280 Fikret uski T F p 12088 1275 Case No IT-01-47-T 174 15 March 2006 502 21623 BIS indicated that the 17th Brigade would attack the camp if the mujahedin did not release the soldier 1281 611 Finally the 17th Brigade took part in combat with the El Mujahedin unit on Mt Igman in the area of Vitez on 18 September 1993 1282 Fikret uski said that it was his first and only experience with the El Mujahedin unit 1283 612 The Chamber finds that it has not been established that the 17th Brigade included mujahedin in its ranks or that mujahedin were subordinated to it 4 Mujahedin and the 7th Brigade a Introduction 613 The Chamber recalls that the Indictment accuses the 7th Brigade of having committed crimes in Mileti i Maline and Gu a Gora which are located in the Bila Valley As shown in the sections of the Judgement dealing with each of these counts the perpetrators of the crimes were the mujahedin at Poljanice Camp also located in the Bila Valley 614 The Chamber has previously established that the mujahedin at Poljanice Camp were not de jure part of the 7th Brigade and or 3rd Corps Nevertheless some members of the 3rd Corps had left their units to join the mujahedin at the camp while remaining de jure subordinated to the ABiH An analysis should thus be made of whether the mujahedin were de facto subordinated to the 3rd Corps To do so the Chamber will view the situation from several angles 615 The Chamber will first analyse the composition of the 7th Brigade by origin This analysis is intended to establish which of the “local” mujahedin at Poljanice Camp had left the 7th Brigade and also allows a general examination of the links between the 7th Brigade and another category of mujahedin namely foreign Muslim fighters 616 Second based on testimony from former members of the 7th Brigade and documents from this brigade the Chamber will determine whether 7th Brigade units were present in the Bila Valley in the first six months of 1993 Although this analysis includes testimony from former members of the 7th Brigade the Chamber will focus on analysing the documents Since the Parties paid only limited attention to this matter a rigorous and methodical analysis of the composition manpower and movements of 7th Brigade units by means of these documents is essential 1281 Fikret uski T F pp 12088 12089 12126 and 12127 See also Exhibits DH 1515 and P 223 Fikret uski T F p 12158 1283 Fikret uski T F p 12151 1282 Case No IT-01-47-T 175 15 March 2006 501 21623 BIS 617 Third the Chamber will focus briefly on several pieces of evidence from the international observers present in Central Bosnia in 1992 and 1993 and will limit itself more specifically to those dealing with the presence of the 7th Brigade and the mujahedin in the Bila Valley during this period 618 Fourth the Chamber will analyse the testimony of former members of the 306th Brigade and brigade documents Such an analysis is necessary because the mujahedin camp at Poljanice was in the 306th Brigade zone of responsibility 619 Lastly based on the above the Chamber will evaluate all the evidence in order to answer the question as to whether the mujahedin at Poljanice Camp were part of the 7th Brigade or were under the effective control of the brigade’s military commanders b Formation Structure and Composition by Origin of the 7th Brigade i Formation Structure and Manpower of the 7th Brigade 620 The 7th Brigade was formed on 19 November 1992 by order of Sefer Halilovi Chief of the ABiH Supreme Command Main Staff at the time 1284 The order followed a proposal from the Zenica District TO dated 18 November 1992 1285 621 The 7th Brigade had its headquarters in Zenica1286 and consisted of three battalions In mid- March 1993 the 7th Brigade had between 1 431 and 1 439 men 1287 As to its manpower from midMarch 1993 to the end of June 1993 the only evidence available to the Chamber deals with the manpower of the 7th Brigade 1st Battalion ii Composition of the 7th Brigade a Composition of the 7th Brigade by Origin 622 The order by Sefer Halilovi dated 19 November 1992 establishing the 7th Brigade clearly stated that it was to be composed of armed forces then engaged on the Mt Vla i plateau near Travnik 1288 approximately 1 200 soldiers 1289 1284 P 125 See also supra paras 343 and 484 P 124 1286 See supra para 344 1287 P 536 P 693 DK 33 Based on Exhibit DK 32 there were 1 174 men in February 1993 P 746 says that there were 2 260 men in March 1288 P 125 1289 P 124 1285 Case No IT-01-47-T 176 15 March 2006 500 21623 BIS 623 The Chamber would recall at this point that in late 1992 the forces on the Mt Vla i plateau consisted of at least four groups of fighters Some were part of the Travnik municipal TO others belonged to previously formed units of the 3rd Corps and others were members of the Travnik Muslim Forces There were also foreign fighters 1290 In the section of the Judgement dealing with the de jure subordination of the mujahedin to the 7th Brigade the Chamber has previously established that some members of the Travnik Muslim Forces became incorporated into the 7th Brigade whereas others joined the mujahedin at Poljanice Camp or other units of the ABiH 1291 Witnesses D emal Ibranovi and Semir Terzi were among those who became incorporated into the 7th Brigade 1292 Others also joined the 7th Brigade such as Ahmed Adilovi 7th Brigade Assistant Commander for Troop Morale Information Propaganda and Religious Affairs 1293 Fadil Had i who seems to have commanded the 7th Brigade 1st Battalion in early 1993 1294 and Ramo Durmi Commander of the 1st Battalion 1st Company in December 1992 1295 624 The question of whether the foreign Muslim fighters became members of the 7th Brigade will be discussed below 1296 b Departure of Some Members of the 7th Brigade after its Formation 625 In the section of the Judgement on the de jure subordination of the mujahedin at Poljanice Camp to the ABiH before the creation of the El Mujahedin unit the Chamber has established that some members of the ABiH including members of the 7th Brigade left their brigades to join the mujahedin at Poljanice Camp 1297 626 Two documents from the 306th Brigade lead to the conclusion that Ramo Durmi who was a member of the 7th Brigade joined the mujahedin at Poljanice Camp They allow the Chamber to consider that Durmi commanded the “Bosnians” who were among the mujahedin in Mehuri i 1298 In addition Witness Sulejman Ribo thought that Durmi was among the first Bosnians to join the ranks of the mujahedin saying that he had seen him in Mehuri i 1299 During his testimony before 1290 See supra para 423 See supra para 484 1292 P 695 1293 P 695 P 498 DH 776 1294 P 695 DK 29 See also infra para 669 1295 P 695 P 498 1296 See infra paras 642-657 1297 See supra paras 422-423 1298 DH 1007 and DH 1071 See also infra para 745 1299 Sulejman Ribo T F pp 11076-11077 1291 Case No IT-01-47-T 177 15 March 2006 499 21623 BIS the Chamber Ribo said “I remember Durmi We all knew that he often passed that way and entered their the mujahedin camp ” 1300 627 The military career of Ramo Durmi will now be examined more closely in order to answer the question of whether he maintained a de facto link with the 7th Brigade after he joined the mujahedin at the camp 628 In 1992 Ramo Durmi was part of the Travnik Muslim Forces 1301 After the formation of the 7th Brigade in November 1992 he joined it and became commander of the 7th Brigade 1st Battalion 1st Company 1302 629 Several former members of the 7th Brigade 1st Battalion asserted that both the 1st Battalion and Ramo Durmi took part in the battle at Visoko in late December 1992 1303 which is confirmed by a document written by Durmi himself 1304 The 2nd Battalion also took part in the fighting 1305 630 The battle at Visoko was a defeat for the ABiH An analysis of the battle by the Accused Had ihasanovi indicated that the units were surrounded and there were many casualties 1306 The report dated 4 March 1993 by Ahmed Zuba a member of the 7th Brigade says that part of the 7th Brigade 1st Battalion some 200 to 250 soldiers were deeply troubled at the considerable losses from the Visoko operation 1307 Several witnesses stated that the conduct of this battle and the losses that resulted led to conflict between Ramo Durmi and some of the leaders of ABiH units and that he had even assaulted or menaced army officers 1308 According to some witnesses Durmi allegedly left the 7th Brigade in the first half of January 19931309 and a number of soldiers followed him 1310 The witnesses did not say how many soldiers joined him or which 1st Battalion companies they were from 1300 Sulejman Ribo T F p 11088 P 695 His name is number 16 on the list of members On the Travnik Muslim Forces see supra paras 480-485 1302 P 498 D emal Ibranovi T F pp 18397 18399 Suad Jusovi T F p number omitted Semir Terzi T F p 18243 1303 Witnesses Enver Adilovi T F pp 18319 18321 D emal Ibranovi T F pp 18397-18398 and Suad Jusovi T F p 18440 all former members of the 1st Battalion took part in this battle P 514 mentions the names of Adilovi and Terzi 1304 P 514 1305 P 408 1306 P 408 See also Enver Adilovi T F p 18321 1307 P 746 “The rest of the battalion gathered together 200-250 men is experiencing great internal turmoil caused by significant losses in the operation at Visoko ” 1308 Witness HF T F pp 17255-17256 D emal Ibranovi T F pp 18398-18399 Semir Terzi T F p 18282 Witness BA T F pp 719-721 864 also spoke of conflicts between different groups Document P 515 a report by the Accused Had ihasanovi of 29 December 1992 mentions a problem that the Visoko Operations Group had with part of the 7th Brigade in the Visoko and Ilija sectors See also P 513 P 514 P 519 P 746 1309 Enver Adilovi T F pp 18310 18320 D emal Ibranovi T F pp 18397 18399 Suad Jusovi T F p 18439 Semir Terzi T F p 18243 1310 D emal Ibranovi T F pp 18399-18340 Semir Terzi T F pp 18281-18282 1301 Case No IT-01-47-T 178 15 March 2006 498 21623 BIS 631 In order to determine whether Ramo Durmi maintained de facto links with the 7th Brigade after the battle at Visoko the transcript of a conversation on 20 June 1993 between Witness ZP and a person presenting himself as Ramo Abu D ihad should be examined 1311 During the conversation this person said that the group he belonged to had been part of the 7th Brigade but that the 7th Brigade had disowned it 1312 and also that a 7th Brigade detachment had wanted to join his group but that he had been against it until the legality or illegality of his group had been decided 1313 Irrespective of the doubts expressed by the Defence for the Accused Had ihasanovi 1314 and the Defence for the Accused Kubura 1315 the Chamber considers that Ramo Abu D ihad was in fact Ramo Durmi 1316 It is not impossible to assume that the person keeping the first name of “Ramo” would replace his last name of “Durmi “ by “Abu D ihad” to show his commitment to the “holy war” Nevertheless the Chamber does not deem it necessary to rule on the veracity of all the claims made by Ramo Abu D ihad during this conversation 632 The report of 4 August 1993 by Ahmed Adilovi Assistant Commander for Morale in the th 7 Brigade echoes this document since it deals with the situation that prevailed in the 7th Brigade 1st Battalion It notes that a number of experienced and courageous soldiers had decided to follow Ramo Durmi and Malik Basi after they left the 1st Battalion and that soldiers from the 1st Battalion wanted them to return if possible 1317 The document confirms the fact that Durmi left the 7th Brigade 1st Battalion without indicating the date of his departure 633 Finally an order dated 17 August 1993 signed by Nesib Tali 7th Brigade Assistant Commander for Security forbade members of the 7th Brigade from letting Durmi and his group 1311 P 598 P 598 “We were part of the 7th Muslim Brigade but it disowned us ” 1313 P 598 “A detachment of the 7th Muslim Brigade wants to join us but I won’t allow this until it is cleared up whether we are legal or illegal ” 1314 Had ihasanovi Defence Final Brief para 228 1315 Reply of Amir Kubura to the Prosecution’s Response to the Motions for Acquittal paras 13-19 1316 ZP was not sure himself T F pp 8900 9125 The Chamber bases its assumption that Ramo Durmi and Ramo Abu D ihad were one and the same person on three arguments First there are the remarks by Ramo Abu D ihad about the battle at Visoko in which he said they had been betrayed by Kadir Jusi who had given the Serbs their artillery positions on Ilija and they wanted to execute him Ramo Abu D ihad’s statement about Visoko indicated that he actually did participate in the battle His remarks on the betrayal of the officers and the intention to kill one of them reflect the testimony of witnesses BA HF D emal Ibranovi and Semir Terzi on the events after the battle Kadir Jusi was Commander of the Visoko Operations Group P 408 Document P 515 a report by the Accused Had ihasanovi dated 29 December 1992 refers to “problems” between the Visoko Operations Group and part of the 7th Brigade in the Visoko and Ilija sectors Second Ramo Abu D ihad affirmed during this conversation that he “had a camp” in Mehuri i According to documents tendered into evidence the Chamber notes that Ramo Durmi had full access to Poljanice Camp and commanded the local inhabitants there See supra para 626 Last the Chamber notes that the name Ramo Abu D ihad recalls the name El D ihad which was used by the inhabitants of Poljanice Camp for a while to indicate the unit This name was also used at times by the 3rd Corps to describe the El D ihad unit See P 4 P 115 P 477 P 491 DH 270 C 10 1317 P 610 “A number of experienced and exceptionally good soldiers broke away from our unit with Ramo Durmi and Malik Basi and the soldiers of the 1st Battalion 7th Brigade want them to return to our force if that is at all possible ” 1312 Case No IT-01-47-T 179 15 March 2006 497 21623 BIS enter the barracks and other 7th Brigade facilities in Zenica 1318 The order noted that civilians had complained about Durmi ’ conduct saying “he is a member of the 7th Muslim Brigade” Nevertheless Nesib Tali denied this affiliation in the document 634 Most of the evidence discussed above indicates that Ramo Durmi left the 7th Brigade in 1993 635 Nevertheless two documents seem to suggest that Ramo Durmi did not leave the 7th Brigade or at any rate not after the battle at Visoko The first document Exhibit P 498 is a list of 7th Brigade officers with their functions and the period in which they exercised them It was compiled in 1994 and states that Durmi was commander of the 7th Brigade 1st Battalion 1st Company as of 28 October 1992 1319 The list does not mention the date of his departure thus seeming to indicate that Ramo Durmi never left the 7th Brigade Exhibit DK 29 however dated 19 February 1993 indicates that Muhamed Basi was the 7th Brigade 1st Battalion 1st Company commander on that date1320 but makes no mention of Ramo Durmi The reliability of the list of 19 February 1993 was not questioned by the witnesses to whom it was submitted during their appearance before the Chamber 1321 636 Exhibit P 727 dated 14 April 1993 is the second document that seems to suggest Ramo Durmi did not leave the 7th Brigade after the battle at Visoko 1322 It is a decision by the 7th Brigade Command to reward individual soldiers of the 7th Brigade or units of the brigade collectively on the occasion of the 1st anniversary of the ABiH The rewards were either monetary or the gift of a copy of the Koran or public recognition of the valour of certain soldiers or units 1323 The “1st Battalion 1st Company and its commander Ramo Durmi ” are among the units mentioned in the list 637 Nevertheless when Witnesses Suad Jusovi and Semir Terzi whose names are on the list as members of the 7th Brigade were questioned about the contents of Exhibit P 727 they asserted that rewards and honourable citations were given to all the soldiers and all the units that had taken part in battle at Visoko in December 1992 1324 Therefore the fact that the document mentions an honourable citation presented to the “ 7th Brigade 1st Battalion 1st Company and its commander” at a ceremony on 14 April 1993 does not mean that Ramo Durmi was still part of the 7th Brigade at 1318 DK 35 P 498 The Chamber notes that the 7th Brigade was not created until 19 November 1992 see P 125 1320 DK 29 1321 D emal Ibranovi T F pp 18401-18402 Suad Jusovi T F pp 18439-18440 Semir Terzi T F p 18244 1322 P 727 1323 See also the following exhibits on these ceremonies P 791 DK 11 DK 12 DK 62 See DH 1651 for the Decision of the Presidency of the RBiH of 9 April 1992 on the integration of all armed forces on the territory of the RBiH 1324 Suad Jusovi T F pp 18440-18441 18457 Semir Terzi T F pp 18285-18286 1319 Case No IT-01-47-T 180 15 March 2006 496 21623 BIS that date The role of his company in the battle at Visoko could have been recognised on this occasion even though he had already left the ranks of the 7th Brigade 638 The Prosecution asserts that the reference at this ceremony to the 1st Company and its commander must be linked to other actions by the unit and its commander since the battle at Visoko was a disaster for the ABiH 1325 although it provided no evidence to support its assertion The Chamber thus notes that based on the evidence tendered it would seem that the battle at Visoko was the major event of this period since it led to public recognition for the 1st Company and its commander at the ceremony in April 1993 639 In view of the evidence discussed above the Chamber finds that Ramo Durmi left the 7th Brigade in 1993 640 As to the specific date that Durmi left the 7th Brigade 1st Battalion several witnesses stated that it was in early January 1993 after the battle at Visoko Since there is nothing in the other evidence contradicting this assertion the Chamber has no reason to believe that this testimony is anything but the truth 1326 After its analysis the Chamber finds that Ramo Durmi left the 7th Brigade in early January 1993 641 As to whether Ramo Durmi or other members of the 7th Brigade who had joined the mujahedin at Poljanice Camp maintained a de facto link of subordination to the 7th Brigade the Chamber considers it relevant to examine evidence from the 306th Brigade and 7th Brigade on the presence of the 7th Brigade in the Bila Valley where Poljanice Camp was located c 7th Brigade and Foreign Muslim Fighters i Introduction 642 The Chamber will now examine whether foreign Muslim fighters were among the ranks of the 7th Brigade and whether they had any links to the foreign mujahedin at Poljanice Camp 643 Much of the testimony and many documents tendered into evidence dealt with whether foreign Muslim fighters were part of the 7th Brigade in the period preceding the formation of the El Mujahedin detachment in August 1993 1325 Prosecution Final Brief para 153 The Chamber did not take into account document “P 941 limited access” since it was used only to refresh the witness’s memory or to impeach his credibility and the contents of the document were not confirmed by Witness Mustafa Popari T F pp 14513-14516 For the probative value of this category of documents see supra para 278 1326 Case No IT-01-47-T 181 15 March 2006 495 21623 BIS ii Testimony 644 Elsewhere in its Judgement the Chamber has examined the relations between the Travnik Muslim Forces and the 7th Brigade 1327 It noted that many of these forces joined the 7th Brigade after it was formed in November 1992 The composition of the Travnik Muslim Forces is relevant that is whether it consisted solely of Bosnians or also included foreign Muslim fighters who might have subsequently joined the 7th Brigade In an interview dated 1 January 1995 Fadil Had i former member of the Travnik Muslim Forces 1328 noted that a considerable number of mujahedin from Muslim countries had come to join the unit and that their presence gave the soldiers moral support during combat 1329 Witness Zijad aber first commander and then chief of staff of the Travnik Municipal Territorial Defence in 1992 remembered having seen two or three “Arab” type individuals who were part of the Travnik Muslim Forces 1330 Conversely Witness Semir Terzi another former member of the Travnik Muslim Forces did not recall that the forces received any assistance from foreigners and said they had not been trained by these individuals 1331 Witness Haso Ribo commander of the Travnik Municipal Territorial Defence after aber was of the opinion that the Travnik Muslim Forces were composed solely of Bosnians 1332 Witness Fikret uski supposed that there were also foreigners but did not know whether they had been truly incorporated into the unit 1333 Lastly the list of members of the Travnik Muslim Forces dated 15 September 1992 does not contain any foreign names 1334 Bearing in mind the discrepancies in the witness statements it is not possible to reach any conclusion on whether foreign Muslim fighters were part of the 7th Brigade 645 During the trial the Chamber heard testimony from 11 former members of the 7th Brigade Some ruled out the fact that foreign Muslim fighters belonged to the 7th Brigade particularly former members of the 7th Brigade 1st Battalion whose headquarters were in Travnik Witnesses Enver Adilovi D email Ibranovi and Suad Jusovi asserted that the 1st Battalion did not have any foreign members 1335 Witness Elvedin Omi said that the same was true for the 7th Brigade 2nd Battalion 1336 1327 See supra paras 480-485 P 695 no 13 1329 P 763 1330 Zijad aber T F pp 10387-10388 1331 Semir Terzi T F pp 18274-18275 1332 Haso Ribo T F p 10829 1333 Fikret uski T F p 12177 1334 P 695 1335 Enver Adilovi T F p 18324 D email Ibranovi T F pp 18402-18403 Suad Jusovi T F pp 18442 18452 1336 Elvedin Omi T F pp 18620-18621 1328 Case No IT-01-47-T 182 15 March 2006 494 21623 BIS 646 In addition there is reason to recall at this point the testimony of the international observers in this regard 1337 Some of the international observers were convinced that there were close ties between the 7th Brigade and the mujahedin but they were uncertain as to the nature of these links or whether foreign Muslim fighters were part of or subordinated to the 7th Brigade iii Documents 647 A great variety of documents touch on relations between the 7th Brigade and the foreign Muslim fighters 648 Many of these documents have been analysed in the section of the Judgement on the mujahedin and the factual conclusions should be recalled here The analysis of the HVO arrest of the mujahedin and the abduction of the Croatian officers showed that there were links between the 7th Brigade and the foreign Muslim fighters although the 7th Brigade was not involved in the abduction of @ivko Toti and other HVO officers by the foreign Muslim fighters 1338 The Chamber’s analysis of the mujahedin’s participation in ABiH combat before the formation of the El Mujahedin detachment showed that the mujahedin frequently took part in such combat although it is not possible to establish beyond a reasonable doubt that they were subordinated to the 7th Brigade or the 3rd Corps 1339 649 Several isolated documents on this matter and on the role of Ahmed Adilovi and Nusret Abdibegovi intermediaries between the mujahedin at Poljanice Camp and the 7th Brigade should also be analysed 650 A report from the 7th Brigade commander dated 15 March 19931340 on the movements and deployment of 7th Brigade units and their manning levels mentions inter alia that “ a dditionally there are around 60 Arabs and Turks who are also not included in this total” without specifying whether the foreign Muslim fighters were part of the 7th Brigade 1341 According to the report the 7th Brigade had a total of 1 439 troops of which some 325 were in the 1st Battalion It is interesting to compare this document with two other documents from the 7th Brigade Command dated 13 and 14 March 1993 1342 that provide information on the manning level of the 7th Brigade putting it at 1 431 with 329 in the 1st Battalion It is possible to conclude that the 60 foreigners mentioned in the report dated 15 March 1993 are not part of the 7th Brigade troops Nevertheless at a later point the 1337 See supra para 579 See supra para 524 1339 See supra paras 541-546 1340 P 536 1341 P 536 1342 P 693 DK 29 1338 Case No IT-01-47-T 183 15 March 2006 493 21623 BIS Chamber will make a more detailed analysis of the 7th Brigade’s manning levels when it discusses the presence of the 7th Brigade in the Bila Valley in the first half of 1993 651 Another document that drew the Chamber’s attention is an order dated 13 July 1993 by Mehmed Alagi commander of OG Bosanska Krajina 1343 in which he speaks about an incident in the village of Gu a Gora where members of the “so-called mujahedin unit” opened fire on UNPROFOR vehicles 1344 Alagi ’s order required that all brigade and municipal TO commanders as well as MUP chiefs and the grand imam of Travnik explain to their soldiers that they should never open fire on UNPROFOR vehicles The order contains a list of addressees that includes the 7th Brigade 1st Battalion and Nusret effendi Abdibegovi 652 The testimony of several witnesses indicated that Nusret effendi Abdibegovi was the mufti of Travnik in 1992 and 1993 1345 He was seen during an oath-taking ceremony by members of the Travnik Muslim Forces in 1992 1346 One witness also saw him at the ceremony after the formation of the El Mujahedin detachment on 13 August 1993 1347 Finally two witnesses stated that in October 1993 the mufti acted as intermediary between the El Mujahedin detachment and OG Bosanska Krajina when the Croats from Travnik were abducted and a member of the 17th Brigade was detained by the detachment 1348 Given this evidence it is not so very surprising to see that the mufti of Travnik was a recipient of Alagi ’s order along with the “units” belonging to OG Bosanska Krajina 653 It should be noted however that Alagi ’s order makes a distinction between the 7th Brigade 1st Battalion and the mujahedin unit in the list of addressees The document does not necessarily mean that the mujahedin were part of the 7th Brigade 1st Battalion 654 Ahmed Adilovi Assistant Commander for Troop Morale and Propaganda in the 7th Brigade should also be mentioned 1349 He is the author of four documents dealing with relations between the 7th Brigade and the mujahedin two of which contain protests against the arrest of foreign Muslim fighters by the HVO 1350 A third document P 610 is a report dated 4 August 1993 in which he notes that members of the 7th Brigade 1st Battalion had become used to “Arabs and 1343 P 435 P 435 “On 11 July 1993 in the evening an armed incident occurred in the village of Gu a Gora where the members of the so-called Mujahedin unit opened fire on UNPROFOR vehicles ” 1345 Witness HE T F p 17065 Fikret uski T F p 12127 Semir Terzi T F pp 18270-18271 1346 Witness HE T F p 17065 Semir Terzi T F pp 18270-18271 See also videocassette P 762 1347 Witness HE T F p 17070 On this ceremony see also infra para 816 1348 Fikret uski T F pp 12126-12127 Ivo Fi i T F p 2289 T E p 2289 See also infra paras 1448 1452 1349 On the function of Ahmed Adilovi in the 7th Brigade see P 498 P 527 DH 723 DH 776 DK 62 Annex A P 498 indicates that Adilovi left this position on 1 December 1993 see also Safet Junuzovi T F pp 18555-18556 1350 P 461 P 531 See also supra paras 491 and 495 1344 Case No IT-01-47-T 184 15 March 2006 492 21623 BIS also some Turks ” taking part in combat whose presence made the members feel more secure and was often decisive leading to victory during combat According to the document for the reasons cited above members of the 1st Battalion wanted the mujahedin to fight with them again 1351 The last document compiled by Adilovi is a request dated 27 August 1993 addressed to the 3rd Corps in which he asked for a helicopter to transport 11 persons of Arab or Turkish origin who wanted to go to Mt Igman 1352 Lastly in the minutes of a 7th Brigade meeting held on 13 May 1993 on the distribution of war booty it is noted that effendi Ahmed Adilovi was tasked with talking to the “Arabs” about the war booty they had taken” 1353 655 Several witnesses stated that they knew and still know Adilovi as the imam of Travnik and director of the town’s madrasah 1354 656 The contents of these five documents suggest that Ahmed Adilovi a member of the 7th Brigade sometimes acted as the intermediary between the foreign Muslim fighters and the ABiH In spite of the apparent link between the foreign Muslim fighters and a member of the 7th Brigade Adilovi that can be drawn from the documents the detailed analysis in another section of the Judgement does not support the argument that the Muslim fighters were de facto subordinated to the 7th Brigade iv Conclusion 657 None of the documents that were just examined supports the argument that foreign Muslim fighters were part of the 7th Brigade or de facto subordinated to it Nevertheless the Chamber will consider this issue again after examining the testimony and documents that deal with the presence of the 7th Brigade in the Bila Valley in the first six months of 1993 d Presence of the 7th Brigade in the Bila Valley i Introduction 658 In this section of the Judgement the Chamber will first deal with the question of whether the th 7 Brigade was present in the Bila Valley starting with the testimony of former members of the 7th Brigade and documents from the brigade from OG Bosanska Krajina and from the 3rd Corps Then with the same focus several documents from UNPROFOR’s British Battalion will be 1351 P 610 “To date they have got used to the Arabs and also some Turks taking part in combat actions with them Their presence makes them more secure and the Arabs were frequently of decisive importance for the success of an action so the soldiers of the 7th Brigade 1st Battalion want them engaged again in combat with them ” 1352 P 616 C 7 1353 P 558 1354 Witness HE T F p 17604 Fikret uski T F pp 12160-12161 D emal Merdan T F pp 13321-13322 Case No IT-01-47-T 185 15 March 2006 491 21623 BIS examined Lastly the Chamber will analyse the testimony of former members of the 306th Brigade regarding the presence of the 7th Brigade in the Bila Valley in view of documents from the 306th Brigade or documents compiled using information from its members Such an analysis is essential since the mujahedin camp at Poljanice on the outskirts of Mehuri i and the Bila Valley were in the zone of responsibility of the 306th Brigade ii Evidence regarding the Presence of the 7th Brigade in the Bila Valley a Introduction 659 The question of whether the 7th Brigade was in the Bila Valley is extremely complex and requires an extensive analysis of all the evidence dealing with the brigade’s composition troop strength and movements during combat This study will lead to the conclusion that some 90 persons who seemed to be linked to the 1st Battalion were in the Bila Valley but will not make it possible to establish decisively that the group belonged to and was under the control of the 7th Brigade 660 As noted above the 7th Brigade consisted of three battalions 1355 It is relevant to examine the composition of the 7th Brigade 2nd and 3rd Battalions and where they were located in the first six months of 1993 The Chamber will then concentrate on the 1st Battalion and its four companies b 2nd Battalion 661 The headquarters of the 7th Brigade 2nd Battalion was at the Bilimi te barracks in Zenica 1356 It was commanded by erif Patkovi in the first part of 1993 1357 662 Around mid-March 1993 the battalion consisted of some 600 men 1358 663 In late January 1993 the 2nd Battalion was engaged in combat at Dusina 1359 In early March 1993 units of the battalion were in Kralupi Busova a @epa and Begov Han 1360 The battalion took part in combat at Visoko the same month 1361 In April 1993 part of the battalion was in the Ahmi i 1355 See supra para 621 P 693 P 724 P 562 Kasim Pod i T F p 18636 1357 P 498 1358 P 746 P 693 DK 33 P 536 DK 32 a 7th Brigade report dated 23 February 1993 refers to 550 troops 1359 See infra paras 1024-1026 1360 P 746 P 693 P 536 1361 P 536 P 693 1356 Case No IT-01-47-T 186 15 March 2006 490 21623 BIS sector 1362 In the same period the battalion fought on Mt Zmajevac and in the area around Zenica 1363 Mention is made of the battalion being present at Dusina Vrhovine and Kakanj in May 1993 1364 On 8 June 1993 the battalion took part in combat in the sectors of ukle Novo Selo usanj Brajkovi i and Grahov i i 1365 After this combat the battalion left for Kakanj 1366 664 No document indicates the presence of 2nd Battalion units in Mehuri i or the Bila Valley in the first six months of 1993 No witness has stated that 7th Brigade units were there during this period c 3rd Battalion 665 The headquarters of the 3rd Battalion was in Kakanj 1367 From 6 February to 20 June 1993 it was commanded by Nihad ati 1368 666 It seems that in February 1993 the battalion had some 153 men 1369 Three documents from March 1993 indicate that its manning level was either 173 or 180 men 1370 667 In January and February 1993 part of the battalion was engaged at Bijelo Bu je 1371 and in March 1993 part of the battalion was deployed on the Visoko front 1372 In April 1993 the battalion provided assistance to the 2nd Battalion in combat on Mt Zmajevac and in the area around Zenica 1373 On 8 June 1993 the 3rd Battalion took part in combat in the sectors of ukle Novo Selo usanj Brajkovi i and Grahovci i 1374 after which it went to Kakanj 1375 668 No document indicates the presence of 3rd Battalion units in Mehuri i or the Bila Valley during the first six months of 1993 No witness has stated that 7th Brigade units were there during this period 1362 P 909 P 782 P 782 P 550 P 462 P 558 1364 P 681 1365 P 419 P 420 Kasim Pod i T F pp 18638-18645 Elvedin Omi T F pp 18598-18600 1366 DK 21 DK 41 Kasim Pod i T F pp 18646-18647 Elvedin Omi T F p 18600 1367 DK 55 1368 P 498 1369 DK 32 1370 P 693 DK 33 P 536 1371 Kasim Alajbegovi T F p 18694 1372 P 536 1373 P 909 P 782 P 462 P 558 1374 P 419 P 420 Kasim Alajbegovi T F pp 18698-18700 1375 DK 21 DK 41 Kasim Alajbegovi T F pp 18701-18702 1363 Case No IT-01-47-T 187 15 March 2006 489 21623 BIS d 1st Battalion i General Information 669 The 1st Battalion had its headquarters in Travnik1376 and its troops were lodged in the madrasah 1377 It is not completely clear who commanded this battalion between late 1992 and midJune 1993 since documents mention different names 1378 It seems that the battalion had no official commander as of late April 1993 1379 Towards mid-June 1993 Safet Junuzovi took command 1380 At that time the battalion consisted of four companies 1381 ii Zone of Responsibility 670 The battalion’s zone of responsibility was on the Bijelo Bu je front in the municipality of Turbe west of Travnik 1382 Nevertheless an examination of the movements of the four companies will show that during the first part of 1993 or even earlier the 1st Battalion took part in combat or was located in places other than those mentioned above 1383 Indeed by December 1992 it fought outside its zone of responsibility during the battle at Visoko on 28 December 1992 1384 671 The former members of the 1st Battalion who testified before the Chamber stated that there were no 1st Battalion units in Mehuri i or in the Bila Valley before the fighting on 8 June 1993 1385 iii 1st Battalion Troops 672 Several documents from the 7th Brigade Command provide information on the manning level of the 1st Battalion during the first three months of 1993 A report dated 23 February 1993 puts 1376 Horo Naim DK 61 para 3 P 829 DK 20 Fikret uski T F p 12108 1378 P 498 is a list of names compiled in 1994 and refers to three successive commanders Osman Ibrahimspahi Semir Terzi and Osman Zuba a DK 29 a document dated 19 February 1993 indicates that Fadil Had i is the commander of this battalion P 539 a report dated 29 March 1993 indicates that Zuba a is the commander Conversely P 829 a report dated 15 March 1993 refers to the name of Had i 1379 Horo Naim DK 61 para 5 1380 Safet Junuzovi T F p 18502 Horo Naim DK 61 para 5 1381 Horo Naim DK 61 para 3 1382 P 471 P 586 Horo Naim DK 61 para 4 Suad Jusovi T F pp 18426-18427 Semir Terzi T F p 18290 For the geography see also DK 37 1383 See infra paras 678-682 685-686 689-690 699-707 1384 See supra paras 629-630 1385 D emal Ibranovi T F pp 18363-18364 18394 Safet Junuzovi T F pp 18507-18508 Suad Jusovi T F p 18429 Semir Terzi T F pp 18246 18284 1377 Case No IT-01-47-T 188 15 March 2006 488 21623 BIS it at 290 men 1386 while three other reports from mid-March 1993 note respectively that the battalion had 329 329 and 325 men 1387 673 Several documents from the 1st Battalion provide information about its manning level in May and June 1973 The first is a report dated 22 May 1993 by Semir Terzi although it is not signed which refers to a troop count of 380 men 1388 A second report by Safet Junuzovi with the hand-written date of 16 June 1993 notes that the total manpower of the four companies was 363 1389 674 The third document also written by Safet Junuzovi is an assessment of the forces of the 7th Brigade 1st Battalion on 21 June 1993 1390 The Chamber’s first observation is that the document does not state the total number of members in the 1st Battalion The Chamber will proceed by deduction to calculate the number of soldiers in this battalion Based on the report by Safet Junuzovi it appears that the manpower of three of the 1st Battalion’s companies i e the 1st 2nd and 3rd companies was 213 men The document also notes that another company whose manpower is not mentioned was allegedly engaged on the front line at Bijelo Bu e According to the testimony of Suad Jusovi commander of the 1st Battalion 2nd Company 1391 this other company deployed on the Bijelo Bu e front line was his company the 2nd Company 1392 According to the witness the 2nd Company had 60 to 70 men in June 1993 1393 It follows that according to the report by Junuzovi of 21 June 1993 1394 the total manpower of the 1st Battalion’s four companies was between 273 and 283 men in June 1993 675 It is interesting to note that the report by Junuzovi also mentions 90 soldiers without specifying whether they belonged to one or several of the 1st Battalion’s companies If we add this number to the other numbers mentioned in his report the total becomes 363 to 373 men 1386 DK 32 According to Witness Semir Terzi T F p 18240 this number reflects the situation at that time P 693 DK 33 P 536 Exhibit P 746 a report dated 4 March 1993 is the only document to note the much higher number of 460 men The reason for this is not quite clear although the author of the document might have included units in the troop count that strictly speaking were not part of the battalion Owing to the consistency of the information in other reports the Chamber will not take it into account 1388 P 474 1389 P 586 1390 P 471 1391 Suad Jusovi T F p 18426 1392 The report by Safet Junuzovi P 471 indicates this other company that had allegedly “been engaged in the zone of operations has had constant combat operations since 2 June 1993 and was previously at full combat readiness ” Suad Jusovi Commander of the 2nd Company Suad Jusovi T F p 18426 testified that his unit had been at combat readiness since 27 or 28 May 1993 had taken part in combat at Hajdareve Njive in early June 1993 and stayed in the sector until 9 June 1993 According to him the company was sent to Bijelo Bu je afterwards to take part in combat Suad Jusovi T F pp 18430 18435-18436 18464 document P 775 confirms the combat on 16 June 1993 Bearing this evidence in mind the Chamber may reasonably find that the company mentioned as being at Bijelo Bu je in Safet Junuzovi ’s report was the 2nd Company 1393 Suad Jusovi T F p 18427 Document P 775 mentions a unit of 70 men that was sent to Bijelo Bu je on 16 June 1993 1394 P 491 1387 Case No IT-01-47-T 189 15 March 2006 487 21623 BIS 676 At first glance based on the three 1st Battalion reports it seems justified to conclude that the battalion had from 360 to 380 soldiers in May and June 1993 Several problems of interpretation linked to these documents however will be discussed later These relate directly to the issue of whether the 7th Brigade was present in the Bila Valley in the first half of 1993 1395 iv 1st Battalion 2nd Company Command and Composition 677 In the first half of 1993 the 1st Battalion 2nd Company was commanded by Suad Jusovi 1396 who took over command in December 1992 1397 He testified that his company was primarily composed of refugees from numerous municipalities in Bosnia and Herzegovina 1398 Troops 678 Until the fighting in early June 1993 it seems that the 2nd Company had from 60 to 70 men 1399 A 1st Battalion report dated 16 June 1993 notes the higher number of 90 soldiers 1400 The Chamber considers that the explanation for the difference in these numbers is not clear Locations 679 Witness Suad Jusovi testified that his company was present in the Travnik area during the first half of 1993 and had been engaged on the front line at Bijelo Bu je from 12 February to 23 May 1993 1401 680 Back at the barracks in Travnik on 27 or 28 May 1993 Suad Jusovi received an order from Alagi commander of OG Bosanska Krajina asking him to “be in the reserve force” 1402 According to the evidence on 5 June 1993 the 1st Battalion 2nd Company left for Hajdareve Njive which was 600 to 800 metres from Travnik 1403 About 25 soldiers from the 1st Company were attached to the 1395 See infra paras 708-718 P 498 DK 29 Suad Jusovi T F p 14826 1397 Suad Jusovi T F p 18426 See also DK 29 1398 Suad Jusovi T F pp 18471-18472 1399 Suad Jusovi T F p 18427 See also P 474 under “ B Bu je” Semir Terzi T F p 18256 notes the presence of a company in Travnik in early June 1993 1400 P 586 1401 Suad Jusovi T F p 18428 1402 Suad Jusovi T F p 18430 1403 Suad Jusovi T F p 18435 See also P 465 DK 18 DK 19 DK 20 DK 34 1396 Case No IT-01-47-T 190 15 March 2006 486 21623 BIS 2nd Company there since the 1st Company was absent 1404 The evidence indicates that they stayed there until the morning of 9 June 1993 1405 681 A combat report from the 1st Battalion dated 16 June 1993 notes that the 2nd Company was on the Han Bila-Nova Bila axis with 90 soldiers 1406 Towards mid-June 1993 the 2nd Company seems to have been stationed once again in Bijelo Bu je 1407 682 Based on the above it is clear that the 7th Brigade 1st Battalion 2nd Company assuming that it had from 60 to 70 members was neither based in nor passed through the Bila Valley before the fighting on 8 June 1993 v 1st Battalion 3rd Company Command and Composition 683 st Of all the 1 Battalion’s companies the 3rd seems to have been the smallest and least mobile In February 1993 it was commanded by Faik Podojak 1408 The evidence does not make it possible to establish from which part of Bosnia and Herzegovina its members came Troops 684 In early 1993 the company had some 35 members 1409 a number that later rose to 53 1410 Locations 685 The company was established in the Ravno Rostovo zone A set of eight documents covering the entire first six months of 1993 suggests that the company never left this zone during this period 1411 686 There is thus no reason to believe that the 3rd Company was stationed in the Bila Valley since it did not even transit through it in the first six months of 1993 1404 Suad Jusovi T F p 18430 Suad Jusovi T F pp 18435-18436 For the conduct and locations of these battles see also P 465 DK 18 DK 19 DK 20 DK 34 DK 42 For the testimony of Remzija iljak on the presence of the company see infra para 730 1406 P 586 1407 Witness Suad Jusovi stated that his company left once again for Bijelo Bu je without however specifying the date of departure Suad Jusovi T F p 18464 The report of 21 June 1993 by Safet Junuzovi 1st Battalion Commander as of mid-June P 498 Safet Junuzovi T F p 18502 confirms the presence at Bijelo Bu je of a company that had continuously taken part in operations since early June 1993 and had been at combat readiness before this period P 471 1408 DK 29 1409 P 693 P 536 1410 P 586 P 471 P 429 See also P 474 under “ R Rostovo” 1411 P 406 P 746 P 693 P 536 P 586 P 471 P 429 See also Suad Jusovi T F p 18437 P 474 under “Vitez” 1405 Case No IT-01-47-T 191 15 March 2006 485 21623 BIS vi 1st Battalion 4th Company Command and Composition 687 st th The 1 Battalion 4 Company was generally known as the “Vitez Company” because its members were from that town 1412 Asim Bekta was its first commander and1413 Enver Adilovi succeeded him in this position in mid-February 19931414 Troops 688 The 4th Company had around 100 men 1415 Locations 689 On 18 February 1993 when the company was in the area of Po ulica between Zenica and Vitez 1416 it received the order to go to Travnik 1417 It was then engaged on the front line at Bijelo Bu je where it alternated with other units 1418 Right after the events in Ahmi i in mid-April 1993 the 4th Company went back to the area of Vitez1419 and was then deployed on the Preo ica-Po ulica axis 1420 In late June or early July 1993 the company returned to Travnik 1421 690 It is clear from the above that the 4th Company was not based in the Bila Valley and did not even pass through it before the fighting on 8 June 1993 vii 1st Battalion 1st Company 691 Although the Chamber was able to reach several useful conclusions regarding the troops and movements of the 1st Battalion 2nd Company 3rd Company and 4th Company this is not the case for the 1st Company 1412 Enver Adilovi T F pp 18305 18319 P 724 DK 29 1414 Enver Adilovi T F p 18328 DK 29 1415 Enver Adilovi T F p 18313 Horo Naim DK 61 para 6 P 474 P 586 1416 P 724 For the geography see DH 90 DH 103 1417 P 724 1418 P 746 On the system of rotation see Enver Adilovi T F p 18304 Suad Jusovi T F p 18428 1419 P 782 P 909 Enver Adilovi T F pp 1836-1838 Suad Jusovi T F pp 18439 18436 Horo Naim DK 61 para 6 1420 P 909 1421 P 586 Enver Adilovi T F p 18309 Horo Naim DK 61 para 6 1413 Case No IT-01-47-T 192 15 March 2006 484 21623 BIS Command and Composition 692 It seems that the 1st Company was composed primarily of refugees from the Jajce area1422 although some of its members were from Travnik 1423 693 The Chamber would first note that the leader of the 1st Company in the first half of 1993 is not clear A document dated 1994 tendered into evidence presents a list of 7th Brigade officers with their positions and the periods in which they held them The name of Ramo Durmi appears on the list as the commander of the 1st Company 1st Detachment as of 28 October 1992 1424 The list does not mention the date that Ramo Durmi left the unit Another list dated 19 February 1993 however indicates that the company commander was Muhamed Ba i 1425 Elsewhere in this part of the Judgement the Chamber already considered the matter of when Ramo Durmi commanded the 1st Company and found that according to the evidence at its disposal he left the unit in early January 1993 1426 Troops 694 The only document that provides clear and precise information on the troops of the 1st Battalion 1st Company is a report by Safet Junuzovi dated 16 June 19931427 stating that the company had 120 soldiers while the entire 1st Battalion had 363 soldiers 695 The report of 22 May 1993 by Semir Terzi 1428 7th Brigade operations officer dealing with the manning level of the 7th Brigade 1st Battalion notes that the 1st Battalion had a total of 380 soldiers 1429 It also contains a list of the locations of the different 1st Battalion units and their manpower without however giving details about the companies A comparison of these locations and figures with the information available on the 7th Brigade 1st Battalion 2nd 3rd and 4th companies suggests that a group of 92 soldiers stationed in Mehuri i and 60 soldiers based in Travnik did not belong to the 2nd 3rd or 4th company 1430 The question then arises as to whether these two groups belonged to the 1st Company An examination of the testimony below seems to show that the 1st 1422 Suad Jusovi T F pp 18436-18437 Suad Jusovi T F p 18430 1424 P 498 1425 DK 29 1426 See supra paras 625-641 1427 P 586 1428 The Chamber recalls that the document bore the 7th Brigade seal and stamp and was written by Semir Terzi although it is not signed See P 474 and supra para 673 1429 P 474 1430 The report mentions 70 men for the Bijelo Bu je sector which corresponds to the testimony of Suad Jusovi T F pp 18427-18428 on the troops of the 2nd Company and its presence in Bijelo Bu je in May 1993 see supra para 678 For the Ravno Rostovo sector the report mentions 53 men which corresponds to the information on the 3rd Company discussed supra para 684 For the Vitez sector the report mentions 105 men This information corresponds to the information on the 4th Company discussed supra para 688 1423 Case No IT-01-47-T 193 15 March 2006 483 21623 BIS Company contained 55 to 60 men which would support the assumption that the 60 men based in Travnik belonged to the 1st Company It has not been established however that the 92 soldiers based in Mehuri i belonged to one of the 1st Battalion companies 696 Witness Suad Jusovi stated that during the week before 8 June 1993 20 members of the 1st Company were on leave in Nemila near Zenica 10 others were in Kljaci in the Bila Valley 1431 and some 25 to 30 men were at the Travnik Barracks 1432 Although it is not clear from the French and English transcripts of the witness testimony whether this includes the total number of troops in the 1st Company the Chamber considers this hypothesis very plausible 1433 The 1st Company would thus contain from 55 to 60 men an interpretation corroborated by the testimony of Witness Enver Adilovi who stated that the 4th Company had 100 soldiers whereas the other three companies had from 50 to 60 soldiers each 1434 697 The report by Safet Junuzovi of 21 June 1993 also contains information on the manning levels of the 1st Battalion 1435 The Chamber was previously able to note by deduction that the report mentions inter alia the 2nd Company which according to the testimony of Suad Jusovi and Enver Adilovi contained 60 to 70 men 1436 The report also notes the presence of a company with 53 men at Ravno Rostovo This must have been the 3rd Company 1437 Then the report notes the engagement of two companies whose combined strength was 160 soldiers This could have been the 4th Company which had about 100 soldiers 1438 and the 1st Company which according to the testimony of Suad Jusovi and Enver Adilovi had 55 to 60 men 1439 Finally the report mentions 90 soldiers without explaining whether they belonged to one of the 1st Battalion companies 698 The analysis of the manpower of the 1st Company raises two questions The first is whether this company consisted of 120 soldiers as suggested by Safet Junuzovi ’s report of 16 June 1993 or of 55 to 60 men as stated by witnesses Suad Jusovi and Enver Adilovi The documents dated 22 May 1993 and 21 June 1993 do not answer this question but rather raise another question 1431 D emal Ibranovi T F p 18362 indicated that he was in Kljaci with 20 members of the 1st Battalion between midApril and mid-June 1993 T E p 18362 however mentions 10 men which is a better match with the testimony of Suad Jusovi See also infra para 728 1432 Suad Jusovi T E p 18436 The French transcript p 18436 gives the figure of 120 for Nemila This is an error in translation see the memorandum of the Chamber’s legal officer to the Translation Unit of 13 January 2006 and the Unit’s response the same day 1433 See Suad Jusovi T F pp 18428 18430 18436 T E pp 18428 18430 18436 It might be possible to infer from this testimony that other members of the 1st Company were on leave elsewhere 1434 Enver Adilovi T F p 18313 1435 P 471 1436 See supra para 674 1437 See supra para 684 1438 See supra para 688 1439 See supra para 696 Case No IT-01-47-T 194 15 March 2006 482 21623 BIS regarding the 90 soldiers in Mehuri i whose attachment to one of the four 1st Battalion companies cannot be established immediately from a review of the 1st Battalion manpower Locations 699 The Chamber first notes the lack of information directly referring to the locations of the 1st Company in the first half of 1993 Based on a review of the evidence and the movements of the brigades the Chamber will initially attempt to determine to which company the group of 90 men mentioned in the preceding paragraph should be attached 700 The only document dealing directly with the subject is the report by Safet Junuzovi dated 16 June 1993 that notes the presence of the 1st Company on the Po ulica-Sivrino Selo-Vitez axis 1440 701 Regarding the period from early January to late May 1993 it is possible that the company or its parts were part of the rotation system that existed on the Bijelo Bu je front which according to Witness Suad Jusovi consisted of two companies relieving two other companies every two weeks 1441 The same witness however stated that his company had stayed at the Bjelo Bu je front line for the entire period from 12 February to 25 May 1993 without being relieved The rotation system had been unable to operate because the HVO was blocking roads and the members of other companies could not get back to Travnik after their leave 1442 702 A reported dated 22 May 1993 unsigned but bearing the seal and stamp of the 7th Brigade and the name of Terzi mentions 1st Battalion units in five locations Bijelo Bu je Ravno Rostovo Vitez Mehuri i and Travnik In May 1993 the 2nd Company was in Bijelo Bu je 1443 the 3rd Company was in Ravno Rostovo 1444 and the 4th Company was in the Vitez area 1445 Assuming that every member of the 1st Battalion belonged to one of the four companies the 1st Company was thus based in Mehuri i and Travnik 703 Another document that might provide information on the deployment of the 1st Company is an order by the commander of the 1st Battalion dated 27 May 19931446 asking the 1st Company commander to send 20 soldiers from the Mehuri i sector to Radoj i i to support troops based in that village The order also says that the 20 members of the 1st Company will be “attached” to the 306th 1440 P 586 This might indicate that the 1st Company relieved the 4th Company see supra para 689 Suad Jusovi T F p 18428 1442 Suad Jusovi T F p 18428 1443 See supra para 679 1444 See supra para 685 1445 See supra para 689 1446 P 481 1441 Case No IT-01-47-T 195 15 March 2006 481 21623 BIS Brigade which will provide logistics support Radoj i i is in the Bila Valley two or three kilometres from Gu a Gora 1447 The order does not mention the author and is not signed although it bears the seal and stamp of the 7th Brigade 704 Several former members of the 306th Brigade commented on this document Esed Sipi claimed he had never seen this text before and that it was a forgery because it was completely impossible for the commander of a battalion to attach part of his troops to another brigade since he did not have the authority to do it 1448 Munir Kari former Assistant Commander for Logistics in the 306th Brigade also stated that he had never seen this document He added that he was not aware that the 1st Company had been in the area of Radoj i i and that no 7th Brigade unit depended on 306th Brigade logistics 1449 Dervi Sulji also asserted that no member of the 7th Brigade had been in the Mehuri i sector 1450 705 Reference should again be made to the report of 21 June 1993 by Safet Junuzovi 1st Battalion commander 1451 which is an evaluation of the battalion’s forces and also mentions the presence of four companies and a group positioned in five different places without however explaining which companies they were One company was in Bijelo Bu je and the Chamber has already found that this was the 2nd Company 1452 Another company consisting of 53 soldiers was in Ravno Rostovo which the Chamber considers must have been the 3rd Company 1453 The report also mentions the engagement of two other companies with a total of 160 men deployed on the front against the HVO in the Vitez area One company was in the Kru ica sector and the other on the Po ulica-Preo ica-Bukve-Kljaci axis Given that witnesses Suad Jusovi and Enver Adilovi judged the manpower of the 1st Company to be between 55 and 60 men in early June 19931454 and that the 4th Company had some 100 men 1455 it would be logical to conclude that these two companies are the ones mentioned in this part of the report Finally the report mentions the presence of a group of 90 soldiers in the Mehuri i sector without indicating whether the soldiers belonged to one of the four battalion companies The number seems to correspond to the 90 men in Mehuri i noted in the report of 22 May 1993 that was not signed by Witness Terzi 1456 In addition the report notes that the battalion was having serious problems with these soldiers which it was unable to resolve by 1447 Munir Kari T F p 11498 Esed Sipi T F pp 14880-14881 1449 Munir Kari T F pp 11497-11498 11500 1450 Dervi Sulji T F p 11343 1451 P 471 1452 See supra para 679 1453 See supra para 685 1454 See supra para 688 1455 See supra para 696 1456 See supra para 702 1448 Case No IT-01-47-T 196 15 March 2006 480 21623 BIS itself but that the 7th Brigade Command had become involved in resolving the evident and serious problems 1457 706 The last document dealing with the possible presence of the 1st Battalion in Mehuri i is another report by commander Safet Junuzovi dated 19 July 1993 1458 The report says that the unit in the camp at Mehuri i was not part of the 7th Brigade 1st Battalion and that the 1st Battalion commander thus had no right to command it 1459 707 Based on the preceding conclusions can be made on the 55 to 60 men who were part of the 1st Battalion 1st Company according to witnesses Suad Jusovi and Enver Adilovi In the period before 8 June 1993 they were deployed as follows 20 members of the 1st Company were on leave in Nemila near Zenica 10 others were in Kljaci which is in the Bila Valley 1460 and some 25 to 30 men were in Travnik at the end of May 1993 and had allegedly joined the 2nd Company during the fighting at Hajdereve Njive in early June 1993 1461 It can thus be determined that of the 55 to 60 members in the 1st Company ten of them were in the Bila Valley before the fighting in June 1993 while 45 to 50 members of the company were stationed outside the Bila Valley viii Probative Value of Two Documents 708 During its analysis of the presence of the 7th Brigade in the Bila Valley the Chamber relied on a number of documents including Exhibits P 474 a report by Semir Terzi dated 22 May 1993 and P 471 a report by Safet Junuzovi dated 21 June 1993 The Chamber wishes to make several observations regarding their reliability and the probative value they should be accorded 709 Exhibit P 474 is a collection of 7th Brigade reports and documents containing the report by Semir Terzi of 22 May 1993 that has drawn the Chamber’s attention There are two copies of 1457 P 471 “The Battalion has serious problems with soldiers who are from the wider Mehuri i sector and is unable to resolve it itself but Brigade Command has become involved to resolve the evident and serious problems There are about 90 soldiers in this area ” 1458 DH 269 1459 DH 269 “We are not able to fulfill your request no 01 700-2 of 5 July 1993 because as we have officially informed on several occasions those units do not belong to the 1st Battalion of the 7th Mbbr and we have no right to command the unit in the Mehuri i camp ” This report is a response to a request for information from OG Bosanska Krajina dated 5 July 1993 Witness Safet Junuzovi explained that during a meeting held shortly before 24 June 1993 Alagi Commander of OG Bosanska Krajina had asked the commanders who were present whether they had any soldiers in the camp or whether there were any men being trained there Safet Junuzovi T F pp 18509-18511 1460 D emal Ibranovi T F p 18362 stated that he was in Kljaci with 20 members of the 1st Battalion from mid-April to mid-June 1993 The T E p 18362 however notes there were 10 men which is more consistent with the testimony of Witness Suad Jusovi 1461 Suad Jusovi T E p 18436 The French transcript p 18436 gives the figure of 120 for Nemila This is an error in translation see the memorandum of the Chamber’s legal officer to the Translation Unit of 13 January 2006 and the Unit’s response the same day Case No IT-01-47-T 197 15 March 2006 479 21623 BIS Terzi ’s report 1462 one signed by him the other not The Chamber’s examination above was based on the unsigned document that contains a detailed list of 1st Battalion troops This information is not contained in the signed version of the document During his appearance in court Witness Terzi stated that he had no knowledge of the unsigned document and that there were no 7th Brigade units in the Bila Valley in May 1993 1463 710 Nevertheless in spite of the witness’s claims the Chamber has given this document a certain amount of weight It should first be noted that the unsigned document is identical to the signed one except for the list of troops Furthermore they both bear identical 7th Brigade incoming stamps and received the same registration number Lastly the witness acknowledged that he wrote the signed document 1464 711 The Chamber notes that both the signed and unsigned documents mention sporadic fire in the Han Bila sector in the Bila Valley information it considers to support the data in the unsigned document regarding the presence of 7th Brigade 1st Battalion troops in the Bila Valley 712 This choice was based on the fact that the information in the document on the presence of troops from the 1st Battalion 2nd 3rd and 4th companies in May 1993 is corroborated by other sources 1465 including the report by Safet Junuzovi of 21 June 1993 which refers to the presence of 90 soldiers in the Mehuri i sector 1466 Hence there is no reason to doubt the list of troops contained in the unsigned document 713 Other problems of interpretation arise if a comparison is made between the combat report by Safet Junuzovi of 16 June 19931467 and another one by him dated 21 June 1993 in which he makes an assessment of 1st Battalion forces 1468 At first glance the two reports seem to contradict each other on two points The first report estimates that the 1st Company had 120 soldiers while the second report seems to state that the company consisted of about 60 men 1469 which corresponds to the testimony of witnesses Suad Jusovi and Enver Adilovi on the company’s manpower 1470 Secondly the report of 16 June 1993 mentions four companies and indicates the four sectors where they were located without mentioning the sector of Mehuri i Conversely the report of 21 June 1462 At the material time this witness was the 7th Brigade Command operations officer Semir Terzi T F p 18284 1464 Semir Terzi T F p 18284 1465 See supra paras 678-680 684-685 688-689 1466 P 471 see supra paras 697 705 The issue of the probative value that the Chamber granted this document is discussed infra in paras 713-714 1467 P 586 1468 P 471 1469 See supra para 694 1470 See supra para 696 1463 Case No IT-01-47-T 198 15 March 2006 478 21623 BIS 1993 mentions that there were four companies and a group in five different sectors one of them Mehuri i Witness Safet Junuzovi was not invited to comment on the discrepancies between these two reports and it is thus impossible for the Chamber to know how he would have explained the differences in their content 714 Given the fact that during Witness Safet Junuzovi ’s appearance in court he was not invited to comment on his report of 21 June 1993 he did not clarify other points that remain unclear such as the serious problems that the 1st Battalion was having because of the conduct of the 90 soldiers in the Mehuri i sector Furthermore he did not indicate which interpretation should be given to the questions that seem to be raised by comparison of the contents of the documents of 21 June 1993 and 19 July 1993 One question left unanswered from this exercise is the fact that the document of 21 June 1993 mentions 90 soldiers who were causing serious problems in the greater Mehuri i sector while the witness’s response of 19 July 1993 indicates that the unit in the camp at Mehuri i did not belong to the 1st Battalion and that “we have no right to command it ” 1471 e Conclusions of the Chamber on the Presence of the 7th Brigade in the Bila Valley Based on Evidence from the 7th Brigade 715 Certain conclusions based on the above can now be drawn The record contains no evidence proving that 7th Brigade 2nd Battalion units were in Mehuri i or the Bila Valley before the fighting in early June 1993 1472 The same can be said for the 3rd Battalion 1473 Then with regard to the 1st Battalion’s companies it is clear from the testimony of Suad Jusovi and Enver Adilovi that the 60 to 70 men who made up the 2nd Company the 53 men in the 3rd Company and the 100 or so members of the 4th Company were not stationed or even present in the Bila Valley 1474 Lastly the same conclusion can be drawn for the 55 to 60 men who made up the 1st Battalion 1st Company according to these same witnesses 1475 716 Conversely it remains uncertain as to what interpretation should be given to the fact that witnesses Suad Jusovi and Enver Adilovi stated that the manning level of the 7th Brigade 1st Battalion 1st Company was between 55 and 60 men while the report by Safet Junuzovi of 16 June 1993 notes 120 soldiers a difference of 60 to 65 men 1476 The same question arises with regard to the 1st Battalion 2nd Company’s troops Several pieces of evidence reported 60 to 70 members 1471 DH 269 see supra para 706 See supra paras 661-664 1473 See paras 665-668 1474 See paras 678-681 685-686 689-690 1475 See para 707 1476 P 586 See supra paras 694 696 1472 Case No IT-01-47-T 199 15 March 2006 477 21623 BIS while the report of Junuzovi of 16 June 1993 notes a group of 90 men a difference of 20 to 30 men 1477 The variation between the posited manpower of these two companies is a difference of 80 to 95 men 717 The identity of the 90 or so men who according to the 7th Brigade reports of 22 May 1993 and 21 June 1993 were in the Mehuri i sector is also not clear 1478 The question is whether they are the same men as the 80 to 95 men constituting the difference in manning levels mentioned in several exhibits and who would represent the number of soldiers in the 1st and 2nd companies and the men noted in the report of 16 June 1993 by Safet Junuzovi 718 In an effort to find answers to these questions the Chamber will first consider the evidence from the Britbat and then examine the evidence from the 306th Brigade and other sources iii Evidence from the British Battalion on the Presence of the 7th Brigade in the Bila Valley 719 The mujahedin from Poljanice and other groups of mujahedin were often the subject of observations reflections and speculations by the international observers in Central Bosnia in 1992 and 1993 Among these observers the British Battalion Britbat deserves special attention since it conducted military analyses although of a limited scope on the conflict between the ABiH and the HVO 720 Many Britbat documents deal with the presence of the mujahedin and the 7th Brigade in the Bila Valley particularly in Mehuri i Several documents assume that the mujahedin from Poljanice were part of the 7th Brigade 1479 while some say they were part of the 7th Brigade 1st Battalion established in Travnik 1480 721 Two Britbat milinfosums estimate the number of mujahedin in Mehuri i One document dated 15 May 1993 states that a group of 100 ABiH soldiers “including a number of foreign appearance” had prohibited the passage of a Britbat patrol at a check-point near Han Bila 1481 Britbat observations confirmed that at the end of the same month passage was refused to another 1477 See supra para 678 See supra paras 675 697 705 1479 P 163 P 223 P 355 P 358 P 378 DH 133 1480 P 163 P 223 DH 133 1481 P 370 For a description of this incident see Vaughan Kent-Payne T F pp 4772-4784 According to this witness T F p 4776 the check-point was at Fazli i not far from Mehuri i For the geography see DK 36 1478 Case No IT-01-47-T 200 15 March 2006 476 21623 BIS Britbat patrol at a check-point on the road between Stara Bila and Fazli i 1482 The members of the Britbat put the number of mujahedin there at about 80 722 This evidence calls to mind the reports by Semir Terzi and Safet Junuzovi on the presence of 90 members of the 7th Brigade 1st Battalion in the Mehuri i sector and seems at first glance to corroborate it 1483 Nevertheless three points argue for a careful reserved approach First none of the documents provides grounds for the assertion that those staying in Mehuri i were members of the 7th Brigade Second it must be pointed out that once an assertion has been included in a Britbat milinfosum it is often repeated in subsequent milinfosums 1484 Finally in one way or another all the former members of Britbat heard by the Chamber stated that they could not be absolutely sure that their assertions were correct and that they had not had direct contact with 7th Brigade commanders 1485 iv Evidence from the 306th Brigade on the Presence of the 7th Brigade in the Bila Valley a Testimony 723 Former members of the 306th Brigade who appeared before the Chamber agreed on two issues First there were no 7th Brigade units stationed in Mehuri i or in the Bila Valley in the period preceding 8 June 1993 Second the men in the camp at Poljanice were neither members of the 7th Brigade nor subordinated to it 1486 Nevertheless according to the witnesses during the period from mid-April to early June 1993 an isolated group of ten members of the 7th Brigade 1st Company was in the zone of responsibility of the 306th Brigade at Kljaci 1487 The same witnesses stated that members of the 7th Brigade transited through this zone of responsibility to leave or rejoin their units or because they were on furlough 1488 but that from late April or early May 1993 until 8 June 1993 they had not been able to rejoin their units because the Bila Valley was cut off during this period 1489 Finally according to witness testimony it seems that these were either persons who 1482 P 99 See supra paras 702 705 708-714 1484 See for example P 378 compared to P 163 See also Guy Chambers T F p 6130 1485 See for example Guy Chambers T F pp 6051 6135-6136 Vaughan Kent-Payne T F pp 4921-4922 See also supra paras 576-579 1486 Fahir amd i T F pp 11726-11727 Halim Husi T F p 10926 Haris Jusi T F pp 11231 11238 1128311284 Munir Kari T F pp 11463-11464 11492 Remzija iljak T F p 10632 Esed Sipi T F pp 14801-14802 14803-14804 Dervi Sulji T F pp 11329 11343 Hamid Sulji T F pp 11899-11900 1487 Halim Husi T F p 10929 Esed Sipi T F pp 14878-14880 14913-14914 See also the testimony of D emal Ibranovi T F pp 18362-18363 18366 and Suad Jusovi T F pp 18436-18437 two members of the 7th Brigade Even though D emal Ibranovi T F p 18362 mentions that the total number of members in the 1st Battalion was 20 T E p 18362 mentions 10 1488 Halim Husi T F pp 10925 10927 Esed Sipi T F p 14860 1489 Munir Kari T F p 11493 Esed Sipi T F p 14766 Dervi Sulji T F p 11350 See also P 664 1483 Case No IT-01-47-T 201 15 March 2006 475 21623 BIS had never belonged to the 7th Brigade1490 or persons believed to have been 7th Brigade members but who in fact had defected and were outside its control 1491 b Documents 724 A considerable number of documents from the 306th Brigade itself or based on intelligence from the 306th Brigade directly or indirectly deal with the presence of the 7th Brigade in the 306th Brigade zone of responsibility and on 7th Brigade relations with the inhabitants of Poljanice Camp 725 The vast majority of the documents that should be analysed mention the presence of 7th Brigade members in the Bila Valley The Chamber will first examine several general documents that note the presence of the brigade in this territory and then focus on the documents describing specific incidents involving members of the 7th Brigade i General Documents on the Presence of the 7th Brigade in the Bila Valley 726 In a report to the 7th Brigade Command dated 6 April 1993 Esed Sipi complains about the unacceptable conduct of some members of the 7th Brigade in Kljaci Bila Valley 1492 Two days later the 7th Brigade Command responded with an order prohibiting this kind of conduct 1493 Witnesses Remzija iljak and Esed Sipi both declared that Sipi ’s report was based on a misunderstanding and that after the order had been issued 7th Brigade Command was informed by its troops that there were no members of the 7th Brigade at Kljaci in early April 1993 1494 Witness iljak submitted that the mujahedin stationed in Mehuri i were responsible for this unacceptable conduct 1495 727 The minutes of the meeting of a joint task force consisting of members of the Frankopan Brigade and the 306th Brigade held on 8 May 1993 should also be noted The minutes were sent to the Joint Command in Travnik 1496 One of the subjects broached by the task force was the presence of foreigners in the 306th Brigade zone of responsibility and it concluded that such persons were found only in the ranks of the 7th Brigade The task force asked 3rd Corps Command to remove 1490 Remzija iljak T F pp 10629-10630 Esed Sipi T F pp 14872 and 15855 1492 P 661 1493 P 460 1494 Remzija iljak T F pp 10633-10634 Esed Sipi T F p 14857 See also supra para 723 1495 Remzija iljak T F p 10633 1496 P 665 1491 Case No IT-01-47-T 202 15 March 2006 474 21623 BIS them from the 306th Brigade zone of responsibility or place them under its command 1497 A letter from the Joint Command dated 9 May 1993 signed by D emal Merdan and the deputy commander of the HVO follows up the conclusions of the task force 1498 The letter notes the fact that the Joint Command had recommended that 3rd Corps Command attach to the 306th Brigade “parts” of the 7th Brigade operating in the 306th Brigade zone of responsibility “to execute combat tasks” 1499 None of the witnesses was questioned about these two documents and the Chamber does not know what follow-up was given to the Joint Command’s recommendation 728 According to a document dated 13 May 1993 Esed Sipi ordered part of the 7th Brigade stationed in the village of Kljaci subordinated to the unit from the village 1500 During his appearance before the Chamber Witness Esed Sipi explained that these were members of the 7th Brigade who had been unable to rejoin their units and had made themselves available to the 306th Brigade Command They had thus been allowed to take part in defending the village 1501 729 Furthermore a report by Commander Sipi dated 19 May 1993 noted the presence of 7th Brigade “forces” in the Bila Valley The document is a response to a request from the 3rd Corps which wished to consider various combat strategies in case of attacks by Serbian or Croatian forces in his zone of responsibility 1502 Sipi proposed three different action plans two of which included the participation of “part of the forces of the 7th Muslim Mountain Brigade” in the fighting 1503 This document was shown to Witness Esed Sipi who explained that the 7th Brigade “forces” mentioned in the document were those that could not rejoin their units because the Bila Valley had been cut off 1504 730 The last document that should be noted is an order to attack issued by Esed Sipi in the first week of June 1993 after combat operations in the Bila Valley that ended its isolation 1505 The order is about an attack that the 306th Brigade was to launch on 13 June 1993 on HVO positions in the Gostunj sector and pertains to the participation of a 7th Brigade company in the attack led from Bukovica During his appearance in court Witness Remzija iljak referred to his encounter on 12 1497 P 665 “The problem of the foreigners in the area of responsibility of the Brigade was also discussed It was concluded that there are such persons only in the 7th Muslim the Command of the 3rd Corps was requested to either have them removed from the area of responsibility of the 306th Brigade or to put them under their command ” 1498 P 738 1499 P 738 1500 P 704 1501 Esed Sipi T F pp 14878-14880 See also the testimony of D emal Ibranovi T F pp 18362-18363 18366 and Suad Jusovi T F pp 18436-18437 two members of the 7th Brigade 1502 P 418 The presence of a 7th Brigade unit is also suggested in the war diary of the 306th Brigade C 18 p 11 On 29 May 1993 the diary cites a report from Radoj i i stating that a 7th Brigade scout had disappeared 1503 P 418 1504 Esed Sipi T F pp 14772 14883-14884 1505 P 690 According to Witness Fahir amd i T F pp 11716-11717 11753-11754 the order was not carried out Case No IT-01-47-T 203 15 March 2006 473 21623 BIS June 1993 with members of a 7th Brigade 1st Battalion unit during which the attack on Gostunj hill was mentioned 1506 According to the testimony of Suad Jusovi a member of the 7th Brigade this was clearly the 1st Battalion 2nd Company that had arrived in Bukovica after a series of combat operations at Hajdareve Njive near Travnik that began on 5 June 1993 1507 Bukovica and Gostunj are located in the southern part of the Bila Valley 1508 ii Sale of Weapons to “Muslim Forces” 731 A report dated 16 March 1993 by Esed Sipi 306th Brigade commander mentions the sale of weapons by his subordinates to the “Muslim forces” stationed in the 306th Brigade zone of responsibility financed by people from Arab countries 1509 According to Witness Remzija iljak the expression “Muslim forces” in this document refers not to the 7th Brigade but to people from the area who had previously been part of the Muslim forces but had not wanted to join the 7th Brigade when it was formed making common cause instead with the Arab foreigners 1510 Witness Esed Sipi maintained that the expression referred to the mujahedin and not the 7th Brigade 1511 iii Arrest of Foreign Muslim Fighters 732 Two documents from the 306th Brigade deal with the death and arrest of mujahedin by the HVO in March and April 1993 They touch on the issue of relations between the mujahedin and the 7th Brigade 733 The first document dated 1 April 1993 notes that the body of a foreign national dressed in an ABiH uniform had been found the day before near the village of Zabilje and noted inter alia that “the case caused … disgust among some members of the 7th Muslim Brigade” 1512 This event had to do with the arrest of three “Arabs” and their driver at an HVO check-point during which one of them Abu Senar was killed The three other persons were exchanged for members of the HVO on 17 May 1993 1513 1506 Remzija iljak T F pp 10540-10541 Suad Jusovi T F pp 18431-18436 See also supra para 680 1508 For the geography see P 937 1509 P 679 1510 Remzija iljak T F pp 10629-10630 T E p 10628 The Chamber understands that the witness is referring to the Travnik Muslim Forces discussed elsewhere in the Judgement see supra paras 480-485 1511 Esed Sipi T F pp 14849-14852 1512 P 660 1513 See P 155 P 409 P 541 P 461 See also supra paras 493 511-512 1507 Case No IT-01-47-T 204 15 March 2006 472 21623 BIS 734 In order to explain this document Witness Esed Sipi stated that the disgust recounted in the document was not felt by members of the 7th Brigade but by individuals who were mistakenly taken for members of the brigade who were actually “renegades ”1514 735 The second document dated 8 April 1993 alludes more generally to the mistreatment of “members of the 7th Muslim Brigade in other words mujahedin” at HVO check-points 1515 Other evidence supports the fact that this document deals more specifically with the HVO’s arrest on 7 April 1993 of three other Arabs who were also exchanged for members of the HVO on 17 May 1993 1516 736 The document has been the subject of repeated discussion between the Parties and several consultations by the Chamber with the Tribunal’s translation unit The dispute is whether the word odnosno in the original should be translated as in other words or and The former translation is preferred by the translation unit 1517 but Witness Esed Sipi explained that he had used the word odnosno in the latter sense He added that his report referred to the mistreatment of both the mujahedin and members of the 7th Brigade insisting on the fact that when he wrote the text he had no intention of indicating that the mujahedin were part of the 7th Brigade 1518 As to 7th Brigade members who had been mistreated the witness said they were probably persons who were “from the Travnik Brigade” and were on their way home 1519 The witness seemed to mean that they were members of the 7th Brigade residing in the Bila Valley who were on leave and trying to reach their homes 737 The report of 10 May 1993 written by the 3rd Corps Assistant Commander for Security also deals with the actions of HVO soldiers at their check-points in the Bila Valley The report was written using information from the 306th Brigade1520 and makes an explicit distinction between the Muslims and the ABiH members who passed its check-points which suggests that the Muslims were not part of the ABiH 1514 Esed Sipi T F p 14855 P 662 C8 1516 P 155 P 461 See also supra paras 495 511-512 1517 T F pp 14857-14866 15342-15348 15452-15453 16145-16152 16689-16690 17147-17150 1518 Esed Sipi T F pp 14857 14859-14861 14866-14869 1519 Esed Sipi T F p 14860 Travnik was the headquarters of the 7th Brigade 1st Battalion see supra para 669 1520 DH 2078 under seal 1515 Case No IT-01-47-T 205 15 March 2006 471 21623 BIS iv Mileti i 738 Three documents from the 306th Brigade dated early May 1993 touch on the events in Mileti i on 24 April 1993 1521 These documents deal with both the mujahedin and members of the 7th Brigade 739 The first document is a report to the 3rd Corps from Esed Sipi dated 5 May 1993 in which he complains about the behaviour of soldiers in the 306th Brigade zone of responsibility who were not from the brigade’s units “Soldiers of other units who have ’gotten out of line’ of their superior commands represent a security problem of particular concern in our zone of responsibility They are mainly members of the 7th Muslim Brigade and we do not fully know the status of the mujahedin They and the members of the 314th Motorised Brigade have committed arbitrary acts which further aggravate the already tense situation with the HVO units ”1522 The report gives examples of violent acts committed by “these troops ” such as the attack on Gornji Mileti i At the end of the report Sipi asks that the status of the mujahedin and members of the 7th Brigade quartered in Mehuri i be “resolved” 1523 740 When cross-examined about this document Witness Esed Sipi first explained that his report covered a period of three weeks and dealt with all the problems that had arisen during that period The first problem was the behaviour of the mujahedin in Mileti i The second was that some members of the 7th Brigade who were in the 306th Brigade zone of responsibility had not been able to rejoin their units during this period The last problem was that 7th Brigade members whose identity was unknown to the witness were in the 306th Brigade zone of responsibility and were outside the control of the 7th Brigade 1524 During cross-examination when the witness was questioned about the fact that his report mentioned the problems of the mujahedin and the 7th Brigade under the same proposal he replied that it was a technical issue 1525 There was no special importance in asking to have the status of the mujahedin resolved at the same time as that of the 7th Brigade members quartered in Mehuri i According to him “These could have been two different proposals” 1526 Questioned once again by the Chamber about having presented the problems of the mujahedin and members of the 7th Brigade under the same proposal he offered a rather confused and surprising explanation 1521 See infra paras 1063 ff P 663 1523 P 663 “We propose - to resolve the status of the mujahedin and members of the 17th Muslim brigade quartered in Mehuri i ” Witness Esed Sipi T F p 14871 stated that it was a typographical error and that the 7th Brigade not the 17th Brigade was meant 1524 Esed Sipi T F p 14872 1525 Esed Sipi T F pp 14873-14874 1526 Esed Sipi T F pp 14873-14874 1522 Case No IT-01-47-T 206 15 March 2006 470 21623 BIS “Here what is meant is the status of the mujahedins and the status of the 7th … So what is meant is the renegade groups the 7th Muslim brigade to resolve their status because they had left the 7th but remained in that area So this was to see whether the superior command would decide where they would be mobilised or for the 7th to give us lists of who these people were so that we could resolve their status so that we would stop them from walking around without any control without knowing why ”1527 741 The second report written on 6 May 1993 by Halim Husi and sent to the 3rd Corps gives a more detailed description of what happened in Mileti i 1528 At the end of the report Husi also notes the problems caused by the presence of members of other units in the 306th Brigade zone of responsibility and says that the presence of a considerable number of foreigners mostly Arabs in Mehuri i is extremely problematic and that his brigade is unable to oppose their behaviour and that of groups from the 7th Brigade and the 314th Brigade The presence of a large number of foreigners mostly Arabs in Mehuri i is extremely problematical We are unable to oppose their arbitrary behaviour or that of groups from the 7th Muslim and the 314th Motorised Brigade ”1529 The report concludes by asking for these problems to be resolved “so that we do not have another Mileti i or an even graver incident” 742 The third report sent by Halim Husi to the 3rd Corps on 9 May 1993 asks that a solution be found to the problem posed by the presence and operations of groups and individuals belonging to other ABiH units located in Mehuri i in particular 1530 743 When Witness Halim Husi was questioned about the fact that these documents mentioned the presence of 7th Brigade members he stated that he had written them based on unofficial information he had received and that another report written at a later date contained more precise information 1531 He added that it later turned out that the two reports had been based on incorrect information and that subsequent investigations into the murders in Mileti i indicated that the 7th Brigade had not been involved 1532 1527 Esed Sipi T E p 14920 P 664 1529 P 664 1530 P 666 “The presence and operation of groups and individuals from other BH Army units in our zone of responsibility is seriously damaging the political and security situation particularly in Mehuri i where something must be done as a matter of urgency to avoid any uncontrolled or willful action by the large forces that enjoy support among the local population ” 1531 Halim Husi T F p 10916 1532 Halim Husi T F pp 10915-10916 and p 10929 1528 Case No IT-01-47-T 207 15 March 2006 469 21623 BIS v Other Documents from the 306th Brigade 744 Five other documents shed light on the relationship that existed between the mujahedin and th the 7 Brigade and merit analysis 745 Two of them are reports by Asim Delali Assistant Commander for Security in the 306th Brigade The first report dated 13 May 1993 notes that there were many Bosnians in the mujahedin camp in Mehuri i who were led by Ramo Durmi 1533 Witness Asim Delali explained that he had received this information through Hrustan Zelkanovi his assistant for security in the Brigade’s 4th Battalion 1534 The second report of 28 May 1993 mentions conflict between the HVO and a group of mujahedin commanded by this same Ramo Durmi 1535 746 The third document is a report by Esed Sipi dated 24 May 1993 and refers to information from the Frankopan Brigade an HVO unit 1536 about an attack led by mujahedin against the village of Postinje The incident allegedly occurred when seven members of the 7th Brigade went to Simulje for a mine clearing operation 1537 According to the document the HVO seems to be referring to 7th Brigade soldiers as mujahedin Witness Remzija iljak however maintained that the 7th Brigade was not at all involved in the incident as it was not in Mehuri i at the time He concluded that the HVO tended to confuse the mujahedin and the 7th Brigade 1538 747 The report by Vezir Jusufspahi of 2 August 1993 should also be noted as a document establishing a link between the mujahedin and the 7th Brigade 1539 This document speaks of “Muslim forces” stationed in Mehuri i and proposes to resolve the problem of the El D ihad formation by either incorporating it into an ABiH structure or proclaiming it a paramilitary 1540 The report does not mention the 7th Brigade Witness Vezir Jusufspahi stated that the report was talking about foreign fighters 1541 Witness Remzija iljak however stated that the persons mentioned in 1533 DH 1007 Asim Delali T F pp 16361 16386 1535 DH 1071 On Ramo Durmi see supra paras 625-641 On his activities in the Bila valley see also P 673 DH 1951 DH 1955 1536 DH 1053 1537 The war diary of the 306th Brigade C 18 p 8 and of the 3rd Corps C 16 pp 19-67 also mention an attempt by seven soldiers from the 7th Brigade to clear mines on the same day 1538 Remzija iljak T F pp 10659-10663 On this report see also para 593 1539 P 491 DH 270 C 10 See also supra para 598 1540 P 491 DH 270 C 10 “Resolve the problem of the El D ihad formation in Mehuri i village in terms of their place in the establishment of some of the existing Brigades or proclaim them paramilitaries ” 1541 Vezir Jusufspahi T F pp 14051-14052 1534 Case No IT-01-47-T 208 15 March 2006 468 21623 BIS the document were part of the former Muslim forces who had not joined the 7th Brigade after it was formed 1542 748 Finally in a report from the UNPROFOR Britbat dated 7 August 1993 a liaison officer refers to a conversation he had with Esed Sipi Commander of the 306th Brigade about the presence of mujahedin at the school in Mehuri i 1543 During the conversation Sipi allegedly stated that this 7th Brigade group contained a considerable number of foreigners and advised his British interlocutor that given the hostility of these persons towards international observers he would do well to cross through Mehuri i accompanied by an ABiH commander 1544 During the hearing Witness Esed Sipi explained that he regularly advised members of international organisations who wanted to meet the mujahedin to contact the superior command because he Sipi could not guarantee their safety 1545 The Chamber considers that the report seems to suggest that the mujahedin based at the school in Mehuri i were part of the 7th Brigade and that an ABiH commander was therefore in a position to control them Nevertheless it is not clear whether the document is based on statements by Esed Sipi or merely reflects the prevailing opinion in Britbat at the time e Evaluation of the Evidence i Introduction 749 After the above examination of most of the evidence dealing with the relations between the mujahedin at Poljanice Camp and the 7th Brigade during the first half of 1993 the Chamber must now evaluate these relations To this end the Chamber will also bear in mind the evidence regarding relations between the mujahedin and the 7th Brigade as discussed in the above paragraphs 1546 ii Contradictory Evidence 750 First the Chamber notes the great contrasts in the evidence which initially might even be called contradictory 1542 Remzija iljak T F pp 10657-10658 P 355 1544 P 355 “Sipi also spoke on the subject of the ’mujahadeen’ based in the school at Mehuri i GR 181057 This grouping of the 7th Muslim Brigade apparently contains a sizable percentage precise figure not given of foreign nationals Sipi claimed that any UN personnel approaching this group would be guaranteed a hostile response and that a BiH commander should accompany any C Ss wishing to move through the village ” 1545 Esed Sipi T F pp 14882-14883 1546 See supra paras 622-641 642-657 1543 Case No IT-01-47-T 209 15 March 2006 467 21623 BIS 751 Some of the evidence could support the thesis that there was a superior-subordinate relationship between the mujahedin and the 7th Brigade Command in the first half of 1993 This evidence consists almost exclusively of documents originating primarily from the 7th Brigade and the 306th Brigade 752 With regard to 7th Brigade documents several reports citing the manpower of the 7th Brigade 1st Battalion should be noted The first report dated 22 May 1993 puts the Battalion’s manpower at 380 men 92 of whom were located in Mehuri i in the Bila Valley 1547 The second is a report dated 21 June 1993 saying that some 90 soldiers were in the Mehuri i sector and that the Battalion was having serious problems with them 1548 In addition to these documents another two indicate there was command power over the 7th Brigade in the Bila Valley The first is an order from the 7th Brigade Command dated 8 April 19931549 prohibiting the members of the 7th Brigade from committing extremist actions against the local population such as those in the village of Kljaci The second document is from the 7th Brigade 1st Battalion Command to the 1st Battalion 1st Company Command dated 27 May 1993 ordering it to send 20 soldiers from the Mehuri i sector to Radoj i i in order to assist troops positioned in the village 1550 753 A considerable number of documents from the 306th Brigade also suggest the presence of 7th Brigade units or members in the Bila Valley particularly in Mehuri i 1551 On 6 April 1993 Esed Sipi 306th Brigade commander complained to the 7th Brigade Command about the unacceptable behaviour of some of its members in the village of Kljaci 1552 Two days later he noted the mistreatment of 7th Brigade members at HVO check-points 1553 On 5 May 1993 Sipi complained about 7th Brigade members stationed in Mehuri i 1554 On 9 May 1993 the joint ABiH and HVO Command recommended to the 3rd Corps Command that it attach to the 306th Brigade parts of the 7th Brigade operating in the 306th Brigade zone of responsibility 1555 On 13 May 1993 Sipi gave the order to attach part of the 7th Brigade stationed in the village of Kljaci to the unit in the village 1556 On 19 May 1993 Sipi proposed combat plans to the 3rd Corps that included parts of the 1547 P 474 For a detailed discussion of the report see supra paras 673 695 708-712 P 471 For a detailed discussion of the report see supra paras 674 697 713-714 1549 P 460 See supra para 726 1550 P 481 See supra paras 703-704 1551 In chronological order P 661 P 662 C11 P 663 P 664 P 738 P 704 P 418 P 665 DH 1053 1552 P 661 See supra para 726 1553 P 662 C 11 See supra paras 735-736 1554 P 663 See supra paras 739-740 See also P 664 1555 P 738 See supra para 727 See also P 665 1556 P 704 See supra para 728 1548 Case No IT-01-47-T 210 15 March 2006 466 21623 BIS 7th Brigade 1557 Finally a report by Sipi dated 24 May 1993 refers to a mine clearing operation in Postinje carried out by members of the 7th Brigade 1558 754 A number of documents from the 306th Brigade make note of a link between the 7th Brigade and the mujahedin in general or the foreign Muslim fighters in particular A report by Sipi dated 1 April 1993 mentions the disgust felt by several 7th Brigade members about the death of a foreign Muslim fighter 1559 Another report by Sipi dated 8 April 1993 mentions the mistreatment of “members of the 7th Brigade” adding “in other words mujahedin” 1560 On May 1993 Sipi requested that the 3rd Corps resolve the status of the mujahedin and 7th Brigade members quartered in Mehuri i 1561 Finally a report by Sipi dated 24 May 1993 on a mine clearing operation in Postinje carried out by seven members of the 7th Brigade implies that these men were mujahedin 1562 755 An isolated reading of the documents mentioned above and several others would allow the conclusion that during the first half of 1993 some 90 members of the 7th Brigade 1st Battalion 1st and 2nd companies were stationed in the Bila Valley particularly in Mehuri i and that the troops consisted partly of foreign Muslim fighters who received orders from both the 7th Brigade 1st Battalion and the 306th Brigade 756 Conversely testimony from former members of the 7th Brigade and 306th Brigade argued that there was no effective command and control relationship 757 The testimony of former members of the 7th Brigade 1st Battalion should be mentioned first Several of them stated that there were no foreigners in the ranks of the 1st Battalion 1563 Several of them also mentioned that there were no units of this battalion in the Bila Valley before the combat that started on 8 June 1993 1564 Their assertions are supported by several documents 1565 758 Former members of the 306th Brigade testified that there were no 7th Brigade units stationed in Mehuri i or in the Bila Valley in the period prior to 8 June 1993 1566 They also asserted that the 1557 P 418 See supra para 729 DH 1053 See supra para 746 1559 P 660 See supra paras 733-734 1560 P 662 C11 See supra paras 735-736 1561 P 663 See supra paras 739-740 1562 DH 1053 See supra para 746 1563 See supra para 645 1564 See supra para 671 1565 P 435 P 536 DH 269 See supra paras 649 650 706 1566 See supra para 723 1558 Case No IT-01-47-T 211 15 March 2006 465 21623 BIS persons staying at Poljanice Camp were neither official members of the 7th Brigade nor subordinated to it 1567 A number of documents support their claims 1568 759 Bearing in mind these contradictions a more detailed analysis of all the evidence is essential iii 7th Brigade 1st Battalion Troops and the Bila Valley 760 The Chamber’s examination of 7th Brigade 1st Battalion troops has provided certain indications with regard to the 90 or so of its men in the Bila Valley in May and June 1993 1569 These indications follow from two 1st Battalion documents in particular The first is a report dated 22 May 1993 bearing the name Semir Terzi that notes the presence of 92 persons in Mehuri i 1570 The second is a report by Safet Junuzovi dated 21 June 1993 stating that about 90 soldiers were in the Mehuri i sector 1571 The question that now arises is what conclusions can be drawn from these documents regarding the Poljanice inhabitants’ membership of the 7th Brigade and 7th Brigade Command’s effective control over them 761 The “phenomenon” of the 7th Brigade members who were isolated in the Bila Valley should thus be recalled Several witnesses stated that the fact that the Bila Valley had been cut off from mid-April to early June 1993 had prevented some of the 7th Brigade members particularly those from the 1st Battalion from rejoining their units 1572 Ten or so members of the 1st Battalion had thus been in the Bila Valley at Kljaci since mid-April 1993 1573 Several witnesses who were former members of the 306th Brigade also stated that other isolated members of the 7th Brigade had been unable to rejoin their units 1574 These witnesses however did not state how many individuals were involved or which 7th Brigade units they came from 762 The presence of ten members of the 1st Battalion in Kljaci clearly explains Esed Sipi ’s order of 13 May 1993 to attach several members of the 7th Brigade to the local unit in the village of Kljaci 1575 Other documents from the 306th Brigade and 7th Brigade might also deal with isolated members of the 7th Brigade in the Bila Valley One document supporting this thesis could be Sipi ’s 19 May 1993 proposal to use “part of the forces of the 7th Muslim Mountain Brigade“ in future 1567 See supra para 723 P 663 P 664 DH 1007 DH 1071 See supra paras 740-742 745 1569 See supra paras 712-714 717 1570 P 474 See supra paras 673 695 702 708-712 1571 P 471 See supra paras 674 697 705 713-714 1572 See supra paras 696 707 723 728 1573 See supra paras 707 723 728 1574 See supra para 728 1575 P 704 See supra para 728 1568 Case No IT-01-47-T 212 15 March 2006 464 21623 BIS combat 1576 When Witness Esed Sipi testified in court he explained that the order was intended for such a category of isolated troops 1577 Another document that might also support this hypothesis is the order of the 7th Brigade 1st Battalion Commander dated 27 May 1993 asking the 1st Battalion 1st Company Commander to send 20 soldiers from the Mehuri i sector to Radoj i i 1578 although there is no other evidence that substantiates this theory Nevertheless it does not seem very probable that the 90 or so men mentioned in the documents of 22 May 1993 and 21 June 1993 were isolated members of the 7th Brigade since the documents do not mention that any members of the 1st Battalion had been isolated in the Bila Valley Furthermore none of the witnesses who were former members of the 7th Brigade 1st Battalion suggested that some 90 members of the 1st Battalion had been isolated in the Bila Valley in May and June 1993 and were unable to rejoin their units 763 Since the question of the identity of the 90 or so 7th Brigade soldiers mentioned in the two documents by Semir Terzi and Safet Junuzovi remains unanswered a comment on these two documents is called for The 90 or so soldiers causing the 1st Battalion “serious problems” might actually have been the mujahedin from Poljanice Camp who committed international crimes in Mileti i Maline and Gu a Gora in April and June 1993 as proved beyond a reasonable doubt by other evidence For the following reasons however such a connection can hardly be established 764 First the two documents do not provide any specific information on the 90 or so persons except for the fact that the 1st Battalion was having “serious problems” with them They do not indicate which 1st Battalion company they were from or why they were stationed in the Mehuri i sector which was not part of the 1st Battalion zone of responsibility or the nature of the difficulties they were causing the 1st Battalion They also provide no information on the composition of the 90 or so men particularly whether they included foreign Muslim fighters When Witness Safet Junuzovi former commander of the 1st Battalion as of late June 1993 and author of one of these documents appeared before the Chamber he was not asked to explain any of these questions 765 Furthermore the evidence dealing with the occupants of Poljanice Camp does not make it possible to determine with certainty the number that usually resided there The evidence also indicates that the composition of the inhabitants was mixed and included Bosnians who had left the 7th Brigade those who had left other brigades e g the 306th Brigade and those who had never joined a 3rd Corps brigade With regard to the foreign mujahedin based at the camp in spite of any 1576 P 418 See supra para 729 See supra para 729 1578 P 481 See supra paras 703-704 1577 Case No IT-01-47-T 213 15 March 2006 463 21623 BIS relations they might have had with the 7th Brigade there is no proof that they were “members” of this brigade’s structural organisation 1579 766 Even if the contents of the document of 8 April 1993 by Esed Sipi may be used to identify the mujahedin as being part of the 7th Brigade 1580 during Witness Sipi ’s testimony he stated that he had not used the word odnosno in the document in this sense but rather in a sense that implies a distinction between the Poljanice mujahedin and members of the 7th Brigade 1581 This interpretation is substantiated by two other documents that do in fact make such a distinction between these two groups as did the explanation of these texts provided by their authors during their appearance The first is a report by Esed Sipi dated 5 May 19931582 and the second is a report by Halim Husi dated 6 May 1993 1583 Another document that makes a distinction between the mujahedin and the 7th Brigade is an order by Mehmed Alagi dated 13 June 1993 addressed to both the 7th Brigade 1st Battalion Commander and to Nusret effendi Abdibegovi the mufti of Travnik 1584 767 The Chamber has expressed its reservations above about the documents and opinions of Britbat members on the relationship between the mujahedin and the 7th Brigade in the Bila Valley 1585 For this reason the Chamber gives greater weight to evidence from the 306th Brigade than to the observations and assertions of the Britbat regarding relations between the 7th Brigade and the 80 to 100 mujahedin in the Bila Valley Consequently the analysis of documents dealing with the 7th Brigade’s manpower cannot lead beyond a reasonable doubt to the conclusion that the 90 or so members of the 7th Brigade 1st Battalion were mujahedin from Poljanice Camp 768 Finally it must be noted that an analysis of documents dealing with the manpower of a battalion and the units that compose it is not it itself sufficient to reach a conclusion on the existence of the effective control of the brigade command to which the battalion and its units belong 769 As it is unable to find that the 90 or so members of the 7th Brigade 1st Battalion were mujahedin from Poljanice Camp the Chamber will now examine other evidence dealing with relations between the mujahedin and the 7th Brigade 1579 See supra para 670 P 662 C 11 See supra para 735 1581 See supra para 736 1582 P 663 See supra paras 738-739 1583 P 664 See supra paras 741-742 1584 P 435 See supra paras 651-653 1585 See supra para 722 1580 Case No IT-01-47-T 214 15 March 2006 462 21623 BIS iv 7th Brigade Command and Effective Control of the Mujahedin at Poljanice Camp a Foreign Muslim Fighters 770 In the following paragraphs the Chamber will “succinctly” summarise the most important evidence that might suggest or disprove that the 7th Brigade commanded and exercised effective control over the foreign Muslims residing at Poljanice Camp during the first six months of 1993 771 In another part of the Judgement the Chamber noted that there is no evidence allowing to find beyond a reasonable doubt that the foreign Muslim fighters were de jure members of the 3rd Corps 1586 772 The former members of the 7th Brigade agreed that there were no foreign Muslim fighters in their ranks in the first half of 1993 Former members of the 306th Brigade asserted that the foreigners at Poljanice Camp were not part of the 7th Brigade 773 Most of the documentary evidence from the 306th Brigade cannot support the thesis that the foreign Muslim fighters were under the effective control of the 7th Brigade Even if the report of 8 April 1993 by Esed Sipi seems to suggest that these foreigners were part of the 7th Brigade the Chamber has noted above that the testimony of its author and two other reports demonstrate that the report could reasonably be given a different interpretation 1587 Several documents from the 306th Brigade raise doubts about whether the ABiH had effective control over the foreign fighters In such documents the author notes that he does not know the exact status of the mujahedin and proposes that the 3rd Corps resolve their status 1588 Finally several other documents indicate more or less explicitly that the mujahedin were not under the effective control of the 3rd Corps 1589 774 A number of documents from the 7th Brigade argue against the thesis that the foreign fighters were part of the brigade or under its effective command The Chamber would recall that the analysis of the brigade’s manpower suggests that the fighters were not “members” of the brigade’s organic structure 1590 The Chamber would also recall the order of 13 July 1993 by Mehmed Alagi that makes a distinction between the mujahedin and the 7th Brigade 1st Battalion 1591 Finally the report of 19 July 1993 by Safet Junuzovi 7th Brigade 1st Battalion Commander expressly indicates 1586 See supra para 488 See supra para 766 1588 P 663 P 491 DH 270 C 10 See supra paras 739-740 747 1589 DH 1007 DH 1071 See supra para 745 1590 See supra para 650 1591 P 435 See supra paras 651-653 1587 Case No IT-01-47-T 215 15 March 2006 461 21623 BIS that the unit at the Mehuri i Camp is not part of the 1st Battalion and that he does not have the right to command it 1592 775 Regarding the set of documents from the 7th Brigade and other sources dealing with military cooperation between the mujahedin and the 7th Brigade it must be pointed out that such cooperation was frequent during the period preceding the formation of the El Mujahedin detachment in August 1993 Such frequent cooperation testifies to the military importance of the foreign fighters in the eyes of the 7th Brigade and 3rd Corps Nevertheless these documents do not lead beyond a reasonable doubt to the conclusion that the foreign fighters were subordinated to the 7th Brigade or under its effective control In addition other documents and testimony on the arrest of foreign fighters by the HVO and the abduction of @ivko Toti and HVO officers by the mujahedin cast doubt on such a relationship 1593 Finally the testimony of international observers on the ties between the 7th Brigade and the mujahedin shows that the observers were not really sure of the nature of the ties or whether the foreign Muslim fighters were members of or subordinated to the 7th Brigade 1594 776 In view of all the evidence the Chamber finds that it has not been established beyond a reasonable doubt that the foreign Muslim fighters who used Poljanice Camp were integrated into the 7th Brigade or under the effective control of its command b “Local” Mujahedin 777 It must now be determined whether the “local” mujahedin who joined the foreign Muslim fighters at Poljanice Camp belonged to the 7th Brigade or were de facto under its control 778 The Chamber recalls once again that the “local” mujahedin who resided at Poljanice Camp or maintained contact with the camp were a mixed group including not only Bosnians who had left the 7th Brigade but also those who had left other brigades e g the 306th Brigade and individuals who had never joined a 3rd Corps brigade 1595 779 Although all the former members of the 7th Brigade 1st Battalion denied the fact that battalion members were in Mehuri i or elsewhere in the Bila Valley several of them did state that after the battle at Visoko in December 1992 a number of soldiers including Ramo Durmi left the 1592 DH 269 See supra para 706 See supra para 524 1594 See supra paras 576-579 1595 See supra para 423 1593 Case No IT-01-47-T 216 15 March 2006 460 21623 BIS 1st Battalion 1596 Consequently their remarks on the absence of 1st Battalion members in Mehuri i and the Bila Valley can be interpreted as referring solely to persons who had not left the 1st Battalion Other evidence confirms the presence of Ramo Durmi in the Bila Valley and Mehuri i 1597 780 Furthermore many documents from the 306th Brigade attest to the presence of 7th Brigade members in Mehuri i or the Bila Valley Two documents mention Ramo Durmi as the commander of the Bosnians residing with the mujahedin at Poljanice Camp 1598 A third document from the 306th Brigade notes in general the presence of 7th Brigade members in Mehuri i who had “’gotten out of line’ of their superior commands” and whose status needed to be resolved 1599 Other documents along the same line have been discussed above in the part of the Judgement about the 306th Brigade 1600 Several former members of this brigade confirmed the presence in Mehuri i and elsewhere in the Bila Valley of 7th Brigade members who had escaped the control of their command or who were thought to be members of this brigade although they in fact were not 1601 781 The documents and testimony about 7th Brigade members who had left their units and maintained contact with the Muslim fighters at Poljanice Camp raise the question of whether they were still under the effective control of the 7th Brigade Command It should first be noted that former members of the 7th Brigade 1st Battalion who appeared before the Chamber confirmed that the battalion no longer had contact with Ramo Durmi after his break with the 1st Battalion in early January 1993 or even with the soldiers who had followed him 1602 Second 306th Brigade documents and the testimony of some of its former members mentioned in the above paragraph also indicate that the 7th Brigade did not have effective control over these individuals The fact that the Bila Valley was cut off from mid-April to 8 June 1993 might have contributed to the 7th Brigade’s lack of command control over these soldiers 782 Furthermore the close ties between the foreign mujahedin and the local mujahedin at Poljanice Camp argue against the existence of 7th Brigade effective control over the latter Having already noted that the foreign fighters at Poljanice Camp were not under the effective control of this brigade the Chamber finds it unlikely that the situation would have been different for the local mujahedin 1596 See supra para 630 See supra paras 626 745 1598 DH 1007 DH 1071 See also supra paras 626 745 1599 P 663 See supra paras 739-740 1600 P 664 P 666 DH 1007 DH 1071 See supra paras 741-742 745 See also P 673 DH 1951 DH 1955 1601 See supra paras 722 726 734 746 1602 See supra para 630 1597 Case No IT-01-47-T 217 15 March 2006 459 21623 BIS 783 Two orders from the 7th Brigade seem to refute this hypothesis The first one is an order dated 8 April 1993 prohibiting brigade members from the conduct already observed in the village of Kljaci 1603 Nevertheless the document is refuted by the testimony of witnesses Remzija iljak and Esed Sipi who both stated that the report by Sipi dated 6 April 1993 and the order dated 8 April 1993 were based on a misunderstanding after having issued the order 7th Brigade Command was allegedly informed by its troops that there were no 7th Brigade members at Kljaci in early April 1993 1604 Witness iljak contended that the mujahedin stationed in Mehuri i were responsible for this unacceptable conduct 1605 784 The second order is from the 7th Brigade 1st Battalion Command dated 27 May 1993 asking the 1st Company Command to send 20 soldiers from the Mehuri i sector to the village of Radoj i i 1606 In the absence of 1st Battalion witnesses to explain this document and as its reliability has been criticised by various witnesses who were former members of the 306th Brigade the Chamber can only give this document limited weight 1607 785 In addition two documents from the 306th Brigade that assume the existence of command power over the 7th Brigade members in the Bila Valley should also be discussed The first is an order dated 13 May 1993 by Esed Sipi 306th Brigade Commander that attaches a number of members of the 7th Brigade to a local unit in the village of Kljaci 1608 As the Chamber has already noted this order might reasonably be explained by the presence in this village of ten members of the 1st Battalion who were unable to rejoin their units 1609 786 Another document written by Esed Sipi dated 19 May 1993 notes the presences of 7th Brigade “forces” in the Bila Valley It is a response to a request from the 3rd Corps and describes different combat strategies devised in case of attack by Serbian or Croatian forces in his zone of responsibility Sipi proposed three different strategies of which two included the participation of “part of the forces of the 7th Muslim Mountain Brigade” 1610 When shown this document Witness Esed Sipi explained that the 7th Brigade “forces” mentioned in the document were those who were 1603 P 460 See supra para 726 See supra para 726 1605 Remzija iljak T F p 10633 1606 P 481 See supra paras 703-704 1607 See supra para 704 1608 P 704 See supra para 728 1609 See supra para 762 1610 P 418 See supra para 729 1604 Case No IT-01-47-T 218 15 March 2006 458 21623 BIS unable to rejoin their units because the Bila Valley was cut off 1611 Since this explanation is clearly not without foundation the Chamber considers there is reason to accept it 787 In view of all the evidence the Chamber is not convinced beyond a reasonable doubt that th the 7 Brigade members residing at Poljanice Camp or maintaining contact with the camp were under the effective control of 7th Brigade Command f Conclusions on the Mujahedin and the 7th Brigade 788 The Chamber is not convinced beyond a reasonable doubt that the foreign and local mujahedin at Poljanice Camp were under the effective control of the 7th Brigade Command 5 Conclusion on the Mujahedin and the 3rd Corps - De Facto Link Before the Creation of the El Mujahedin Detachment a Introduction 789 In the preceding paragraphs the Chamber analysed several aspects of the factual links between the 3rd Corps and the mujahedin at Poljanice Camp before the creation of the El Mujahedin unit 790 The Chamber began by examining the overall de facto relations between the 3rd Corps and the mujahedin from four different vantage points First the Chamber reviewed the events relating to the arrest of the mujahedin by the HVO and the abduction of HVO officers by the mujahedin in order to determine the role of the 3rd Corps in these events Second it analysed the combat operations in which the mujahedin fought side by side with 3rd Corps units in the period preceding the formation of the El Mujahedin detachment in August 1993 Third the Chamber examined the role played by the 3rd Corps in the process that culminated in the formation of this detachment And fourth it analysed the testimony of international observers on the relations between the 3rd Corps and the mujahedin 791 The Chamber then considered the de facto relations between three different 3rd Corps brigades and the mujahedin analysing the relations between the 306th Brigade and the mujahedin between the 7th Brigade and the mujahedin This was followed by an identical analysis of the relations between the 17th Brigade and the mujahedin 1611 See supra para 729 Case No IT-01-47-T 219 15 March 2006 457 21623 BIS 792 The conclusions of these partial analyses must now be summarised in order to come to a general finding on the issue of whether the mujahedin were under the effective control of the 3rd Corps and the 7th Brigade b Summary of the Partial Conclusions i Mujahedin and the 3rd Corps 793 The analysis of relations between the 3rd Corps and the mujahedin has led to the following conclusions 794 With regard to the arrest of the mujahedin by the HVO and the abduction of Croatian officers by the mujahedin the following has been observed The evidence does not make it possible to conclude that the 3rd Corps and the 7th Brigade were involved in the abduction of @ivko Toti and the other HVO officers 1612 With regard to the arrest of the mujahedin by the HVO in the Chamber’s opinion the evidence shows that the 3rd Corps and 7th Brigade demonstrated an explicit and pronounced concern for the fate of the foreign mujahedin designated by the ABiH as “volunteers in our units” or “foreign volunteers” in documents of that period from the 3rd Corps and 7th Brigade dealing with their arrest 1613 The Chamber also notes that several days after the abduction of @ivko Toti in Zenica by the mujahedin on 15 April 1993 that is at the height of the crisis created by the sequence of arrests and abductions the mujahedin fought side by side with the 7th Brigade against the HVO in the environs of Zenica 1614 Nevertheless the Chamber has not been able to find that the 3rd Corps’ reaction to the arrest of the mujahedin by the HVO showed that the 3rd Corps or the 7th Brigade had effective control over them 1615 795 The analysis of 3rd Corps combat operations in which the mujahedin participated shows the importance and frequency of this cooperation The Chamber was able to note that the mujahedin regularly took part in combat conducted by the 3rd Corps from late 1992 until the formation of the El Mujahedin detachment in August 1993 1616 Nevertheless this frequent cooperation in itself does not allow the conclusion that the mujahedin were subordinated to the 3rd Corps and the 7th Brigade and were under their effective control Firstly there is no documentary evidence showing that orders were given to the mujahedin or that they carried out any orders 1617 Secondly other documents shed light on the fact that 3rd Corps commanders did not believe they had the authority 1612 See supra para 524 See supra paras 493-495 1614 See supra para 504 1615 See supra para 528 1616 See supra paras 530-540 1617 See supra paras 541 546 1613 Case No IT-01-47-T 220 15 March 2006 456 21623 BIS to give orders to the mujahedin 1618 Thirdly several exhibits show that the mujahedin reserved the right to decide for themselves whether or not to join combat 1619 Fourthly other evidence expresses annoyance with the mujahedin’s behaviour during and after the fighting 1620 Fifthly there is no evidence indicating that the mujahedin sent combat reports or other reports on their activities to those in charge of the combat in which they took part 1621 Finally the Chamber notes the almost total absence of references to the mujahedin’s military activity in the war diaries and operations books which is quite different from the situation after the formation of the El Mujahedin detachment in August 1993 1622 796 The Chamber then considered the process that led to the formation of the El Mujahedin detachment by the ABiH Supreme Command in August 1993 The Chamber noted that the 3rd Corps played a crucial role in this process which started one week after the abduction of @ivko Toti on 15 April 1993 1623 It nonetheless believes that the analysis of this process did not indicate that those who would later become members of the El Mujahedin detachment were under the effective control of the 3rd Corps 1624 797 Finally during the trial the Chamber heard many international observers who were present in Central Bosnia in 1993 In addition many documents from international organisations were tendered into evidence The relations between the 3rd Corps and the 7th Brigade on the one hand and with the mujahedin on the other gave rise to numerous observations reflections and assertions by the members of international organisations 1625 An analysis of the evidence showed that the international observers were divided over the question of whether the mujahedin were under the effective control of the 3rd Corps and 7th Brigade Moreover none of them was in fact certain that this was really the case 1626 ii Mujahedin and the 3rd Corps Brigades 798 The Chamber then examined the relations between the mujahedin and three different 3rd Corps brigades 1618 See supra para 541 See supra para 541 1620 See supra para 541 1621 See supra para 544 1622 See supra paras 544 826-829 1623 See supra paras 549-558 1624 See supra para 565 1625 See supra paras 566-575 1626 See supra paras 576-579 1619 Case No IT-01-47-T 221 15 March 2006 455 21623 BIS 799 The first is the 306th Brigade whose zone of responsibility included the mujahedin camp at Poljanice An analysis of the relations between the brigade and the mujahedin does not establish the existence of close links between the 306th Brigade and the mujahedin at Poljanice Camp 1627 800 The Chamber then turned its attention to the 17th Brigade and noted the total absence of evidence suggesting that the mujahedin were under the effective control of the brigade 1628 801 The Chamber supplemented its examinations of the three 3rd Corps brigades with a detailed analysis of the relations between the 7th Brigade and the mujahedin It began by analysing the composition of the 7th Brigade when it was formed and the departure of a number of its members at a later stage 1629 It then examined the general relations between the 7th Brigade and the foreign mujahedin 1630 802 The Chamber subsequently conducted a rigorous systematic analysis of the composition manpower and movements of 7th Brigade units during the first six months of 1993 1631 The aim of this long analysis was to determine whether during this period brigade units were present in the Bila Valley where the mujahedin camp of Poljanice was located 803 The Chamber also analysed evidence from former members of Britbat and the 306th Brigade on the mujahedin and members of the 7th Brigade in the Bila Valley 1632 804 Finally based on all these analyses the Chamber proceeded to evaluate all the evidence dealing with the relations between the 7th Brigade and the mujahedin 1633 The evaluation led to three conclusions First the Chamber could not determine beyond a reasonable doubt that the mujahedin at Poljanice Camp were members of the 7th Brigade 1st Battalion 1634 Second the Chamber is not convinced beyond a reasonable doubt that the foreign mujahedin at Poljanice Camp were under the effective control of the 7th Brigade 1635 Finally the Chamber arrived at the same conclusion with regard to the local mujahedin at the camp 1636 1627 See supra para 605 See supra para 612 1629 See supra paras 620-641 1630 See supra paras 642-657 1631 See supra paras 658-718 1632 See supra paras 719-722 and 723-748 1633 See supra paras 749-787 1634 See supra paras 760-769 1635 See supra paras 770-776 1636 See supra paras 777-787 1628 Case No IT-01-47-T 222 15 March 2006 454 21623 BIS c Final Conclusion 805 Based on the above conclusions the Chamber finds that it has not been established beyond a reasonable doubt that the mujahedin at Poljanice Camp were under the effective control of the Accused Had ihasanovi and the Accused Kubura before the creation of the El Mujahedin detachment E Relations Between the ABiH and the Mujahedin after the Creation of the El Mujahedin Detachment 1 Arguments of the Parties 806 In its Final Brief the Prosecution alleges that once the El Mujahedin Detachment was created on 13 August 1993 it became a de jure formation under 3rd Corps Command It submitted that the Accused Had ihasanovi exercised effective control over the unit at the time of the abductions in October 1993 and the detention of the Ora ac hostages in October 1993 in the sense that he had the material ability to prevent the crimes that were committed and to punish their perpetrators 1637 807 The Defence for Had ihasanovi maintains that the El Mujahedin detachment had not been formed that the mujahedin refused to be placed under the command of the 3rd Corps and that they were not under its effective control 1638 2 Discussion a History of the Formation of the El Mujahedin Detachment 808 In another part of the Judgement the Chamber discussed the events that led to the initiative to create the El Mujahedin detachment 1639 The process of forming the unit will now be analysed in detail 809 On 13 August 1993 Rasim Deli Commander of the ABiH Main Staff ordered 3rd Corps Command to proceed with the formation of the El Mujahedin detachment in its zone of responsibility 1640 The order was preceded by two other initiatives First on 23 July 1993 Rasim Deli authorised Sakib Mahmuljin to enter into negotiations with representatives of the mujahedin 1637 Prosecution Final Brief paras 142-143 Defence Final Brief paras 272-292 1639 See supra paras 547-565 1638 Case No IT-01-47-T 223 15 March 2006 453 21623 BIS on behalf of the ABiH Main Staff 1641 After they took place on 12 August 1993 the 3rd Corps Command submitted a proposal to the ABiH Main Staff regarding a formation to be called El Mujahedin 1642 810 The Main Staff’s authorisation dated 23 July 1993 gave Sakib Mahmuljin the mandate to negotiate directly with representatives of a “mujahedin unit” in Zenica 1643 The negotiations were to cover two points The first was the incorporation of the unit into the ABiH and the second was the use of the unit in combat and the conditions of its attachment to the 3rd Corps 811 It seems that the negotiations led to an agreement although the conditions are not known In late July or early August 1993 Sakib Mahmuljin contacted 3rd Corps Command to go over a proposal to form a mujahedin detachment The proposal had been drafted by Mustafa Popari a member of the 3rd Corps who worked closely with Sakib Mahmuljin Mustafa Popari wrote the proposal based on information provided by Mahmuljin and his suggestions 1644 812 The 3rd Corps proposal of 12 August 19931645 mentions two reasons to justify the formation of a detachment of foreign nationals in the Corps zone of responsibility the need to organise and make use of foreign volunteers and the foreigners’ written request to 3rd Corps Command 1646 The proposal was to establish a detachment to be called El Mujahedin The village of Mehuri i would be its mobilisation collection point and it would be provided logistical support by the 3rd Corps 813 Following this proposal on 13 August 1993 the ABiH Supreme Command Main Staff decided to proceed with the establishment of the El Mujahedin detachment 1647 General Rasim Deli ’s order of this same day instructs the 3rd Corps Command to form the El Mujahedin 1640 P 439 DH 165 6 C 9 The name should be El Mujahed in Arabic but appears under the erroneous form El Mujahedin in documents DH 165 4 DH 165 5 P 435 P 440 and P 451 Thus for the purpose of historical exactitude the Chamber has used the ungrammatical form El Mujahedin 1641 P 202 DH 165 4 1642 P 438 DH 165 5 1643 P 202 DH 165 4 Videocassette P 482 confirms the presence of a “head office” in this unit in Zenica T F p 8542 1644 Mustafa Popari T F pp 14483-14486 1645 P 438 DH 165 5 Given the need to organise and make use of foreign volunteers as well as their written request to the 3rd Corps Command and on the basis of your authorisation No 1 297-54 of 23 July 1993 we are sending the following PROPOSAL 1 Organise all foreign volunteers in the RBH Army in the zone of responsibility of the 3rd Corps into a detachment We will submit a proposed establishment for this unit shortly 2 Mobilisation collection point for this detachment would be in the village of Mehuri Travnik municipality 3 The name of the detachment is El Mujahedin its number and VJ military unit number are to be determined by the Supreme Command Staff 4 Logistics support will be regulated by the logistics services of the 3rd Corps 5 We request urgency 1646 The text of videocassette P 482 also speaks of a request by the mujahedin T F p 8542 1647 P 439 DH 165 6 C 9 To form in the 3rd Corps zone of responsibility the El Mujahedin detachment according to proposed establishment which you must submit to this Staff for approval The newly formed detachment shall be given the code number T-30030 and the military unit MU number 5689 Mobilisation duration is 12 hours and the mobilisation plan is administered by the 3rd Corps Command Case No IT-01-47-T 224 15 March 2006 452 21623 BIS detachment in accordance with a proposal which the 3rd Corps was to submit to the Main Staff for approval The order gives the “newly formed detachment” a code number and military unit number Deli ’s order stipulates that the detachment will be composed of foreign volunteers in the 3rd 814 Corps zone of responsibility and adds that they will keep their weapons and other equipment which have already been issued to them 1648 Witness Mustafa Popari explained that these men were not from 3rd Corps units 1649 With regard to weapons and other equipment the witness stated that he had been told that the foreigners had their own weapons and the army did not have weapons for them 1650 The order also stipulates that the detachment will receive logistical support from the 3rd Corps 815 Deli ’s order indicates that the new detachment was to be directly under the authority of the 3rd Corps since the detachment depended on the Corps for logistics Another factor showing this direct link is that the 3rd Corps called it “independent detachment El Mujahedin” 1651 This link is also confirmed by the fact that the 3rd Corps decided to assign it to combat operations 1652 816 According to Witness Fikret uski Mehmed Alagi the commander of OG Bosanska Krajina was present at a ceremony held in the mujahedin camp when the detachment was formed and the unit lined up 1653 The witness did not specify the exact date of this event Two other witnesses identified Alagi and Mahmuljin on a videocassette showing the “Recognition of the Mujahideen Battalion with the Bosnian Army”’ 1654 The Chamber finds that this must be the same event b Subsequent Developments 817 Deli ’s order of 13 August 1993 states that it is to be carried out by the 3rd Corps Command no later than 31 August 1993 and that a written report is to be sent to the Supreme Command Main Staff before 6 September 1993 1648 P 439 DH 165 6 C 9 “Replenish the El Mujahedin detachment with foreign volunteers currently on the territory of the 3rd Corps zone of responsibility These people keep the weapons and other equipment which have already been issued to them ” 1649 Mustafa Popari T F p 14489 1650 Mustafa Popari T F p 14490 Witness D emal Merdan T F pp 13699-13700 stated that he did not know who had issued them weapons 1651 See P 792 DH 165 7 and P 440 1652 See infra paras 824 825 830 1653 Fikret uski T F p 12086 1654 Witness ZP T F pp 9134-9136 HE T F p 17071 This is videocassette P 482 The part showing the two people bears the following text in English Recognition of the Mujahideen Battalion with the Bosnian Army Witness HE T F p 17071 thinks he also noticed the presence of Abu Haris and identified the Travnik mufti Nusret effendi Abdibegovi T F p 17070 See also supra paras 651-652 Case No IT-01-47-T 225 15 March 2006 451 21623 BIS 818 Witness Mustafa Popari stated that he did not know how many men were to be in the El Mujahedin detachment or their names or its commander1655 and that he never received a report from the detachment with the particulars of its formation 1656 He also did not receive any feedback from the ABiH Main Staff regarding his proposals for the formation of a detachment pursuant to Deli ’s order 1657 although he did not hear anyone say that the order had not been executed 1658 His conclusion was that the unit had not been established and did not officially exist 1659 819 Nevertheless information on the detachment from early 1994 can be found in a report dated 26 February 1994 from the 3rd Corps Security Service1660 mentioning that the detachment consisted of a command and two companies with 59 foreigners and 152 locals All the commanders of the unit and companies were foreigners 1661 820 The 3rd Corps seems to have had constant difficulties in its efforts to incorporate the detachment fully into the Army Witnesses HF and D emal Merdan testified to a number of initiatives taken by the 3rd Corps to integrate them more completely1662 that resulted in a meeting between Rasim Deli and representatives of the detachment in early 1994 1663 According to Witness HF during this meeting the detachment representatives did not accept any of the six conditions he put forward to subordinate the detachment to 3rd Corps Command 1664 The witness did not explain the contents of these six conditions during his appearance in court although it is probable that one of them was for the detachment members to give the particulars of their real identity They hesitated to accept this condition however because they feared it would cause trouble for their families in their home country 1665 Another condition seems to have been to agree to abide by local laws During a conversation on 10 February 1994 between the 3rd Corps Assistant Commander for Security and Abu Haris the detachment representative it was proposed that all the foreign members take an oath that they would obey the RBiH laws would not interfere in the internal politics of the RBiH and would only participate in combat pursuant to the path traced by Allah 1666 1655 Mustafa Popari T F pp 14484 14492 Mustafa Popari T F p 14491 1657 Mustafa Popari T F pp 14489 14526-14527 1658 Mustafa Popari T F p 14518 1659 Mustafa Popari T F pp 14518-14519 See also Hajrudin Hubo T F p 15609 1660 DH 272 1661 P 656 a report by Ivica Zeko member of the HVO dated 18 October 1993 mentions the existence of an independent unit El Mujahedin at Mehuri i that had from 350-400 members and was commanded by Haris Abul 1662 Witness HF T F pp 17204-17209 17249-17251 D emal Merdan T F pp 13172-13173 1663 The text of DH 165 8 shows that the meeting was held before 10 February 1994 1664 Witness HF T F p 17207 1665 DH 165 8 1666 DH 165 8 1656 Case No IT-01-47-T 226 15 March 2006 450 21623 BIS 821 With regard to respecting local laws one witness gave the example of a member of the El Mujahedin detachment who had been prosecuted by the Travnik District Military Court and sentenced for having run the witness’ wife out of the village of Kljaci in the fall of 1993 because she was the offspring of a mixed marriage 1667 822 Finally there is reason to mention a decision by Alija Izetbegovi president of the RBiH dated 5 August 1994 on promotions awarded to members of the ABiH 1668 The decision states that five members of the El Mujahedin detachment were among those who received this recognition Abu Mali denoted in the decision as detachment commander was promoted to the rank of senior captain and the following were promoted to the rank of captain Abu Ejmen Assistant Commander for Security Abul Haris Assistant Commander for Moral and Religious Affairs Fadil Al-Hamdani Assistant Commander for Logistics and Bellah Muatez Detachment Deputy Commander c Combat 823 It seems that the first example of the desire to use the new detachment in combat dates from 16 August 1993 only three days after Deli issued his order That day the 3rd Corps Commander sent a letter to the commander of OG Bosanska Krajina informing him that 50 members of the El Mujahedin detachment were ready to go to the front at Zavidovi i 1669 The 3rd Corps Commander asked the commander of the Operations Group if he wanted the group to be sent to him and asked for a reply the next day The Chamber is unaware of any follow-up to this letter 824 Then on 28 August 1993 1670 the Accused Had ihasanovi sent an order to OG Bosanska Krajina the 306th Brigade and the El Mujahedin independent detachment to re-subordinate the detachment to the 306th Brigade in order to effectively coordinate combat operations It seems that the order was not carried out as the detachment was unwilling to obey the 306th Brigade Command 1671 825 Following another order1672 signed by Merdan1673 dated 6 September 1993 addressed to OG Bosanska Krajina and the El Mujahedin independent detachment the detachment was re- 1667 Remzija iljak T F pp 10614 10634 10642 P 296 1669 P 671 1670 P 792 DH 165 7 1671 Vezir Jusufspahi T F pp 14028 14046-14049 D emal Merdan T F p 13170 Remzija iljak T F pp 10611 10627-10628 1672 P 440 1673 Mustafa Popari T F p 14538 1668 Case No IT-01-47-T 227 15 March 2006 449 21623 BIS subordinated directly to OG Bosanska Krajina owing to imminent combat operations and pursuant to the Operations Group’s plans 826 In the period between 5 and 7 September 1993 the El Mujahedin detachment did in fact take part in combat operations in the zone of responsibility of OG Bosanska Krajina 1674 particularly in the sectors of Zabilje – Ograde – Pokraj i i and Grbavica where the detachment was fighting in the zones of responsibility of the 27th 306th and 325th Brigades On 5 September 1993 the 306th Brigade led a coordinated attack with the 27th Brigade the 325th Brigade and the El Mujahedin detachment 1675 That evening the 306th Brigade received the order to carry out reconnaissance missions together with the commander of the El Mujahedin detachment 1676 The next day the four units engaged in the two combat sectors estimated the number of dead and wounded The detachment had two dead and ten wounded while the other three units had approximately the same number of dead and wounded 1677 On 7 September 1993 the 325th Brigade experienced serious difficulties in the Grbavica sector and requested assistance from the El Mujahedin detachment to repel an HVO attack 1678 The OG Bosanska Krajina organised the means to assist them Sipi and Beba left in order to position the OG’s military police at the same time as the mujahedin in order to assist the 325th Brigade 1679 On 9 September 1993 the commander of the El Mujahedin detachment visited 306th Brigade headquarters 1680 827 Several witnesses testified about the combat on 18 September 1993 in the Kru ica sector not far from Vitez in which the El Mujahedin detachment was engaged One of them Witness Fikret uski stated that Alagi commander of OG Bosanska Krajina ordered the mujahedin to fight in the combat operations alongside the 17th Brigade 1681 In the ten days that followed the witness had several contacts with representatives of the detachment in particular Abu Haris who also served as interpreter 1682 The witnesses concurred that the operations were not an outright success Indeed the ABiH sustained heavy losses because of the mujahedin’s combat methods 1683 Witness Fikret uski recounted that there were 16 dead and 78 wounded 1684 while Witness 1674 P 482 P 617 C 11 pp 1-2 13 C 12 pp 12-15 C 18 p 37 For the conduct of these operations see also P 851 a combat report from the Accused Had ihasanovi to the Supreme Command 1675 C 18 p 37 1676 C 12 p 12 1677 C 11 pp 1-2 C 12 p 13 Videocassette P 482 mentions two dead T F p 8543 1678 C 11 p 13 C 12 p 15 For the HVO attack see also P 851 1679 C 12 p 15 1680 P 617 1681 Fikret uski T F p 12129 The transcript is not clear as to whom this order was given 1682 Fikret uski T F p 12128 1683 Fikret uski T F pp 12151-12152 12158 Ahmed Kulenovi T F p 13905 D emal Merdan T F pp 1317013171 1684 Fikret uski T F p 12152 Case No IT-01-47-T 228 15 March 2006 448 21623 BIS Ahmed Kulenovi stated that the number was 12 dead and 80 or 90 wounded 1685 The OG Bosanska Krajina operational logbook notes 15 dead and 70 wounded of whom 4 of the dead and 16 wounded belonged to the El Mujahedin detachment 1686 828 On 9 October 1993 the commander of OG Zapad asked the 3rd Corps Commander in writing for permission to use part of the El Mujahedin detachment in operations in the Gornji Vakuf region 1687 His letter adds that the representatives of the detachment had stated that they were ready to take part in combat but that they believed this required an order from the 3rd Corps 1688 In his response of 10 October 1993 the Accused Had ihasanovi explains that the detachment was still attached to OG Bosanska Krajina and engaged in combat operations in the La va Valley 1689 The operational logbook of the Operations Group notes on 9 October 1993 that the mujahedin were not yet ready to take part in upcoming combat 1690 829 The war diary and operational logbook of OG Bosanska Krajina again mention combat by the 308th Brigade and the El Mujahedin detachment in the Novi Travnik – Gornji Vakuf region on 24 October 1993 1691 In the morning of that day an attack was launched during which the commander of the El Mujahedin detachment was wounded The HVO counterattacked in the afternoon The result of the combat was 4 dead and 17 wounded for the 308th Brigade and 3 dead and 8 wounded for the detachment 830 In an order dated 4 December 1993 addressed to the commands of OG Bosanska Krajina and the El Mujahedin detachment the 3rd Corps Commander once again re-subordinated the El Mujahedin detachment to OG Bosanska Krajina 1692 This re-subordination order is more detailed than the order of 6 September 1993 and asks the detachment commander to report to the commander of OG Bosanska Krajina Furthermore the commander of the Operations Group was to resolve all the problems connected to the detachment’s participation in combat particularly with regard to its logistical support communications required reporting and the planning of combat operations in which the detachment would be deployed 831 The subsequent developments are not well known Nevertheless Witness Remzija iljak spoke of an operation that was prepared in December 1993 to help the Bosnians who were 1685 Ahmed Kulenovi T F p 13905 C 12 p 13 Videocassette P 482 mentions only one dead and several wounded T F p 8545 1687 P 618 1688 P 618 “Representatives of detachment El Mud ahedin visited me today and stated their readiness to engage a part of their unit in activities in the area of G Vakuf According to them it is conditioned with your order ” 1689 P 492 1690 C 11 p 66 1691 P 925 4 p 4 C 13 pp 64-65 1686 Case No IT-01-47-T 229 15 March 2006 447 21623 BIS surrounded in Stari Vitez and in which the El Mujahedin unit was supposed to take part 1693 In the course of these preparations he “came across the El Mujahedin as a unit” 1694 A report to the Supreme Command Staff dated 24 December 1993 from the 3rd Corps Commander on the activities of OG Bosanska Krajina mentions that the continuation of combat operations in which the El Mujahedin detachment was taking part with other units had been postponed for a day because of reconnaissance missions still under way 1695 d Combat Conditions and Methods 832 Several former 3rd Corps members recounted the conditions imposed by members of the El Mujahedin detachment before they would take part in combat as well as their combat methods 833 Two witnesses stated that the detachment members were anxious to maintain their independence and reserved the right to decide whether they would take part in combat operations Given that they “never wanted to be placed under our command” they had to be convinced to carry out a “mission”1696 and groups of negotiators had to be used to determine if they would take part in combat 1697 Communication with the detachment was all the more difficult since no one had access to their camps or was well received there 1698 Thus a visit by the commander of OG Bosanska Krajina to Poljanice Camp in August 1993 did not have the expected outcome 1699 This vow of independence had significant repercussions on how the El Mujahedin detachment took part in combat According to witness testimony the detachment demanded that it be assigned a “special mission” It was difficult to tell what happened during the combat they led because they would simply leave the combat zone without reporting on what had been accomplished in the operations 1700 834 This vow of independence recalls evidence on how the mujahedin took part in combat before the formation of the El Mujahedin detachment 1701 a striking fact that is also evidenced by a letter from a member of the detachment 1702 He says “We are now one unit we have our own body 1692 P 451 See also D emal Merdan T F pp 13171-13172 Remzija iljak T F pp 10625-10626 10639-10640 The witness was chief of staff of OG Bosanska Krajina at the time T F pp 10639-10640 1694 Remzija iljak T F p 10639 1695 P 495 1696 Ahmed Kulenovi T F p 13921 T E p 13921 speaks of a “mission” 1697 Fikret uski T F pp 12087 12130-12131 1698 Fikret uski T F p 12087 Ahmed Kulenovi T F pp 13907 13915 13924 1699 Ahmed Kulenovi T F p 13921 1700 Ahmed Kulenovi T F p 13920 1701 P 434 P 447 See also supra para 541 1702 DH 271 1693 Case No IT-01-47-T 230 15 March 2006 446 21623 BIS which is formally under the control of the Army but the Army cannot order us to engage in actions against our will ”1703 This recognition of the detachment’s independence might have been the result of an agreement between Sakib Mahmuljin and representatives of the mujahedin after 23 July 1993 1704 835 The order of the 3rd Corps Command dated 4 December 1993 on re-subordinating the El Mujahedin unit to OG Bosanska Krajina discussed above1705 reflects the 3rd Corps’ desire to restrain the detachment’s freedom to act since its author expressly states that the commander of OG Bosanska Krajina will plan combat operations and the deployment of the detachment in combat 1706 3 Conclusions a De Jure Command 836 The Chamber draws the following conclusions based on the above 837 Two different reasons lay behind the decision by competent authorities of the ABiH to create a special formation that would turn the mujahedin into members of the Army First it was motivated by the desire to use the mujahedin in the fight against Serbian forces and the HVO The 3rd Corps proposal dated 12 August 1993 even speaks of the “need” to use them Second as discussed elsewhere in the Judgement the decision was intended to put an end to a group of irregular fighters who used “unlawful combat methods” for which the 3rd Corps did not want to be held accountable 1707 838 The mujahedin expressed their desire to become officially part of the ABiH which was reflected by a written request to the 3rd Corps 1708 This was either the outcome of previous negotiations between Sakib Mahmuljin and the mujahedin or a desire which existed prior to these talks and was given concrete expression at that time 839 The ABiH and the mujahedin found common ground and reached a basic agreement to incorporate the mujahedin into the 3rd Corps This agreement led to the proposal by 3rd Corps Command dated 12 August 1993 and the order of the ABiH Main Staff dated 13 August 1993 The agreement was symbolised by a ceremony at the mujahedin camp to mark the creation of the 1703 DH 271 See supra paras 810-811 1705 See supra para 830 1706 P 451 D emal Merdan T F pp 13171-13172 1707 See supra para 552 1708 P 438 DH 165 5 Videocassette P 482 T F p 8542 says that “the Bosnian Army leadership agreed to their request” 1704 Case No IT-01-47-T 231 15 March 2006 445 21623 BIS detachment which was attended by Mehmed Alagi commander of OG Bosanska Krajina and Sakib Mahmuljin intermediary in the negotiations 840 The outcome of the agreement was that as of mid-August 1993 a mujahedin unit started to operate directly under the authority of the 3rd Corps Command which could re-subordinate it to 3rd Corps operational formations 841 The contents of the three orders dated late August to early December 1993 by which 3rd Corps Command re-subordinated the El Mujahedin detachment to other formations and the language used in these documents leave no doubt about the detachment’s official existence The same can be said about the Accused Had ihasanovi ’s letter dated 16 August 1993 to the command of OG Bosanska Krajina and letters exchanged by the command of OG Zapad and 3rd Corps Command in October 1993 1709 Lastly President Alija Izetbegovi ’s decision dated 8 August 1994 regarding the promotion of ABiH members confirms this existence It seems quite impossible to promote five members of a formation that does not officially exist 842 The Chamber recalls the testimony of Mustafa Popari who stated that not all the rules that applied to the formation of units in the ABiH seem to have been observed Nevertheless these rules appear to have been more administrative than constitutive All the parties concerned including the mujahedin seem to have considered Deli ’s order of 13 August 1993 as an act that de jure established the El Mujahedin detachment This is why the detachment was able to be resubordinated to other 3rd Corps formations on three occasions The 3rd Corps engaged the detachment in combat operations even though the administrative procedure regarding the creation of the unit had not been followed This also explains why President Izetbegovi was able to promote five members of the detachment 843 The Chamber finds that the El Mujahedin detachment was de jure under the command of the Accused Had ihasanovi as of 13 August 1993 b Effective Control 844 The Chamber will now examine the question of whether the El Mujahedin detachment was under the effective control of the Accused Had ihasanovi 845 It is appropriate to recall the elebi i Appeal Judgement which says the following about the relationship between de jure command and effective control 1709 P 671 P 618 P 492 Case No IT-01-47-T 232 15 March 2006 444 21623 BIS “In general the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced ”1710 846 What must be established is whether the presumption noted in the Appeal Judgement has been reversed in this case by the evidence 847 The Chamber notes that 3rd Corps Command ordered the El Mujahedin detachment re- subordinated to other Corps formations on three occasions so that it could take part in combat operations Although the detachment members refused to obey the order attaching them to the 306th Brigade this was certainly not the case for the other two orders re-subordinating the detachment to OG Bosanska Krajina 848 During the detachment’s first re-subordination to OG Bosanska Krajina it took part in several combat operations along with other units in the Operations Group These operations took place in September and October 1993 and all were under the command of OG Bosanska Krajina There are no indications that the detachment fought outside the framework established by the Operations Group commanders On the contrary when representatives of the detachment encountered the commander of another Operations Group they indicated that they needed the authorisation of the 3rd Corps Commander in order to take part in combat conducted by another Operations Group The conclusion can thus be drawn that the detachment operated within the framework of OG Bosanska Krajina and did not conduct independent operations on its own initiative 849 Nevertheless it is true that the detachment held an exceptional position within the 3rd Corps It reserved the right to make its own decision on whether or not to join combat Contact and communication with its members were difficult They demanded special missions and sometimes left the battlefield without submitting reports on the outcome of combat In addition there was no information on the identity of the detachment members and other aspects of its operations 850 It must be noted however that this exceptional position was in fact accepted by the 3rd Corps insofar as it did not in effect prevent the 3rd Corps and its units from using the detachment in combat and benefiting militarily from its existence It should also be noted that nothing forced the 3rd Corps commanders to use the detachment in combat In so doing they accepted all the consequences of their decisions and inevitably assumed full responsibility for them 1710 elibi i Appeal Judgement para 197 Case No IT-01-47-T 233 15 March 2006 443 21623 BIS 851 In the case law of this Tribunal several indicia have been developed to determine the existence of a commander’s effective control over his forces 1711 In the present case the following indicia inter alia have been satisfied - the power to give orders and have them executed - the conduct of combat operations involving the forces in question - the absence of any other authority over the forces in question Despite the special position this detachment held within the 3rd Corps however there is no evidence that might reverse the presumption of effective control formulated by the Appeals Chamber in the elebi i Appeal Judgement 852 To summarise the Chamber finds that in the reality of the armed conflict in Central Bosnia after the creation of the El Mujahedin detachment a superior-subordinate relationship existed between the detachment and 3rd Corps Command 1712 The Chamber recalls the words of Witness D emal Merdan who in describing this period accepted at least in principle that “the moment a breach of discipline takes place and the Corps Command learns of that or there is a suspicion that a crime was committed by a member of the El Mujahedin detachment he would be treated the same as any other member of the 3rd Corps 1713 The Chamber also recalls the example of the criminal prosecution of a member of the detachment before the Travnik District Military Court 1714 853 The Chamber finds that as of 13 August 1993 the Accused Had ihasanovi exercised effective control over the members of the El Mujahedin detachment 1711 See supra paras 82-84 elebi i Appeal Judgement para 303 1713 D emal Merdan T F pp 13834-13835 1714 See supra para 821 1712 Case No IT-01-47-T 234 15 March 2006 442 21623 BIS VI MEANS TO PREVENT AND PUNISH AVAILABLE TO THE ACCUSED 854 The Chamber recalls that an analysis of the measures taken by the Accused will lead to a determination of their responsibility To this end the context in which the Accused acted and the means available to them to act must be examined in detail From this perspective the means available to the Accused as well as measures of a general nature taken by the Accused should be recalled Indeed measures of a general nature do not exonerate a superior in terms of criminal responsibility if he failed to take specific measures to prevent or punish an act of which he had knowledge They are nevertheless a factor in appreciating how the Accused attempted to discharge their duties in the prevailing circumstances and in determining any mitigating circumstances 855 Thus in this part of the Judgement the Chamber will first analyse the means available to the Accused to prevent and punish the unlawful acts and the actions taken by the Accused in order to determine their degree of responsibility A Training 856 According to the testimony heard by the Chamber and the documents tendered into evidence the Chamber notes that after the Accused Had ihasanovi ’s appointment he attempted to stress the importance of training for his troops although the 3rd Corps was in difficult circumstances owing to the shortage of manpower and weapons and the ongoing combat in Bosnia and Herzegovina 1715 This desire to train new recruits as rapidly as possible is found in quite a few orders from the Supreme Command 1716 Commands at the level of operations groups and brigades also stressed the training of recruits 1717 857 The Accused Had ihasanovi organised the distribution of the Geneva Conventions and drew his troops’ attention to the obligations they entailed 1718 The Presidency of the Republic of Bosnia and Herzegovina insisted that international conventions based on international humanitarian 1715 Had ihasanovi Defence Final Brief paras 91-101 P 348 P 249 P 672 DH 154 2 DH 154 11 1717 Remzija iljak T F pp 10554 10555 10560-10561 D emal Merdan T F pp 12973 and 12974 1718 P 282 P 316 DH 160 5 D emal Merdan T F p 13298 1716 Case No IT-01-47-T 235 15 March 2006 441 21623 BIS law be respected and adopted texts and issued orders to this effect 1719 The Supreme Command in charge of carrying them out did likewise 1720 858 The Accused Had ihasanovi also created a Legal Department part of whose mission was to instruct officers in the legal obligations to which they were bound and distribute legal officers among the members of the brigades during armed conflicts 1721 859 The Chamber also notes that the Accused Had ihasanovi endeavoured to train his troops in military discipline which implied respecting orders1722 and the constant communication of information within the military hierarchy 1723 The Presidency of the Republic of Bosnia and Herzegovina provided the legislative framework to ensure that military discipline was respected in the ranks of the ABiH 1724 The Supreme Command issued orders to ensure that discipline prevailed within the ABiH and requested that reports be made on certain actions which came to its attention 1725 The Chamber furthermore notes that it has very little information on the measures taken by Amir Kubura in order to train his troops and teach them the legal obligations that bound them 1726 B Military Police 860 Military police units existed within the 3rd Corps and the different brigades subordinated to the 3rd Corps These units had the task of preventing criminal acts and if so required sending reports to the brigade commands and or district military prosecutors so that they could take the necessary punitive measures against the perpetrators of offences Military police units also took part in combat The Chamber will see that the military police encountered problems in carrying out their tasks due to the limited number of men the lack of appropriate materiel and the situation on the ground In addition the means put in place to prevent crimes were thwarted by the fact that some of the military police were involved in criminal activities 1719 P 511 P 120 P 361 DH 1407 and P 243 P 266 P 316 1721 Had ihasanovi Final Brief para 101 see for example P 324 P 335 DH 158 2 DH 158 3 P 282 P 300 P 326 P 255 1722 See for example P 293 1723 P 255 P 271 1724 P 120 P 243 P 250 and D emal Merdan T F p 13298 1725 DH 2108 P 512 P 348 P 249 1726 See infra paras 1162 and 1164 1720 Case No IT-01-47-T 236 15 March 2006 440 21623 BIS 1 Organisation a Status Role and Jurisdiction 861 The activities of the military police were subject to the Rules of Service for the ABiH Military Police1727 enacted on 8 September 1992 and by directives from the 3rd Corps Command and the Law on Criminal Procedure 1728 862 Pursuant to the Rules of Service for the ABiH Military Police the main mission of the military police was to ensure the protection of vital elements in the system of command particularly against all terrorist or saboteur actions The military police’s task was to prevent and if need be to uncover all criminal activity in which members of the armed forces or other citizens took part but only when the crime involved military property or fell within the jurisdiction of the military courts 1729 863 These tasks were carried out by the different services that composed the military police The security service was in charge of protecting the vital command components by undertaking measures to protect vital facilities in particular headquarters military prisons and their access routes 1730 In this context the Military Police Battalion had the task of securing the prisoner of war reception centre at the KP Dom Penal and Correctional Facility in Zenica 1731 864 The search service implemented tactical and technical measures and military police actions further to the Law on Criminal Procedure or on orders from a superior officer to conduct an investigation into living or deceased individuals or property1732 865 The patrol service inter alia protected persons and military facilities and oversaw the security of military traffic In addition it found and detained perpetrators of crimes under the jurisdiction of the military courts 1733 The service also escorted arrested persons and in wartime prisoners of war 866 The service for prisoner escort included carrying out the measures and procedures for guarding detained persons and seizing documents and property from the moment of reception until 1727 Zaim Mujezinovi T F pp 17402 17403 and 17416 Zaim Mujezinovi T F pp 17403 and 17416 1729 P 328 para 1 Semir ari T F p 17304 Izet Mahir T F p 16775 1730 P 328 para 26 1731 Zaim Mujezinovi T F pp 17470-17471 1732 P 328 para 30 1733 P 328 para 36 1728 Case No IT-01-47-T 237 15 March 2006 439 21623 BIS they were handed over to the competent organs 1734 In the case at hand should the 3rd Corps Chief of Security consider that there were many prisoners of war or they were “of special importance” military police units could be used to escort them to a prisoner of war reception centre 1735 Thus in January 1993 a military police company was sent to the La va region to escort prisoners of war to the KP Dom in Zenica 1736 867 The military police duty service had the task of collecting data on unlawful actions by members of the armed forces committed outside the performance of their duties and illegal acts within the jurisdiction of the military courts 1737 In the case before the Chamber this service received and transmitted information to duty services in the other military police units 24 hours a day 1738 868 The military traffic and transport security service executed tasks intended to ensure the unhindered movement of military traffic on the roads 1739 869 The military police crime prevention service undertook measures and actions that according to the criminal procedure in place were the responsibility of MUP Ministry of the Interior organs and covered crimes within the jurisdiction of the district military courts 1740 870 In the performance of their duties members of the military police had the power to take a number of measures including in particular checking identities compiling and filing reports and arresting and detaining people 1741 In theory the military police units had these same powers and used them against citizens who were not members of the armed forces or foreign nationals without diplomatic status when their activity was directed against the armed forces 1742 871 In the present case the military police exercised its jurisdiction not only with regard to the members of the ABiH but also with regard to civilians when the crimes committed were within the jurisdiction of the district military courts i e when the crimes were prejudicial to the vital interests of the ABiH 1743 Conversely if the crimes committed by civilians were not within the jurisdiction of 1734 P 328 para 38 Zaim Mujezinovi T F pp 17471 17472 and 17474 Izet Mahir T F p 16799 1736 Semir ari T F p 17319 1737 P 328 para 41 1738 Zaim Mujezinovi T F p 17403 P 328 para 42 1739 P 328 para 43 1740 P 328 para 49 1741 See DH 1996 DH 1997 DH 1998 DH 1999 DH 1938 DH 1939 1742 P 328 para 24 1743 Zaim Mujezinovi T F p 17404 Semir ari T F pp 17304-17305 1735 Case No IT-01-47-T 238 15 March 2006 438 21623 BIS the district military courts the military police did not have the right to act and Ministry of the Interior services were to intervene 1744 872 On several occasions the 3rd Corps Command reminded the members of the military police of their obligation to take all necessary measures to detect and prevent criminal activities 1745 b Double Chain of Command 873 The military police were commanded by the commander of the unit that incorporated it 1746 The command was carried out via the security service to which the military unit was attached 1747 In brigades and operations groups military police platoons or companies were headed by a military police commander whose superior was the assistant commander for security of the respective brigade or operations group 1748 Likewise the Military Police Battalion was commanded by the 3rd Corps Commander through the 3rd Corps Chief of Security 1749 874 The military police units were required to report their activities to the military security service to which they were attached 1750 Thus military security services received information concerning the activities of the military police units They directed the activities of the military police and had the task of informing the brigade commander about these activities so as to receive further orders or instructions 1751 Nevertheless in limited cases such as counter-intelligence the security services did not have to report to either the 3rd Corps Command or the brigade or operations group command 1752 The commanders of the brigades operations groups or 3rd Corps Command were the only ones with authority to engage military police units in combat activities 1753 c Number of Police i 3rd Corps Military Police Battalion 875 When the Military Police Battalion was formed on 1 December 1992 1754 it consisted primarily of one military police company 1755 During the first half of 1993 the 3rd Corps Military 1744 Zaim Mujezinovi T F p 17405 DH 1002 1746 P 328 para 7 Zaim Mujezinovi T F p 17413 1747 P 328 para 8 Zaim Mujezinovi T F pp 17413-17414 Semir ari T F p 17337 1748 Zaim Muzejinovi T F pp 17416-17417 1749 Witness HF T F pp 17166-17167 1750 Semir ari T F pp 17336-17337 DH 1135 para 7 1751 Zaim Mujezinovi T F p 17415 1752 Witness HF T F p 17289 1753 Zaim Mujezinovi T F pp 17415 and 17417 1754 Zaim Muzejinovi T F p 17425 1745 Case No IT-01-47-T 239 15 March 2006 437 21623 BIS Police Battalion had from 200 to 250 members and with the development of the military police tasks this number reached 400 to 450 in the second half of 1993 1756 For example the crime prevention service initially formed as a squad later became a platoon with some two dozen men1757 including eight or ten inspectors tasked with repressing crime four lawyers two criminologists and six to eight police 1758 876 The 3rd Corps Military Police Battalion had a command and several military police companies The Battalion Command consisted of a commander and various sectors whose role was to ensure the proper functioning of the Military Police Battalion 1759 The commander was aided by an assistant for personnel an assistant for security an assistant for operations and training and an assistant for logistics 1760 The Military Police Battalion also had military police companies The 1st Company was in charge of patrols and escorts the 2nd Company took care of security the 3rd Company went into combat on the ground and the 4th Company was in charge of traffic and transport 1761 During the second half of 1993 an anti-terrorist company was formed 1762 Every company had a command and three platoons each with three eight-man squads Consequently every company had from 75 to 80 men 1763 ii Military Police Units in the Brigades and Operations Groups 877 Every brigade had a military police platoon or company which enabled the military police to undertake activities within their area of jurisdiction wherever the ABiH was deployed 1764 Every mountain brigade had a military police platoon and every motorised brigade had a military police company 1765 Military police platoons had from 27 to 31 men 1766 while military police companies had up to 100 or 120 members 1767 These platoons or companies were commanded by a military 1755 Zaim Muzejinovi T E p 17407 Zaim Muzejinovi T F p 17408 Semir ari T F pp 17338 and 17373 Izet Mahir T F p 16782 1757 Zaim Muzejinovi T E pp 17408-17409 Izet Mahir T F p 16782 1758 Semir ari T F p 17309 1759 Zaim Muzejinovi T F p 17405 1760 Zaim Muzejinovi T F pp 17405-17406 1761 Zaim Muzejinovi T F pp 17406-17407 Semir ari T F p 17304 Izet Mahir T F p 16781 1762 Zaim Muzejinovi T F pp 17406-17407 1763 Zaim Muzejinovi T F pp 17408-17409 1764 Zaim Muzejinovi T F p 17416 Izet Mahir T F p 16787 1765 Osman Menkovi T F pp 14711-14712 Zaim Muzejinovi T E p 17415 Military police companies had 75-80 men while platoons had three eight-man squads Zaim Muzejinovi T F pp 17408-17409 1766 Izet Mahir T E p 16814 Asim Delali T F p 16350 P 405 P 708 1767 Osman Menkovi T F p 14709 1756 Case No IT-01-47-T 240 15 March 2006 436 21623 BIS police commander whose superior was the brigade’s assistant commander for security The brigade commander was in charge of engaging military units in combat 1768 878 Operations groups in general did not have military police companies 1769 Nevertheless due to an increase in crime a military police company of about one hundred men was attached to OG Bosanska Krajina on 26 June 1993 in order to repress crime in OG Bosanska Krajina’s entire zone of responsibility 1770 This military police company consisted of three platoons 1771 The OG Bosanska Krajina Military Police Company used the forces not engaged in combat operations to organise patrols and establish check-points in order to prevent the commission of unlawful acts throughout the Operations Group’s zone of responsibility 1772 The Company also had the task of training military police within the Operations Group’s brigades 1773 The Chamber notes that to its knowledge the OG Bosanska Krajina was the only operations group to have a military police unit iii Relations Between the 3rd Corps Military Police Battalion and Military Police Units within the Brigades and Operations Groups Re-subordination Orders 879 The 3rd Corps Military Police Battalion was not the superior of the military police units within the brigades or operations groups and was therefore not in a position to issue them orders Nevertheless this did not exclude the possibility of coordination in the field between the 3rd Corps Military Police Battalion and other military police units in handling certain crisis situations or in searching for the perpetrators of crimes 1774 Thus when a military police unit was unable to handle a situation in the field because it lacked manpower or equipment for example the 3rd Corps Commander issued an order usually at the suggestion of the 3rd Corps Chief of Security to engage members of the Military Police Battalion as support to act in concert with the military police company in question 1775 Such orders were issued based on an evaluation of the situation in the field1776 and contained instructions about the command to which the Military Police Battalion members were to be subordinated 1768 Zaim Muzejinovi T F p 17417 Osman Menkovi T E p 14666 1770 Osman Menkovi T E pp 14666 14702 14695 and 14696 DH 1920 Witness HE T F pp 16966 and 17019 1771 Osman Menkovi T F pp 14696 14717 and 14718 A military police company had between 75 and 80 men Zaim Muzejinovi T F pp 17408-17409 1772 Osman Menkovi T E p 14673 1773 Osman Menkovi T E p 14670 DH 1920 1774 Zaim Muzejinovi T F p 17417 Witness HF T F p 17156 Izet Mahir T F pp 16787-16788 1775 Zaim Muzejinovi T F p 17418 Semir ari T F pp 17312-17313 1776 Zaim Muzejinovi T F p 17423 1769 Case No IT-01-47-T 241 15 March 2006 435 21623 BIS 880 Members of the 3rd Corps Military Police Battalion could be either re-subordinated to the unit in whose territory they were deployed1777or act independently 1778 In these situations the military police unit was to draft daily or weekly reports which were then transferred through the Military Police Battalion to the 3rd Corps Security Service 1779 On several occasions the 3rd Corps Military Police Battalion was deployed in sectors outside its customary zones of activity1780 in order to prevent undesirable activities1781 and help prevent indiscipline plundering and arson 1782 881 In addition the 3rd Corps Military Police Battalion helped train police units within the brigades or operations groups and provided them with necessary equipment as much as they could 1783 d Recruitment and Training 882 The recruitment of personnel in the military security service was subject to general and specific conditions 1784 The criteria had to do with the applicants’ abilities personal qualities and membership in the former JNA Yugoslav People’s Army 1786 difficult to respect in the recruitment process 1785 Nevertheless these criteria were since the absence of a unified database covering the territory of Bosnia and Herzegovina affected the possibility of verifying the level of the applicants’ skills and training 1787 In addition even when this information was available it was difficult to find enough competent men to turn them into military police 1788 Finally the recruited men’s lack of skills had a harmful effect on discipline in the military police units1789 that took the form of an increase in criminality within their own ranks 1790 883 Training the military police was the responsibility of the military security section within the army corps and the assistant commanders for security within each brigade 1791 Training organised for the military police included instruction in the missions to be carried out actions to take and 1777 See DH 161 4 DH 161 13 Zaim Muzejinovi T F p 17421 1779 Zaim Muzejinovi T E pp 17417-17418 1780 Zaim Muzejinovi T F pp 17420-17421 DH 161 4 DH 161 13 1781 Zaim Muzejinovi T F p 17423 1782 DH 161 4 DH 161 13 1783 Semir ari T F p 17311 1784 DH 2084 1785 DH 2084 1786 Zaim Muzejinovi T F pp 17434-17435 1787 Zaim Muzejinovi T F p 17436 1788 Zaim Muzejinovi T F p 17436 1789 Zaim Muzejinovi T E p 17446 1790 Zaim Muzejinovi T F p 17444 DH 1002 1791 Witness HF T F p 17154 Edib Zlotrg T F p 14979 1778 Case No IT-01-47-T 242 15 March 2006 434 21623 BIS fitness training 1792 This training also included instruction on respect for the Geneva Conventions and obligations stemming from the laws of war 1793 The 3rd Corps Command drew the units’ attention to the need to respect the principle of legality and the norms of military police conduct 1794 In the field of forensic activities cooperation was in place with the Security Centre in Zenica whereby members of the military police were sent to the Criminology Department to be trained in this area 1795 e Difficulties Encountered by the Military Police 884 The military police units suffered from a lack of sufficiently qualified manpower Their numbers were insufficient 1796 all the more so because the intense combat meant that military police units were often engaged on the front and could not carry out the tasks that were their formal responsibility 1797 Likewise the personnel making up the military police was not sufficiently qualified1798 and there were very few military police with prior training in this field of activity 1799 885 The military police also lacked equipment particularly that needed for crime investigation 1800 The shortage of fuel affected the military police’s ability to go to crime scenes and carry out an investigation 1801 This shortage meant that the military police would sometimes reach the site with delay and not find any material proof to support their investigation 1802 886 The military police faced problems that were compounded by the context in which they had to work First there was the problem of the influx of refugees from different parts of Bosnia and Herzegovina who often wore uniforms without insignia making it difficult for the military police to control the situation For example Zenica ordinarily had 100 000 inhabitants but at the time accommodated 50 000 refugees 1803 Second a large number of houses and buildings had been 1792 Osman Menkovi T F p 14670 Zaim Muzejinovi T E p 17447 DH 160 5 Osman Menkovi T F p 14671 1794 Zaim Muzejinovi T E pp 17446-17450 1795 Zaim Muzejinovi T E pp 17447-17448 DH 160 6 1796 Asim Delali T F p 16371 1797 Sead @eri T F p 5546 1798 Semir ari T F p 17314 Zaim Muzejinovi T F p 17424 Osman Menkovi T F p 14670 Re‘ib Begi T E p 12499 1799 Semir ari T F p 17314 Zaim Muzejinovi T F p 17424 Izet Mahir T F p 16783 1800 Semir ari T F p 17315 Re‘ib Begi T E p 12499 1801 Semir ari T F p 17315 Re‘ib Begi T E p 12499 1802 DH 155 3 1803 Semir Sari T F pp 17315-17316 1793 Case No IT-01-47-T 243 15 March 2006 433 21623 BIS abandoned after combat and there were not enough military police to protect the property from being plundered 1804 2 Relationship with the Civilian Police and Civilian Protection a Relationship with the Civilian Police 887 No hierarchy existed between the military and civilian police 1805 The relationship between them was that of partners ensuring respect for the law and implementation of the law 1806 It could happen however that the civilian police were re-subordinated to the military police for specific missions when they did not have sufficient manpower Thus following an order from 3rd Corps Command dated 18 June 1993 MUP units were re-subordinated to the 306th Brigade to carry out joint patrols and set up check-points with military police units subordinated to the 306th Brigade in order to prevent plundering and arson 1807 888 Cooperation between the civilian and military police generally involved investigations and crime prevention Thus in the investigation following a crime the military police cooperated directly with the MUP when a civilian committed a crime that was within the jurisdiction of district military courts or when a civilian was involved in criminal activity along with a member of the military The military police could act independently however when a member of the ABiH committed a crime falling within the jurisdiction of the district military courts 1808 889 In addition joint actions were undertaken by the two police forces in order to prevent crimes and violations of the law and public order This included joint patrols and setting up joint checkpoints 1809 To give an example owing to the large number of men wearing uniforms but not belonging to military formations 3rd Corps Command ordered that patrols composed of members of the MUP and military police were to check identities in the town of Zenica 1810 Likewise the military police lacked manpower to secure places that were primarily uninhabited and protect the property belonging to civilians With the cooperation of the civilian police military police units set up check-points and went on patrols 1811 For example during August 1993 the 3rd Corps Military 1804 Asim Delali T F p 16373 Osman Menkovi T F p 14685 Semir ari T F p 17314 Zaim Muzejinovi T F p 17450 1806 Zaim Muzejinovi T F p 17450 1807 P 204 Asim Delali T F pp 16372 and 16401 1808 Semir ari T E pp 17306-17307 T F pp 17314 and 17352 Zaim Muzejinovi T F p 17451 P 328 para 2 1809 Zaim Muzejinovi T F pp17451 DH 881 DH 161 7 P 204 1810 DH 746 Zaim Muzejinovi T F pp 17451-17452 1811 Osman Menkovi T F pp 14685-14686 1805 Case No IT-01-47-T 244 15 March 2006 432 21623 BIS Police Battalion in cooperation with the MUP checked 1 500 vehicles at check-points and during joint patrols 1812 890 There was continuous cooperation between the military police and the civilian police Owing to their respective authority and their materials the effectiveness of their actions required cooperation in different areas 1813 On the one hand the military police lacked forensic equipment to conduct on-site investigations when crimes had been committed But the Security Service Centre in Zenica had the necessary materials to take fingerprints at crime scenes and make ballistics analyses and paraffin tests 1814 Thus owing to a shortage of equipment to carry out certain operations during investigations the OG Bosanska Krajina Military Police Company had to cooperate with the public security stations in Travnik 1815 On the other hand authorised military police had the right to use data and information from MUP criminal reports when carrying out their own criminal investigations 1816 Finally owing to the respective areas of competence of the military police and the civilian police regarding the perpetrators of the crimes cooperation between them was necessary to verify the identification of those who had broken the law and take measures against them 1817 b Relationship with the Civilian Protection 891 The role of the Civilian Protection was to provide protection for persons and for private and cultural property in times of accidents natural disasters wars or imminent threat of war The main task of the Civilian Protection was to guarantee security 1818 and it was in this area that cooperation was established between the Civilian Protection and the military police Thus the Civilian Protection and the military police acted jointly to secure towns and villages after combat operations Normally the role of providing security was the responsibility of the Civilian Protection but since it did not have any weapons the military police lent their assistance to carry out this task 1819 Furthermore the Civilian Protection had the duty of making written reports to the military units in their sector to inform them of the tasks they were carrying out 1820 Thus following information 1812 DH 155 3 See P 187 Zaim Muzejinovi T F pp 17457-17458 1814 Zaim Muzejinovi T F p 17458 Semir Sari T F p 17314 Izet Mahir T F p 16789 Re‘ib Begi T E p 12499 1815 Osman Menkovi T F p 14675 1816 P 328 para 73 1817 Zaim Muzejinovi T F pp 17458-17459 1818 Mustafa Ho ki T F p 11599 Samir Konjali T F p 12757 Mirsad Mesi T F p 12841 1819 Osman Menkovi T E pp 14685 14726 and 14727 1820 Mustafa Ho ki T F p 11630 1813 Case No IT-01-47-T 245 15 March 2006 431 21623 BIS from the Civilian Protection that certain buildings had been set on fire in Gu a Gora 1821 the 306th Brigade military police took depositions and statements in order to prevent arson 1822 3 Investigation Results 892 The commission of an offence could be brought to the attention of military police units by the victims by witnesses or by observations made by the police 1823 When an offence was committed that fell within the jurisdiction of the district military courts the authorised military police had to gather the necessary information on the offence and perpetrator and make a report 1824 which was to be sent to the district military prosecutors with information on the evidence found and the measures and actions undertaken 1825 The criminal report had to include information on the perpetrator the place and date of the offence a description of the facts the evidence and the identity of the witnesses or persons who could provide information on the offence or perpetrator 1826 893 When a military police unit was informed that an offence had been committed it also sent a report to the commander of the brigade to which it was attached Military police units carried out investigations particularly when members of the ABiH abandoned their positions sold weapons or committed robberies Following this the brigade commander took disciplinary measures against the perpetrators of those offences 1827 894 The territorial jurisdiction of the military police units was determined by the place where the crime was committed When an offence was committed in a brigade’s zone of responsibility the brigade’s military police secured the crime scene 1828 895 The military police had trouble properly carrying out their investigations and gathering information on the perpetrators Problems related to poor communications or the fact that the military police could not go to a crime scene promptly because of a shortage of fuel or men had repercussions on how fast the military police intervened to collect information or evidence about an offence 1829 Furthermore when fires were set close to combat operations in abandoned or empty 1821 Asim Delali T F pp 16375 and 16380 DH 1411 Asim Delali T F p 16375 1823 Osman Menkovi T F p 14683 1824 P 328 para 50 Osman Menkovi T F pp 14704-14705 1825 P 328 para 67 1826 P 328 para 69 See DH 972 DH 283 DH 1127 DH 1289 DH 1432 DH 1452 DH 1453 DH 1477 DH 1481 DH 1553 DH 121 DH 118 DH 1994 DH 1995 DH 788 1827 Witness HB T F pp 12584-12585 1828 Zaim Muzejinovi T F p 17419 1829 Zaim Muzejinovi T F p 17469 Haris Jusi T F p 11228 1822 Case No IT-01-47-T 246 15 March 2006 430 21623 BIS buildings 1830 it was difficult to determine whether the fires were the result of criminal activity or combat 1831 In addition fires generally broke out at night when the military police were unable to verify the situation 1832 Lastly owing to the influx of refugees it was difficult for the military police to establish the identity or place of residence of some suspects or witnesses 1833 896 Witnesses who were members of the ABiH military police nonetheless testified that in spite of the difficulties the military units had to deal with – shortages of manpower and appropriate materiel or owing to special incidents on the ground – the units took numerous measures to identify the perpetrators of unlawful acts recover stolen property and find evidence to make their reports to the district military prosecutors 1834 According to Witness Semir ari the military police were able to identify a very high percentage of perpetrators 1835 897 The military police units filed numerous criminal complaints with the military prosecutors for offences committed by members of the ABiH HVO or civilians The 3rd Corps Military Police Battalion was responsible for filing most of the complaints with the district military prosecutors 1836 From 14 September 1992 to 1 March 1994 the 3rd Corps Military Police Battalion filed 377 criminal reports involving 804 identified and 20 unidentified persons 1837 The 17th Brigade filed some 30 complaints for crimes committed by its members 1838 898 The complaints covered different offences ranging from theft aggravated theft usurpation of identity manslaughter murder rape insubordination falsification of official documents abuse of power fraud or desertion 1839 The complaints received by the Military Prosecutor’s Office in Travnik were essentially crimes against the armed forces but also crimes against property and persons murder 1840 According to Witness Sead @eri the District Military Prosecutor’s office in Travnik did not receive any reports from the ABiH regarding arson war crimes or crimes against humanity committed by its soldiers or on ABiH soldiers mistreating prisoners Witness Sead @eri 1830 Osman Menkovi T F p 14684 Osman Menkovi T E p 14684 1832 Asim Delali T F p 16375 1833 Vlado Adamovi T F p 9524 1834 Zaim Muzejinovi T F pp 17484-17485 Asim Delali T F pp 16374-16375 1835 Semir ari T F p 17319 1836 Mladen Veseljak T E p 16121 1837 DH 155 2 1838 Fikret uski T F p 12093 The dates these complaints were filed have not been identified 1839 DH 155 2 1840 Sead @eri T F p 5522 According to Witness Sead @eri 99% of the accused were members of the ABiH Sead @eri T F p 5523 1831 Case No IT-01-47-T 247 15 March 2006 429 21623 BIS explained inter alia that a limited number of reports concerned the murder of Croats or HVO soldiers by ABiH soldiers 1841 899 It did happen however that following investigations by military police units no complaint was filed with the district military prosecutors but that disciplinary measures were taken instead by the commander of the brigade to which the offender belonged The follow-up to these investigations might depend on the gravity of the offence or the situation on the ground Thus according to Witness Osman Menkovi minor offences resulted in disciplinary measures taken by the brigade commander while more serious crimes were the subject of a report filed by the military police with the military prosecutor 1842 Furthermore owing to the Travnik District Military Court’s lack of efficiency and difficult communications with Travnik caused by combat the 306th Brigade military police undertook disciplinary measures more often than it filed complaints with the District Military Prosecutor in Travnik 1843 1841 Sead @eri T F pp 5524-5526 Osman Menkovi T F p 14705 1843 Asim Delali T F pp 16374 16375 16399 and 16400 1842 Case No IT-01-47-T 248 15 March 2006 428 21623 BIS C Military and Civilian Justice 900 The Chamber considers it appropriate at this stage to use the evidence to describe the operations of the judicial institutions in Central Bosnia during the period material to the Indictment in order to assess the mechanism of the measures available to the Accused to prevent and punish unlawful actions by members of the ABiH and to analyse the method followed by the Prosecution to discharge its burden to prove that no measures were undertaken 901 By decision of the Presidency of the Republic of Bosnia and Herzegovina district military courts were created in late 1992 primarily to try the unlawful actions of members of the ABiH 1844 At the same time the Croatian Community of Herceg-Bosna put in place a parallel system of military courts 1845 Originally the military court and its military prosecutor were installed in Travnik Then as of June 1993 these institutions had their headquarters in Vitez and operated in the zones controlled by the HVO 1846 902 The creation of military disciplinary courts to try disciplinary offences by all soldiers including those with the rank of officer or higher rank for dishonourable conduct was planned in 1992 by the Presidency of Bosnia and Herzegovina and put in place within the 3rd Corps in May 1993 1847 903 At the same time the Presidency of Bosnia and Herzegovina adopted a decree-law to set up special military courts that could be put in place by order of the commander of a brigade or a higher rank to punish army members who committed offences linked to the performance of their duties These courts were to be established when the situation did not allow the case to be handed over to the appropriate district military court and the gravity of the act necessitated that proceedings be instigated immediately 1848 1844 See P 327 Decree-Law on District Military Courts Official Gazette of the RBiH no 12 dated 13 August 1992 amended by DH 1703 Decree with Law Force on Amendments to the Decree with Law Force on District Military Courts Official Gazette of the RBiH no 23 dated 24 December 1992 see also Vlado Adamovi T F pp 9943-9945 and Mladen Veseljak T E p 15985 Nevertheless as will be noted later on these courts had the authority to try civilians in certain limited cases as well as actions by HVO soldiers or prisoners of war See P 327 Art 11 and DH 444 Regulation Act as Statutory Provision on Amending the Regulation Statutory Act on Armed Forces of Republic of Bosnia-Herzegovina Official Gazette of the RBiH no 12 dated 13 August 1992 Art 1 1845 Sulejman Kapetanovi T E pp 3816-3817 Sead @eri T E p 5534 1846 Sulejman Kapetanovi T E pp 3816-3817 and p 3839 Sead @eri T E p 5534 1847 P 325 Rules on Military Discipline Official Gazette of the RBiH no 12 dated 13 August 1992 Articles 44 45 and 46 and 8 and P 335 DH 158 5 DH 158 8 and P 549 1848 See P 325 Decree-Law on Special Military Courts Official Gazette of the RBiH no 12 dated 13 August 1992 Case No IT-01-47-T 249 15 March 2006 427 21623 BIS 904 It should also be noted that the brigade commanders and 3rd Corps Command punished soldiers’ misconduct by disciplinary sanctions 1849 905 In addition during the period material to the Indictment the civilian courts of Central Bosnia continued their activities in spite of combat 1850 906 Finally with regard to the period material to the Indictment both military and civilian courts operated according to continental law 1851 1 Different Military Judicial Authorities in Central Bosnia a Zenica and Travnik District Military Courts 907 Two military courts were established in Central Bosnia in 1992 for the duration of the war primarily to try unlawful acts by members of the ABiH the Zenica District Military Court 1852 and the Travnik District Military Court 1853 The Zenica District Military Court with its seat in Zenica was established by the Decree-law Law on District Military Courts adopted by the Presidency of the Republic of Bosnia and Herzegovina 1854 The Travnik Court with its seat in Travnik was created by an amendment to the Decree-Law on the Establishment and Work of Districts passed on 7 October 1992 1855 The Travnik District Military Prosecutor’s Office and the Zenica District Military Prosecutor’s Office were established along the same lines as the organisation of the district military courts 1856 These courts were operational throughout the war and their activities ended in 1996 1857 The district military prosecutors’ offices were dissolved earlier the same year 1858 1849 Sead @ari T E p 16267 Hilmo Ahmetovi T E p 16267 Ragib Had i T E p 15083 1851 Vlado Adamovi T E p 9469 1852 The Chamber notes that the transcript in French often uses the term “tribunal militaire” military tribunal for “military court” For the sake of clarity the Chamber prefers the translation “cour militaire” military court 1853 We will refer to the Zenica District Military Court and the Travnik District Military Court under the common name “district military courts” 1854 P 327 Decree-Law on District Military Courts Official Gazette of the RBiH no 12 dated 13 August 1992 1855 See DH 445 Decree-Law on the Forming and Work of Districts Official Gazette of the RBiH no 12 dated 13 August 1992 DH 477 Decree-Law on Amendments to the Decree-Law on the Establishment and Work of Districts Official Gazette of the RBiH no 18 dated 7 October 1992 P 327 1856 P 325 Decree Having the Force of Law on the District Military Prosecutor’s Office Official Gazette of the RBiH no 12 dated 13 August 1992 and DH 116 Decree Having the Force of Law on Amendment on the District Military Prosecutor’s Office Official Gazette of the RBiH no 21 dated 23 November 1992 We will refer to the Zenica District Military Prosecutor and the Travnik District Military Prosecutor under the joint name “district military prosecutors” 1857 Sulejman Kapetanovi T F p 3829 1858 Sead @eri T F p 5527 1850 Case No IT-01-47-T 250 15 March 2006 426 21623 BIS 908 Parallel military courts in the areas controlled by the HVO operated in the municipalities of Vitez Busova a Novi Travnik Kiseljak 1859 in part of Gornji Vakuf and in the municipality of @ep e 1860 i Ratione Personae and Ratione Loci Jurisdiction of the District Military Courts and District Military Prosecutors a Ratione Personae Jurisdiction 909 District military courts were established primarily to try offences committed by military personnel 1861 They also had the jurisdiction to try civilians employed in the ABiH for offences committed in the performance of their duties and for taking part in an offence whose co-perpetrators were members of the ABiH They could judge civilians who were not employed by the ABiH but who had committed offences pursuant to Article 7 of the Decree-Law on District Military Courts 1862 Cases involving civilians submitted to the district military courts were most often the refusal to respond to a mobilisation call-up 1863 According to witnesses heard by the Chamber however the number of cases tried by these courts involving civilians was negligible 1864 It should likewise be noted that the district military courts had the jurisdiction to try HVO members1865 and all prisoners of war 1866 910 In addition according to witness testimony Croatian refugees filed criminal complaints before the Travnik Military Court seated in Vitez operating as a parallel court serving the Croatian Community of Central Bosnia The complaints were against some of the actions by ABiH soldiers in the territories they controlled 1867 1859 Kruno Raji T F p 1850 DK 6 p 5 Sulejman Kapetanovi T E p 3840 1861 P 327 Art 6 Decree-Law on District Military Courts Official Gazette of the RBiH no 12 dated 13 August 1992 1862 P 327 Art 7 Decree-Law on District Military Courts Official Gazette of the RBiH no 12 dated 13 August 1992 1863 Vlado Adamovi T E p 9445 and p 9451 P 327 Art 6 Decree-Law on District Military Courts Official Gazette of the RBiH no 12 dated 13 August 1992 citing Article 214 of the SFRY Criminal Code 1864 Vlado Adamovi T E p 16185 Sead @eri T F p 5525 1865 DH 444 Regulation Act as Statutory Provision on Amending the Regulation Statutory Act on Armed Forces of Republic of Bosnia-Herzegovina Official Gazette of the RBiH no 12 dated 13 August 1992 Art 1 1866 P 327 Art 11 Decree-Law on District Military Courts Official Gazette of the RBiH no 12 dated 13 August 1992 1867 Hilmo Ahmetovi T E p 16190 pp 16268-16270 Sulejman Kapetanovi T E pp 3816-3817 Kruno Raji T F p 1850 DK 6 p 5 1860 Case No IT-01-47-T 251 15 March 2006 425 21623 BIS b Ratione Loci Jurisdiction 911 The territorial jurisdiction of the Zenica District Military Court and the Zenica District Military Prosecutor’s Office initially included the municipalities of Kakanj Zavidovi i Zenica and @ep e 1868 Following the siege of Sarajevo and during the period material to the Indictment it extended to the municipalities of Visoko Breza Vare Olovo and part of the municipality of Busova a 1869 912 The territorial jurisdiction of the Travnik District Military Court and the Travnik District Military Prosecutor’s Office included the municipalities of Bugojno Busova a Donji Vakuf Jajce Novi Travnik Travnik and Vitez 1870 Owing to combat however their jurisdiction changed slightly because the Travnik District Military Court and the Travnik District Military Prosecutor’s Office could not conduct investigations in the municipalities of Jajce Novi Travnik Vitez and part of Busova a With the exception of Jajce a military judicial system had been put in place in these municipalities by the Croatian Community of Herceg-Bosna 1871 ii Establishment Composition and Closure of the Zenica District Military Court and the Zenica District Military Prosecutor’s Office 913 The Zenica District Military Court and the Zenica District Military Prosecutor’s Office were located in the centre of Zenica on different floors of the same building 1872 These judicial authorities were guarded by the military police 1873 The building was located close to the Music School 1874 Three of the eight judges appointed to the court appeared as witnesses before the Chamber 1875 Conversely no member of the Zenica District Military Prosecutor’s Office testified before the Chamber 1868 See P 771 DH 445 Decree-Law on the Forming and Work of Districts Official Gazette of the RBiH no 12 dated 13 August 1992 DH 477 Decree-Law on Amendments to the Decree-Law on the Establishment and Work of Districts Official Gazette of the RBiH no 18 dated 7 October 1992 P 327 1869 P 771 Hilmo Ahmetovi T F p 16254 It should be noted that due to combat and the front line investigations could not be conducted in certain municipalities See Sead @eri T E p 5534 1870 P 772 DH 445 Decree-Law on the Forming and Work of Districts Official Gazette of the RBiH no 12 dated 13 August 1992 DH 477 Decree-Law on Amendments to the Decree-Law on the Establishment and Work of Districts Official Gazette of the RBiH no 18 dated 7 October 1992 P 327 It should be noted that due to combat and the front line investigations could not be conducted in certain municipalities See Sead @eri T E p 5534 1871 Sulejman Kapetanovi T E p 3840 1872 Vlado Adamovi T E p 9579 1873 Vlado Adamovi T E p 9592 1874 Vlado Adamovi T E p 9480 1875 Vlado Adamovi testified on 24 and 25 June 2004 T F pp 9440-9630 Mladen Veseljak on 14 and 15 February 2005 T F pp 16052-16069 and Hilmo Ahmetovi on 16 and 17 February 2005 T F pp 16153-16325 The other judges who were members of this court were Zahid Kova president Mirsad Strika Hidajet Halilovi Muhamed olakovi Armin Ze o and Atko Huseinba i See P 771 Case No IT-01-47-T 252 15 March 2006 424 21623 BIS 914 Following the instructions of the Federal Ministry of Justice in Sarajevo in 1996 the archives of the Zenica District Military Court and the Zenica District Military Prosecutor’s Office were transferred respectively to the Zenica Cantonal Court formerly the “High Court of Zenica” and the Zenica Cantonal Public Prosecutor’s Office 1876 iii Establishment Composition and Closure of the Travnik District Military Court and the Travnik District Military Prosecutor’s Office 915 The Travnik District Military Court and the Travnik District Military Prosecutor’s Office were located in the town of Travnik and seem to have occupied the same premises approximately 200 metres from the former JNA Barracks 1877 None of the judges from this court was called to testify before the Chamber 1878 although the former deputy prosecutor Sead @eri appeared as a witness for the Prosecution 1879 916 At the end of the war complying with the same instructions as the military judicial authorities in Zenica those in Travnik transferred their archives respectively to the Travnik Cantonal Court and the Travnik Cantonal Public Prosecutor’s Office 1880 917 It is difficult to know exactly what happened to the archives of the Travnik District Military Court seated in Vitez that had been created by the Croatian Community of Herceg-Bosna The judicial institutions that received the archives of the district military courts and the district military prosecutors after the conflict do not know what happened to the archives of the Vitez District Military Court or of the Vitez District Military Prosecutor’s Office 1881 Nevertheless according to Witness Sulejman Kapetanovi after cantons were established in 1996 the courts operating in the zones controlled by the HVO and those operating in the municipalities of Travnik and Zenica exchanged some case files and indictments 1882 1876 P 771 Sulejman Kapetanovi T E p 3828 Ragib Had i T F p 15091 Sead @eri T E p 5636 1878 The lawyers who held positions as judges at the Travnik District Military Court were Jasmin iko president Darmin Avdi Bekir Ferizovi Senad Dautovi Irsan Kuki and Ibrahim Ram i See P 773 1879 Sead @eri testified before the Chamber on 5 and 6 April 2004 T E pp 5513-5639 1880 P 773 1881 P 774 1882 Sulejman Kapetanovi T E p 3816 1877 Case No IT-01-47-T 253 15 March 2006 423 21623 BIS iv Proceedings before the District Military Courts a Filing Criminal Reports with the District Military Prosecutors 918 Upon receiving a criminal report the Zenica or Travnik District Military Prosecutor instituted proceedings and conducted the pre-trial phase as dominus litis 1883 He was the only authority who could determine whether there were grounds to believe that a crime had been committed pursuant to the evidence gathered after the criminal report was filed and could decide to initiate criminal proceedings 1884 He also had the power to drop the charges if he considered that the act did not constitute a crime or if there were other circumstances that precluded prosecution 1885 In addition the prosecutor could decide not to prosecute if there were no indicia that a crime had been committed 1886 If he decided to undertake proceedings he submitted a request for a preliminary examination to the investigating judge 1887 Without such a request the investigating judge did not have the authority to act 1888 919 Criminal reports or complaints submitted to district military prosecutors could come from the following sources the military police the civilian police civilians or members of ABiH brigade commands or of a higher rank It should be noted however that the number of criminal reports filed by organs other than the Military Police Battalion was negligible 1889 i Criminal Reports from the ABiH Military Police and Security Service 920 The military police were responsible for identifying the perpetrators of criminal offences within the ABiH or the HVO and were the organ which filed most of the reports on criminal actions by members of the ABiH 1890 The ABiH internal military security organs also submitted criminal reports to the district military prosecutors 1891 1883 P 325 Decree Having the Force of Law on the District Military Prosecutor’s Office Official Gazette of the RBiH no 12 dated 13 August 1992 Articles 2 and 5 Mladen Veseljak T E p 15991 Hilmo Ahmetovi T E p 16170 DH 337 Law on Criminal Procedure of the SFRY adopted by RBiH by decree-law on 11 April 1992 Official Gazette 2 92 see DH 390 see Chapter IV The Public Prosecutor and Articles 17 and 18 on initiating proceedings 1884 Mladen Veseljak T F p 15992 DH 337 Art 153 para 1 1885 DH 337 Art 153 para 1 1886 DH 337 Art 18 1887 Hilmo Ahmetovi T E p 16164 DH 337 Art 158 1888 Hilmo Ahmetovi T E p 16164 Vlado Adamovi T E p 9472 DH 337 Art 158 1889 Mladen Veseljak T E p 16121 1890 Vlado Adamovi T F pp 9467-9468 Mladen Veseljak T E p 16121 P 328 Rules of Service for the Military Police of the Armed Forces of the Republic of Bosnia-Herzegovina Art 1 1891 See P 244 Art 41 Rules of Operation for the Military Security Service in the Armed Forces of the Republic of Bosnia and Herzegovina P 774 Case No IT-01-47-T 254 15 March 2006 422 21623 BIS ii Criminal Reports from the Civilian Police 921 The civilian police or Public Security Centre CSB could also submit reports to the district military prosecutors 1892 Furthermore according to witness Vlado Adamovi the military police and the civilian police were on an equal footing with regard to the filing of criminal reports with the district military prosecutors 1893 The civilian police were under the CSB which in turn was under the Ministry of the Interior MUP 1894 iii Complaints or Reports Filed by Civilians 922 Pursuant to the law in Bosnia and Herzegovina at the time every citizen had the duty to report all unlawful actions to the judicial authorities 1895 Furthermore when there was a partie civile civilians could file complaints with the prosecutor 1896 In the present case there were instances when civilians went to the district military courts to report criminal acts 1897 The investigating judge would tell them to report the incidents to the district military prosecutors’ offices that registered the complaints and asked the police to investigate the allegations to check their veracity 1898 iv Reports from the ABiH Command 923 The Decree-Law on District Military Courts required the commander of a military unit to inform his superior or the district military prosecutor of any criminal activity 1899 924 In practice according to Witness Vlado Adamovi if people were killed outside of combat action or if illegal actions were committed during combat these actions and incidents were documented in an ABiH file which was then transmitted to the military prosecutor for his further action 1900 According to the same witness commanders reported suspected criminal acts to the military police who transmitted the file to the district military prosecutors 1901 Witness Mladen 1892 Vlado Adamovi T F pp 9551-9553 Vlado Adamovi T F p 9552 1894 Vlado Adamovi T F p 9552 1895 DH 337 Articles 148-150 Mladen Veseljak T E p 16075 see also Aleksovski Trial Judgement paras 91 and 136 1896 DH 337 Art 17 2 and Articles 52-66 1897 See DH 337 Art 149 1898 Vlado Adamovi T E pp 9470-9471 1899 P 327 Decree-Law on District Military Courts Official Gazette of the RBiH no 12 dated 13 August 1992 Articles 27 and 148 1900 Vlado Adamovi T F pp 9487-9489 1901 Vlado Adamovi T E pp 9490-9492 1893 Case No IT-01-47-T 255 15 March 2006 421 21623 BIS Veseljak also explained this internal ABiH procedure which was to verify whether there were reasons to believe that an offence had been committed and if so to pass on the results of the internal investigation to the district military prosecutors 1902 With regard to this procedure Witness Hilmo Ahmetovi confirmed that unit commanders submitted reports on the actions of their brigade members to the military prosecutor expressly referring to the commands of the 309th Brigade and the 7th Brigade 1903 b Investigations of the Investigating Judge 925 Once the prosecutor submitted a request to the investigating judge for a preliminary investigation pursuant to Chapter 16 of the Republic of Bosnia and Herzegovina Law on Criminal Procedure the investigating judge carried out the complete investigation independently 1904 It was his duty to examine the evidence and submit a report to the prosecutor 1905 The report was usually sent to the police as well 1906 926 To do so the investigating judge could go to the crime scene or to locations relevant to the investigation 1907 He could order photographs to be taken and other examinations made such as a paraffin test1908 or an autopsy1909 or any other measure to facilitate the investigation 1910 He alone had the power to question witnesses or suspects 1911 Thus no actions could be undertaken other than those prescribed by the judge 1912 Furthermore if any other judicial authority questioned witnesses during the investigation their statements were removed from the case file 1913 927 The military police and the civilian police carried out all the investigating judge’s requests or orders 1914 In general the investigating judge called upon the military police or the 3rd Corps Military Police Battalion for all transport to the crime scene1915 and the military police secured the 1902 Mladen Veseljak T F p 16051 and T E p 16076 Hilmo Ahmetovi T E p 16263 1904 DH 337 Articles 157-181 Mladen Veseljak T E p 15995 1905 Mladen Veseljak T E p 15995 DH 337 Art 174 1906 Mladen Veseljak T E p 15995 The witness did not state whether this was the military or civilian police 1907 DH 337 Art 238 1908 P 341 1909 DH 1638 DH 337 Articles 242 252 and 256 1910 Ragib Had i T E p 15113 and pp 15121-15122 1911 Mladen Veseljak T E p 16063 Ragib Had i T E p 15122 1912 Zaim Mujezinovi T F pp 17411 17540-17541 Hilmo Ahmetovi T F pp 16169 and 16258 1913 Mladen Veseljak T E p 16063 DH 337 Art 83 1914 Mladen Veseljak T E pp 15994-15995 1915 Mladen Veseljak T E p 16029 Hilmo Ahmetovi T E pp 16166-16167 1903 Case No IT-01-47-T 256 15 March 2006 420 21623 BIS territory covered by the investigation 1916 The investigating judge used the services of the civilian police for expert reports because it was better equipped for this than the military police 1917 928 In practice it might happen that the investigating judge was unable to conduct an on-site investigation because of combat because the ABiH refused access or because evidence from the crime scene had been destroyed or removed 1918 In addition a district military court investigating judge could not conduct investigations in territory controlled by the HVO where a parallel judicial system was in place 1919 929 It should also be noted that according to witness testimony before the Chamber district military court investigating judges and district military prosecutors often went to the crime scene together 1920 c Special Role of the Duty Judge 930 All the judges of the district military courts took one-week turns as “duty judge ” acting as investigating judge outside the working hours of the district military courts 1921 The designation of the duty judge was made by decision of the president of a district military court and was communicated to the military and civilian police 1922 The duty judge could conduct preliminary investigations or deal with a case directly as investigating judge 1923 d Prosecutor’s Pre-Trial Case Management 931 After receiving the investigation report from the investigating judge the Zenica District Military Prosecutor or the Travnik District Military Prosecutor was not bound by the findings of the investigating judge 1924 At this phase in view of the evidence produced the district military prosecutors could prepare an indictment drop the charges or file a motion for additional inquiries from the investigating judge 1925 The district military prosecutors could involve the military police 1916 Mladen Veseljak T E p 16029 Mladen Veseljak T E p 16029 1918 Mladen Veseljak T E p 16033 DH 280 Ragib Had i T E p 15114 1919 Mladen Veseljak T E p 16124 1920 Vlado Adamovi T E p 9623 Hilmo Ahmetovi T E p 16258 P 333 1921 Vlado Adamovi T E p 9614 Mladen Veseljak T E p 16022 Hilmo Ahmetovi T E p 16168 1922 Mladen Veseljak T E p 16084 1923 DH 337 Art 155 and 156 1924 Mladen Veseljak T E pp 16002 DH 337 Art 174 1925 Mladen Veseljak T E p 15993 Hilmo Ahmetovi T E p 16170 DH 337 Art 174 1917 Case No IT-01-47-T 257 15 March 2006 419 21623 BIS in any part of the investigation 1926 Conversely the military police could not conduct an autonomous investigation 1927 932 Once the indictment was prepared it was sent to the Travnik District Military Court or the Zenica District Military Court along with the case file A copy of the indictment was sent to the accused and his counsel 1928 933 If the prosecutor decided to drop the charges he had to inform the victims 1929 e Special Case Direct Referral to an Investigating Judge 934 In case of an emergency the investigating judge could be seized of a case directly contrary to the customary procedure whereby the prosecutor upon receipt of a criminal report issued the investigating judge a request for an investigation 1930 Article 156 of the SFRY Law on Criminal Procedure made provisions for the case when an investigating judge could launch an immediate enquiry before receiving a decision to conduct an investigation from the prosecutor if it would be risky to postpone the investigation 1931 Likewise Article 41 of the Rules of Operation for the Military Security Service in the Armed Forces of the Republic of Bosnia and Herzegovina made provisions for the direct referral to a district military court investigating judge when there was an emergency situation 1932 935 In the context of this emergency procedure the investigating judge could be seized only by the military or civilian police 1933 He was nevertheless bound to inform the Travnik District Military Prosecutor or the Zenica District Military Prosecutor depending on the case 1934 The duty judge 1926 Mladen Veseljak T E p 15092 Mladen Veseljak T E p 15077 1928 Hilmo Ahmetovi T E p 16172 DH 337 Articles 73 and 123 1929 Mladen Veseljak T E pp 16087-16088 DH 337 Art 60 1930 Vlado Adamovi T E pp 9520-9521 and p 9615 Mladen Veseljak T E p 15994 1931 DH 337 Articles 155 and 156 Article 156 para 1 provides “The investigating judge of the competent court and the investigating judge of the lower court in whose jurisdiction the crime was committed may take certain investigatory actions whose postponement would be risky even before a decision to conduct an inquiry has been made but the competent public prosecutor must be informed of everything that is done emphasis added See also Vlado Adamovi T E pp 9520-9521 1927 1932 P 244 Art 41 Rules of Operation for the Military Security Service in the Armed Forces of the Republic of Bosnia and Herzegovina “On the basis of the information gathered officers of the military security service in the command of the brigade or a corresponding or higher ranking officer in the military security service shall submit a criminal report to the competent military prosecutor’s office In cases when it is necessary to carry out certain investigative actions immediately an authorised officer of the military security service shall immediately inform the competent military prosecutor and when necessary also the investigating judge of the military court” emphasis added 1933 Vlado Adamovi T E pp 9612-9614 Mladen Veseljak T E p 15994 1934 Vlado Adamovi T E p 9521 Case No IT-01-47-T 258 15 March 2006 418 21623 BIS sent his investigation report to the Zenica District Military Prosecutor or the Travnik District Military Prosecutor who decided on the follow-up of the case 1935 v Independence of the District Military Courts 936 On the institutional level district military courts were initially under the Ministry of Defence 1936 As of July 1994 they were attached to the Ministry of Justice 1937 although even when they were attached to the Ministry of Defence in exercising their judicial functions they were independent of the ABiH except for logistical matters 1938 District military prosecutors enjoyed the same independence although they depended on the Ministry of Defence for the payment of their salaries or any other question dealing with logistics 1939 937 These courts were never part of the 3rd Corps The military security services and the 3rd Corps Military Police however were at the disposal of the district military courts when exercising their judicial powers 1940 According to the legal experts who appeared as witnesses before the Chamber the 3rd Corps Command did not put any pressure on the judges or military prosecutors when carrying out their functions in these judicial institutions 1941 Furthermore Enver Had ihasanovi had little contact with the judges or military prosecutors Witness Mladen Veseljak referred to a single courtesy visit when Enver Had ihasanovi met the district military court judges and prosecutors Likewise Witness Vlado Adamovi stated that the only time he met Enver Had ihasanovi was during a meeting organised by ECMM 1942 Furthermore once the proceedings were opened by the district military prosecutors no other military police or judicial institution could influence them 1943 In addition military organs did not have the power to give orders to investigating judges 1944 Witness Mladen Veseljak asserted that as soon as a case was in the hands of the military courts the military authorities did not have the right to act contrary to the instructions of the judicial authorities or to conduct parallel criminal investigations 1945 1935 Mladen Veseljak T E p 15993 Hilmo Ahmetovi T E p 16170 Vlado Adamovi T E p 9453 Hilmo Ahmetovi T E p 16160 1937 Hilmo Ahmetovi T F 16160 Vlado Adamovi T E p 9505 1938 P 327 Decree-Law on District Military Courts Official Gazette of the RBiH no 12 dated 13 August 1992 Articles 2 37 and 38 Vlado Adamovi T E p 9453 and p 9477 1939 P 325 Decree Having the Force of Law on the District Military Prosecutor’s Office Official Gazette of the RBiH no 12 dated 13 August 1992 Articles 15 16 and 17 1940 Mladen Veseljak T E p 15982 1941 Mladen Veseljak T E p 15982 1942 Mladen Veseljak T E p 15982 Vlado Adamovi T E p 9483 1943 Mladen Veseljak T E p 15992 Hilmo Ahmetovi T E p 16170 1944 Hilmo Ahmetovi T E p 16166 1945 Mladen Veseljak T E pp 16077-16078 1936 Case No IT-01-47-T 259 15 March 2006 417 21623 BIS 938 The district military courts however submitted monthly reports on their activities to the Ministry of Defence 1946 It seems that such reports were also submitted to the Corps commands 1947 b Military Disciplinary Courts 939 The Rules on Military Discipline set up first instance military disciplinary courts and the High Military Disciplinary Court as of 1992 1948 These courts had the jurisdiction to try the “disciplinary infractions or errors” not only of all the soldiers but also those of officer or higher rank for all “breaches of military discipline” 1949 Military disciplinary courts of first instance were set up at district territorial defence headquarters and their operations were apparently under the district territorial defence staff 1950 Then these courts were to be organised by the Corps commands 1951 940 According to the exhibits tendered into evidence setting up these courts in the 3rd Corps had been envisaged as of March 1993 in order to prosecute 3rd Corps members who had contravened military discipline 1952 According to document P 303 18 persons were proposed for the position of judge at the 3rd Corps first instance military disciplinary court 1953 Jusuf Halilagi was appointed president Ramiz Omeragi secretary and Emina Halilovi prosecutor 1954 941 The first instance military disciplinary court seems to have been established on 8 May 1993 1955 The Chamber notes that according to the exhibits this court was attached to the 3rd Corps and seems to have sat during the period material to the Indictment 1956 Nevertheless the Chamber would observe that it has very little information on the effective role of this court since the Parties did not call any witnesses who took part in its activities 1946 DH 275 Vlado Adamovi T E p 9539 DH 274 1948 See P 325 Rules on Military Discipline Official Gazette of the RBiH no 12 dated 13 August 1992 Articles 44 45 and 46 1949 P 325 Rules on Military Discipline Official Gazette of the RBiH no 12 dated 13 August 1992 Articles 44 45 and 46 and 8 P 335 DH 158 5 DH 158 8 and P 549 A disciplinary error was considered to be a minor violation of military discipline while a disciplinary offence was a severe violation of military discipline See P 120 Decree-Law on Service in the Army of the Republic of Bosnia-Herzegovina Official Gazette of the RBiH no 11 dated 1 August 1992 Art 65 providing that An error of discipline is a minor breach of military discipline A disciplinary offence is a severe breach of military discipline 1950 See P 325 Rules on Military Discipline Official Gazette of the RBiH no 12 dated 13 August 1992 Art 46 P 694 1951 P 300 P 335 1952 P 694 P 299 1953 P 303 1954 P 303 P 326 1955 DH 158 8 1956 P 316 P 284 1947 Case No IT-01-47-T 260 15 March 2006 416 21623 BIS c Special Military Courts 942 The Decree-Law on Special Military Courts made provisions for the creation of special military courts during a state of war better known as “courts-martial ” They could be established by the commander of a brigade or a higher rank if he considered that conditions did not exist that would allow proceedings to be conducted before the competent district military court 1957 These special military courts were set up for exceptional circumstances because of combat or for security reasons 1958 They were intended to punish inter alia insubordination desertion and abandoning one’s post 1959 943 An order by Enver Had ihasanovi dated 9 December 1992 set up these “courts-martial” in the brigades 1960 Similarly an order dated 8 June 1993 by Mehmed Alagi required the immediate formation of such courts within the 17th 312th and 306th Brigades 1961 In another order dated 11 June 1993 Mehmed Alagi required that the deputy commander of the 312th Brigade 2nd Battalion form a special court to try Amir Halilovi and other officers for abandoning their post 1962 944 During the same period among the punishments anticipated by Enver Had ihasanovi for soldiers guilty of reprehensible acts was that they would be tried by a “court-martial” or a “special court” in order to prevent and punish plundering or the destruction of dwellings to ensure that the ABiH soldiers respected the Geneva Conventions with regard to the treatment of the civilian population and prisoners of war and to protect places of worship 1963 945 In spite of these orders it seems that such courts were rarely set up 1964 Indeed Witness Vlado Adamovi noted only one case when a unit commander set up such a court when his unit was in the region of Brza 30 or 40 kilometres from Sarajevo 1965 Likewise Witness Hilmo Ahmetovi could remember only one case when the commander of the 1st Corps 126th Brigade Ilija set up a special military court 1966 and the case was transferred to the Zenica District Military Court during proceedings 1967 Witness Zijad aber also mentioned that special military courts were set up within 1957 P 325 Decree-Law on Special Military Courts Official Gazette of the RBiH no 12 dated 13 March 1992 Art 2 Vlado Adamovi T F p 9451 1959 P 325 Decree-Law on Special Military Courts Official Gazette of the RBiH no 12 dated 13 March 1992 Art 3 1960 DH 158 1 1961 DH 1132 Fikret uski T E p 12097 1962 P 187 1963 DH 161 10 DH 1215 1964 P 316 P 284 p 4 1965 Vlado Adamovi T F pp 9456-9460 1966 Hilmo Ahmetovi T F p 16163 1967 Hilmo Ahmetovi T F p 16163 1958 Case No IT-01-47-T 261 15 March 2006 415 21623 BIS the brigades to resolve the lack of discipline but it is not clear if he was referring to these special military courts or military disciplinary courts 1968 946 The Chamber notes that in view of the evidence in the case file special military courts did not play an important role as an instrument for suppressing the actions of the ABiH soldiers 2 Disciplinary Power of the Military Commanders a Jurisdiction 947 Military superiors derived their disciplinary power from the Rules on Military Discipline 1969 This power covered all breaches of military discipline1970 and could be exercised against soldiers of all ranks 1971 Among the disciplinary sanctions provided in the laws a superior could sentence a soldier to 30 or even 60 days in prison 1972 b Exercise of Power 948 In view of the documents admitted into evidence the Chamber finds that sanctions were used by superiors in order to curb acts of desertion abandoning one’s post refusing to fight or disobeying orders 1973 Furthermore some exhibits note requests for investigations the detention of soldiers or “severe” sanctions within certain brigades with regard to soldiers involved in “illegal activities” influence peddling theft or smuggling 1974 949 Some witnesses recalled disciplinary sanctions taken by ABiH commanders against their soldiers During his testimony Witness HE said that on at least two occasions he ordered disciplinary sanctions against ABiH soldiers for mistreating captured HVO soldiers 1975 The same witness also mentioned that dozens of ABiH soldiers had been put in detention for plundering 1976 1968 Zijad aber T E p 10322 See P 325 Articles 22-28 Rules on Military Discipline Official Gazette of the RBiH no 12 dated 13 August 1992 P 335 P 120 Decree-Law on Service in the Army of the Republic of Bosnia-Herzegovina Official Gazette of the RBiH no 11 dated 1 August 1992 P 288 1970 P 325 Rules on Military Discipline Official Gazette of the RBiH no 12 dated 13 August 1992 amended by P 243 Rules on Amendments to the Rules on Military Discipline Official Gazette of the RBiH no 2 dated 5 December 1992 Art 7 1971 P 325 Rules on Military Discipline Official Gazette of the RBiH no 12 dated 13 August 1992 Art 10 1972 See P 325 Art 13 and Articles 11 and 12 Rules on Military Discipline Official Gazette of the RBiH no 12 dated 13 August 1992 see also P 120 Decree-Law on Service in the Army of the Republic of Bosnia-Herzegovina Official Gazette of the RBiH no 11 dated 1 August 1992 Art 66 1973 See P 505 P 526 P 829 P 360 P 306 and DH 547 1974 P 798 P 472 1975 HE T E pp 17082-17083 1976 HE T F p 16979 1969 Case No IT-01-47-T 262 15 March 2006 414 21623 BIS 950 Asim Delali Assistant Commander in charge of the 306th Brigade Military Security Service also reported disciplinary sanctions within the 306th Brigade in particular days in detention from 30 to 60 days for soldiers who plundered or destroyed dwellings He explained that since the combat was close to Travnik it had been difficult to submit criminal reports to the district military courts and so disciplinary sanctions were decided on the spot 1977Another member of the 306th Brigade Fahir amd i also spoke of disciplinary sanctions against soldiers guilty of plundering 1978 951 During his testimony Witness Sead @eri referred to the 3rd Corps system of internal discipline which could put soldiers in detention as a disciplinary measure 1979 In this regard Witness Hilmo Ahmetovi made an explicit reference to the 303rd Brigade Command that put soldiers from its own units in special detention premises for unlawful actions 1980 He stated that the detention period could be up to 60 days 1981 952 Even if the Chamber notes that a system of internal discipline existed in the 3rd Corps it observes that is has little information which would allow it to assess its importance as a means of preventing or punishing the unlawful actions referred to in the Indictment 3 Civilian Courts 953 Civilian courts operated in Central Bosnia throughout the war1982 and were independent of the ABiH 1983 They were divided into municipal courts and municipal public prosecutors and high courts and high public prosecutors The high court is currently called the cantonal court 1984 Municipal courts had jurisdiction to try cases with penalties of up to ten years and the high court prosecuted cases with a penalty of over ten years 1985 The Chamber heard two witnesses who held the posts of high prosecutor and municipal public prosecutor 1986 1977 Asim Delali T E p 16374 pp 16398-16400 and p 16409 Fahir amd i T E p 11726 pp 11737-11739 and pp 11766-11769 1979 Sead @eri T E p 5638 1980 Hilmo Ahmetovi T E p 16267 1981 Hilmo Ahmetovi T E p 16267 1982 Sulejman Kapetanovi T E p 3799 1983 Sulejman Kapetanovi T E p 3823 and p 3930 1984 Sulejman Kapetanovi T E p 3797 1985 Sulejman Kapetanovi T E p 3798 1986 Sulejman Kapetanovi former high public prosecutor testified on 2 and 3 March 2004 T E pp 3791-3933 Ragib Had i former municipal public prosecutor testified on 28 January 2005 T F pp 15079-15128 1978 Case No IT-01-47-T 263 15 March 2006 413 21623 BIS a Jurisdiction i Ratione Personae Jurisdiction 954 Civilian courts had the jurisdiction to try criminal offences committed both by civilians and in certain cases by soldiers 1987 If a soldier and a civilian were co-perpetrators of a criminal offence the civilian court having jurisdiction to hear the case against the civilian also had jurisdiction to try the soldier 1988 If the criminal offence was committed by the soldier in the performance of his duties however both the soldier and the civilian would be tried by a district military court 1989 ii Ratione Loci Jurisdiction 955 Following the siege of Sarajevo and the occupation of part of the territory of Central Bosnia by the HVO the Zenica-Doboj civilian courts had the jurisdiction to prosecute individuals at the level of both the high court and the municipal court in the following municipalities Tesanj Zenica Kakanj Zavidovi i Kakanj @ep e Travnik Gornji Vakuf Donji Vakuf Bugojno Breza Olovo Vare and Visoko 1990 iii Prosecution 956 Prosecutorial procedure was identical to that of the district military courts 1991 Nevertheless a civilian court prosecutor could take on a case only after a complaint had been filed by the civilian police or the CSB Security Services Centre 1992 b Ties with Military Courts 957 In practice there was a great deal of cooperation between the military and civilian courts Military investigating judges often went to crime scenes together with civilian judges in order to determine which of the two courts had jurisdiction owing to the individuals involved 1993 Should the 1987 Mladen Veseljak T E p 15984 P 327 Decree-Law on District Military Courts Official Gazette of the RBiH no 12 dated 13 August 1992 Art 9 Mladen Veseljak T E p 15984 Ragib Had i T E p 15086 DH 298 1989 P 327 Decree-Law on District Military Courts Official Gazette of the RBiH no 12 dated 13 August 1992 Art 9 para 2 1990 Ragib Had i T E p 15083 Nevertheless territorial jurisdiction changed somewhat due to combat See Sulejman Kapetanovi T E p 3838 and p 3840 1991 Ragib Had i T E p 15113 1992 Sulejman Kapetanovi T E p 3813 Vlado Adamovi T E p 9469 1993 Mladen Veseljak T E p 16007 1988 Case No IT-01-47-T 264 15 March 2006 412 21623 BIS civilian court have jurisdiction over co-accused in which there were soldiers and civilians the military police assisted the civilian police conducting the investigation 1994 D Law Applied by Military and Civilian Courts in International Law Crimes 958 During the period material to the Indictment both the military and civilian courts applied the same texts on criminal law and criminal procedure originating in the former Yugoslavia 1995 1 Substantive Law and Procedure 959 In April 1992 after the Republic of Bosnia and Herzegovina became independent the Presidency of RBiH adopted by decree-law the SFRY Criminal Code as republican law 1996 The Criminal Code of the Socialist Republic of Bosnia and Herzegovina adopted in 1977 was still in force after the declaration of independence but following the decree-law on the official change of the name of the state it was known as the Criminal Code of RBiH 1997 Then with the onset of hostilities the Republic of Bosnia and Herzegovina again passed legislation so that the SFRY Criminal Code and the RBiH Criminal Code would be in effect as republican law during an imminent threat of war or state of war 1998 The district military courts applied these texts when trying the cases before them 1999 960 The Criminal Code of RBiH dealt with ordinary offences 2000 Other decree-laws were passed to increase the penalties provided by the Code for certain crimes for example robbery with violence to retain stolen goods or aggravated theft Articles 151 and 148 respectively of the RBiH Criminal Code when they were committed in abandoned or damaged buildings or were committed by soldiers 2001 Likewise the commission of a crime inspired by “national hatred” became an aggravating element of a crime 2002 1994 Sead @eri T E p 5545 Vlado Adamovi T E p 9446 and p 9503 Sulejman Kapetanovi T E p 3804 Mladen Veseljak T E p 15985 1996 DH 389 Decree-Law on the Adoption of the Criminal Code of the Socialist Federative Republic of Yugoslavia Official Gazette of the RBiH no 2 dated 11 April 1992 para 1 1997 DH 386 Decree-law on Changing the Official Name of the State Official Gazette of the RBiH no 1 dated 9 April 1992 Art 1 available only in B C S DH 1650 Minutes of the 65th Session of the Presidency of the Socialist Republic of Bosnia and Herzegovina held on 4 5 6 and 8 April 1992 no 02-011-354 92 1998 DH 414 Decree-Law on Applying the Criminal Code of the Republic of Bosnia-Herzegovina and the Criminal Code of the Socialist Federative Republic of Yugoslavia Adopted as Republican Law in Time of an Imminent Threat of War or in Time of a State of War Official Gazette of the RBiH no 6 dated 15 June 1992 Art 1 1999 Vlado Adamovi T E p 9446 and p 9503 Sulejman Kapetanovi T E p 3804 Mladen Veseljak T E p 15985 2000 See DH 338 Chapter 6 Criminal Acts Against Life and Limb Art 36 Murder Art 37 Voluntary Manslaughter Art 38 Negligent Homicide Art 42 Grievous Bodily Harm and Chapter 15 Criminal Acts Against Property Art 147 Theft Art 148 Aggravated Theft Art 149 Theft in the Nature of a Robbery Art 150 Robbery 2001 DH 2043 Art 2 Decree Having the Force of Law on Changes and Amendments of the Decree Having the Force of Law on Changes of the Crimes Code of the Republic of Bosnia-Herzegovina and the Crimes Code of the SFRY Taken Over as the Law of the Republic During Immediate War Danger or During the State of War sic Official Gazette of the 1995 Case No IT-01-47-T 265 15 March 2006 411 21623 BIS 961 The SFRY Criminal Code on the other hand had a chapter dealing with crimes against humanity and international law of which Article 142 covered “war crimes against the civilian population” Article 143 “war crimes against the wounded and sick” and Article 144 “war crimes against prisoners of war” 2003 962 It is important to note that in spite of the heavier penalties provided by the decree-laws that amended articles of the RBiH Criminal Code as war approached the minimum penalties provided by Chapter 16 Article 142 of the SFRY Criminal Code for “comparable” offences were more severe Article 142 provided five years in prison as the minimum sentence for plundering or unlawful destruction not justified by military necessity 2004 After the amendments were adopted aggravated theft Article 148 of the RBiH Code and “grave offences against the public safety of persons and property” aimed at destruction by arson or explosion Article 177 of the RBiH Code brought a minimum penalty of 3 years in prison with the death penalty as the maximum penalty 2005 963 With regard to criminal procedure the SFRY Law on Criminal Procedure was adopted as a republican law by decree-law on 11 April 1992 2006 Its application was then extended to cover an imminent threat of war or state of war 2007 The district military courts were also based on the SFRY Law on Criminal Procedure adopted as an RBiH law 2008 2 Characteristics of Crimes Based on Ordinary Law 964 According to witnesses heard by the Chamber both civilian and military legal experts characterised crimes exclusively on the basis of ordinary law and not on Chapter 16 of the SFRY RBiH no 21 dated 23 November 1992 DH 414 Decree Law on Applying the Criminal Code of the Republic of Bosnia-Herzegovina and the Criminal Code of the SFRY Adopted as Republican Law in Time of an Imminent threat of War or in Time of a State of War Official Gazette of the RBiH no 6 dated 15 June 1992 2002 DH 2050 Art 6a Decree Law Having the Force of Law on Changes and Amendments of the Decree Having the Force of Law on Applicability of the Criminal Code of the Republic of Bosnia-Herzegovina and the Criminal Code of the SFRY Adopted as Republican Law in Time of an Imminent Threat of War or in Time of a State of War Official Gazette of the RBiH no 11 dated 1 August 1992 2003 See P 342 2004 P 342 The maximum sentence was the death penalty 2005 DH 2043 Decree Having the Force of Law on Changes and Amendments of the Decree Having the Force of Law on Changes of the Crimes Code of the Republic of Bosnia-Herzegovina and the Crimes Code of the SFRY Taken Over as the Law of the Republic During Immediate War Danger or During the State of War sic Official Gazette of the RBiH no 21 dated 23 November 1992 2006 DH 390 Decree-Law on Adopting the Law on Criminal Procedure Official Gazette of the RBiH no 2 dated 11 April 1992 Vlado Adamovi T E p 9517 Sulejman Kapetanovi T E p 3804 2007 DH 415 Decree-Law on Applying the Law on Criminal Procedure Adopted as Republican Law in Time of Imminent Threat of War or in Time of a State of War Art 1 2008 P 327 Decree-Law on District Military Courts Official Gazette of the RBiH no 12 dated 13 August 1992 Art 25 Case No IT-01-47-T 266 15 March 2006 410 21623 BIS Criminal Code covering war crimes 2009 Sead @eri for example stated that the personnel of the Travnik District Military Prosecutor’s Office had almost no knowledge of Chapter 16 of the SFRY Criminal Code 2010 965 Furthermore Witness Mladen Veseljak former judge at the Zenica District Military Court asserted that the theft of property from abandoned Croatian houses did not constitute a violation falling under Article 142 of the SFRY Criminal Code and that it was “very hard to imagine theft as a war crime” 2011 Sead @eric former Travnik District Military Prosecutor also asserted that aggravated theft could not be characterised as a war crime 2012 He also explained that setting fire to a residence or destroying it with explosives was characterised at the time as “criminal acts against public safety” 2013 The Travnik District Military Prosecutor’s Office considered plundering to be “theft” 2014 Hilmo Ahmetovi stated that murder did not exist as a war crime 2015 Similarly Sulejman Kapetanovi recalled that in his position as prosecutor at the High Cantonal Court in Zenica at the time he conducted many investigations of Bosnians for murder rape aggravated theft and robbery but he never considered these acts as war crimes pursuant to Chapter 16 of the SFRY Criminal Code 2016 966 The Chamber notes that pursuant to Article 346 of the SFRY Law on Criminal Procedure both civilian and military courts were bound by the “factual characterisation” issued by the prosecutor but not bound by his “legal characterisation” 2017 Nevertheless according to Sead @eri the Travnik District Military Court never re-characterised an ordinary law crime into a crime of international law 2018 Hilmo Ahmetovi judge at the Zenica Military Court also asserted that there was no such re-characterisation at the Zenica District Military Court as it would have been contrary to the principle of reformatio in peius 2019 Vlado Adamovi made the same type of observation concerning the re-characterisation of murder into a war crime 2020 2009 Sead @eri T E p 5557 and T F p 5619 Hilmo Ahmetovi T E p 16182 This is confirmed by the Chamber’s analysis of a number of criminal cases concerning the plundering of abandoned Croatian houses see para 2036 2010 Sead @eri T F p 5616 2011 Mladen Veseljak T E p 16013 and p 16099 2012 Sead @eric T E p 5557 2013 Sead @eric T E p 5563 and p 5622 DH 124 see DH 338 Criminal Code of the Republic of Bosnia and Herzegovina Articles 172 and 177 2014 Sead @eric T F p 5622 2015 Hilmo Ahmetovi T E p 16312 DH 155 8 2016 Sulejman Kapetanovi T F pp 3875-3876 2017 Sulejman Kapetanovi T F p 3873 2018 Sead @eric T E p 5625 2019 Hilmo Ahmetovi T E pp 16182 and 16320 2020 Vlado Adamovi T E p 9603 Case No IT-01-47-T 267 15 March 2006 409 21623 BIS 967 Another hypothesis that might explain why the judges at the time preferred to rely on the provisions of ordinary law rather than those in Chapter 16 of the SFRY Criminal Code lies in the fact that the minimum penalties provided by ordinary law were less severe than those in Chapter 16 for “comparable” acts and thus offered more flexibility in applying the penalties 2021 Nevertheless none of the witnesses made any observations in this regard 968 Sulejman Kapetanovi was part of a commission charged with collecting information to document war crimes and acts of genocide committed against the Bosnian Muslim population exclusively 2022 Documents P 771 P 772 and P 773 confirm that the district military courts heard only three cases during their entire mandate dealing with crimes pursuant to Chapter 16 of the SFRY Criminal Code Article 142 Two of the three accused were members of the HVO while the army affiliation of the third accused was not specified 969 In view of the testimony and the exhibits tendered into the case the Chamber notes that both civilian and military courts characterised crimes referred to in the Indictment as a war crime pursuant to Chapter 16 of the SFRY Criminal Code only exceptionally preferring to base their decisions on the provisions provided by ordinary law when trying cases involving ABiH soldiers E Factual Conclusions regarding the Burden to Prove the Failure to Take Measures 1 Methodology Used by the Prosecution May Constitute Evidence 970 The Chamber recalls as developed in the part on the applicable law on the burden to prove the failure to take action the Prosecution must prove the failure to take punitive measures To this effect it may rely on any evidence with probative value 2023 be it the testimony of a witness whose credibility has not been challenged 2024 a document tendered into evidence or by inference from a particular situation for example a promotion given to the perpetrators of unlawful acts2025 or a reward to such subordinates 2026 971 In order to prove that the Accused in particular the Accused Had ihasanovi failed to take punitive measures the Prosecution called its investigator Peter Hackshaw as a witness He asserted that during the investigation he conducted in June 2004 in the archives of the district military 2021 The two texts however provide for the death penalty as the maximum sentence Sulejman Kapetanovi T F p 3815 2023 See supra paras 246-248 2024 See the testimony of Sead @eri T F pp 5513-5648 2025 See the Strugar Judgement para 437 2026 P 447 BA T F p 809 2022 Case No IT-01-47-T 268 15 March 2006 408 21623 BIS prosecutors he found no case linked to the Indictment 2027 This testimony is part of the Prosecution’s strategy to show its diligence in trying to find proof that the Accused failed in their obligation to punish 2028 The Prosecution’s argument lies in the fact that once they showed due diligence in their investigation and saw that no measures had been taken it was up to the Accused to present the measures they took with regard to the crimes set out in the Indictment 2029 972 The Defence for Had ihasanovi responded to this argument by stating that the Prosecution’s reversal of the burden of proof is against the most basic principles of international criminal law 2030 With regard to the investigation conducted by Peter Hackshaw the Defence for Had ihasanovi declared that the mission failed since it did not show the inexistence in the archives consulted of criminal reports or other relevant documents linked to the violations alleged in the Indictment 2031 973 The Chamber considers that the conclusions drawn from an investigation noting the absence of open cases dealing with the crimes underlying the Indictment may have probative value if the methodology used during the investigation at the Zenica and Travnik judicial bodies was sufficiently reliable to satisfy the requirements of a fair trial 2032 974 The Chamber would also recall that should the methodology employed not be sufficiently reliable the Prosecution may by no means prove its case based on “weaknesses” in the presentation by the Defence for Had ihasanovi 2033 975 During Witness Hackshaw’s appearance in court the Defence put Exhibits P 771 and P 772 which are replies to letters from the Tribunal’s Office of the Prosecutor before him and asked if they had led him to conclude that the Accused Had ihasanovi had taken few measures to prevent or punish war crimes 2034 After countless objections by the Prosecution the witness replied 2027 Peter Hackshaw T E pp 9692-9693 Daryl Mundis T E pp 7704-7705 Prosecution Response to Motions for Acquittal paras 19 and 22-26 Peter Hackshaw T E p 9741 2029 Prosecution Response to Motions for Acquittal footnote 29 2030 Reply of Enver Had ihasanovi to the Prosecution’s Response to the Motions for Acquittal para 1 a The Kubura Defence does not refer to this matter in its written submissions It should be noted that the Prosecution initially mentioned both Accused in its Response to Motions for Acquittal para 19 but debate on this question involved only the Defence for Had ihasanovi and the Prosecution 2031 Had ihasanovi Defence Final Brief paras 167-169 2032 Articles 89 and 95 of the Rules 2033 See supra paras 200-215 2034 Peter Hackshaw T E p 9723 2028 Case No IT-01-47-T 269 15 March 2006 407 21623 BIS evasively that the documents of which he had knowledge would have caused him to further explore the issue of referrals of cases to the district military prosecutors 2035 976 Thus in analysing the methodology used by the Prosecution the Chamber will rely in particular on Exhibits P 771 P 772 and P 7732036 and on the testimony of Peter Hackshaw regarding the investigation of 2 to 5 June 2004 in the civilian cantonal public prosecutors’ offices where the archives of the district military prosecutors are located 2 Exhibits P 771 P 772 and P 773 977 Exhibits P 771 P 772 and P 773 show the Prosecution’s first step to establish the absence of measures taken by the Accused 2037 Exhibit P 771 is a letter from the president of the Zenica Cantonal Court Exhibit P 772 is from the president of the Travnik Cantonal Court and P 773 is from the Travnik Cantonal Public Prosecutor’s Office All three are replies to letters sent by the Tribunal’s Office of the Prosecutor which were not tendered into evidence 2038 These documents provide the names of the district military court judges and prosecutors Exhibit P 772 notes the number of cases that involved ABiH soldiers heard by the Travnik District Military Court in 1993 and 1994 Furthermore the presidents of the Travnik and Zenica cantonal courts offered to make the district military court registers available to the Tribunal’s Office of the Prosecutor2039 978 In addition Exhibits P 771 and P 773 provide responses by the Zenica Cantonal Court and the Travnik Cantonal Public Prosecutor’s Office to the Tribunal’s Office of the Prosecutor’s query as to the number of cases heard by the Zenica District Military Court and the Travnik District Military Prosecutor’s Office involving ABiH members for “war crimes” pursuant to Article 142 of the SFRY Code 2040 According to Exhibit P 771 the Zenica District Military Court rendered only three judgements for “war crimes” of which two involved members of the HVO and one a person whose affiliation to a specific army is not mentioned but whose reprehensible acts were committed outside the period material to the Indictment According to Exhibit P 773 no reports on the commission of alleged “war crimes” by members of the ABiH were filed by the Travnik District Military Prosecutor’s Office 2035 Peter Hackshaw T E p 9725 Although not cited by the Defence for Had ihasanovi in its cross-examination of the witness this exhibit is closely connected to Exhibits P 771 and P 772 in that it is part of the same approach used by the ICTY Office of the Prosecutor 2037 Peter Hackshaw T E p 9727 2038 See P 771 alluding to a letter from the Tribunal’s Office of the Prosecutor dated 28 March 2002 P 772 refers to a letter from the Tribunal’s Office of the Prosecutor dated 18 March 2002 P 773 refers to a letter from the Tribunal’s Office of the Prosecutor that seems to have been dated 19 February 2002 2039 P 771 and P 772 2040 P 771 mentions Article 142 P 773 does not cite it explicitly 2036 Case No IT-01-47-T 270 15 March 2006 406 21623 BIS 979 In spite of these claims the three letters P 771 P 772 and P 773 are not conclusive as to the inexistence of measures taken and do not have probative value in this regard Indeed it should be noted that both the district military courts and the district military prosecutors relied solely on the provisions of ordinary law in their proceedings against ABiH soldiers and not on the provisions of Article 16 of the SFRY Criminal Code including Article 142 2041 980 With regard to the cases heard by the Zenica District Military Court referred to in Exhibit P 771 mention is made only of judgements constituting res judicata when the judgement is given or its enforcement can no longer be suspended by appeal rendered by the Zenica District Military Court for “war crimes” Letter P 771 does not take into account the possibility of criminal reports having effectively been filed with the Zenica District Military Prosecutor who then decided to drop the charges 2042 Thus it would have been better to question the Zenica Cantonal Public Prosecutor’s Office on the criminal reports filed with the Zenica District Military Prosecutor 2043 981 Finally the Chamber would recall that the query – which we assume from the contents of the responses in Exhibits P 771 and P 773 – should not have been formulated that way since at the material time of the Indictment states did not have the obligation to prosecute individuals for war crimes and it was not their usual practice to undertake such proceedings 2044 982 Thus the conclusions provided by Exhibits P 771 P 772 and P 773 cannot be admitted as having decisive probative value showing that the Prosecution discharged its burden of proof regarding the inexistence of punitive measures taken by the Accused 3 Investigation Conducted by Peter Hackshaw 983 The investigation conducted by a team of investigators of the Tribunal’s Office of the Prosecutor in the offices of the Travnik and Zenica cantonal prosecution services in June 2004 and the testimony of Peter Hackshaw 2045 investigator of the Tribunal’s Office of the Prosecutor as team leader during this visit are other evidence tendered by the Prosecution to provide proof that the Accused and the Accused Had ihasanovi in particular failed in their duty to punish 2046 2041 See supra paras 959-969 See supra paras 931-933 2043 Ibid 2044 See supra paras 249-261 and paras 958-969 2045 Peter Hackshaw was called by the Prosecution to testify on 28 and 29 June 2004 T F pp 9677-9844 2046 Peter Hackshaw T F p 9741 “Q And the objective was you'd review the records and you'd attempt to identify any records of crimes alleged in the Indictment for which some kind of report would have been referred to the district military prosecutor A Yes that is correct Q I can rephrase the question Please do not hesitate to tell me if you do not understand my questions 2042 Case No IT-01-47-T 271 15 March 2006 405 21623 BIS 984 During his testimony before the Chamber Peter Hackshaw explained the methodology that he and his team used during their mission from 2 to 5 June 2004 2047 First the witness explained the choice of the location for the investigation the offices of the Zenica and Travnik cantonal prosecution services since they had the archives of the Public Prosecutor from the civilian and military courts operating during the material time of the Indictment Then he stated that the mission concentrated on the Public Prosecutor’s archives because according to the information he had the reports on alleged criminal offences were “referred” through the Travnik or Zenica military prosecutor’s office 2048 Then the witness explained the choice of the archives to be examined given the short duration of the mission two days in the Zenica Cantonal Public Prosecutor’s Office and only one day in the Travnik Cantonal Public Prosecutor’s Office He concluded during the examination-in-chief that he found no case in Travnik or in Zenica that corresponded to the crimes referred to in the Indictment 2049 a Searching the Registers 985 Witness Hackshaw explained how the team conducted the investigation At the Zenica Cantonal Public Prosecutor’s Office the team first proceeded to examine the cases referred to the Zenica District Military Prosecutor and the Senior Public Prosecutor in light of the Indictment 2050 The team was able to observe that only case files with known perpetrators “KT” were made available to them2051 although a number of them were missing Case files with unknown perpetrators ” KTN” were not made available to them This as Witness Hackshaw readily acknowledged presented a serious flaw in the examination process As a result the team preferred to consult the “KT” and “KTN” registers in which the cases were logged upon receipt and then numbered because they also included victim details 2052 The team analysed the registers in light of the Indictment to determine if the information from these two sources matched 2053 Based on the information contained in the registers the team verified if the missing case files were for crimes Now would I be right in taking it that your investigation assumption was as follows If you find a file about an event alleged in the indictment which was referred to the military prosecutor this would mean that General Had ihasanović did take measures and if you do not find such a file it would mean that General Had ihasanović did not take measures to punish Was that your investigation assumption A In very broad terms I would say that's part of it ” 2047 The investigation of June 2004 was conducted by Peter Hackshaw Alasdair McCloud and Michael Koehler assisted by two translators Peter Hackshaw T E p 9740 2048 Peter Hackshaw T E p 9688 2049 Peter Hackshaw T E pp 9692 and 9693 2050 Peter Hackshaw T E p 9690 For matters involving both soldiers and civilians for which the civilian courts had jurisdiction see supra para 954 2051 Peter Hackshaw T E p 9690 2052 Peter Hackshaw T E p 9691 2053 Peter Hackshaw T E pp 9692 and 9693 Case No IT-01-47-T 272 15 March 2006 404 21623 BIS referred to in the Indictment 2054 In its searches in Zenica the team concentrated on crimes against persons 2055 986 In Travnik the team proceeded a little differently in that it consulted the registers directly and searched only for cases concerning serious crimes against persons 2056 Then once the cases were identified through the registers the team tried to find the case files they referred to If this was not possible the investigators recorded the victim details from the register 2057 b Search Criteria 987 The Chamber notes that according to Witness Hackshaw owing to time constraints and the large number of important case files referred to the Zenica District Military Prosecutor’s Office the Zenica High Public Prosecutor and the Travnik District Military Prosecutor’s Office the team chose to concentrate solely on crimes against persons in the registers 2058 Witness Hacksaw explained that serious crimes against persons were for example murder and manslaughter 2059 The witness seemed to indicate that for his team crimes against persons also included aggravated robbery and threats of physical violence 2060 988 Peter Hackshaw acknowledged that the search through the registers was made using the names of the victims contained in the Indictment 2061 adding that the team focused solely on cases in which the victim died 2062 The witness acknowledged that since the Indictment does not contain the names of victims of mistreatment a search could not be conclusive in respect of these counts 2063 The witness also explained that the team did not direct its searches to cases which might fall under counts 5 6 and 7 because the Indictment does not mention the names of the victims and the team did not know how crimes against property were identified in the registers 2064 Therefore owing to time constraints the team decided to centre its searches solely on crimes against persons 2065 The 2054 Peter Hackshaw T E p 9692 Peter Hackshaw T E p 9692 2056 Peter Hackshaw T E p 9693 2057 Peter Hackshaw T E p 9693 2058 Peter Hackshaw T E pp 9692 9693 9804 and 9812 2059 Peter Hackshaw T E pp 9747 9800-9802 2060 Peter Hackshaw T E pp 9802 and 9803 2061 Peter Hackshaw T E p 9806 2062 Peter Hackshaw T E p 9809 2063 Peter Hackshaw T E pp 9806-9807 p 9756 2064 Peter Hackshaw T E p 9805 2065 Peter Hackshaw T E p 9812 2055 Case No IT-01-47-T 273 15 March 2006 403 21623 BIS witness furthermore stated that all the plundering of abandoned houses constituted crimes against property and not crimes against persons 2066 989 In view of these parameters Peter Hackshaw stated that the team did not find any cases either in Travnik2067 or Zenica2068 that corresponded to the offences in the Indictment c Searches Not Conducted 990 Witness Hackshaw explained that his team did not make any searches in military police or civilian police registers 2069 He could not confirm that any searches had been made of files referred to the special military courts or the military disciplinary court 2070 Likewise he acknowledged not knowing if an investigation had been conducted in the archives of the relevant brigades 2071 d Conclusions of the Chamber 991 The Chamber considers that the conclusions drawn from this investigation that the Accused and in particular the Accused Had ihasanovi took no measures to punish the unlawful actions of their subordinates must be examined in view of the methodology employed i Conclusions on the Failure to Take Measures against Murders Committed by Subordinates 992 The Chamber notes that the conclusions in respect of the failure to take measures to punish murders committed by 3rd Corps soldiers have probative value because although imperfect 2072 the methodology employed by the investigating team is sufficiently reliable 993 The Indictment mentions the names of the victims of murder committed by 3rd Corps soldiers Thus studying the district military prosecutor registers might well reveal with a certain degree of certainty whether reports implicating ABiH soldiers for murder had been referred to the military judicial authorities Furthermore these registers would also indicate whether the district military prosecutors after receiving a report on an unlawful act had decided to “drop the 2066 Peter Hackshaw T E pp 9803-9804 Judge Swart And if you take goods from a person who is not present he's away he's not in his house or whatever A That's -- Judge Swart Then that would not be a crime against the person then A No sir I would categorise that as a theft or a burglary 2067 Peter Hackshaw T E p 9693 2068 Peter Hackshaw T E p 9692 2069 Peter Hackshaw T E p 9816 2070 Peter Hackshaw T E pp 9771-9772 2071 Peter Hackshaw T E p 9772 2072 Admittedly it would have been preferable if the investigators had consulted each one of the files as well as the registers of the district military courts It is clear that the team did not consult the archives of the district military courts because Peter Hackshaw did not recognise the registers of these courts See Peter Hackshaw T E p 9789 Case No IT-01-47-T 274 15 March 2006 402 21623 BIS charges” 2073 This information would not have been revealed by an examination of the case files in the district military courts 994 Thus the Chamber accepts that Peter Hackshaw’s claim that no case files on murders committed by members of the ABiH were opened has probative value since it is based on an investigation whose methodology is sufficiently reliable ii Conclusions on the Failure to Take Measures against Cruel Treatment count 4 and Crimes against Property counts 5 6 and 7 995 Conversely the witness acknowledged that no searches were made in the district military prosecutors’ archives of case files on cruel treatment count 4 or acts included in counts 5 6 and 7 In addition military police civilian police and district military court registers were not consulted 2074 The witness also acknowledged that he did not know if an investigation had been conducted of the relevant brigade archives or the archives of the military disciplinary court and special military courts 2075 The Chamber notes that no other investigations were conducted by the Prosecution to fill in the gaps left by the investigation of 2 to 5 June 2004 996 Thus the conclusions of Witness Hackshaw that no measures were taken to punish actions pursuant to counts 4 5 6 and 7 cannot have probative value The fact that the Prosecution has no case file attesting to measures taken by the Accused with regard to these counts does not prove that no measures were taken 997 The methodology used to investigate whether measures were taken with regard to these counts is not sufficiently reliable to satisfy the requirements for a fair trial 998 Therefore in order to prove its case the Prosecution cannot rely on an a contrario argument intended to use the “weaknesses” of the Defence for Had ihasanovi to fill these gaps which would amount to shifting the burden of proof to the Defence for Had ihasanovi 2076 999 The Chamber finds with regard to counts 4 5 6 and 7 that the conclusions of Witness Hackshaw cannot be admitted as having probative value 1000 Thus in the parts of the Judgement dealing with the counts of murder the Chamber will give weight to the testimony of Witness Hackshaw in determining the case advanced by the 2073 See supra paras 931-933 Peter Hackshaw T E pp 9789 and 9816 2075 Peter Hackshaw T E p 9772 2076 See supra paras 200-215 and 240 2074 Case No IT-01-47-T 275 15 March 2006 401 21623 BIS Prosecution Conversely in the examination of counts 4 5 6 and 7 the Chamber will not give probative value to Exhibits P 771 P 772 and P 773 or to Witness Hackshaw’s conclusions The Chamber’s analysis of the existence or inexistence of measures taken with regard to these counts by the Accused will rely on other evidence stemming particularly from documentary proof or the testimony of witnesses for the Defence or the Prosecution in their examination-in-chief or crossexamination 2077 Nevertheless in cases where the Prosecution did not submit any other evidence to meet its burden of proof other than the conclusions of Witness Hackshaw the Chamber finds that the Prosecution has failed to prove its case This failure is therefore a ground for acquittal 2078 2077 See the testimony of Witness Sead @eri on the lack of measures taken against plundering T E p 5525 or cruel treatment T E p 5605 2078 See infra paras 1546-1549 and 1553 Case No IT-01-47-T 276 15 March 2006 400 21623 BIS VII FINDINGS AND CONCLUSIONS A Crimes against Persons – Violation of the Laws or Customs of War 1 Count 1 Murders in Dusina Miletići and Maline a Dusina 1001 In paragraphs 39 a aa ab and 40 of the Indictment it is alleged that the Accused Hadžihasanović failed to take the necessary and reasonable measures to prevent the murders of Vojislav Stanišić Niko Kegelj Stipo Kegelj Vinko Kegelj Pero Ljubičić Augustin Radoš and Zvonko Rajić in Dusina on 26 January 1993 or to punish the perpetrators He is accused of murder a violation of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute of the Tribunal and recognised by common Article 3 1 a of the Geneva Conventions 2079 i Arguments of the Parties 1002 The Prosecution maintains that Vehid Subotić and Šerif Patković two members of the 7th Brigade are responsible for these murders 2080 The Prosecution alleges that the Accused Hadžihasanović knew about the murders committed by his subordinates and that he failed to take the necessary and reasonable measures to punish the perpetrators 2081 1003 The Defence for the Accused Hadžihasanović does not deny that the murders alleged in paragraph 39 a of the Indictment occurred2082 but does deny that the identity of the perpetrator or perpetrators of the murder of Zvonko Rajić has been established 2083 As regards the conditions set out in Article 7 3 of the Statute it denies that the Accused Hadžihasanović knew or had reason to know that the crimes were about to be committed 2084 It maintains furthermore that the Accused Hadžihasanović took the necessary and reasonable measures to punish the perpetrators of the crimes 2085 2079 In its Decision on Motions for Acquittal the Chamber noted that the Prosecution only intended to charge the two Accused under count 2 of the Indictment for the events which occurred in Maline on 8 June 1993 The Chamber noted that the offences of cruel treatment alleged to have occurred in Dusina on 26 January 1993 are not supported by any evidence and acquitted the Accused Hadžihasanović of this charge 2080 Indictment para 39 a ab Prosecution Closing Arguments para 185 Prosecution Final Brief T E p 19016 2081 Prosecution Final Brief paras 170-173 and 176 2082 Hadžihasanović Defence Final Brief para 307 2083 Hadžihasanović Defence Final Brief para 307 Hadžihasanović Closing Arguments T F p 19213 2084 Hadžihasanović Defence Final Brief para 307 2085 Hadžihasanović Defence Final Brief para 307 Case No IT-01-47-T 277 15 March 2006 399 21623 BIS ii Findings of the Chamber regarding the Murders Committed in Dusina a Sequence of Events of 26 January 1993 in Dusina 1004 Owing to the armed conflict between the HVO and the ABiH in Central Bosnia at the start of 1993 units under the 3rd Corps and the HVO were engaged in combat in Dusina in the municipality of Zenica on the morning of 26 January 1993 2086 1005 As regards the troops of the 3rd Corps implicated in the events that day in Dusina paragraph 39 a of the Indictment mentions the 7th the 303rd and the 17th Brigades It is important to know which troops were present in Dusina at the time of the acts charged and to which troops the perpetrators of the crimes committed belonged 1006 According to Witness BA who participated in the fighting in Dusina as a member of the 7th Brigade 2nd Battalion units from the 2nd Battalion arrived at the point where the Bosna and the Lašva meet on around 24 January 1993 2087 The Chamber considers that the testimony of Witness BA in relation to the presence of 7th Brigade units in Dusina on 26 January 1993 is credible In the night of 25 to 26 January 1993 all the 7th Brigade soldiers who were present moved towards the Muslim part of Dusina where they took up their positions 2088 Early in the morning of 26 January 1993 they received orders to occupy the positions all around Dusina 2089 A reconnaissance and sabotage unit of the 7th Brigade the Blue Falcons under the command of Šerif Patković2090 was also present 1007 Early in the morning also part of the 2nd Battalion 2nd Company moved towards Brdo where it thought that the HVO had established its headquarters 2091 Brdo is a hamlet situated between 2086 DH 1992 Ivica Kegelj T F p 4218 Dragan Radoš T F pp 1049 and 1050 Željko Cvijanović T F p 409 see also the parts of the Judgement referring to the general conditions under which Article 3 of the Statute applies and on the conduct of the fighting between the ABiH and the HVO The Defence for the Accused Hadžihasanović presented and cited in its Final Brief a host of evidence on the question of who was behind the tension and how the conflict broke out that day Hadžihasanović Defence Final Brief paras 308-317 The question is immaterial as regards the allegations against the Accused Hadžihasanović 2087 DH 1992 Witness BA T F pp 724 and 726 2088 Witness BA T F pp 726-728 and 746 see also DH 1992 2089 Witness BA T F p 729 see also Milica Kegelj T F p 579 and Exhibits P 130 and P 131 which refer to units of the 7th Brigade 2nd battalion participating in the fighting P 130 The 2nd Company of the 2nd Battalion under the command of Zenica Municipal Defence Staff is on a combat task The 1st Company of the 2nd Battalion was engaged in combat action until 0600 hrs according to plan in the region of villages Merdani and Dusine See also Joint Statement on the Agreement of Facts Annex B p 9 admitted facts no 16 P131 In the period from 0100 hrs to 0500 we captured elevation 852 above the village of Lašva The task was performed by the 2nd Company of the 2nd Battalion 2090 Witness BA T F pp 743-745 2091 Witness BA T F pp 747-749 DH 1992 Case No IT-01-47-T 278 15 March 2006 398 21623 BIS Lašva and Dusina 2092 According to Witness BA the aim of this action was to negotiate the release of two 7th Brigade soldiers who had been taken prisoner earlier 2093 The HVO soldiers under the command of Zvonko Rajić had retreated to one of the houses in Brdo When the Commander of the 2nd Company Elvedin Čamdić approached in order to invite the HVO to negotiate he was shot dead 2094 The 7th Brigade 2nd Battalion 2nd Company riposted in order to retrieve its commander and two wounded men 2095 The exchange of shots between the 7th Brigade and the unit under Zvonko Rajić’s command carried on for some time 2096 1008 While the fighting was going on in Brdo the village of Dusina had already been taken by the 7th Brigade 2097 Towards 0500 or 0600 hours Witness Ivica Kegelj who was in Dusina was woken by the sound of shots 2098 He could see that the forces of the 7th Brigade coming from the north were expelling the Croatian and Serbian civilians from their homes and taking them to Stipo Kegelj's house 2099 At around 0600 hours Witness Ivica Kegelj and three other HVO soldiers including Augustin Radoš gave themselves up to the 7th Brigade 2100 1009 Witness Ivica Kegelj the other HVO soldiers who had given themselves up with him and the civilian Croatian population of Dusina were then taken to the crossroads separating the Croatian part of Dusina from the Muslim part 2101 Towards 1000 or 1030 hours some of the prisoners were ordered to go back to the Croatian part of the village and to go to Stipo Kegelj's house whereas Witness Ivica Kegelj the other HVO soldiers and around 20 civilians were taken towards Brdo 2102 1010 When the group of Croatian prisoners had reached Brdo negotiations started again between the 7th Brigade soldiers and Zvonko Rajić's unit The 7th Brigade used the Croatian prisoners to force 2092 DH 1992 Witness BA T F pp 748 2094 Witness BA T F pp 749-751 P 131 and P 135 according to these exhibits Elvedin Čamd ić was killed by Željko Cvijanović a member of the unit led by Zvonko Rajić 2095 Witness BA T F p 750 2096 Witness BA T F p 752 Željko Cvijanović T F pp 420 and 421 2097 Ivica Kegelj T F pp 4220-4222 2098 Ivica Kegelj T F p 4218 2099 Ivica Kegelj T F pp 4218 and 4219 P 389 under seal paras 3 and 4 Witness BA identified the ABiH soldiers present in Dusina as belonging to the 7th Brigade 2nd Battalion T F pp 726-728 746 and 754 P6 which is a photo taken from Dusina showing Stipo Kegelj's house 2100 Ivica Kegelj T F pp 4220 and 4222 2101 Ivica Kegelj T F p 4223 Milica Kegelj T F p 582 P 6 2102 Milica Kegelj T F pp 582 and 583 Ivica Kegelj T F pp 4224 and 4225 P 389 under seal para 5 Witness BA T F p 754 2093 Case No IT-01-47-T 279 15 March 2006 397 21623 BIS the HVO2103 to surrender The witnesses who were members of the HVO agree that Edin Hakanović threatened to execute the prisoners if Zvonko Rajić's unit did not surrender 2104 1011 Following these threats Zvonko Rajić's unit and the 7th Brigade agreed to remove their magazines and to go to Lašva in order to resolve the question of the prisoners 2105 It was around 1100 hours 2106 Zvonko Rajić and six other soldiers from his unit namely Perica Radoš Jozo Krišto Srecko Krišto Viktor Rajić and Witnesses Franjo Batinić and Dragan Radoš set off towards Lašva together with ten or so 7th Brigade soldiers 2107 On the way the 7th Brigade soldiers fearing an ambush started to get nervous They did not believe that the HVO would abide by the agreement they had reached First of all they trained their weapons on the HVO soldiers disarmed them and ordered them to return to Brdo 2108 1012 After a few hundred metres Zvonko Rajić could no longer endure the psychological pressure and tried to escape 2109 The 7th Brigade soldiers including Witness BA opened fire on him wounding him in the upper body and in the leg 2110 Since Zvonko Rajić could not walk the 7th Brigade soldiers ordered the HVO soldiers to take turns carrying him 2111 When they put him on the ground to change around a group of 7th Brigade soldiers arrived running 2112 Zvonko Rajić begged them for medical treatment but the 7th Brigade soldiers taunted mistreated and kicked him 2113 Then one of the 7th Brigade soldiers pulled out his automatic pistol a scorpion and killed Zvonko Rajić with several bullets 2114 1013 After Zvonko Rajić's death the 7th Brigade soldiers tied the hands of the six other Croatian soldiers took off their jackets and escorted them to the meeting point of the Lašva and the 2103 Milica Kegelj T F pp 582 and 583 Ivica Kegelj T F pp 4224-4226 Željko Cvijanović T F p 423 Franjo Batinić T F pp 507-508 Dragan Radoš T F pp 1053 1054 Witness BA T F pp 754-757 2104 Željko Cvijanović T F pp 422-423 Franjo Batinić T F p 508 Dragan Radoš T F pp 1053-1054 Witness BA implicitly recognised that the 7th Brigade was trying to bring about the surrender of HVO soldiers by threatening the prisoners Witness BA T F p 757 2105 Witness BA T F pp 752 Dragan Radoš T F pp 1052 1053 and 1054 Franjo Batinić T F p 508 P 131 2106 Ivica Kegelj T F pp 4227-4228 2107 DH 1992 P 13 under seal Željko Cvijanović who was a member of Zvonko Rajić's unit and stayed behind on one of the hills could follow the sequence of events as they unfolded T F pp 425 427 Franjo Batinić T F pp 508 509 and 554 Dragan Radoš T F p 1054 Witness BA T F pp 752-753 2108 Witness BA T F p 758 Franjo Batinić T F p 509 2109 Franjo Batinić T F pp 510-511 Witness BA T F pp 758-759 2110 Witness BA T F pp 759-760 Franjo Batinić T F pp 510 and 554 Dragan Radoš T F pp 1055-1056 2111 Witness BA T F pp 760-761 Franjo Batinić T F p 511 Dragan Radoš T F p 1056 2112 Dragan Radoš T F p 1056 see also the testimony of Witness Željko Cvijanović HVO soldier who was on a hill at a distance of 50 to 70 metres as the crow flies and who could see and hear the events unfolding Željko Cvijanović T F pp 429-430 2113 Dragan Radoš T F p 1056 Željko Cvijanović T F p 430 Franjo Batinić T F p 511 2114 Željko Cvijanović T F p 430 Franjo Batinić T F pp 511-513 Dragan Radoš T F pp 1056-1057 Case No IT-01-47-T 280 15 March 2006 396 21623 BIS Bosna2115 where there was large group of ABiH soldiers 2116 The soldiers mistreated the six Croatian prisoners hit them and insulted them 2117 Then with their hands still tied Perica Radoš Jozo Krišto Srecko Krišto Viktor Rajić and Witnesses Franjo Batinić and Dragan Radoš were placed in a bus and taken to the Zenica Music School where the 7th Brigade had set up a detention unit 2118 1014 At the same time Ivica Kegelj and the other Croatian prisoners who had been used to negotiate the agreement between Zvonko Rajić's unit and the 7th Brigade were taken back to Stipo Kegelj's house in the Croatian part of Dusina 2119 The 7th Brigade was holding about 45 soldiers and civilian prisoners there 2120 Witness Ivica Kegelj described how he was taken out of his house several times to be interrogated 2121 One of the soldiers put a rifle to his head and threatened him 2122 1015 Between 1500 and 1600 hours on 26 January 1993 Niko Stipo and Vinko Kegelj Pero Ljubičić Augustin Radoš Vojislav Stanišić Ivica Kegelj and Witness Z7 were taken to Ivica Kegelj's house and forced to line up in front of it 2123 There were ten or so ABiH soldiers 2124 According to testimony someone called Vehid Subotić aka Geler was the commander of these soldiers 2125 He ordered the prisoners to surrender their weapons The prisoners all replied the same way that is to say that they had already done so 2126 1016 After that reply Vehid Subotić first of all pointed to Augustin Radoš ordered him to be taken out of the column and gave the order for his execution Hit by bullets Augustin Radoš fell to the ground next to Witness Ivica Kegelj 2127 As Augustin Radoš was still alive Vehid Subotić 2115 Franjo Batinić T F pp 512-513 see also Exhibit P 314 a Zenica Municipal TO report of the fighting dated 28 January 1993 which mentions 31 Croatian prisoners being taken in Dusina and distinguishes between 25 soldiers who were taken to the KP Dom in Zenica and other Croatian prisoners their number is not legible taken by MOS soldiers Both sides suffered losses in manpower The information gathered on 28 January1993 shows that HVO suffered a loss of illegible soldiers and two were wounded The total of 31 HVO soldiers had been taken prisoner of whom 25 have been taken over by the Military Police and accommodated in the Penitentiary Facility Six soldiers have been taken by the Moslem Force soldiers 2116 Dragan Radoš T F pp 1058-1059 Franjo Batinić T F p 512 2117 Franjo Batinić T F p 513 Dragan Radoš T F p 1059 2118 Franjo Batinić T F pp 512 513 and 525 Dragan Radoš T F p 1059-1060 Kruno Rajić T F pp 1796 and 1843 P 405 P 314 P 206 and P 744 As regards the 7th Brigade setting up a detention unit see also infra para 1175 2119 Ivica Kegelj T F p 4226 Milica Kegelj T F p 585 2120 P 389 under seal paras 4 and 5 Ivica Kegelj T F p 4229 2121 Ivica Kegelj T F pp 4229-4230 2122 Ivica Kegelj T F p 4230 2123 Ivica Kegelj T F pp 4230 4231 and 4234 P 389 under seal paras 6 and 7 P 6 2124 Ivica Kegelj T F p 4231 2125 Ivica Kegelj T F pp 4231 4232 4238 P 389 under seal paras 6 and 9 2126 Ivica Kegelj T F pp 4231-4232 2127 Ivica Kegelj T F p 4232 P 389 under seal paras 6 and 7 Case No IT-01-47-T 281 15 March 2006 395 21623 BIS ordered that he be killed by a further round of machine gun fire 2128 Vehid Subotić ordered that the body be removed and placed on the other side of the road where there was a little embankment “so that it didn't obstruct the road ”2129 Witness Ivica Kegelj thought that his turn was next because he was second in the row Geler asked him a question about his weapons and punched him in the head stomach and legs 2130 Then Vehid Subotić asked Niko Stipo and Vinko Kegelj where they had hidden their weapons When they replied that they no longer had any weapons Vehid Subotić forced them to move away and had them killed by bursts of machine gun fire in the back 2131 Then it was the turn of Vojislav Stanišić and Pero Ljubičić who were also killed on the orders of Vehid Subotić 2132 When it was the turn of Witness Z7 he said “I am a civilian I don't belong to the HVO I'm a civilian and I come from another village ”2133 That is when Vehid Subotić aka Geler stopped 2134 1017 Subsequently Vehid Subotić ordered Witnesses Z7 and Ivica Kegelj to pick up the bodies of the men killed and to put them in Ivica Kegelj's garage 2135 Vehid Subotić told them that if they told anyone about what they had seen he would give them “special treatment” and kill them in the most horrible manner imaginable 2136 1018 Then Witnesses Z7 and Ivica Kegelj were taken to the school in Lašva where the ABiH soldiers were holding all the Croatian soldiers and civilians taken prisoner that day in Dusina and the surrounding area apart from the six soldiers who had already been taken to the Zenica Music School 2137 From there the 3rd Corps Military Police transported Ivica Kegelj and 24 other HVO soldiers to the KP Dom in Zenica whereas Witness Z7 was allowed to return home 2138 Ivica Kegelj spent 13 days in detention at the KP Dom in Zenica before being exchanged with all the other Croatian prisoners in Dusina around 12 February 1993 2139 After his release he went to Busovača 2128 Ivica Kegelj T F p 4232 P 389 under seal paras 6 and 7 Ivica Kegelj T F pp 4232-4233 2130 Ivica Kegelj T F pp 4232-4233 2131 Ivica Kegelj T F pp 4236-4237 P 389 under seal paras 6 and 7 2132 Ivica Kegelj T F p 4237 P 389 under seal paras 6 and 7 2133 Ivica Kegelj T F p 4237 2134 Ivica Kegelj T F p 4237 P 389 under seal para 8 2135 Ivica Kegelj T F p 4240 P 389 under seal para 11 2136 Ivica Kegelj T F p 4239 2137 Ivica Kegelj T F pp 4241-4242 Milica Kegelj T F p 589 P 389 under seal para 16 2138 Ivica Kegelj T F p 4244 Mahir Izet T F pp 16799 16820 and 16821 Semir Sarić T F pp 17319 17320 and 17343 P 389 under seal para 16 P 314 and P 744 2139 P 206 and P 744 2129 Case No IT-01-47-T 282 15 March 2006 394 21623 BIS where he made statements about the events he had lived through 2140 Witness Z7 and his wife decided to leave Dusina and to go to Busovača 2141 1019 On 27 January 1993 the bodies of the people killed were taken to the morgue in Zenica by the Civilian Protection which was also responsible for health and safety and for burying the dead 2142 There were 10 bodies in all 2143 b Murder of Zvonko Rajić Paragraph 39 a ab of the Indictment 1020 The Chamber considers that it has been proved beyond a reasonable doubt that Zvonko Rajić was killed on 26 January 1993 in the vicinity of Dusina 2144 Since he had laid down his weapons and had been put out of action as a result of his wounds Zvonko Rajić had acquired the status of prisoner of war afforded the protection offered by the laws or customs of war as recognised by common Article 3 a of the Geneva Conventions 2145 1021 As regards the perpetrator of the murder of Zvonko Rajić the witnesses members of the HVO are at one in stating that Zvonko Rajić was killed by Šerif Patković Commander of the 7th Muslim Mountain Brigade Mbbr 2nd Battalion 2146 Franjo Batinić and Dragan Radoš acknowledged however that they did not know Šerif Patković personally at the time and did not know what his name was until some time after the murder 2147 It is not absolutely clear whether or not Željko Cvijanović knew Šerif Patković He stated that he had not met Šerif Patković personally but that he thought at the time that he belonged to the 7th Brigade and was in command of it 2148 The witness also averred that he had seen Šerif Patković at the Lašva school where he introduced himself as such 2149 Hazim Baručija however who was the headmaster of the Lašva school and a member of the ABiH stated that he had seen Šerif Patković in front of the school in the afternoon of 26 January 1993 although he added that Šerif Patković had not entered the school 2150 Witness BA claimed that he had not seen Šerif Patković or other members of the Blue Falcons when the members of the 7th Brigade escorted the six Croatian prisoners and the wounded Zvonko Rajić in 2140 Ivica Kegelj T F pp 4256-4257 P 389 under seal para 17 2142 P 334 Mirsad Mesić T F pp 12846 12878 and 12880 2143 Mirsad Mesić T F pp 12845 12846 and 12879 2144 Željko Cvijanović T F p 430 Franjo Batinić T F pp 511-513 Dragan Radoš T F pp 1056-1057 2145 Witness BA T F pp 758-760 Franjo Batinić T F pp 509 510 and 554 Dragan Radoš T F pp 1055-1056 2146 Željko Cvijanović T F pp 430 and 432 Franjo Batinić T F p 511 Dragan Radoš T F pp 1056-1057 Joint Statement on the Agreement of Facts Annex A 2147 Dragan Radoš T F pp 1057 and 1058 Franjo Batinić T F p 511 2148 Željko Cvijanović T F p 432 2149 Željko Cvijanović T F p 432 2150 Hazim Baručija T F pp 12442 12443 and 12444 2141 Case No IT-01-47-T 283 15 March 2006 393 21623 BIS the direction of Brdo 2151 The Chamber takes note moreover of the fact that criminal proceedings were initiated a few years later in the Cantonal Court of Zenica against another person for killing people in Dusina on 26 January 1993 2152 1022 The Chamber finds that Šerif Patković was present in the region of Lašva on that day 2153 but concludes nevertheless that it has not been proved beyond a reasonable doubt that he murdered Zvonko Rajić 1023 It has however been proved beyond a reasonable doubt – and this has not been contested by the Defence for the Accused Hadžihasanović – that the perpetrator of the murder was part of the troops subordinated to the Accused Hadžihasanović more specifically those of the 7th Brigade 2nd Battalion 1024 First Witnesses BA and Franjo Batinić both stated that the soldiers present in the vicinity of Dusina belonged to the 7th Brigade 2154 1025 Exhibits P 130 and P 131 prove that the 7th Brigade 2nd Battalion was the main unit engaged in the fighting in Dusina at the material time 2155 Although the exhibits also show that the 303rd Brigade and the 17th Brigade were also present in the region2156 Witnesses Hasim Baručija Deputy Commander of the 3rd Corps 2nd Anti-Sabotage Detachment and Fikret Čuskić 17th Brigade Commander deny that these brigades were involved in the fighting which resulted in the murders committed in Dusina 2157 The same applies to the units of the TO which are not mentioned in the Indictment but were present in the vicinity of Dusina on that day 2158 1026 The circumstances surrounding the murder of Zvonko Rajić also point to the involvement of the 7th Brigade Accordingly Zvonko Rajić’s murder occurred after that of Elvedin Čamdić Commander of the 7th Brigade 2nd Battalion 2nd Company 2159 Zvonko Rajić’s murder could therefore be interpreted as an act of revenge In addition following Zvonko Rajić’s murder the members of his unit were taken to the Zenica Music School As will be explained in more detail in 2151 Witness BA T F pp 761-762 Jasmin Šarić T F p 15943 Džemal Merdan T F p 13573 Semir Šarić T F p 17325 Hilmo Ahmetović T F pp 16189 and 16190 2153 P 479 P 498 Hasim Baručija T F pp 12442 and 12443 2154 Witness BA T F pp 726-729 743-746 754 759 and 760 Franjo Batinić T F pp 512-513 2155 P 130 and P 131 2156 P 128 Joint Statement on the Agreement of Facts Annex B p 8 agreed fact No 11 and P 129 Joint Statement on the Agreement of Facts Annex B p 8 agreed fact No 12 2157 Hasim Baru ija T F pp 12421 12426 and 12427 Fikret Čuskić T F pp 12064-12065 2158 P 200 and P 310 Witness BA T F pp 724 ff who refers only to the 7th MBBR being involved in the fighting 2152 Case No IT-01-47-T 284 15 March 2006 392 21623 BIS the part of the Judgement relating to the Zenica Music School the school was a detention centre set up by the 7th Brigade where the prisoners were subjected to cruel treatment 2160 1027 The Chamber concludes that the mens rea required by common Article 3 a of the Geneva Conventions has also been established At the time Zvonko Rajić was killed he was on the ground with a wounded leg His attempt to flee had clearly failed since the gunshots by the soldiers of the 7th Mbbr had stopped it Consequently the fact that Zvonko Rajić was fired upon again clearly shows the intention to kill him 1028 On the basis of the foregoing the Chamber finds that the crime of murder has been proved as far as Zvonko Rajić is concerned That crime can be ascribed to members of the 7th Brigade c Murders of Niko Kegelj Stipo Kegelj Vinko Kegelj Pero Ljubičić Augustin Radoš and Vojislav Stanišić Paragraph 39 a aa of the Indictment 1029 The Chamber finds that Vojislav Stanišić Niko Kegelj Stipo Kegelj Vinko Kegelj Pero Ljubičić and Augustin Radoš were executed in Dusina on 26 January 1993 2161 The civilian status of Vojislav Stanišić is proved by the testimony of Ivica Kegelj 2162 The five other victims had surrendered their weapons and had been taken prisoner by the ABiH 2163 Consequently they were all protected persons by virtue of the laws or customs of war as recognised by common Article 3 a of the Geneva Conventions 1030 As regards the perpetrator or perpetrators of the murders Witness Ivica Kegelj and eyewitness Z7 stated that the order to execute was given by Vehid Subotić aka Geler 2164 This is not contested by the Defence for the Accused Hadžihasanović The witnesses identified Vehid Subotić aka Geler not only by his glass eye but also because he had told them he was the commander of the unit and was called Geler 2165 The exhibits tendered into evidence show that 2159 P 131 and P 135 See infra paras 1173-1200 2161 Ivica Kegelj T F pp 4232 4236 and 4237 P 389 under seal para 7 2162 Ivica Kegelj T F pp 4229-4236 2163 Ivica Kegelj T F pp 4228 4229 4232 and 4237 2164 Ivica Kegelj T F pp 4232 4236 and 4237 P 389 under seal paras 6 and 9 2165 Ivica Kegelj T F p 4231 “And then one of the soldiers said that he was the commander of that unit He said that his nickname was Geler or ‘shrapnel’ And he pointed to a glass eye that he had He had lost an eye in Croatia a year or two ago a year or two earlier He issued orders himself He asked us to hand over our weapons ” P 389 under seal para 9 Their account of the events is not called in question by Exhibit P 906 Exhibit P 906 a request for an investigation from the Prosecutor’s Office in Travnik accuses one Ahmed Helvida a member of the ABiH of having 2160 Case No IT-01-47-T 285 15 March 2006 391 21623 BIS Vehid Subotić aka Geler was part of the 7th Mbbr 2nd Battalion 2166 The Chamber therefore concludes that it has been proved beyond a reasonable doubt that the murder of the six Croats was committed by soldiers belonging to the 7th Mbbr under the command of the Accused Hadžihasanović 1031 Since the Chamber entertains no doubts as to the existence of the mens rea for murder it concludes that the elements of the crime of murder have been established as concerns Vojislav Stanišić Niko Kegelj Stipo Kegelj Vinko Kegelj Pero Ljubičić and Augustin Radoš iii Findings of the Chamber regarding the Responsibility of the Accused Hadžihasanović 1032 Having reached its conclusions in fact and in law as to the murders committed in Dusina on 26 January 1993 the Chamber will now consider the question of the responsibility of the Accused Hadžihasanović under Article 7 3 of the Statute a Effective Control of Enver Hadžihasanović over the Perpetrators of the Crime 1033 The Chamber found that the murders alleged in paragraphs 39 a and 40 of the Indictment were committed by members of the 7th Mbbr 2nd Battalion Since the 7th Brigade was de jure subordinated to the 3rd Corps at the material time 2167 it is presumed that the Accused Hadžihasanović exercised effective control over that unit and over the perpetrators of the murders who belonged to it 2168 1034 Moreover the evidence shows that the 7th Brigade carried out the orders of the Accused Hadžihasanović Accordingly on 19 January 1993 the Accused Hadžihasanović ordered that all the units of the 3rd Corps maximise their readiness for combat Following this order the Commander of killed the six Croats in Dusina This does not contradict the testimony of the witness who did not say anything about the question as to which members of the ABiH had carried out Vehid Subotić’s order Consequently it is not ruled out that Ahmed Helvida was the person who carried out the order to execute 2166 P 542 P 713 P 720 and P 906 2167 See supra para 381 2168 See supra para 79 Case No IT-01-47-T 286 15 March 2006 390 21623 BIS the 7th Brigade Asim Koričić ordered all the units of the 7th Brigade to maximise their readiness for combat 2169 That order was carried out by Šerif Patković the Commander of the 7th Brigade 2nd Battalion who in turn ordered all the companies and components of the 2nd Battalion to maximise their readiness for combat 2170 These exhibits prove that the orders of the Accused Hadžihasanović went down the chain of command 2171 1035 Furthermore the Defence for the Accused Hadžihasanović has not contested the fact that the 7th Mbbr was subordinated to the Accused Hadžihasanović and has not adduced any evidence to refute that presumption 1036 Consequently the Chamber concludes that the Accused Hadžihasanović exercised effective control over the perpetrators of the murders and that there was a superior-subordinate relationship within the meanings of Article 7 3 of the Statute b Knowledge of the Accused Hadžihasanović 1037 As far as the knowledge of the Accused Hadžihasanović is concerned a distinction should be made between knowledge before the event and knowledge after the event The Defence for the Accused Hadžihasanović contests only his knowledge before the event that is that the Accused Hadžihasanović knew or had reason to know that his subordinates were about to commit crimes 2172 The Prosecution did not attempt to show that he had such prior knowledge No evidence was adduced in this regard The Prosecution merely adduced evidence as to his knowledge after the event namely that the Accused Hadžihasanović knew or had reason to know that his subordinates had committed crimes in Dusina on 26 January 1993 2173 1038 In view of the above the Chamber considers that it has not been proved beyond a reasonable doubt that the Accused Hadžihasanović knew or had reason to know that members of the 7th Brigade were about to commit murders 1039 Conversely the Accused Hadžihasanović was aware of the allegations of murder as early as the afternoon of 26 January 1993 On 26 January 1993 a meeting took place in Kiseljak between 2169 P 480 “Pursuant to the Order of the 3rd Corps Command strictly confidential number 02 33-176 of 19 January 1993 ” 2170 P 479 2171 The exhibits also show that the information went back up the chain of command see P 825 of 22 January 1993 P 714 of 25 January 1993 P 828 of 26 January 1993 P 130 of 26 January 1993 and P 131 of 26 January 1993 all combat reports of the 7th Brigade addressed to the 3rd Corps 2172 Hadžihasanović Defence Final Brief para 307 2173 Prosecution Final Brief para 170 ff Prosecution Closing Arguments T E p 19018 Case No IT-01-47-T 287 15 March 2006 389 21623 BIS the delegations of the HVO the ABiH and representatives of the international community with a view to bringing to an end the fighting in the region of Busovača Witness Džemal Merdan represented the ABiH while Tihomir Blaškić represented the HVO Members of UNPROFOR were also present in particular Witnesses Roderick Cordy-Simpson and Robert Stewart Tihomir Blaškić interrupted the meeting to inform Witness Džemal Merdan and the others present that crimes had been perpetrated in the village of Dusina 2174 1040 Following his return from Kiseljak Witness Džemal Merdan went immediately to the buildings of the 3rd Corps Command in Zenica and made this information known to the Accused Hadžihasanović 2175 The Accused Hadžihasanović then informed the Supreme Command of the ABiH that the meeting in Kiseljak had been interrupted on account of the death of the seven members of the HVO killed in Dusina 2176 1041 On 28 January 1993 the Accused Hadžihasanović informed the Supreme Command of the allegations broadcast on Croatian radio and television and stated “We reject all the lies spread by the HTV about the alleged massacres of the Croatian population as well as the lie about the alleged killing of seven unarmed HVO soldiers We claim responsibly that all the HVO soldiers killed lost their lives in combat in attacks on Muslim villages and our units opened fire only in defence as were their strict orders ”2177 c Measures Taken 1042 As it has been proved beyond a reasonable doubt that the Accused Hadžihasanović was aware of the allegations of murders committed in Dusina by his subordinates he had the duty to take the necessary and reasonable measures to punish the perpetrators 1043 According to the testimony of Džemal Merdan from 26 January 1993 he and the Accused Hadžihasanović tried to obtain as much information as possible about the events in Dusina From the records and reports of that day they had concluded that the losses were the result of combat operations and not of crimes 2178 This is information they passed on to Tihomir Blaškić at a second meeting held at UNPROFOR headquarters in Kiseljak on 27 January 1993 2179 Tihomir Blaškić 2174 Džemal Merdan T F pp 13057-13058 Robert Stewart T F p 15170 Roderick Cordy-Simpson T F pp 15799 15831 and 15832 2175 Džemal Merdan T F p 13058 2176 P 133 2177 P 134 Joint Statement on the Agreement of Facts Annex B p 9 agreed fact No 19 2178 Džemal Merdan T F p 13059 2179 Džemal Merdan T F pp 13088-13089 Robert Stewart T F pp 15173 and 15176 Case No IT-01-47-T 288 15 March 2006 388 21623 BIS seems to have been satisfied with that information since he agreed to continue negotiations with the ABiH 2180 1044 On that day the parties reached a cease-fire agreement2181 further to which the Busovača Joint Commission was set up 2182 It was chaired by Jeremy Fleming a member of the ECMM based in Busovača and had the task of investigating all complaints and going to any point of tension to ensure that the cease-fire was respected 2183 1045 On either 28 or 29 January 1993 Jeremy Fleming Witness Džemal Merdan and Franjo Nakić went to Dusina in connection with the Busovača Joint Commission to inquire into the allegations of a massacre 2184 According to Witness Džemal Merdan the visit confirmed that the dead had been killed in fighting 2185 1046 At the same time more specifically on 27 January 1993 the duty officer of the 3rd Corps Military Police Battalion contacted the investigating judge of the Zenica Military Court Mirsad Strika He informed the judge that the Civilian Protection had brought six corpses from Dusina to the morgue in Zenica on 27 January 1993 2186 That approach was in accordance with Article 41 of the Rules of operation of the military security service of the Armed Forces of the Republic of Bosnia-Herzegovina which provided that in an emergency an authorised officer of the military security service had to inform the military prosecutor or the investigating judge at the military court 2187 1047 Following this information Judge Mirsad Strika set up an investigation team consisting of members of the Zenica Security Services Centre CSB 2188 pursuant to Article 156 of the SFRY Criminal Code 2189 Witness Režib Begić Chief of the Zenica CSB explained that the military police was not in a position to identify the bodies and carry out a physical examination of them 2180 Roderick Cordy-Simpson T F p 15800 Robert Stewart T F p 15172 Roderick Cordy-Simpson T F pp 15804 and 15833 2182 Robert Stewart T F pp 15175 and 15178 Roderick Cordy-Simpson T F pp 15803 and 15804 DH 664 2183 Robert Stewart T F pp 15175 and 15178 Roderick Cordy-Simpson T F pp 15803 and 15804 DH 664 2184 Robert Stewart T F p 15175 DH 2094 para 11 2185 Džemal Merdan T F p 13816 2186 Zaim Mujezinović T E pp 17474-17475 Semir Sarić T F p 17322 P 334 Civilian Protection was also responsible for clearing the ground and burying the dead Mirsad Mesić T F pp 12846 12848 12878 and 12880 2187 P 244 Rules of Operation of the Military Security Service see supra para 934 2188 Zaim Mujezinović T E pp 17475 and 17476 Semir Sarić T F p 17322 Režib Begić T F pp 12500 and 12501 Ermin Husejnagić T F pp 12684 to 12689 2189 See supra para 934 2181 Case No IT-01-47-T 289 15 March 2006 387 21623 BIS because it did not have the necessary technical resources 2190 This is why the investigating judge asked the Zenica CSB to carry out the requisite examinations 2191 1048 At the request of Mirsad Strika the Zenica CSB carried out several examinations on 28 and 29 January 1993 2192 First the Zenica CSB identified the ten dead men 2193 Since the bodies had been brought to the Zenica morgue the identification team identified them in Zenica 2194 The identification team included pathologist Faruk Turkić investigating judges Mirsad Strika and Vlado Adamović a prosecutor from the Zenica Military Court and the forensic doctor of the Zenica CSB 2195 In addition there was Witness Ermin Husejnagić and his colleagues Redžo Hadžić and Enes Šarić all members of the Zenica CSB 2196 Acting on the order of Mirsad Strika pathologist Faruk Turkić carried out an external physical examination of the bodies and recorded his observations in writing 2197 In addition Redžo Hadžić carried out a paraffin test on all the bodies with the exception of that of Vojislav Stanišić 2198 Photographs were also taken 2199 1049 The Zenica CSB drafted several official notes on the results of these examinations and sent them to the Zenica District Military Court on 1 February 1993 2200 The file sent to the Military Court included Faruk Turkić’s report of 28 January 1993 on the external description of the bodies 2201 two official notes of 29 January 1993 on the identification of the bodies 2202 the report on the paraffin test of 29 January 19932203 and the photographs taken of the ten bodies 2204 1050 Witnesses who were members of the military police stated that they received an order from the investigating judge and the 3rd Corps security organ to take statements from the Croatian 2190 Režib Begić T F pp 12499 12500 and 12538 Režib Begić T F pp 12500-12511 2192 Režib Begić T F pp 12499 12500 and 12511 Ermin Husejnagić T F pp 12686 and 12698 2193 P 333 and P 334 2194 The investigating judge merely carried out the examinations of the bodies at the Zenica morgue Because of war operations he did not order the investigation team to go to Dusina to visit where the events occurred Ermin Husejnagić T F pp 12706-12707 P 333 and P 334 2195 Režib Begić T F p 12502 Ermin Husejnagić T F pp 12684 12686 and 12691 P 333 and P 334 2196 Ermin Husejnagić T F pp 12683 12687-12689 and 12691 2197 Ermin Husejnagić T F pp 12691 and 12712 DH 1638 2198 Ermin Husejnagić T F pp 12689 12695 and 12698 P 341 2199 Ermin Husejnagić T F p 12687 DH 1639 2200 P 332 Ermin Husejnagić T F pp 12687 12690 12691 and 12708 2201 DH 1638 2202 P 333 and P 334 The Chamber notes that Exhibit P 332 mentions only an official note dated 29 January 1993 The Chamber considers that this is a typographical error insofar as there are two official notes dated 29 January 1993 P 333 and P 334 2203 P 341 2204 DH 1639 2191 Case No IT-01-47-T 290 15 March 2006 386 21623 BIS prisoners brought from Dusina to the KP Dom in Zenica about their “participation in combat and the way they were captured ”2205 1051 The Prosecution maintains however that no serious investigation was carried out by the 3rd Corps which should have done in situ investigations and questioned Croatian eyewitnesses and the members of the 7th Brigade 2nd Battalion 2206 It asserts that the 3rd Corps had the resources necessary for this purpose and that the location was perfectly accessible 2207 It further maintains that the investigating judge Mirsad Strika did not play a major role 2208 1052 The Chamber finds that on 27 January 1993 the 3rd Corps Military Police duty officer informed the investigating judge of the Zenica Military Court that 10 bodies had been taken to the morgue in Zenica 2209 The Chamber has no reason to doubt the veracity of this finding and considers that the fact that the 3rd Corps Military Police informed the investigating judge of the events in Dusina shows that it considered the possibility that a crime had been committed by members of the 7th Brigade 1053 Further to the information communicated by the military police the investigating judge Mirsad Strika set up an investigation team consisting of members of the Zenica CSB 2210 The Chamber considers that once the matter had been referred to Judge Mirsad Strika the 3rd Corps was no longer in a position to intervene in the investigation without a prior request of the investigating judge The operation of the judicial system in the ABiH in 1993 has been explained in detail in the part of the Judgement relating to the functioning of civil and military justice in the RBiH 2211 The witnesses who were judges in the Zenica District Military Court or members of the military police or of the Zenica CSB at the time explained that the investigating judge was the authority with exclusive competence to carry out an investigation Mladen Veseljak and Hilmo Ahmetović stressed that the investigating judge was totally independent of the army as regards the measures to be taken Nobody could instruct him how he had to undertake an investigation It was the investigating judge who set up an investigation team decided on its composition on a case-by-case basis and gave instructions as to how the investigation should proceed on-site To that end he could 2205 Zaim Mujezinović T E pp 17475 and 17543 Semir Sarić T F pp 17323 and 17348 Prosecution Final Brief paras 176 178 181 and 182 2207 Prosecution Final Brief paras 176 178 181 and 182 2208 Prosecution Final Brief footnote 580 2209 Zaim Mujezinović T E p 17475 see also Semir Sarić T F p 17322 2210 Zaim Mujezinović T E p 17475 Semir Sarić T F p 17322 Režib Begić T F pp 12500-12501 Ermin Husejnagić T F pp 12684-12685 2211 See supra para 900 ff 2206 Case No IT-01-47-T 291 15 March 2006 385 21623 BIS ask the military or the civilian police to make men available to him 2212 Witness Mladen Veseljak stated that once a case was in the hands of a military judicial authority the military authorities were not entitled to act contrary to the instructions of the military judicial authority or to carry out parallel criminal investigations 2213 1054 The Chamber further finds that an on-site investigation was possible at the morgue to which the bodies of the people killed had been taken Moreover since the investigating judge was under a duty to draw up the post mortem report he was obliged to go to where the bodies were located 1055 The Chamber finds that once the investigation had been finished and all its findings presented to the investigating judge the judge forwarded the evidence to the appropriate prosecutor Like the investigating judge the military prosecutor was completely independent of the army and the military police 2214 The prosecutor had exclusive authority to decide what action to take on this information 2215 In this instance however the Chamber does not know what action the prosecutor took in respect of the case in question 1056 There are some doubts as to whether the military police took statements from the Croatian prisoners brought to the KP Dom in Zenica Following the case bought before this Tribunal against Tihomir Blaškić the Dusina case was re-examined in Zenica in 2000 2216 During the reexamination Witness Ragib Hadžić did not find any information to suggest that there had been any witnesses to the events in Dusina Indeed the file of the Zenica Public Prosecutor’s Office of January 1993 contained no witness statements 2217 1057 This may be explained either by the fact that the 3rd Corps Military Police did not take any witness statements or by the fact that the eyewitnesses did not dare to make a statement to the Muslim authorities or had left the territory controlled by the ABiH The Chamber heard a number of eyewitnesses and retraced what happened to them after the murders 1058 As far as the murder of Zvonko Rajić is concerned two of the eyewitnesses heard by the Chamber Franjo Batinić and Dragan Radoš were taken to the Zenica Music School a detention 2212 Hilmo Ahmetović T F pp 16167 and 16169-16170 Mladen Veseljak T F pp 15993 15996 15997 and 16071 see also Režib Begić T F pp 12503 12561 and 12562 Zaim Mujezinović T F pp 17476 and 17543 see also supra paras 925-929 2213 Mladen Veseljak T E pp 16077-16078 2214 See also supra para 931 2215 Mladen Veseljak T F pp 15996 and 15997 see also supra paras 931-933 2216 Ragib Hadžić T F pp 15092-15094 and 15098 2217 Ragib Hadžić T F p 15103 Case No IT-01-47-T 292 15 March 2006 384 21623 BIS centre where the prisoners underwent cruel treatment 2218 The third eyewitness heard by the Chamber Željko Cvijanović was taken directly to the Zenica KP Dom When he was being moved from the Lašva school to the KP Dom he was allegedly mistreated by 3rd Corps Military Police soldiers 2219 1059 It could be not established from the statements of Franjo Batinić Dragan Radoš and Željko Cvijanović whether they had been questioned by the soldiers of the 3rd Corps or on what subject The Chamber considers that in view of the circumstances at the time it would not be surprising if these eyewitnesses had remained silent when questioned by the 3rd Corps Military Police 1060 As regards the murders of Vojislav Stanišić Niko Kegelj Stipo Kegelj Vinko Kegelj Pero Ljubičić and Augustin Radoš the Chamber heard two eyewitnesses Ivica Kegelj was taken to the KP Dom in Zenica and spoke only of what he experienced once he had been exchanged and had arrived in territory controlled by the HVO 2220 Witness Z7 succeeded in returning home and did not make any statement to the Muslim authorities out of fear 2221 1061 The Chamber finds that the Accused Hadžihasanović was unable to carry out his own criminal investigation or to influence how the case was dealt with by Judge Mirsad Strika or the competent prosecutor Given that the 3rd Corps Military Police informed the investigating judge of the arrival of the bodies at the Zenica morgue thereby referring the matter to the appropriate military judicial authority it cannot be concluded that the Accused Hadžihasanović did not take the necessary and reasonable measures under Article 7 3 of the Statute iv Conclusions of the Chamber 1062 The Chamber considers that there is no evidence that the Accused Hadžihasanović knew or had reason to know that his subordinates were preparing to commit crimes in Dusina on 26 January 1993 The fact that there was a judicial investigation shows that the Accused did not fail in his duty to take the necessary and reasonable measures to punish the perpetrators As a result the Accused Hadžihasanović cannot be held to be criminally responsible for the offence referred to in count 1 paragraphs 39 a and 40 of the Indictment 2218 Franjo Batinić T F pp 512 513 and 525 Dragan Radoš T F pp 1059-1060 Kruno Rajić T F pp 1796 and 1843 2219 Željko Cvijanović T F p 440 Ivica Kegelj T F p 4243 2220 Ivica Kegelj T F pp 4256 and 4257 2221 P 389 under seal paras 16 and 17 Case No IT-01-47-T 293 15 March 2006 383 21623 BIS b Miletići 1063 In paragraphs 39 b and 40 of the Indictment the Accused Hadžihasanović and Kubura are accused of not having taken the necessary and reasonable measures to prevent the murders of Franjo Pavlović Tihomir Pavlović Vlado Pavlović and Anto Petrović in Miletići on 24 April 1993 or to punish the perpetrators 2222 They are accused of murder a violation of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute and recognised by common Article 3 1 a of the Geneva Conventions i Arguments of the Parties 1064 The Prosecution maintains that the forces of the 306th Brigade and the 7th Brigade in particular the 7th Brigade 1st Battalion 1st Company under the command of Ramo Durmiš were responsible for the murders committed in Miletići on 24 April 1993 2223 It asserts moreover that the forces of the ABiH involved in the attack on Miletići operated in conjunction with the mujahedin 2224 The Prosecution alleges that the Accused had knowledge of the murders committed by their subordinates and that they failed to take the necessary and reasonable measures to punish the perpetrators of the murders 2225 1065 The Defence for the Accused Hadžihasanović does not dispute the fact that the murders alleged in paragraph 39 b of the Indictment were committed 2226 Nevertheless it does dispute the allegation that the identity of the perpetrators of the murders has been established 2227 As regards the superior-subordinate relationship required under Article 7 3 of the Statute the Defence for the Accused Hadžihasanović disputes that units subordinated to the 3rd Corps were involved in the crimes committed in Miletići on 24 April 1993 It maintains that the murders were committed by foreign mujahedin and local mujahedin who were neither subordinated to the 3rd Corps nor placed under its effective control 2228 The Defence for the Accused Hadžihasanović asserts that the Prosecution failed to prove beyond a reasonable doubt that the Accused Hadžihasanović knew or 2222 In its Decision on the Motions for Acquittal the Chamber found that the Indictment was intended only to charge the two Accused under count 2 of the Indictment with the events at Maline on 8 June 1993 The Chamber found that the offences of cruel treatment which were allegedly committed in Miletići on 24 April 1993 were not supported by any evidence and acquitted the Accused under this count 2223 Indictment para 39 b Prosecution Final Brief paras 187 and 190 2224 Prosecution Final Brief para 189 2225 Prosecution Final Brief paras 192 and 193 nevertheless it should be noted in this regard that the Prosecution Final Brief adduces no evidence to substantiate the alleged knowledge of the Accused Kubura see paras 192 and 193 2226 Hadžihasanović Defence Final Brief para 391 2227 Hadžihasanović Defence Final Brief para 391 2228 Hadžihasanović Defence Final Brief para 408 Case No IT-01-47-T 294 15 March 2006 382 21623 BIS had reason to know that the crimes were about to be committed and that he failed to take the necessary and reasonable measures to punish the perpetrators 2229 1066 The Defence for the Accused Kubura denies that units or members of the 7th Brigade were present in Miletići on 24 April 1993 and involved in the crimes committed 2230 It disputes the allegation that the Accused Kubura had effective control over the perpetrators of the crimes committed in Miletići on that day 2231 It argues that the events in Miletići were not part of any military operation carried out by the ABiH in the region but constituted an isolated incident 2232 It further maintains that no unit of the 7th Brigade was stationed in the Bila Valley at that time and that the presence of individual members of the 7th Brigade was due to the fact that they were there permanently and could not get back to their respective units on account of the blockade of the Bila Valley 2233 ii Findings of the Chamber regarding the Murders Committed in Miletići a Sequence of Events in Miletići on 24 April 1993 i The Wounded Foreign Mujahed 1067 Witness Suad Menzil a former member of the 306th Brigade 1st Battalion medical service stated that when leaving Mehurići at around 1000 hours on 24 April 1993 he was stopped by two foreign mujahedin two armed “Arabs” They asked him to tend to a third foreign mujahed who had been seriously shot and was lying on the road 2234 In view of the seriousness of his wounds he had to be taken to the hospital in Zenica 2235 It appears from the 3rd Corps and 306th Brigade war diaries that day that the “Arab” in question had been wounded by the HVO near Suvi Dol which is to the west of Miletići in the Bila Valley 2236 2229 Hadžihasanović Defence Final Brief para 391 Kubura Defence Final Brief para 61 ff 2231 Kubura Defence Final Brief paras 66 and 73 2232 Kubura Defence Final Brief para 67 2233 Kubura Defence Final Brief para 80 2234 Suad Menzil T F pp 14099 14136 2235 Suad Menzil T F p 14100 2236 C 15 p 167 see also C 18 p 24 war diary of the 306th Brigade of 24 April 1993 which mentions that “an Arab was wounded in the stomach in the area of Lacin above Suvi Dol “ 2230 Case No IT-01-47-T 295 15 March 2006 381 21623 BIS ii Taking of the Village of Miletići Arrest and Detention of the Villagers 1068 Miletići is a small village in the Bila Valley in the municipality of Travnik 2237 At the material time the village consisted of two parts Gornji Miletići the Croatian part of the village and Donji Miletići the Muslim part 2238 Gornji Miletići had some 13 Croatian houses and Donji Miletići three Muslim houses 2239 The village of Miletići is about three kilometres from Mehurići where the Elementary School housed the 306th Brigade 1st Battalion and a few kilometres from Luka a hamlet of Zagrađe where the 314th Brigade 4th Battalion 3rd Company was located 2240 1069 In the afternoon of 24 April 1993 Dedo Suljić a Muslim villager who lived in Donji Miletići learned that foreign mujahedin were approaching the village of Miletići Witness Dedo Suljić together with his two brothers Akif and Avdo Suljić and his uncle Haso Suljić went towards the Croatian part of the village to inform their Croatian neighbours and to reassure them 2241 Once they had arrived at Gornji Miletići Franjo Pavlović and Avdo Suljić agreed to leave together to inform the ABiH Command of the arrival of the mujahedin and of the fact that the villagers were worried about the consequences of their arrival 2242 1070 The witnesses stated that shortly after mujahedin some of whom were masked arrived in the village 2243 When the Croatian villagers saw the soldiers approaching and heard gunshots they took shelter in the houses of Stipo and Ivo Pavlović 2244 Witness Bozo Pavlović was the only one who went off to hide in the forest 2245 About 10 people sought shelter in the house of Stipo Pavlović including Witnesses Katica Kovačević Anda Pavlović and Witnesses Z10 and Z14 2246 Those witnesses stated that Stipo Pavlović had remained in the hallway of his house armed with a rifle while the other villagers had taken refuge in an adjacent room 2247 When the soldiers started to bang on the door Stipo Pavlović fired at the door killing one of the attackers 2248 At this the 2237 P 933 An a Pavlović T F p 1306 Bozo Pavlović T F p 2068 Hamid Suljić T F p 11878 2239 P 392 under seal para 3 P 396 under seal para 1 2240 Esed Sipić T F p 14749 Derviš Suljić T F 11303 11304 and 11337 Hamid Suljić T F pp 11881 11898 and 11933 P933 2241 DH 2092 para 3 An a Pavlović T F p 1313 P 392 under seal para 6 P 396 para 2 2242 DH 2092 para 4 An a Pavlović T F p 1314 P 396 under seal para 4 2243 DH 2092 para 4 An a Pavlović T F p 1315 2244 Katica Kovačević T F pp 906 and 907 An a Pavlović T F p 1315 P 392 under seal para 7 P 396 under seal para 4 2245 Bozo Pavlović T F p 2072 2246 Katica Kovačević T F p 907 An a Pavlović T F p 1319 P 392 under seal para 8 P 396 under seal para 4 2247 An a Pavlović T F pp 1319 and 1320 P 392 under seal para 8 P 396 under seal para 5 2248 Katica Kovačević T F p 907 An a Pavlović T F pp 1320 1322 and 1323 2238 Case No IT-01-47-T 296 15 March 2006 380 21623 BIS soldiers threw a grenade into the house which killed Stipo Pavlović 2249 They then entered the house and made the villagers go outside 2250 Upon leaving the house Vlado Pavlović began to run in order to escape One of the soldiers posted in front of the house gave him a blow on the head and forced him to kneel 2251 According to the Prosecution witnesses there were around a dozen foreign mujahedin and between 20 to 30 masked local soldiers wearing camouflage uniforms 2252 They were all armed 2253 1071 A soldier called “Ramadan” who spoke B C S badly ordered the assembled villagers to go and collect their weapons and those who had weapons did so 2254 It was at this moment that Franjo Pavlović and Avdo Suljić returned to the village Although Dedo Suljić tried to warn them and told them to go away Franjo Pavlović was stopped and forced to kneel his hands tied behind his back Avdo Suljić managed to escape 2255 1072 The soldiers separated Franjo Pavlović Tihomir Pavlović Vlado Pavlović and Anto Petrović from the other villagers and forced them to kneel 2256 One of the soldiers said that they ought to be five but when another indicated the house where Stipo Pavlović had been killed the first soldier was satisfied 2257 The soldiers bound the hands of Dedo Suljić and the Croatian villagers with the exception of the old women and three children and ordered them to set off on the road to Poljanice Mehurići 2258 Franjo Pavlović Tihomir Pavlović Vlado Pavlović and Anto Petrović stayed behind kneeling 2259 The four men were in civilian clothes 2260 It was the last time the villagers saw them alive 1073 When the villagers were walking to Poljanice Witness Hamid Suljić the son of Akif Suljić and a member of the ABiH 314th Brigade encountered the column 2261 When he appeared before 2249 Katica Kovačević T F pp 907 and 908 An a Pavlović T F p 1320 An a Pavlović T F pp 1320 and 1321 P 392 under seal para 9 P 396 under seal para 5 2251 Katica Kovačević T F p 911 2252 An a Pavlović T F pp 1323 and 1324 P 396 under seal para 7 P 392 under seal para 10 11 and 16 P 393 under seal para 5 2253 P 396 under seal para 7 2254 An a Pavlović T F pp 1323 1324 and 1325 P 392 under seal para 13 P 396 under seal para 8 DH 2092 para 6 2255 An a Pavlović T F p 1326 P 392 under seal para 13 P 396 under seal para 9 DH 2092 para 6 2256 Katica Kovačević T F pp 911-913 An a Pavlović T F pp 1326 and 1327 P 392 under seal paras 13 and 14 P 393 under seal para 7 P 396 under seal para 9 2257 An a Pavlović T F p 1326 2258 An a Pavlović T F p 1327 P 392 under seal paras 14 and 15 P 393 under seal para 8 P 396 under seal para 9 DH 2092 para 6 2259 Katica Kovačević T F pp 914 and 1275 P 392 under seal paras 13 and 14 P 393 under seal para 8 DH 2092 para 6 2260 P 396 under seal para 9 2261 Hamid Suljić T F p 11884 DH 2092 para 7 2250 Case No IT-01-47-T 297 15 March 2006 379 21623 BIS the Chamber Hamid Suljić stated that the mujahedin wearing camouflage uniforms masked and armed with automatic rifles surrounded the villagers 2262 In his deposition the witness mentioned that the mujahedin spoke a language that he did not understand and wore no insignia 2263 He recalled that all the men apart from his uncle Haso Suljić who used a stick to walk had their hands tied 2264 When he approached the column of villagers one of the masked men indicated to him that he should leave 2265 Dedo Suljić also gestured to him not to come near 2266 Hamid Suljić then went off in the direction of Mehurići 2267 1074 During the afternoon of 24 April 1993 the duty officer of the 306th Brigade 1st Battalion in Mehurići informed Witness Derviš Suljić the son of Dedo Suljić and a member of the 306th Brigade at the material time that the mujahedin had started to arrest people in Miletići 2268 Becoming afraid for his family Derviš Suljić drove to Miletići 2269 On the way he saw his father his uncle his father’s uncle and Croatian neighbours who were tied up and seemed to be moving towards Mehurići 2270 He found himself confronted with the column of prisoners When he shouted from far off his father began to weep Derviš Suljić wanted to draw closer to the group but he was prevented by a masked soldier carrying a weapon 2271 According to the witness about ten guards were guarding the prisoners 2272 Derviš Suljić then decided to join up again with the 306th Brigade 1st Battalion at Mehurići 2273 1075 The villagers were all taken to the camp at Poljanice 2274 The witnesses concur in stating that foreign mujahedin and local Muslims separated the men from the women subsequently putting the women in Savo Savić’s house and the men in the cowshed 2275 2262 Hamid Suljić T F p 11885 Hamid Suljić T F pp 11886 11887 11916 and 11900 2264 Hamid Suljić T F pp 11885 and 11925 2265 Hamid Suljić T F p 11886 2266 DH 2092 para 7 2267 Hamid Suljić T F p 11887 2268 Derviš Suljić T F pp 11308 11309 and 11329 2269 Derviš Suljić T F p 11309 2270 Derviš Suljić T F p 11309 2271 Derviš Suljić T F pp 11309 11310 11336 and 11355 2272 Derviš Suljić T F p 11355 2273 Derviš Suljić T F p 11311 2274 For a description of the camp see supra paras 419-426 P 934 is a map with an enlarged view of the village of Mehurići and its immediate surroundings including the camp at Poljanice 2275 An a Pavlović T F p 1329 P 392 under seal paras 16-18 P 393 under seal para 9 P 396 under seal para 11 DH 2092 para 9 2263 Case No IT-01-47-T 298 15 March 2006 378 21623 BIS iii Release of the Villagers 1076 A number of witnesses formers members of the ABiH at the material time testified to the negotiations which they attended in the evening of 24 April 1993 with a view to releasing the Muslim and Croatian prisoners from Poljanice Camp 2276 Apart from some minor discrepancies all the witnesses present stated that the release of the prisoners had been negotiated by Witness Sulejman Ribo a member of the 312th Brigade and Mirza Lubenović Commander of the 306th Brigade 1st Battalion 2277 1077 In the afternoon of 24 April 1993 Sulejman Ribo was in Mehurići Elementary School talking with Mehmed Musanović Deputy Commander of the 306th Brigade 1st Battalion when he learned that a large number of mujahedin had left Mehurići making for Miletići 2278 Mehmed Musanović reacted immediately and informed the commander of the 306th Brigade 1st Battalion Mirza Lubenović 2279 Several persons assembled in the main room of the command including Sulejman Ribo Derviš Suljić Suad Menzil and Hasan Zukanović 2280 They were informed that the mujahedin had brought villagers under duress from the village of Miletići in the direction of Poljanice camp 2281 Derviš Suljić told the other persons present that three members of his family had been arrested and were in the column 2282 At about 1900 or 1930 hours Mirza Lubenović arrived at the school and took control of the situation with a view to finding a solution and getting the prisoners freed 2283 He tried to make contact with the chief of the mujahedin at Poljanice camp Abu Haris and sent some men there 2284 Abu Haris however refused to take part in any talks whatsoever 2285 Then the members of the ABiH decided to call upon “Ramadan” an Arab who spoke some B C S and frequently visited the school 2286 They asked him to act as an intermediary 2276 Sulejman Ribo a member of the 312th Brigade Hamid Suljić a member of the 314th Brigade stationed at Zagrade Derviš Suljić Assistant Commander for Intelligence at 306th Brigade Command Hasan Zukanović Assistant Commander for Security in the 306th Brigade 1st Battalion Suad Menzil a member of the medical service of the 306th Brigade 1st Battalion 2277 Sulejman Ribo T F p 11056 Derviš Suljić T F pp 11311-11313 Hamid Suljić T F pp 11888 and 11889 Suad Menzil T F pp 14103 and 14104 DH 2091 para 6 2278 Sulejman Ribo T F pp 11049 11050 and 11060 2279 Sulejman Ribo T F pp 11050 and 11051 DH 2091 para 6 2280 Sulejman Ribo T F p 11051 Derviš Suljić T F p 11311 Suad Menzil T F p 14103 DH 2091 para 6 2281 Sulejman Ribo T F p 11051 2282 Sulejman Ribo T F pp 11051 and 11052 Derviš Suljić T F p 11311 2283 Sulejman Ribo T F p 11053 Derviš Suljić T F p 11312 DH 2091 para 6 2284 Sulejman Ribo T F p 11054 Suad Menzil T F p 14104 It is not completely clear who was the emir of the mujahedin referred to by those two witnesses Whereas Sulejman Ribo mentioned Abu Haris Suad Menzil thought that the emir at the material time was Wahiudin Sulejman Ribo T F p 11054 Suad Menzil T F pp 14141-14143 see also supra paras 438-439 2285 Sulejman Ribo T F p 11054 2286 Sulejman Ribo T F p 11053 Suad Menzil T F p 14104 DH 2091 para 6 The witness stated that at the time the mujahedin still had two rooms on the first floor of the Mehurići Elementary School where they kept food Ramadan Case No IT-01-47-T 299 15 March 2006 377 21623 BIS and to put them in touch with Abu Haris After hesitating at first Ramadan finally came back at about 2130 hours with Abu Haris who was escorted by two or three armed Arab men 2287 It was at this point that negotiations began between Mirza Lubenović and Abu Haris 2288 1078 During the negotiations Abu Haris set all sorts of conditions He sought to avoid the Croatian prisoners fleeing after they were freed and asked for them to be guarded 2289 It was therefore agreed to place the Croatian prisoners in Luka in the house of Witness Sulejman Ribo and in two other houses 2290 1079 At about 2200 hours on 24 April 1993 the Muslim villagers Dedo Akif and Haso Suljić were released and brought to Mehurići Elementary School where a foreigner who spoke a little B C S ordered an Arab man to take them to Luka 2291 Once they arrived in Luka the three Suljićs were reunited with their families in the house of Witness Sulejman Ribo 2292 Lastly after 2230 hours the Croatian prisoners were also released from Poljanice Camp and taken to Luka 2293 iv Return to the Village of Miletići Following the Attack 1080 On the day after these events 25 April 1993 Bozo Pavlović returned to the village of Miletići 2294 When he appeared before the Chamber he described the condition of the bodies of Franjo Vlado Tihomir Pavlović and Anto Petrović which he found upon his return He found Tihomir Pavlović seated on a sofa in Stipo Pavlović’s house 2295 his hands tied behind his back Signs of bullet impact could be seen on his body 2296 He also saw the body of Franjo Pavlović lying face down 2297 The deceased’s head was in a saucepan containing blood which had drained from the was responsible for their logistics Sulejman Ribo T F pp 11053 11088 and 11089 Suad Menzil T F p 14140 see also supra para 420 2287 Sulejman Ribo T F pp 11053 and 11054 Suad Menzil T F p 14104 DH 2091 para 6 2288 Sulejman Ribo T F p 11054 Suad Menzil T F p 14104 2289 Sulejman Ribo T F p 11056 T E p 11055 2290 Sulejman Ribo T F pp 11056 11057 and 11090 Witness Sulejman Ribo explained to the Chamber that at the material time there was incessant rifle fire two or three kilometres from Mehurići The members of the ABiH present during the negotiations were afraid that the mujahedin would kill the Croatian prisoners held in their camp if a mujahedin were injured let alone killed in that rifle fire Sulejman Ribo T F p 11055 2291 Sulejman Ribo T F p 11055 Derviš Suljić T F p 11312 and 11313 Hamid Suljić T F p 11888 DH 2092 para 9 2292 Sulejman Ribo T F p 11057 DH 2092 para 9 2293 Katica Kovačević T F p 1278 Anđa Pavlović T F p 1330 P 392 under seal paras 19 and 20 P 396 under seal paras 12 and 13 Sulejman Ribo T F p 11056 and 11057 DH 2091 para 6 2294 Bozo Pavlović T F p 2073 2295 P 21 2296 Bozo Pavlović T F pp 2073 and 2074 P 24 1 2297 Bozo Pavlović T F p 2074 P 25 1 Case No IT-01-47-T 300 15 March 2006 376 21623 BIS cranium 2298 Just behind the body of Franjo Pavlović the witness noticed Vlado Pavlović whose body was curled up 2299 Bozo Pavlović then went into Ivo Pavlović’s house 2300 where he found Anto Petrović dead 2301 His body lay on the floor and there was something resembling branches with thorns in his mouth There was also a television set shattered into a thousand pieces alongside the dead man’s head 2302 1081 On 26 April 1993 Witness Andre Kujawinski a member of the British UNPROFOR Battalion and a representative of the HCR went to Miletići to inquire into the allegations of a massacre 2303 When he appeared before the Chamber Andre Kujawinski stated that they found traces of blood in a “pink house” 2304 There was a pink sofa with large traces of blood and cushions pierced with holes which had leaked feathers On the ground there were clots of blood and fragments of bone 2305 1082 On 26 April 1993 other villagers including Witnesses Katica Kovačević and An a Pavlović returned to Miletići They had been warned by UNPROFOR that the four men who had stayed in Miletići had been killed 2306 They had found them in the house of Ivo Pavlović 2307 According to those witnesses the bodies of the deceased showed various signs of mistreatment most often in the neck region 2308 1083 On 27 April 1993 the British UNPROFOR Battalion and representatives of the HCR returned to Miletići 2309 They found the bodies of the deceased placed alongside each other aligned on the ground in Ivo Pavlović’s house 2310 Some of the bodies had cuts in the region of the throat 2311 They took them to the church in Brajkovići 2312 2298 Bozo Pavlović T F pp 2074 and 2075 Bozo Pavlović T F p 2075 P 23 1 2300 P 22 2301 Bozo Pavlović T F pp 2075 and 2076 P 26 1 2302 Bozo Pavlović T F p 2076 2303 Andre Kujawinski T F p 5440 2304 Andre Kujawinski T F p 5443 It seems to have been Stipo Pavlović’s house which was in fact painted pink P 21 2305 Andre Kujawinski T F p 5445 see also Andrew Hogg T F pp 7850 to 7852 and 7858 DH 181 2306 Katica Kovačević T F p 1278 Anða Pavlović T F pp 1330-1332 P 393 under seal paras 12 and 13 P 396 under seal paras 14 and 15 2307 Katica Kovačević T F p 1279 Anða Pavlović T F p 1332 P 392 under seal para 25 2308 Anða Pavlović T F p 1332 P 392 under seal para 25 P 396 under seal para 16 2309 Andre Kujawinski T F p 5447 2310 Andre Kujawinski T F p 5449 2311 Andre Kujawinski T F p 5449 and T E p 5447 see also the testimony of Witness ZQ T F p 987 and Franjo Križanac T F p 1096 2312 Andre Kujawinski T F p 5450 Witness ZQ T F p 985 Franjo Križanac T F pp 1094 and 1096 P 375 2299 Case No IT-01-47-T 301 15 March 2006 375 21623 BIS 1084 On 27 April 1993 23 Croatian villagers were transported from Miletići to Nova Bila 2313 v Investigations Carried out Following the Massacre 1085 On 25 April 1993 representatives of the Busovača Joint Commission including Džemal Merdan and Franjo Nakić went to Miletići to inspect the scene 2314 From conversations with local people they reached the conclusion that the massacre had been committed by foreign mujahedin and local Muslims who supported them 2315 1086 On 25 April 1993 Asim Delalić the 306th Brigade Assistant Commander for Security was informed of the events which had taken place in Miletići by Derviš Suljić and he ordered Hasan Zukanović 306th Brigade 1st Battalion Assistant Commander for Security to investigate these events and report back to him 2316 Hasan Zukanović informed him that the incident was attributable to mujahedin 2317 The information was transmitted to the 3rd Corps security officer 2318 1087 The 3rd Corps security officer apparently also tried to obtain information about the foreign mujahedin He contacted the chief of police in Zenica Asim Fazlić with a view to pooling their efforts to find the perpetrators of the crime 2319 According to the information available to the 3rd Corps a very mobile group of foreigners continually on the move was involved 2320 According to Witness Džemal Merdan the 3rd Corps did not have enough men to find out any more and to deal with the problems created by the mujahedin 2321 1088 The civilian police was informed of the massacre It drew up an official note based on what the population and some members of the ABiH had recounted The note was sent to Travnik Witness Sejad Jusić a police officer in Mehurići at the material time received no reaction following the dispatch of the official note 2322 2313 P 396 under seal para 18 P 375 Remzija Šiljak T F pp 10545 and 10546 10644 Sulejman Ribo T F p 11058 Hamid Suljić T F pp 11890 and 11920 Džemal Merdan T F pp 13110 and 13197 Esed Sipić T F p 14790 DH 2091 para 7 2315 Džemal Merdan T F pp 13112 13114 13823 13609 and 13610 P 148 2316 Asim Delalić T F p 16356 and T E pp 16356 and 16357 DH 2091 para 7 2317 Asim Delalić T F p 16356 DH 2091 paras 7 and 8 2318 Asim Delalić T F p 16357 Esed Sipić T F pp 14791 and 14792 2319 Witness HF T E pp 17267 17268 T F p 17270 Džemal Merdan T F p 13156 2320 Džemal Merdan T F pp 13157 and 13158 2321 Džemal Merdan T F pp 13157 and 13158 2322 Sejad Jusić T F pp 11183 11184 and 11187 2314 Case No IT-01-47-T 302 15 March 2006 374 21623 BIS b Murders of Franjo Pavlović Tihomir Pavlović Vlado Pavlović and Anto Petrović Paragraph 39 b of the Indictment 1089 In view of the foregoing the Chamber finds that it has been established beyond a reasonable doubt that Franjo Tihomir and Vlado Pavlović and Anto Petrović were executed in Miletići on the evening of 24 April 1993 The crime of murder has been established Since they had been taken prisoner and were not involved in the fighting they qualified for the protection afforded by the laws or customs of war as recognised by common Article 3 a of the Geneva Conventions 1090 As for the question of who were the perpetrators of the crime of murder the Prosecution alleges that Ramo Durmiš and Ramadan El Suri were involved 2323 The Chamber notes that the name of Ramadan was mentioned by Prosecution witnesses As will be discussed later however none of them made the link with the ABiH 7th Brigade or 306th Brigade 1091 The Prosecution states moreover that the names of several suspects were known at the time In this regard it refers to documents from the HVO which mention names of suspects 2324 As far as the persons mentioned in those documents are concerned the Chamber notes that at least one was part of the Muslim Forces of Travnik 2325 In accordance with the Chamber’s conclusions in the part of the Judgement relating to the mujahedin however the mere fact that a person was a member of the Muslim Forces of Travnik in 1992 does not enable it to be inferred ipso facto that the person became a member of the 3rd Corps or even of the 7th Brigade 2326 When he appeared before the Chamber Witness Semir Terzić a former member of the 7th Brigade 1st Battalion stated that the persons mentioned in the documents from the HVO had never been part of the 7th Brigade 1st Battalion 2327 1092 As far as the Chamber is aware there are no eyewitnesses to the murders 2328 Nevertheless the Chamber considers that the only reasonable conclusion to be inferred from the evidence of the events of 24 April 1993 in Miletići is that Franjo Tihomir and Vlado Pavlović and Anto Petrović were killed by the soldiers who attacked the village of Miletići and forced them to kneel their 2323 Prosecution Final Brief paras 187 and 191 Prosecution Final Brief footnote 628 quoting P 576 and P 687 Prosecution Closing Arguments T F pp 19025 and 19026 2325 P 695 2326 See supra para 485 2327 Semir Terzić T F p 18248 2328 Witness Bozo Pavlović is the only villager to run away and hide in the forest All the other villagers were taken to Poljanice Bozo Pavlović however did not see the murder of the four men Bozo Pavlović T F pp 2072 and 2073 2324 Case No IT-01-47-T 303 15 March 2006 373 21623 BIS hands tied behind their backs The question is whether the solders the perpetrators of the murders belonged to the ABiH 3rd Corps 7th Brigade and or 306th Brigade 2329 1093 The soldiers who attacked the village of Miletići on 24 April 1993 were described by most of the Prosecution witnesses as mujahedin foreigners2330 and local Muslims who were masked and according to some witnesses belonged to the “ABiH” or to the “Muslim army” Thus Katica Kovačević stated thin Miletići was attacked by the mujahedin and the Muslim army The mujahedin were dressed in black bearded and could not speak B C S well 2331 Witness Katica Kovačević did not recognise any insignia on the local Muslims 2332 Witness An a Pavlović described the attackers as mujahedin and members of the Muslim army She also recalls having heard the name of Ramadan 2333 She stated that she saw an armband marked “Politia” and another marked “ABiH” 2334 Witness Bozo Pavlović stated that the ABiH had attacked the village Some Muslim soldiers wore white clothes while others wore camouflage uniforms 2335 1094 In her statement Witness Z10 describes the attackers as matt-skinned foreigners who did not speak B C S well and as ABiH soldiers 2336 She stated that the attackers spoke of themselves as members of the MOS and that some wore green berets She also maintained that Dedo Suljić had warned her that “some of the Muslim extremists who had separated themselves from the ABIH” were going to attack the village 2337 She did not see any insignia however 2338 She mentioned the name of Ramadan 2339 In her deposition Witness Z14 stated that she saw 12 mujahedin and about 20 to 30 ABiH soldiers in front of Stipo Pavlović’s house The ABiH soldiers wore black socks covered with mud over their heads 2340 She recognised the soldier killed by Stipo Pavlović as a neighbour from the village of Mehurići 2341 However she did not recognise any insignia that day 2342 2329 Paragraphs 39 b and 40 of the Indictment Generally the Prosecution witnesses use the term “mujahedin” to denote foreign mujahedin 2331 Katica Kovačević T F pp 906 and 908 2332 Katica Kovačević T F p 1295 2333 Anða Pavlović T F pp 1315 and 1321 and 1324 2334 Anða Pavlović T F p 1321 2335 Bozo Pavlović T F pp 2071 and 2077 2336 P 392 under seal paras 9 11 14 and 16 2337 P 392 under seal para 6 2338 P 392 under seal para 12 2339 P 392 under seal para 13 2340 P 396 under seal para 7 2341 P 396 under seal paras 5 and 6 2342 P 396 under seal para 7 Witness Z14 returned to Miletići some days after the massacre On that occasion she saw some 50 soldiers wearing the insignia of the fleur-de-lys P 396 under seal para 17 The Chamber notes that these were 306th Brigade soldiers who had been ordered to secure Miletići following the commission of the crime on 24 2330 Case No IT-01-47-T 304 15 March 2006 372 21623 BIS 1095 In her deposition Witness Z11 stated that Muslim soldiers attacked the village of Miletići but makes it clear that she did not know to what army they belonged She maintained that some of the soldiers looked like local Muslims while others were mujahedin 2343 She did not recall any insignia 2344 1096 The Chamber notes that none of the Prosecution witnesses who witnessed the events stated that they had seen the 7th Brigade or 306th Brigade insignia Some of them stated that the attackers were of the ABiH or the Muslim army but it seems that they drew this inference solely from the fact that the soldiers were Muslim and not members of the HVO 2345 With the exception of An a Pavlović none of the witnesses saw ABiH insignia It should be noted moreover that several witnesses mentioned that they were panic-stricken and in shock 2346 As for the statements of Witnesses Z10 and Z14 it should be noted that they were not cross-examined It does not appear from their written statements how they reached the conclusion that the attackers belonged to the ABiH in particular given that they stated not having seen any insignia on the soldiers 2347 1097 The witnesses for the Defence for Hadžihasanović concur in stating thin Miletići was attacked by foreign mujahedin and local Muslims from Mehurići who had no link with the ABiH 2348 The witnesses for the Defence for Kubura who belonged to the 7th Brigade claimed that no 7th Brigade unit was present in Miletići on 24 April 1993 2349 1098 Their words are borne out by an ECMM report dated 25 April 1993 which quotes eyewitnesses and indicates that the massacre was carried out by 15 men who spoke Arabic whose leader was called Ramadan 2350 An UNPROFOR report of the same date indicates that local people questioned during a reconnaissance mission said that the four Croatian men had been killed by April 1993 Contrary to the line of argument pursued by the Prosecution this does not show that members of the 306th Brigade were involved in the events of 24 April 1993 see Prosecution Final Brief para 188 footnote 603 2343 P 393 under seal paras 3 4 and 5 2344 P 393 under seal para 7 2345 Bozo Pavlović T F p 2077 2346 Katica Kovčević T F pp 906 1294 1295 and 1296 see also Anða Pavlović T F pp 1320 and 1321 who stated that she was crying and screaming when the mujahedin forced their way into Stipo Pavlović’s house 2347 P 396 under seal para 7 2348 As far as the witnesses who witnessed the events which took place in Miletići and Mehurići on 24 April 1993 are concerned see Sulejman Ribo T F p 11050 Derviš Suljić T F pp 11308 and 11329 Hamid Suljić T F pp 11885 11900 11915 and 11916 Suad Menzil T F pp 14103 and 14105 DH 2091 para 8 DH 2092 para 11 As far as the members of the 306th Brigade and 3rd Corps Command who were informed of the events subsequently are concerned see Remzija Šiljak T F pp 10644 10645 and 10655 Halim Husić T F pp 10895 10896 and 10916 Džemal Merdan T F pp 13112 13198 and 13823 Vezir Jusufspahić T F p 14015 Esed Sipić T E p 14790 T F pp 14790 14791 and 14810 Asim Delalić T F p 16356 Witness HF T F p 17177 2349 Semir Terzić T F p 18246 Džemail Ibranović T F p 18397 Suad Jusović T F p 18429 DK 61 para 13 2350 P 148 Case No IT-01-47-T 305 15 March 2006 371 21623 BIS fundamentalists and not by regular ABiH troops 2351 Even the HVO reports indicate that the massacre was committed by foreign mujahedin and local fundamentalist Muslims 2352 In this respect Exhibit P 687 a report drawn up by the civilian police of Busovača on 18 February 1994 addressed to the Vitez District Military Prosecutor should also be noted The report indicates that 12 unidentified Arabs and 5 local men whose names are given in the report were responsible for the attack on Miletići The report mentions neither the 7th nor the 306th Brigade 1099 The only report involving the ABiH is one by the Special Rapporteur of the UN Human Rights Commission Tadeusz Mazowiecki dated 17 November 1993 2353 In that report Tadeusz Mazowiecki indicates the he received reports to the effect that Croatian civilians in Miletići had allegedly been killed by soldiers acting for the government of the RBiH In his written statement however Payan Akhavan a member of the Human Rights Commission in 1993 mentions that he went to Miletići on 4 May 1993 to inquire into allegations of a massacre and that he had been unable to determine whether the perpetrators of the massacre belonged to the ABiH or whether individuals independent of the army were involved 2354 1100 The Chamber therefore considers that Franjo Tihomir and Vlado Pavlović and Anto Petrović were killed by foreign and local mujahedin based at Poljanice camp 2355 In contrast it finds that none of the evidence discussed above alleges that the 7th Brigade or the 306th Brigade took part in the attack on Miletići and in the subsequent massacre 2356 The mere fact that local Muslims participated in the attack does not mean that it can be inferred that they were members of the ABiH iii Findings of the Chamber regarding the Responsibility of the Accused 1101 As will be explained in part of the Judgement relating to the mujahedin the foreign and local mujahedin based at Poljanice Camp were not placed under the effective control of either the 2351 P 149 “People in the area were keen to emphasise that the soldiers were extremists and not regular BiH troops ” see also P 371 page 11 Annex R of a report of the ECMM dated 15 May 1993 repeating that information P 806 Amnesty International report of 14 May 1993 which indicates that irregular troops were responsible for the massacre DH 2099 under seal which is based on statements of eyewitnesses and confirms that the perpetrators of the massacre did not belong to the ABiH 2352 P 289 dated 25 April 1993 P 416 dated 25 April 1993 DH 923 dated 26 April 1993 P 576 dated 27 April 1993 Although a number of reports from the HVO incriminate the ABiH P 593 P 629 and P 707 the Chamber points out that the probative value of those documents is limited insofar as the HVO used the terms “ABiH” “Muslim Armed Forces” and “mujahedin” interchangeably see supra paras 455-456 2353 P 366 2354 DH 2097 2355 It is possible that Ramadan and Ramo Durmiš took part in the attack on Miletići see supra P 598 and paras 779780 Nevertheless it has not been proved that they took part in the murder 2356 The Chamber notes that Exhibit P 663 tends to incriminate the 7th Brigade However as explained in the part of the Judgement relating to the subordination of the mujahedin based at Poljanice Camp to the 7th Brigade that exhibit does not enable it to be proved beyond a reasonable doubt that members of the 7th Brigade took part in the murders Case No IT-01-47-T 306 15 March 2006 370 21623 BIS 7th Brigade or the 306th Brigade 2357 The Chamber finds that the perpetrators of the murders committed in Miletići on 24 April 1993 were not under the effective control of the Accused Consequently the Accused were not bound to carry out an investigation or to take any measures with regard to them 2358 iv Conclusions of the Chamber 1102 As a result the Accused cannot be held criminally responsible for the offence mentioned in count 1 paragraphs 39 b and 40 of the Indictment c Maline 1103 In paragraphs 39 c and 40 of the Indictment the Accused Hadžihasanović and Kubura are accused of failing to take the necessary and reasonable measures to prevent the murders of Anto Balta Ivo Balta Jozo Balta Luka Balta Nikica Balta Bojan Barać Davor Barać Goran Bobaš Niko Bobaš Slavko Bobaš Srećo Bobaš Pero Bobaš-Pupić Dalibor Janković Stipo Janković Slavko Kramar Anto Matić Tihomir Peša Ana Pranješ Ljubomir Pušelja Predrag Pušelja Jakov Tavić Mijo Tavić Stipo Tavić and Ivo Volić in Maline on 8 June 1993 or to punish the perpetrators They are accused of murder a violation of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute and recognised by common Article 3 1 a of the Geneva Conventions 2359 i Arguments of the Parties 1104 The Prosecution maintains that troops subordinated to the Accused namely the 306th Brigade and the 7th Brigade committed murders at the end of the attack launched against Maline on 8 June 1993 2360 In its Final Brief it states moreover that mujahedin operating with the 7th and the 306th Brigades took part in the massacre 2361 It alleges that there was a “high degree of coordination and cooperation between those units and the mujahedin” 2362 The Prosecution alleges that the 2357 See supra paras 605 and 788 The Chamber also points out that once the investigating judge has been informed of a crime it is incumbent on him and not on the military commander to carry out the investigation see supra para 925 2359 In its Decision on the Motions for Acquittal the Chamber found that there was not enough evidence to indicate that cruel treatment occurred at Maline on 8 June 1993 within the meaning of Article 3 of the Statute The Chamber acquitted the two Accused of the crime of cruel treatment referred to in count 2 of the Indictment as regards the crime committed at Maline 2360 Indictment paras 39 c and 40 Prosecution Final Brief para 194 2361 Prosecution Final Brief paras 194 and 196 2362 Prosecution Final Brief para 196 2358 Case No IT-01-47-T 307 15 March 2006 369 21623 BIS Accused were aware of the murders committed by their subordinates and that they did not take the necessary and reasonable measures to punish the perpetrators 2363 1105 The Defence for the Accused Hadžihasanović does not dispute that the murders alleged in paragraph 39 c of the Indictment were committed 2364 It does however deny that the identity of the perpetrators of the murders has been established and that the perpetrators of the massacre were placed under the effective control of the Accused Hadžihasanović 2365 It maintains that the murders were committed by foreign mujahedin and local Muslims who were neither subordinated to the 3rd Corps nor placed under its effective control 2366 The Defence for the Accused Hadžihasanović maintains that the Prosecution has not proved beyond a reasonable doubt that the Accused Hadžihasanović knew or had reason to know that the crimes were about to be committed and that he failed to take the necessary and reasonable measures to prevent them from being committed 2367 1106 The Defence for the Accused Kubura denies that units or members of the 7th Brigade were present in Maline on 8 June 1993 and involved in the crimes committed 2368 It maintains that no unit of the 7th Brigade was stationed in the Bila Valley at that time and that the presence of individual members of the 7th Brigade was due to the fact that they were on leave and could not return to their respective units on account of the blockade of the Bila Valley 2369 It denies the allegation that the Accused Kubura exercised effective control over the perpetrators of the crime that is the foreigners based in Mehurići camp 2370 ii Findings of the Chamber regarding the Murders in Maline a Events Preceding the Attack on Maline 1107 The village of Maline is in the Bila Valley in the municipality of Travnik 2371 In 1992 and early 1993 its citizens were ethnically mixed There were about 100 Croatian households and between 150 and 200 Muslim households 2372 The village was divided into two parts Gornje 2363 Prosecution Final Brief paras 198 and 200 in this regard however it should be noted that the Prosecution Final Brief does not adduce any evidence to support the allegation that the Accused Kubura was so aware 2364 Hadžihasanović Defence Final Brief para 477 2365 Hadžihasanović Defence Final Brief para 474 2366 Hadžihasanović Defence Final Brief paras 477 and 478 2367 Hadžihasanović Defence Final Brief para 475 2368 Kubura Defence Final Brief para 61 2369 Kubura Defence Final Brief para 80 2370 Kubura Defence Final Brief paras 111 and 114 2371 P 933 2372 Ivanka Tavić T F p 1154 Case No IT-01-47-T 308 15 March 2006 368 21623 BIS Maline the upper part of the village where the Croats lived and Donje Maline the lower part of the village where the Muslims lived 2373 The village of Maline is about ten kilometres from Mehurići where the Elementary School housed the 306th Brigade 1st Battalion 2374 1108 In late May and early June 1993 it was very difficult to move in the Bila Valley because the HVO had blocked the main roads and set up check-points 2375 Part of the 306th Brigade Command was encircled at Krpeljići next to Guča Gora where the 2nd Battalion HQ was located 2376 1109 On 4 June 1993 the HVO issued an ultimatum to the villagers of Velika Bukovica situated to the west of Maline to surrender The villagers refused and the HVO attacked the village on 6 June 1993 2377 Information filtered through about the attack suggesting that there had been numerous dead and injured consequently the ABiH attempted to dislodge the HVO 2378 In order to do so 306th Brigade units carried out an attack from Mehurići and Suhi Dol in the direction of Maline on 8 June 1993 2379 According to Witness Salim Tarakčija the Deputy Commander of the 306th Brigade 2nd Battalion of the the attack was carried out by the 306th Brigade 1st and 4th Battalions 2380 b Sequence of Events of 8 June 1993 i Taking of the Village of Maline and Arrest of Villagers 1110 Very early in the morning of 8 June 1993 ABiH soldiers encircled the village of Maline 2381 While the Defence witnesses are at one in stating that the attack was carried out solely by the 306th Brigade forces without the involvement of foreign combatants 2382 the Prosecution witnesses are divided as to whether there were foreign Muslim combatants among the attackers Several 2373 Ivanka Tavić T F p 1154 Witness HB T F p 12592 2375 Munir Karić T F p 11448 2376 Remzija Šiljak T F pp 10527-10529 Halim Husić T F p 10889 Munir Karić T F pp 11448 and 11501 Esed Sipić T F pp 14775 and 14779 The following were encircled there Commander Esed Sipić Chief of Staff Remzija Šiljak Assistant Commander for Troop Morale Halim Husić and Assistant Commander for Finance Mujo Husanović 2377 Asim Delalić T F p 16362 2378 Asim Delalić T F pp 16362 and 16363 Munir Karić T F p 11451 2379 Asim Delalić T F pp 16363 16380 and 16381 Esed Sipić T F pp 14775-14776 Munir Karić T F pp 1145011452 and 11464 Fikret Čuskić T F p 12112 who says that the 306th Brigade was the only brigade involved in this combat operation Witness HB T F p 12589 2380 Salim Tarakčija T F pp 11850-11853 and 11861 2381 Ivanka Tavić T F p 1158 Witness AH T F pp 1216 and 1217 Zdravko Pranješ T F pp 1363-1365 Witness XB T F pp 1636 and 1640 Witness XC T F p 1686 Berislav Marjanović T F p 2699 P 397 under seal para 1 P 92 under seal para 8 2374 Case No IT-01-47-T 309 15 March 2006 367 21623 BIS witnesses stated that during the attack they saw matt-skinned mujahedin who spoke Arabic and had long beards and wore scarves around their heads 2383 Other witnesses maintain that the foreign mujahedin did not arrive in Maline until later after the village had been taken and the HVO soldiers had rendered up 2384 1111 Part of the population of Maline and HVO soldiers sheltered in the Maline infirmary 2385 Subsequently they gave themselves up and surrendered their weapons to the ABiH soldiers 2386 According to Witnesses AH and Ivanka Tavić one of the ABiH soldiers who introduced himself as Ibrahim and as being the commander of the soldiers promised them that nothing would happen to them 2387 He promised that the wounded in the infirmary would be transported to the hospital in Zenica 2388 The Croatian villagers gradually assembled in the centre of the village 2389 1112 According to Witnesses HB and Adnan Gunić former members of the 306th Brigade 1st Battalion Military Police around 10 members of the 306th Brigade 1st Battalion Military Police arrived in Maline at about 1000 hours on 8 June 1993 2390 Their aim was to evacuate and protect the civilians in the liberated villages 2391 They found the villagers assembled in the centre of the village Men of an age to bear arms had already handed in their weapons 2392 The villagers including some who were wounded were frightened 2393 1113 At about 1400 hours on 8 June 1993 the military police commander decided that four police should stay in the village while about five soldiers should escort the Croatian villagers to Mehurići 2394 According to Witness HB the intention was to take the villagers to Mehurići in order to protect them from the mujahedin and the fighting 2395 2382 Munir Karić T F pp 11459 11460 and 11464 Fikret Čuskić T F p 12112 Witness HB T F pp 12589 and 12652 P 465 2383 P 397 under seal para 4 P 929 under seal statement 19 April 2000 p 2 2384 Ivanka Tavić T F pp 1185-1186 Witness AH T F pp 1247-1248 P 92 under seal para 19 2385 Witness AH T F pp 1245-1246 Witness XB T F pp 1641-1642 2386 Ivanka Tavić T F pp 1161-1162 Witness AH T F pp 1217 and 1246 Zdravko Pranješ T F p 1365 Witness XB T F pp 1642 and 1656 Berislav Marjanović T F p 2700 2387 Ivanka Tavić T F pp 1166 and 1184 Witness AH T F pp 1217 and 1256 2388 Witness AH T F p 1217 2389 Ivanka Tavić T F p 1184 2390 Witness HB T F pp 12590 12613 12621 12623 DH 2090 para 6 2391 Witness HB T F pp 12589-12590 2392 Witness HB T F pp 12621 and 12624 DH 2090 para 6 2393 Witness HB T F pp 12590-12591 2394 Witness HB T F pp 12590-12591 DH 2090 para 7 2395 Witness HB T F pp 12649 and 12652 see also P 92 under seal para 17 Witness HB admitted that the other reason was to exchange the Croatian prisoners for HVO prisoners Witness HB T F p 12649 Case No IT-01-47-T 310 15 March 2006 366 21623 BIS ii Departure of Approximately 200 Croatian Villagers for Mehurići 1114 At about 1430 hours or 1500 hours approximately 200 villagers soldiers and civilians set out towards Mehurići in columns 2396 According to Witness HB the villagers set off for Mehurići voluntarily whereas the Prosecution witnesses stated that they left under duress 2397 The wounded remained behind to be transported to Mehurići on board a truck 2398 The villagers were escorted by about five members of the 306th Brigade 1st Battalion Military Police the commander marched at the head of the column two police were in the middle and two others followed the column 2399 As far as the road taken is concerned the witnesses indicated that the column took the road in the direction of Bikoši2400 and passed via the Vranjača hill 2401 According to Witness ZK they crossed Poljanice where mujahedin had set up in the former houses of the Savići family a Serbian family which had abandoned its houses 2402 Witness Zdravko Pranješ stated that the members of the military police had protected the Croatian villagers from Muslim civilians en route to Mehurići 2403 iii Loading the Wounded Croats onto a Truck and Their Abduction by Mujahedin 1115 While the column of approximately 200 villagers took the road to Mehurići on foot Ivanka Tavić and Witness AH organised the transport of several seriously wounded persons by truck 2404 According to those witnesses the soldier Ibrahim authorised that transport 2405 They had the following persons board the truck Stipo Tavić Mara Jurić Luka Balta Jozo Balta 2406 Predrag Pušelja Anto Matić Srećo Bobaš and Marijan Bobaš 2407 According to Witness Ivanka Tavić 2396 Ivanka Tavić T F pp 1162-1163 Zdravko Pranješ T F p 1370 Witness XB T F p 1644 Berislav Marjanović T F p 2701 P 92 under seal para 19 Witness HB T F pp 12590 and 12626 2397 Witness HB T F pp 12590 12591 and 12595 Witness AH T F p 1220 Zdravko Pranješ T F p 1371 Berislav Marjanović T F p 2709 P 92 under seal para 18 2398 See below 2399 DH 2090 para 8 2400 Berislav Marjanović T F p 2701 P 92 under seal para 20 2401 P 92 under seal para 21 2402 P 92 under seal paras 24 and 26 see also supra para 421 2403 Zdravko Pranješ T F p 1396 2404 Ivanka Tavić T F pp 1163-1164 Witness AH T F pp 1219 and 1248 P 929 under seal statement 15 September 2000 p 2 and statement 19 April 2000 p 2 2405 Ivanka Tavić T F p 1185 Witness AH T F pp 1217 1234 and 1235 2406 P 31 under seal nevertheless when he appeared before the Chamber Witness AH stated that Jozo Balta had already died at the Maline infirmary and that he was not placed in the truck and taken off by the mujahedin Witness AH T F p 1216 2407 Ivanka Tavić T F p 1165 Witness AH T F pp 1235 1237 and 1241 P 31 under seal Case No IT-01-47-T 311 15 March 2006 365 21623 BIS Ibrahim allowed her and Witness AH to accompany the wounded on the truck 2408 Ibrahim asked them to hurry because he was afraid that mujahedin would arrive He gave them to understand that he could not guarantee their safety once the mujahedin arrived 2409 While Ivanka Tavić was in the back of the truck to settle the wounded there a group of five men came down a slope 2410 According to Ivanka Tavić the men were three foreigners a local mujahed and an interpreter 2411 They were bearded dressed very differently from local people and were shouting 2412 According to her Ibrahim began to talk with them forbidding them to approach 2413 Nevertheless the mujahedin took the truck and left in the direction of Bikoši without allowing Ivanka Tavić or Witness AH to accompany them 2414 They even made gestures of cutting their throats when Witness AH wanted to board the truck 2415 iv Interception of the Column of Villagers by Mujahedin 1116 Leaving to one side for the present the wounded taken off in the truck the Chamber will consider the fate of the villagers who were taken on foot towards Mehurići Not far from the mujahedin camp at Poljanice the column of villagers was intercepted by soldiers 2416 According to the eyewitnesses several of those soldiers whom they termed “mujahedin” wore hoods 2417 According to Witness ZK the men were seven ABiH soldiers two of whom resembled foreign mujahedin 2418 three others were masked and spoke B C S without an accent and the last two were wearing the conventional outfits of the ABiH soldiers 2419 Witness HB stated that he saw two men wearing black hoods camouflage clothing bearing long-barrelled automatic weapons and speaking B C S 2420 He also noticed three foreigners wearing camouflage uniforms long shawls and green 2408 Ivanka Tavić T F p 1186 Ivanka Tavić T F p 1185 Witness AH T F pp 1247-1248 2410 Ivanka Tavić T F p 1186 Witness AH T F pp 1248-1249 2411 Ivanka Tavić T F p 1186 2412 Ivanka Tavić T F p 1186 2413 Ivanka Tavić T F p 1186 2414 Ivanka Tavić T F pp 1163 1165 1186 and 1187 Witness AH T F pp 1219 1248 and 1249 2415 Ivanka Tavić T F p 1187 Witness AH T F pp 1219 1248 and 1249 see also P 929 under seal statement of 19 April 2000 p 2 2416 Zdravko Pranješ T F p 1372 Witness XB T F pp 1645 1669 and 1670 Berislav Marjanović T F p 2701 Witness HB T F p 12638 P 92 under seal paras 24 and 26 DH 2090 para 9 2417 Zdravko Pranješ T F p 1372 Berislav Marjanović T F p 2701 Witness HB T F pp 12593 and 12629 DH 2090 para 9 2418 Witness ZK uses the term “mujahedin” to designate foreign mujahedin 2419 P 92 under seal paras 24 and 25 2420 Witness HB T F pp 12629 12630 and 12593 2409 Case No IT-01-47-T 312 15 March 2006 364 21623 BIS ribbons with inscriptions resembling Arabic 2421 They were bearded and had matt skin 2422 These three foreigners did not wear masks 2423 1117 Subsequently other soldiers came out from the woods They wore camouflage uniforms and masks and were all armed 2424 1118 The mujahedin then separated 20 men of fighting age from the column including Witnesses XB Zdravko Pranješ and Berislav Marjanović 2425 There was also Ana Pranješ a girl wearing an armband with a red cross 2426 1119 The testimony differs as to whether members of the military police took part in the selection of Croats Witnesses HB Zdravko Pranješ and Adnan Gunić agree that the mujahedin asked to take over the control of the column by threatening the members of the military police 2427 According to Witness HB one of the mujahedin put the muzzle of his weapon into the mouth of the witness when he refused to allow the mujahedin to take over the control of the column 2428 Witness XB stated that the mujahedin asked for the women and children to be separated from the men 2429 Witness Berislav Marjanović stated that he saw the members of the military police and the mujahedin speaking together but he did not know what was said since he was walking at the end of the column 2430 Witness Z15 stated that “the ABiH soldiers and the mujahedin” separated the column 2431 At this juncture the Chamber notes that none of the witnesses stated that they saw insignia on the soldiers who intercepted the column at Poljanice 1120 The mujahedin turned back and escorted the group of 20 Croatian men and Ana Pranješ to Bikoši while the group of villagers escorted by the 306th Brigade Military Police continued to 2421 Witness HB T F pp 12634 12647 and 12648 Witness HB T F p 12634 2423 Witness HB T F p 12634 2424 Witness HB T F p 12635 DH 2090 para 9 2425 Zdravko Pranješ T F pp 1372 to 1374 Witness XB T F pp 1645 1646 and 1669 Witness HB T F pp 12594 12636 and 12637 P 92 under seal paras 24-27 P 397 under seal para 4 DH 2090 para 9 Witness Zdravko Pranješ Witness ZK and Witness Z 15 however spoke of 30 to 40 men In view of the number of men subsequently executed and the number of people who escaped from the massacre the number of 20 men seems more probable 2426 Zdravko Pranješ T F pp 1374 and 1375 P 92 under seal para 27 2427 Zdravko Pranješ T F pp 1373 1374 and 1397 Witness HB T F pp 12593 12594 12596 12632 and 12645 DH 2090 para 9 2428 Witness HB T F pp 12593 12594 and 12632 see also Adnan Gunić DH 2090 para 9 2429 Witness XB T F pp 1645 and 1646 2430 Berislav Marjanović T F p 2733 2431 P 397 under seal para 4 2422 Case No IT-01-47-T 313 15 March 2006 363 21623 BIS Mehurići 2432 The latter arrived in Mehurići at around 1700 or 1800 hours and the police took them to the Elementary School 2433 v Meeting between the Group of Croatian Men and Wounded Persons 1121 Returning now to what happened to the wounded taken off by truck from Maline in the direction of Bikoši the Chamber will consider what emerges from the testimony According to Witness Z21 who is the only witness to have been taken off on the truck an Arab mujahed was on the back of the truck with the wounded He was armed with an automatic rifle 2434 When the truck arrived at Bikoši the mujahedin ordered the wounded to get down and to proceed to Mehurići on foot 2435 When Witness Z21 got down from the truck he saw foreign mujahedin and local soldiers 2436 Five or six Muslim soldiers then escorted the wounded to Mehurići Witness Z21 does not recall having seen any insignia on those soldiers 2437 1122 After going some 100 metres towards Mehurići the wounded noticed a group of captured Croats coming from the direction of Mehurići escorted by about five foreign mujahedin and five local soldiers 2438 Three or four of the local soldiers wore green or black masks 2439 The soldiers ordered all the prisoners that is the wounded the 20 captured Croats and Ana Pranješ to walk in the direction of Bikoši 2440 The local soldiers gave the order in B C S whereas the foreign mujahedin indicated the way with hand gestures 2441 Mara Jurić remained behind lying on a 2432 Zdravko Pranješ T F p 1380 Witness XB T F p 1646 Berislav Marjanović T F p 2701 P 92 under seal para 28 Witness HB T F pp 12594 and 12637 2433 Witness HB T F p 12638 see also infra para 1307 2434 P 929 under seal statement of 19 April 2000 p 2 and statement of 15 September 2000 p 3 2435 P 929 under seal statement of 19 April 2000 p 3 and statement of 15 September 2000 p 3 2436 P 929 under seal statement of 15 September 2000 p 3 Witness Z 21 refers to mujahedin and “other Muslim soldiers” It is clear from the context that the witness uses the term mujahedin to designate Arab men see P 929 under seal statement of 19 April 2000 p 3 2437 P 929 under seal statement of 15 September 2000 p 3 2438 P 929 under seal statement of 19 April 2000 p 3 and statement of 15 September 2000 p 3 Zdravko Pranješ T F pp 1375 and 1380 Berislav Marjanović T F p 2702 This was the group of 20 Croatian men and Ana Pranješ who had been separated from the other Croatian villagers at Poljanice see supra paras 116-120 2439 P 929 under seal statement of 19 April 2000 p 3 and statement of 15 September 2000 p 3 Zdravko Pranješ T F p 1380 Witness Z 21 also recalls seeing them wearing insignia and green and black berets P 929 under seal statement of 19 April 2000 p 3 and statement of 15 September 2000 p 3 2440 P 929 under seal statement of 19 April 2000 p 3 and statement of 15 September 2000 p 3 Berislav Marjanović T F p 2702 Witness XB T F p 1652 according to Witness Zdravko Pranješ T F pp 1375 and 1380 the two groups remained separated 2441 P 929 under seal statement of 15 September 2000 p 3 Case No IT-01-47-T 314 15 March 2006 362 21623 BIS stretcher 2442 The group of prisoners then walked towards Bikoši guarded by the foreign mujahedin and the local soldiers all of whom were armed 2443 vi Massacre of 24 Croats in Bikoši on 8 June 1993 1123 Witness Z21 recalls that the local soldiers ordered the Croatian soldiers to take off their jackets and hand them over to the Muslim soldiers stating that they would no longer need them 2444 The prisoners were walking towards Bikoši and Witness Z21 was at the back of the group alongside Niko Bobaš One of the masked soldiers pointed his gun at him and the witness remembers feeling that they were all going to be killed 2445 When the group of prisoners arrived at Bikoši the prisoner Mijo Tavić had an epileptic fit and began to scream 2446 Upon this the Muslim soldiers began to fire on the prisoners Witness Z21 remembers dropping to the ground to cover himself At the beginning the soldiers fired bursts of sub-machine gun fire subsequently they fired single shots 2447 At a certain moment one of the Muslim soldiers was wounded which attracted the attention of the other Muslim soldiers Witness Z21 saw Željko Pušelja Darko Pušelja and Witnesses XB and Berislav Marjanović get up and run away and he did the same 2448 When he got up he heard the groaning of prisoners who had been hit by bullets Many of them were still alive but were too seriously wounded to run away 2449 1124 Witness Z21’s words are confirmed by Berislav Marjanović 2450 When the soldiers began to fire on the prisoners Witness Berislav Marjanović also lay down on the ground where he was hit by a bullet in his left leg 2451 While lying on the ground he noticed that a young man who was trying to run away was shot dead 2452 He also saw the Muslim soldiers kill by single shots to the head Croats lying on the ground who were still moving 2453 In the end he ran away with four other people towards the village of Postinje 2454 At one point he was arrested by two armed persons who called on the five escapees to give themselves up Berislav Marjanović turned around immediately 2442 P 929 under seal statement of 19 April 2000 p 3 and statement of 15 September 2000 p 3 P 929 under seal statement of 19 April 2000 p 3 Zdravko Pranješ T F p 1380 Berislav Marjanović T F pp 2702 and 2703 2444 P 929 under seal statement of 19 April 2000 p 3 2445 P 929 under seal statement of 19 April 2000 p 3 and statement of 15 September 2000 p 4 2446 P 929 under seal statement of 19 April 2000 p 3 and statement of 15 September 2000 p 4 2447 P 929 under seal statement of 19 April 2000 p 3 and statement of 15 September 2000 p 4 2448 P 929 under seal statement of 19 April 2000 p 3 and statement of 15 September 2000 p 5 2449 P 929 under seal statement of 19 April 2000 p 3 and statement of 15 September 2000 p 5 2450 Berislav Marjanović T F pp 2703 2704 2733 and 2734 2451 Berislav Marjanović T F p 2703 2452 Berislav Marjanović T F p 2703 2453 Berislav Marjanović T F pp 2703 and 2704 2443 Case No IT-01-47-T 315 15 March 2006 361 21623 BIS and ran off towards Orašac and Guča Gora 2455 Later he was transported to the hospital in Nova Bila by members of the HVO 2456 1125 According to Witness Zdravko Pranješ the Muslim soldiers opened fire on the group of prisoners when two prisoners tried to escape by jumping over a stone wall 2457 They first fired on the two fugitives and then on the whole group 2458 The witness threw himself to the ground to protect himself but was wounded 2459 Another Croatian man Jakov Tavić fell on top of him dead and Zdravko Pranješ tried to hide 2460 When everything was quiet he ran off into the woods 2461 1126 Witness XB who also escaped the massacre recalls that the prisoners were walking towards Bikoši their heads lowered surrounded by soldiers when suddenly the soldiers opened fire on them 2462 While he was prostrate on the ground the body of his cousin fell on him 2463 He subsequently ran off towards the village of Postinje with four other escapees 2464 1127 The Chamber finds that on 8 June 1993 local and foreign mujahedin opened fire on the group of Croatian prisoners killing the following persons Anto Balta Ivo Balta Jozo Balta 2465 Luka Balta Nikica Balta Bojan Barać Davor Barać Goran Bobaš Niko Bobaš Slavko Bobaš Srećo Bobaš Pero Bobaš-Pupić Dalibor Janković Stipo Janković Slavko Kramar Anto Matić Tihomir Peša Ana Pranješ Ljubomir Pušelja Predrag Pušelja Jakov Tavić Mijo Tavić Stipo Tavić and Ivo Volić 2466 2454 Berislav Marjanović T F p 2704 Berislav Marjanović T F p 2705 2456 Berislav Marjanović T F p 2707 2457 Zdravko Pranješ T F pp 1381-1383 2458 Zdravko Pranješ T F p 1382 2459 Zdravko Pranješ T F p 1382 2460 Zdravko Pranješ T F pp 1382-1383 2461 Zdravko Pranješ T F pp 1382-1384 2462 Witness XB T F pp 1647-1648 2463 Witness XB T F p 1648 2464 Witness XB T F p 1652 2465 When he appeared before the Chamber Witness AH stated that Jozo Balta had already died at Maline infirmary and was therefore not placed on the truck Witness AH T F p 1216 On the other hand Exhibit P 31 under seal indicates that Jozo Balta was loaded onto the truck of wounded Since this list was drawn up by Witness AH at the material time the Chamber gives credence to it 2466 P 755 P 31 under seal P 929 under seal statement of 15 September 2000 p 4 and Zdravko Pranješ T F pp 1374 and 1380 see also Joint Statement on the Agreement of Facts Annex C 2455 Case No IT-01-47-T 316 15 March 2006 360 21623 BIS c Meeting of the 306th Brigade Command on 12 June 1993 1128 On 12 June 1993 after about two weeks during which they had had no contact with each other part of the 306th Brigade Command succeeded in meeting 2467 Those present included Esed Sipić Munir Karić Asim Delalić Derviš Suljić and Halim Husić At the meeting they learned through Asim Delalić the security officer attached to the 306th Brigade Command that mujahedin had abducted and executed several Croats 2468 On the same day the 306th Brigade informed the 3rd Corps Command of this in writing 2469 d Investigation into the Events of 8 June 1993 1129 The 3rd Corps security officer and the 306th Brigade Commander asked Asim Delalić to collect as much information as possible about the abduction and the murder of the Croats 2470 In compliance with that request Asim Delalić asked Hasan Zukanović the Assistant Commander for Security in the 306th Brigade 1st Battalion to conduct an investigation 2471 All the members of the military police who had witnessed the events wrote reports 2472 Witness HB added information subsequently received by Željko Pušelja one of those who had escaped the massacre 2473 1130 The investigation lasted more than 10 or 15 days 2474 The military police reports indicated that no member of the 306th Brigade had taken part in the massacre but that the massacre was carried out by foreign and local mujahedin based at Poljanice camp 2475 Asim Delalić communicated that information to Esed Sipić and to the 3rd Corps Command security organ 2476 The organ responsible for security in the 3rd Corps Command was probably informed on about 27 June 1993 2477 That officer subsequently informed the security organ of the ABiH Supreme Command 2478 He does not recall however whether he informed the 3rd Corps Commander 2479 2467 Halim Husić T F p 10894 Esed Sipić T F p 14779 Halim Husić T F p 10894 and T E p 10899 Derviš Suljić T F pp 11324 11330 and 11340 Munir Karić T F p 11510 Esed Sipić T F pp 14892-14893 2469 DH 1903 Esed Sipić T F p 14894 Witness HF T F pp 17182 and 17280 2470 Witness HF T F p 17182 Esed Sipić T F pp 14796 14797 14892 and 14893 2471 Asim Delalić T F pp 16364 and 16393 2472 Witness HB T F pp 12599 and 1260 DH 2091 para 11 2473 Witness HB T F pp 12600 12605 12639 12640 and 12643 2474 Esed Sipić T F p 14797 Asim Delalić T F p 16366 2475 Esed Sipić T F pp 14797 and 14893 Asim Delalić T F p 16366 DH 2090 para 10 DH 2091 para 11 2476 Asim Delalić T F pp 16365 and 16366 2477 Esed Sipić T F p 14894 2478 Witness HF T F p 17184 2479 Witness HF T F p 17264 2468 Case No IT-01-47-T 317 15 March 2006 359 21623 BIS 1131 According to the Defence witnesses for Hadžihasanović the 306th Brigade’s investigation was not continued because its members had no access to the mujahedin camp 2480 e Knowledge of the Accused Hadžihasanović 1132 In early June 1993 Fikret Čuskić Commander of the 17th Brigade stationed in Travnik received information that a group of HVO members had been abducted and killed by mujahedin He informed the Accused Hadžihasanović in writing on 17 June 1993 2481 Exhibit DH 1224 of 20 June 1993 is the answer of the Accused Hadžihasanović in which he informed Fikret Čuskić that an investigation into the events at Maline had been initiated 2482 “I completely agree with the views expressed in the above communication and we support them fully An investigation into the events in the village of Maline has been launched and I hope that the competent organs will be rigorous which will be my request We can win only by behaving 2483 and acting with dignity ” 1133 During a conversation with Witness ZP that very day however the Accused Hadžihasanović denied that he had known about the massacre in Maline 2484 f Report Drawn up by the Civilian Police 1134 Witness Sejad Jusić a police officer in Mehurići stated that he had drawn up a report relating to the events in Maline and that he had sent it to the police station in Travnik about one month after those events 2485 The information available to him indicated that mujahedin had made a number of Croats leave the column and that they had subsequently disappeared 2486 He had however been unable to check that information since civilian police could not enter the mujahedin camp in Poljanice 2487 Sejad Jusić never received a reply from the police station in Travnik 2488 2480 Asim Delalić T F pp 16366 and 16367 Witness HF T F pp 17183-17184 DH 2091 para 11 Fikret Čuskić T F p 12101 2482 Fikret Čuskić T F p 12101 2483 DH 1224 2484 P 589 Verbal questions to the 3rd Corps Commander “Do you know … that on 8 June 1993 in Bikoši village near Gu a Gora about 35 people were executed by a firing squad They were selected from the large number of arrested men because they were younger four survived by chance They are all from Maline village and they were detained in the Mehurići collection centre ” The answer to both questions was “I did not know” Witness ZP T F pp 8834 8817 and 8818 2485 Sejad Jusić T F pp 11137 11184 and 11185 2486 Sejad Jusić T F pp 11137 and 11185 2487 Sejad Jusić T F p 11137 2488 Sejad Jusić T F p 11186 2481 Case No IT-01-47-T 318 15 March 2006 358 21623 BIS g Site Visit by Representatives of the ECMM 1135 On 3 August 1993 representatives of the ECMM visited Maline and Bikoši accompanied by Džemal Merdan and Father Stjepan 2489 They visited a ditch where some thirty Croats had been buried When the members of the ABiH claimed that the bodies were solely those of soldiers killed in combat Father Stjepan Radić alleged that they were both soldiers and civilians 2490 h Report of UN Special Rapporteur Tadeusz Mazowiecki 1136 Witness ZO spoke with Džemal Merdan on 23 September 1993 During that meeting he confronted Džemal Merdan with the allegations relating to the massacre in Maline Bikoši on 8 June 1993 2491 The latter denied that it was actually possible that such an act could have been committed 2492 On 24 September 1993 Witness ZO succeeded in going to Bikoši and visiting the place where the massacre occurred 2493 That place had been described to him by eyewitnesses to the massacre 2494 There he found two heaps of freshly dug earth An ABiH soldier sought to persuade him that the heaps of earth had been dug up seven years before but Witness ZO did not believe this 2495 Witness ZO convinced that a massacre had occurred at that place proposed to the Special Rapporteur for the former Yugoslavia Tadeusz Mazowiecki that he send a letter to the authorities of the BiH with a view to investigating the massacre 2496 1137 By letter of 15 October 1993 Tadeusz Mazowiecki sent a report on the massacre committed in Maline to the President of the RBiH Alija Izetbegović 2497 The letter indicated that a massacre had been committed by mujahedin integrated into the 7th Brigade Tadeusz Mazowiecki asked what measures had been taken in order to subordinate irregular troops to the command of the ABiH and in order to ensure that discipline was respected “Eyewitnesses to the atrocities at Maline and Doljani have claimed that in both incidents so-called Mojahedin troops were involved reportedly incorporated in the 7th Brigade of the Army of Bosnia and Herzegovina At this juncture I would appreciate learning from you precisely what procedures 2489 Džemal Merdan T F p 13129 P 164 P 164 2491 Witness ZO T F pp 7739 and 7741 P 168 under seal pp 4 and 5 2492 Witness ZO T F pp 7741-7742 2493 Witness ZO T F p 7744 P 168 under seal pp 7-9 2494 P 168 under seal p 8 2495 Witness ZO T F p 7747 P 168 under seal p 9 2496 Witness ZO T F p 7749 P 168 under seal pp 9 and 16 2497 P 170 see also the Seventh Periodic Report on the human rights situation in the territory of the former Yugoslavia submitted by Tadeusz Mazowiecki on 17 November 1993 P 366 or E CN 4 1994 47 2490 Case No IT-01-47-T 319 15 March 2006 357 21623 BIS are in force to subordinate irregular troops to the command structure of the Army of Bosnia and 2498 Herzegovina and what measures are used to ensure that discipline is observed” 1138 Following that letter Rasim Delić asked the 3rd Corps Command on 17 October 1993 to provide information about the massacre and about the troops who had taken part in the fighting 2499 The Chamber notes however that that request for information does not reproduce all the information provided by Tadeusz Mazowiecki For instance it does not mention that mujahedin said to be members of the 7th Brigade were alleged to have been involved in the events 2500 “The President of the Presidency of the Republic of Bosnia and Herzegovina Mr Alija IZETBEGOVIC received a letter from special rapporteur for the former Yugoslavia Mr Tadeusz Mazowiecki containing claims about an alleged massacre of 25 Bosnian Croats civilians in the village of Maijine sic on 8 July 1993 It also alleges that 3000 Croatian villagers were expelled from that area “ 2501 1139 On 17 October 1993 the Accused Hadžihasanović forwarded this request to the OG Bosanska Krajina 2502 1140 On 19 October 1993 a report signed on behalf of Asim Delalić was sent to the 3rd Corps and OG Bosanska Krajina Command 2503 It indicates that all the persons killed at Maline Bikoši were in uniforms and had been killed during fighting 2504 “In the period from 8 June 1993 until 10 June 1993 on the above mentioned area 25 bodies of persons of Croatian nationality which were not identified due to the fact that they did not have IDs were collected All persons were in uniforms Abovementioned NN persons were buried in the location between Bikosi and Maline on the place called “PJESCARA” Please note that all persons were killed during the combat activities ”2505 When he appeared before the Chamber Asim Delalić denied having drawn up or signed that report Nor did he recognise the signature appended thereto 2506 1141 On 21 October 1993 Džemal Merdan Deputy Commander of the 3rd Corps sent a report to the Supreme Command in which he denied that HVO soldiers or Croatian civilians had been executed 2507 He maintained that 25 soldiers and civilians had died in fighting 2498 P 170 P 171 2500 In this regard the Chamber notes that the Supreme Command of the ABiH had also been informed by other sources that mujahedin were involved see P 430 and P 431 2501 P 171 2502 P 111 P 444 2503 DH 1498 DK 17 2504 DH 1498 DK 17 2505 DH 1498 2506 Asim Delalić T F pp 16418-16420 2499 Case No IT-01-47-T 320 15 March 2006 356 21623 BIS “During the combat actions there was no massacre of civilians by the members of RBH Army nor were HVO soldiers executed After the end of combat actions the regular clearing up of the battlefield was done All Croats killed by bullets and shells a total of 25 soldiers and civilians were collected in one spot and buried in two graves between the villages illegible and Maline at the place known as the Pješčara sand pit of which HVO representatives were informed ” 2508 1142 When he appeared before the Chamber Džemal Merdan stated that his report was based on information received by subordinated units namely the OG Bosanska Krajina and the 306th Brigade 2509 He claimed that it was also based on his professional experience especially since he had had the opportunity to visit the place in question with the mixed commission in August 1993 2510 1143 This information was relayed to the Ministry of Foreign Affairs through the ABiH Supreme Command on 23 October 19932511 and to Tadeusz Mazowiecki on 25 November 1993 It seems however that the latter was not convinced that the information was true 2512 1144 The Chamber notes that the information passed on to Tadeusz Mazowiecki conflicts with the evidence discussed above It is surprised that Džemal Merdan forwarded that information to the Supreme Command The 306th Brigade had sent two reports to the 3rd Corps Command to the effect that Croatian civilians had been executed by mujahedin Moreover Fikret Čuskić had contacted the Accused Hadžihasanović on 17 June 1993 to inform him of the allegations of a massacre In addition Witnesses ZO and ZP had confronted the 3rd Corps Command with the allegations of a massacre The 3rd Corps Command therefore had precise information that mujahedin had executed Croatian civilians in Maline It is astonishing that Džemal Merdan did not take the time to consult that information before approaching the Supreme Command 2507 P 174 P 174 2509 Džemal Merdan T F pp 13201 13638 13659-13661 2510 Džemal Merdan T F pp 13129 13131 13132 and 13202 P 164 2511 P 175 2512 P 183 see also the Sixth Periodic Report on the human rights situation in the territory of the former Yugoslavia submitted by Mr Tadeuz Mazowiecki on 23 February 1993 E CN 4 1994 111 p 7 “In response to a letter from the Special Rapporteur to the Prime Minister of Bosnia and Herzegovina dated 15 October 1993 the Minister for Foreign Affairs replied on 25 November 1993 that government troops were not responsible for alleged massacres at Maline in June and at Uzdol in September see E CN 1994 47 paras 29-33 He stated that the deaths occurred during fighting and furthermore that the expulsion of Croats from the area was perpetrated by the HVO However given the many testimonies to the contrary the Special Rapporteur continues to pursue an investigation of this matter ” 2508 Case No IT-01-47-T 321 15 March 2006 355 21623 BIS i Murder of 24 Croats Paragraph 39 c of the Indictment 1145 In view of the foregoing the Chamber finds that it has been proved beyond a reasonable doubt that Anto Balta Ivo Balta Jozo Balta Luka Balta Nikica Balta Bojan Barać Davor Barać Goran Bobaš Niko Bobaš Slavko Bobaš Srećo Bobaš Pero Bobaš-Pupić Dalibor Janković Stipo Janković Slavko Kramar Anto Matić Tihomir Peša Ana Pranješ Ljubomir Pušelja Predrag Pušelja Jakov Tavić Mijo Tavić Stipo Tavić and Ivo Volić were executed in Maline Bikoši on 8 June 1993 The murder of those persons has been established Since they had been taken prisoner and had surrendered their weapons they qualified for the protection afforded by the laws or customs of war as recognised by common Article 3 a of the Geneva Conventions 1146 The Chamber considers that it has been proved beyond a reasonable doubt that the perpetrators of the crime were some ten foreign and local Muslim soldiers based in Poljanice camp 2513 1147 As to whether those soldiers formed part of the 7th Brigade or the 306th Brigade as alleged in the Indictment the Chamber first notes that none of the witnesses who escaped from the massacre identified insignia on those soldiers 2514 Witness Z21 remembers having seen green and black insignia but that description is too vague to enable the unit concerned to be identified beyond a reasonable doubt 2515 Moreover it does not match the insignia of the ABiH or the insignia of the 7th Brigade as set forth in Exhibit P 4 2516 1148 Although the attack on Maline was carried out by units of the 306th Brigade the Chamber has not seen any evidence tending to show that the perpetrators of the massacre belonged to that brigade Moreover even if foreign Muslim combatants fought alongside the ABiH in the Bila Valley on 8 June 1993 the Chamber has not been able to establish any link whatsoever between the mujahedin and the 306th Brigade 2517 It seems that the mujahedin took part in the fighting without having been subordinated to one of the units of the 3rd Corps 2518 2513 See supra paras 1122 and 1130 See supra paras 1121 and 1122 2515 P 929 under seal statement of 15 September 2000 p 3 P 4 2516 P 4 2517 See supra para 605 2518 See supra paras 533 and 805 2514 Case No IT-01-47-T 322 15 March 2006 354 21623 BIS 1149 In order to establish whether the perpetrators of the massacre could have belonged to the 7th Brigade it must be determined whether members of the 7th Brigade were present in the Maline region on 8 June 1993 According to the Defence witnesses the 306th Brigade was the only unit engaged in the fighting in Maline and no unit of the 7th Brigade took part in the combat operations 2519 The Defence witnesses for the Accused Kubura stated moreover that no unit of the 7th Brigade was stationed in the Bila Valley before the fighting on 8 June 1993 2520 1150 Witness ZK however a witness for the Prosecution stated that he saw members of the 7th Brigade when he was walking towards Mehurići in the column of villagers 2521 When he reached the top of Vranjača hill he saw a group of 50 to 100 soldiers in camouflage uniforms On their belt buckles he could make out the words “7th Muslim Brigade” and “MOS” 2522 According to Witness ZK the soldiers looked at the villagers in silence and remained behind on the hill 2523 Witness XB also considers that members of the 7th Brigade took part in the attack on Maline and stated that he saw insignia 2524 During cross-examination however he admitted that at the material time he did not know the different brigades or the insignia of the ABiH 2525 He seems to have based his conclusion on the fact that the 7th Brigade was stationed in the municipality of Travnik 2526 Witness XC saw the insignia of the 7th Brigade on one of the persons who attacked Maline 2527 He pointed out however that this did not allow it to be concluded with certainty that the soldier in question belonged to the 7th Brigade He explained that at the time anybody could wear the uniform 2528 He even saw one of the attackers wearing “a helmet with a chequer-board insignia that he must have taken from one of our HVO fallen soldiers” 2529 1151 As explained in the part of the Judgement relating to the mujahedin among the mujahedin of Poljanice Camp were former members of the Muslim Forces of Travnik sometimes known as 2519 Fikret Čuskić T F p 12112 Remzija Šiljak T F pp 10572-10573 Munir Karić T F p 11464 Derviš Suljić T F pp 11330-11331 Fahir Čamdžić T F pp 11728-11729 Džemal Merdan T F p 13209 Suad Jusović T F pp 18437 and 18438 Naim Horo DK 61 para 13 2520 Džemal Ibranović T F pp 18363-18364 18394 Safet Junuzović T F pp 18507-18508 Suad Jusović T F p 18429 Semir Terzić T F pp 18246 18284 2521 P 92 under seal para 21 2522 P 92 under seal para 21 This Witness was summoned to appear for cross-examination Nevertheless the Defence did not ask any questions about the recognised insignia 2523 P 92 under seal para 21 2524 Witness XB T F pp 1643 and 1644 2525 Witness XB T F p 1666 2526 Witness XB T F pp 1643 and 1668 2527 Witness XC T F p 1689 2528 Witness XC T F p 1690 2529 Witness XC T E p 1691 Case No IT-01-47-T 323 15 March 2006 353 21623 BIS “MOS” and also deserters from the 7th Brigade 2530 The Chamber therefore considers that the mere fact that Witnesses ZK and XC identified the insignia of the 7th Brigade on some soldiers does not prove that those soldiers were placed under the command and effective control of the 7th Brigade Moreover at the material time there was frequent wrongful use of insignia Consequently the Chamber concludes that it has not been proved beyond a reasonable doubt that units of the 7th Brigade were present in the Maline region on 8 June 1993 and were involved in the massacre iii Findings of the Chamber regarding the Responsibility of the Accused 1152 The question remains as to whether the mujahedin stationed at Poljanice Camp were subordinated to the 7th Brigade and whether the Accused exercised effective control over them As will be explained in another part of the Judgement the Chamber cannot conclude beyond a reasonable doubt that the mujahedin at Poljanice Camp were placed under the effective control of the Accused before the El Mujahedin detachment was created on 13 August 1993 2531 As a result the Chamber concludes that the perpetrators of the massacre committed in Maline on 8 June 1993 were not placed under the effective control of the Accused iv Conclusions of the Chamber 1153 The Accused therefore cannot be held criminally responsible for the crime set out in count 1 paragraphs 39 c and 40 of the Indictment 2 Counts 3 and 4 Murders and Cruel Treatment 1154 This part of the Judgement deals with the crimes connected with the detention which are the subject of counts 3 and 4 of the Indictment According to the Prosecution the ABiH detained Bosnian Croats and Bosnian Serbs in different places of detention throughout 1993 and during their detention the prisoners regularly underwent mistreatment and in some cases died as a result of that treatment The facts and conclusions reached by the Chamber will follow the order in which those places of detention are set out in the Indictment The Zenica Music School and the Motel Sretno are common to the counts concerning the two accused while the five other places of detention the former JNA Barracks in Travnik Mehurići Elementary School Mehurići Blacksmith Shop Orašac Camp and detention centres in Bugojno appear solely in counts of the Indictment relating to the Accused Hadžihasanović 2530 2531 See supra para 423 See supra para 805 Case No IT-01-47-T 324 15 March 2006 352 21623 BIS a Introduction 1155 As far as the factual context is concerned the Chamber would recall that from 31 October 1992 a commission for the exchange of prisoners of war was set up which would operate during the period in question in order to facilitate the transfer to the HVO of members of the its armed forces and of the Croatian civilians captured by the ABiH in exchange for the release of soldiers of the ABiH or of mujahedin held by the HVO 2532 Prisoners were detained generally following fighting Accordingly it is appropriate to refer to “waves” of detentions as a result of fighting with the exception of the Orašac camp where the detention of prisoners resulted from a policy of the mujahedin of kidnapping HVO soldiers and non-Muslim civilians with a view to exchanging them for mujahedin captured by the HVO or the former JNA Barracks where the detentions were not necessarily connected with the fighting 1156 In Zenica prisoners of war were detained on three occasions the first time after the fighting in Dusina in January 1993 the second time after the fighting in the region of Zenica Vitez and Busovača in the second half of April 1993 and the third time after the outbreak of the conflict at Kakanj in June 1993 Officially prisoners of war captured by the ABiH during combat were sent to the KP Dom in Zenica In view of the evidence however it is clear that while the majority of prisoners of war were in fact sent to the KP Dom in Zenica in order to be exchanged subsequently others were placed in detention at the Zenica Music School which functioned as an unofficial detention centre The perpetrators of the cruel treatment were 7th Brigade soldiers for the most part military police subordinated to the 7th Brigade and who were subordinated to the Accused Hadžihasanović and the Accused Kubura 1157 As regards the detention on 18 and 19 May 1993 of prisoners of war and civilians at the Motel Sretno in Kakanj it appears that that detention was carried out in a spirit of reprisal following an ambush of the HVO in which a group of 7th Brigade Military Police had been taken prisoner The 7th Brigade 3rd Battalion was stationed at that time in Kakanj at Motel Sretno 1158 The detentions at Bugojno were the consequence of the beginning of the fighting between the ABiH and the HVO which broke out in Bugojno in July 1993 Given that there was no proper prison at Bugojno the War Presidency in Bugojno had designated numerous places of detention to serve as prisons to accept prisoners captured by the ABiH Accordingly most of the HVO soldiers and civilians captured on 24 July 1993 and 19 September 1993 by members of the 307th Brigade 2532 P 243 Official Gazette No 22 dated 5 December 1992 see for example P 260 DH 163 1 DH 1430 DH 2066 P 700 DH1447 Case No IT-01-47-T 325 15 March 2006 351 21623 BIS were transferred to the various places of detention identified in the Indictment in particular to Iskra Stadium 1159 As far as the detentions at Mehurići are concerned Bosnian Croat civilians and HVO soldiers were detained at the Mehurići Elementary School and at the Mehurići Blacksmith Shop on two occasions by 306th Brigade soldiers the first time on 6 June 1993 following sporadic fighting at Velika Bukovica and Ričice and the second time on 8 June 1993 following a fresh outbreak of fighting between the HVO and the ABiH in Maline 2533 1160 As regards the detentions at the former JNA Barracks in Travnik it would seem that some HVO were detained after they had given themselves up Croatian civilians from the Travnik region however were also imprisoned there The periods of detention varied a great deal some HVO soldiers were detained in the barracks for only a brief period before being transferred to the KP Dom in Zenica 2534 other prisoners of war were detained for six months 2535 As a result in the case of the barracks it is harder to correlate arrests and detentions with periods of fighting b General Measures 1161 In view of the documents produced in the proceedings the Chamber notes that the Supreme Command was keen to draw attention to the legal framework within which detentions of prisoners had to be carried out and therefore required compliance with the relevant Geneva Conventions 2536 From this point of view the Accused Hadžihasanović reminded his subordinates that they were under a duty to comply with the provisions of the Geneva Conventions and other instruments of international humanitarian law relating to the detention of prisoners of war 2537 1162 Some documents attest to the fact that this obligation was emphasised to subordinated members of the 3rd Corps brigades by the command of those brigades or operations groups 2538 As regards the 7th Brigade the Chamber notes Exhibits P 427 and P 467 which require compliance with the Geneva Conventions when prisoners of war are detained and prohibit the detention of 2533 On the fighting at Velika Bukovica and Ričice in early June 1993 see Haris Jusić T E p 11256 Witness ZK T F p 4366 Munir Karić T F pp 11450-11452 Remzija Šiljak T F p 10514 Sejad Jusić T E 11133 On the outbreak of fighting at Maline on 8 June 1993 see para 1109 ff The soldiers of the 306th Brigade were subordinates of the Accused Hadžihasanović during the period in question 2534 Samir Sefer T F p 11988 Jasenko Eminović T F p 5762 2535 Witness XD rejoined the ranks of the HVO brigade in Vitez in June 1993 Witness XD T F pp 1744-1745 Witness XD T F pp 1752 1754 1760 and 1761 2536 See for example P 266 P 316 P 473 P 307 2537 See for example P 138 P 282 P 186 DH 64 DH161 10 DH 1183 DH 65 DH 161 16 DH 1215 P 161 DH 161 18 DH 160 5 P 193 2538 DH 263 DH 1366 DH 710 DH 711 DH 874 P 889 P 308 P 865 P 191 DH 270 DH 1550 DH 1368 Case No IT-01-47-T 326 15 March 2006 350 21623 BIS civilians 2539 Witness BA also confirmed when he testified before the Chamber that the 7th Brigade Command and 7th Brigade 2nd Battalion Command had given orders on several occasions prohibiting in particular any unlawful act and that he had been put on notice of the need to obey the Geneva Conventions 2540 Mention should also be made of the prohibition on torturing and brutalising prisoners of war as referred to in the Instructions for the Muslim Fighter even though there were limits to that prohibition 2541 1163 Furthermore the Accused Hadžihasanović gave orders on several occasions prohibiting the detention of civilians and mistreatment of prisoners of war on pain of sanctions 2542 Following those orders subordinated commanders drew attention to that prohibition 2543 1164 Moreover the Accused Hadžihasanović asked for investigations to be initiated in some brigades in order to establish whether unlawful detentions or mistreatment had taken place and to inform the 3rd Corps Command of the findings 2544 On some occasions he gave an order that all information relating to the detention of prisoners be given to him 2545 The initiatives intended to document the treatment of prisoners also emanated from the military security service 2546 The commands of the TO operations groups and brigades also issued similar orders 2547 The Chamber would draw attention to Exhibit P 467 issued by the 7th Brigade designed to secure punishment for persons guilty of detention and mistreatment and requiring instances of such to be reported to the person who signed the order Šerif Patković 2548 1165 Pursuant to cease-fire agreements with the HVO the Accused Hadžihasanović ordered prisoners of war and in particular civilians to be released 2549 The orders were given following those by the Supreme Command of the ABiH 2550 1166 Representatives of the ICRC made several visits to the Iskra Stadium in Bugojno 2551 Thus on 14 September 1993 the Accused Hadžihasanović ordered the commands of the OG Zapad and 2539 P 427 P 467 Witness BA T F p 867 2541 P 11 2542 P 138 P 194 DH 161 2 P 186 DH 64 DH 161 10 2543 DH 874 P 427 7th Brigade 2544 P 364 P 138 DH 65 DH 161 16 DH 1215 2545 P 157 2546 P 260 2547 DH 263 DH 710 DH 711 P 467 7th Brigade 2548 P 467 2549 P 137 P 206 P 139 P 205 DH 163 2 DH 161 3 DH 163 6 P 190 DH 161 17 DH 163 12 DH 163 13 2550 DH 161 3 DH 163 6 P 266 DH 163 9 DH 163 10 DH 165 3 DH 161 11 P208 P 430 2551 Mijo Marijanović T F p 2773 Zoran Gvozden T F p 3679 P 386 under seal para 38 2540 Case No IT-01-47-T 327 15 March 2006 349 21623 BIS the 307th Brigade to authorise the visit by a delegation of the ICRC scheduled for 20 and 21 September 1993 2552 1167 Two orders from Rasim Delić to the 3rd Corps Command required access to be granted to the representatives of the ICRC to all detention centres 2553 more particularly the Zenica Music School 2554 The Chamber notes that any action taken on those orders is not available to it c Zenica Music School 1168 In the Indictment it is alleged that Bosnian Croats and Bosnian Serbs were held in the Zenica Music School in the town of Zenica which was guarded and run by members of the 7th Brigade from around 26 January 1993 until at least January 1994 and were regularly subjected to mistreatment there The detainees were allegedly beaten and subjected to physical and psychological abuse by 7th Brigade soldiers primarily military police and mujahedin subordinated to the 7th Brigade The detention conditions including the food and hygiene were allegedly inadequate From around 26 January 1993 to 31 October 1993 and from 1 April 1993 to at least January 1994 the Accused Hadžihasanović and the Accused Kubura respectively knew or had reason to know that the members of that unit placed under their command and effective control were about to commit crimes of mistreatment or had done so and failed to take the necessary and reasonable measures to prevent those acts from being committed or to punish the perpetrators 2555 1169 The Accused Hadžihasanović and the Accused Kubura are therefore allegedly guilty of cruel treatment violations of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute and recognised by common Article 3 of the Geneva Conventions 2556 i Arguments of the Parties 1170 The Prosecution claims that members of the 7th Brigade mistreated detainees at the Zenica Music School which was under the control of the 3rd Corps and the 7th Brigade 2557 The Prosecution adds that the two Accused had knowledge of the mistreatment inflicted on the detainees2558 that 2552 P 441 DH 1490 2554 P 670 2555 Indictment paras 41 a and 42 a 2556 By Decision on the Motions for Acquittal para 65 and p 65 of the disposition the Chamber acquitted the Accused Hadžihasanović and the Accused Kubura of the part of count 3 of the Indictment relating to the murder of Jozo Maračić at the Zenica Music School on 18 June 1993 as regards their individual criminal responsibility under Article 7 3 of the Statute 2557 Prosecution Final Brief paras 212-213 Prosecution Closing Arguments T F p 19095 2558 Prosecution Final Brief para 224 2553 Case No IT-01-47-T 328 15 March 2006 348 21623 BIS they failed to take the necessary and reasonable measures to prevent the commission of the mistreatment or to punish the perpetrators 2559 1171 The Defence for the Accused Hadžihasanović maintains that there is a doubt as to the detention and hence as to the mistreatment allegedly suffered by members of the HVO at the Zenica Music School in January 1993 2560 In contrast the Defence for the Accused Hadžihasanović has not challenged in any way the factual allegations set out in the Indictment in this connection as regards the period from late April until June 1993 In addition the Defence for the Accused Hadžihasanović maintains that the Prosecution has not proved that mujahedin took part in the mistreatment that the Accused Hadžihasanović was apprised of the mistreatment and that the Accused Hadžihasanović failed to take the necessary and reasonable measures to prevent the commission of those crimes or to punish the perpetrators 2561 1172 The Defence for the Accused Kubura does not challenge the allegation that mistreatment was meted out at the Zenica Music School 2562 In contrast the Defence for the Accused Kubura states that the Accused Kubura did not know or have reason to know of the actions allegedly committed there2563 and that he had neither the power nor the duty to prevent or punish the alleged crimes 2564 ii Findings of the Chamber regarding Mistreatment at the Zenica Music School a Description of the Facts from Late January 1993 to Late August or September 1993 1173 The Zenica Music School2565 is located in the centre of the town of Zenica 2566 a few hundreds metres from the former Zenica District Military Court2567 and the former headquarters of 2559 Ibid paras 235 and 239 Hadžihasanović Defence Final Brief para 890 2561 Ibid paras 881 and 958 2562 Opening statement of the Accused Kubura T F pp 18222-18223 2563 Kubura Defence Final Brief paras 127 and 138 Kubura Defence Closing Arguments T F p 19324 2564 Kubura Defence Final Brief para 147-152 2565 See photograph P 7 1 confidential and videocassettes P 761 and P 802 2566 Ramiz D aferović T F p 14226 Hamdija Kulović T F pp 14292-14293 2567 Vlado Adamović T F pp 9477-9478 Hilmo Ahmetović T F pp 16216-16217 2560 Case No IT-01-47-T 329 15 March 2006 347 21623 BIS the 3rd Corps 2568 and approximately two kilometres from the 7th Brigade Command which was located at the time in Bilmište 2569 1174 Since the second half of January 1993 the building of the Zenica Music School had housed the military police section of the 7th Brigade 2570 Moreover several witnesses mentioned the presence of 7th Brigade soldiers at the Music School during the period in question 2571 1175 In accordance with an order of 15 January 1993 from the Commander of the 7th Brigade a military detention unit for members of the 7th Brigade was set up at the Zenica Music School 2572 The Music School was mainly used however as an ABiH detention centre for more than a hundred prisoners of war and civilian detainees between 26 January 1993 and 20 August 1993 or 20 September 1993 2573 A number of circumstances make the Chamber consider that the Music School served as an ABiH unofficial detention centre The official policy of the 3rd Corps was to order prisoners of war captured in fighting to be sent to the KP Dom in Zenica 2574 While the ABiH as a result sent hundreds of prisoners of war to the KP Dom in Zenica after the fighting in Dusina in January 1993 and the fighting in the Lašva Valley in the second half of April 1993 2575 the 7th Brigade in parallel and at the same time was arresting and taking some prisoners to the Music School Of the former prisoners detained in the School who testified before the Chamber none declared that he had been registered upon his arrival at the School 2576 Additionally the detainees held at the Music School were systematically sent to the KP Dom in Zenica before being exchanged 2577 Lastly even though the military police was authorised by the service regulations of 2568 Witness HF T F pp 17187-17188 Osman Hasanagić T F p 18889 Witness XA T F p 1461 DH 2080 see in relation to DH 2080 Semir Šarić T F p 17333 2570 P 143 P 405 DK 62 para 22 Witness ZA T F p 2324 Jusuf Karalić Commander of a 7th Brigade Military Police unit P 727 was present on the premises during the period in question Kruno Rajić T F p 1855 P 401 under seal para 18 in the same capacity as members of the Military Police special unit P 401 under seal para 19 2571 Kruno Rajić T F pp 1799-1800 Witness XA T F p 1430 Alija Podrug T F p 4294 P 401 under seal para 7 P 402 under seal paras 17-27 23 and 32-36 By way of example Jasmin Isić a member of the 7th Brigade DK 5 under seal DK 6 under seal DK 14 under seal Annex B under seal of P 371 was present and conducted interrogations at the Music School Franjo Batinić T F p 517 Kruno Rajić T F 1799-1800 Ranko Popović T F pp 1554-1555 The presence of Vehid Subotić aka Geler a member of the 7th Brigade 2nd Battalion P 542 P 713 was also observed Dragan Radoš T F p 1067 Some witnesses mentioned the presence of foreigners who did not speak the Bosnian language Witness XA T F p 1445 P 401 under seal para 16 and wore clothing habitually worn by the mujahedin Lars Baggessen T F p 7036 2572 P 405 DK 62 para 22 Osman Hasanagić T F p 18889 2573 As it will be considered subsequently no witness stated before the Chamber that he had been detained at the Music School beyond 20 August 1993 or 20 September 1993 2574 DH 874 Edib Zlotrg T F p 14982 see also P 551 DH 176 Witness HF T F pp 17197-17198 2575 Ivica Kegelj T F pp 4243-4244 Mahir Izet T F pp 16799 16819-16820 Semir Sarić T F pp 17319 17320 and 17343 P 389 under seal para 16 P 314 P 744 DH 874 DH 163 8 DH 163 9 P 264 under seal 2576 See P 353 para 2828 2577 Ivan Tvrtković T F pp 1508 and 1521 Alija Podrug T F p 4296 Kruno Rajić T F p 1823 Witness XA T F p 1459 P 398 under seal paras 21-24 P 401 under seal para 26 P 402 under seal para 45 2569 Case No IT-01-47-T 330 15 March 2006 346 21623 BIS the military policy of the armed forces of the RBiH to detain any person suspected of having committed a criminal act falling within the jurisdiction of military justice for a period not exceeding three days 2578 the Chamber finds that no witness it heard referred to a such a ground for detention and that mostly non-Muslim civilians and prisoners of war were held there for a period very frequently exceeding the legal maximum of three days 2579 1176 Bosnian Croat and Bosnian Serb civilian men and members of the HVO were placed in detention in the Music School on three occasions the first time after the fighting in Dusina in January 1993 the second time following the fighting in the region of Zenica Vitez and Busovača in the second half of April 1993 and the third time following the outbreak of fighting at Kakanj in June 1993 that is a few days after the departure of the 7th Brigade 2nd and 3rd Battalions from the sector of Ovnak towards Kakanj on about 8 or 9 June 1993 2580 In January 1993 ten or so persons were imprisoned in the basement of the Music School2581 while between the second half of April and August 1993 the number of detainees at the Music School varied continually between 15 and 46 2582 1177 As indicated earlier in the Judgement on 26 January 1993 following the fighting in Dusina and the murder of Zvonko Rajić the 3rd Corps Military Police transferred 25 captured HVO soldiers to the KP Dom in Zenica On the same day 7th Brigade soldiers took six prisoners who were members of the HVO namely Witnesses Dragan Radoš and Franjo Batinić together with Viktor Rajić Jozo Krišto Srecko Krišto and Perica Radoš to the Zenica Music School by force 2583 2578 P 328 para 62 Zaim Mujezinović T F p 17511 Witness HF T F pp 17185-17186 The length of the detention of former prisoners held in the Music School who were heard by the Chamber varied between 2 and 75 and even 105 days Franjo Batinić stated that he was detained for 3 and a half or four days T F p 525 Dragan Radoš stated that he was detained between 2 and 5 days T F 1067 Kruno Rajić 23 April 1993-10 June 1993 T F pp 1795 and 1823 P 41 Witness XA night of 21 22 April 1993-5 May 1993 T F pp 1426 and 1459 Witness Z16 18 April 1993-20 April 1993 P 398 under seal paras 2 and 21-24 Witness Z20 22 April 1993-4 May 1993 P 402 under seal paras 10 and 45 Witness Z19 25 April 1993-11 June 1993 P 401 under seal paras 4 and 26 Ivan Bohutinski 29 April 1993-18 May 1993 T F pp 4662 4664 4668 and 4678 Ivan Tvrtković 15 June 199320 August 1993 or 20 September 1993 T F pp 1499-1503 1508 and 1521 Ranko Popović 21 June 1993-20 August 1993 T F pp 1543 and 1546 Alija Podrug 27 July 1993-2 August 1993 T F pp 4291-4292 and 4296 2580 Safet Junuzović T F pp 18518-18519 Kasim Alajbegović T F p 18702 2581 In addition to the six prisoners who were members of the HVO brought to the School on 26 January three prisoners had been brought there the day before Franjo Batinić T F p 524 Dragan Radoš T F pp 1062-1063 2582 Ivan Tvrtković T F p 1505 Kruno Rajić CFR p 1802 Witness XA T F p 1431 P 353 P 366 Fifth Periodic Report of 17 November 1993 of the United Nations Commission on Human Rights on the human rights situation in the territory of former Yugoslavia 2583 Dragan Radoš T F pp 1059-1061 Franjo Batinić T F pp 513 and 524-525 Kruno Rajić T F pp 1796 and 1843 P 314 P 744 see also supra paras 1013 and 1026 2579 Case No IT-01-47-T 331 15 March 2006 345 21623 BIS 1178 Once they arrived at the Music School the HVO prisoners were interrogated one by one before being taken down to the cell in the basement of the building 2584 The witnesses stated that the detainees were beaten with rifle stocks and wooden sticks as they were escorted to the interrogation office and during the interrogation 2585 After these first beatings Franjo Batinić’s shoulders and chest were covered with bruises and the arch of his eyebrows had been split open 2586 On the following night Viktor Rajić and Dragan Radoš were mistreated in turn by two soldiers including the one known as “Geler” in the basement of the school 2587 Dragan Radoš states that Viktor Rajić was kicked and punched and that the beating did not end until his face began to bleed copiously 2588 Following this Dragan Radoš was kicked and punched by the two soldiers after which his hands were tied up high behind his back and he was hit with a wooden stick in his ribs until they were fractured 2589 After that he could barely walk or breathe 2590 According to Franjo Batinić all the other detainees were beaten in the same way 2591 It was not specified however whether the beatings of the other prisoners were carried out on that same night or whether they were repeated throughout their detention After three or four days the prisoners were transferred to the KP Dom in Zenica to be exchanged on 10 February 1993 in Busovača 2592 1179 Following the abduction of Živko Totić and a new outbreak of fighting between the HVO and the ABiH in the region of Zenica Vitez and Busovača 2593 a second wave of arrests and transfers to the Zenica Music School took place in the second half of April 1993 Whereas some 270 HVO soldiers who had been taken prisoner were transferred by the ABiH to the KP Dom in Zenica 2594 Bosnian Croat and Bosnian Serb civilians and members of the HVO including Witness XA Kruno Rajić Ivan Bohutinski and three other witnesses were arrested in Zenica by 7th Brigade Military Police and taken to the Music School 2595 2584 Franjo Batinić T F p 514 Dragan Radoš T F p 1061 The basement cell was a former classroom approximately 4 metres by 3 metres see photograph P 8 and videocassettes P 761 and P 802 Kruno Rajić T F p 1811 Ivan Tvrtković T F pp 1503-1505 2585 Franjo Batinić T F pp 515-516 Dragan Radoš T F pp 1061-1062 2586 Franjo Batinić T F p 515 2587 Franjo Batinić T F p 515 Dragan Radoš T F p 1063 Vehid Subotić aka Geler was also present at Dusina on 26 January 1993 Ivica Kegelj T F pp 4231 4232 and 4237-4238 P 389 under seal paras 6 and 9 2588 Dragan Radoš T F p 1063 2589 Dragan Radoš T F pp 1063-1064 and 1066-1067 2590 Dragan Radoš T F pp 1066-1067 2591 Franjo Batinić T E pp 515-517 2592 Franjo Batinić T F p 525 Dragan Radoš T F pp 1067-1068 Kruno Rajić T F p 1843 P 744 2593 See supra paras 491-528 2594 P 264 under seal 2595 Witness XA T F pp 1426-1427 Kruno Rajić T F pp 1795-1796 Ivan Bohutinski T F pp 4662 4664 4677 and 4678 P 398 under seal para 2 P 401 under seal para 4 P 402 under seal paras 10-13 Case No IT-01-47-T 332 15 March 2006 344 21623 BIS 1180 All the Prosecution witnesses are consistent in stating that throughout their detention in the Music School they repeatedly underwent cruel treatment and lived in a permanent state of anxiety Thus upon their arrival at the School the detainees were almost systematically kicked and beaten with rubber cable and wooden shovel handles by the soldiers and guards of the School before they were taken to the basement cell 2596 Witness XA recounts that upon his arrival he was hit on the head with a wooden stick when he was climbing the stairs and lost consciousness when he came to 15 to 20 7th Brigade soldiers were questioning him while continuing to hit him about the head on the back and in the stomach causing him to pass again out He states that he was subjected to that treatment every day for eight days 2597 The beatings caused him to sustain two fractures of the skull 2598 Another witness recounts that after having lost and regained consciousness several times in the same circumstances he was forced by a Muslim soldier to eat a military insignia after being threatened with having a rubber cable thrust down his throat if he did not do so 2599 1181 Witness Kruno Rajić explained that at night the detainees were brought upstairs one by one and with the lights out had to pass through the middle of a column of soldiers in two rows who struck them with wooden shovel handles The soldiers would say to them “We are going to teach you to sing” which meant that they would listen while the detainees screamed while being hit with the shovel handles 2600 Another witness related that from the basement cell he could hear detainees cry out begging them to stop and that when they returned downstairs they would be covered with bruises and blood 2601 There is evidence that soldiers and guards played loud music in order to cover up the screams and cries of detainees being beaten 2602 1182 The interrogations often conducted by Jasmin Isić during the night were regularly accompanied by beatings of ten minutes or so administered by wooden shovel handles 2603 The blows rained down on the detainee under interrogation whenever his answers did not satisfy the interrogator or interrogators or even whenever a prisoner opened his mouth to answer 2604 The detainees were also regularly hit by the guards in the basement cell 2605 On one occasion for 2596 P 398 under seal paras 4-17 Kruno Rajić T F p 1797 P 401 under seal para 10 Witness XA T F pp 1430-1432 and 1434 2598 Witness XA T F p 1435 2599 P 398 under seal para 13 2600 Kruno Rajić T F p 1802 The testimony of Witness ZP echoes that of Witness Kruno Rajić insofar as Witness ZP stated that he heard that people were brought to the Music School and that “even those who had no ear for music very soon learned to sing” T F p 8846 2601 P 402 under seal paras 24-28 see also Ivan Bohutinski T F pp 4670-4671 2602 P 402 under seal para 18 P 353 para 2832 2603 Kruno Rajić T F p 1800 P 401 under seal para 15 2604 Kruno Rajić T F p 1800 2605 P 402 under seal para 36 2597 Case No IT-01-47-T 333 15 March 2006 343 21623 BIS instance a military police officer ordered Franjo Rajić to hit his mentally handicapped son Marko Rajić and when Franjo Rajić refused to comply with the order the police officer ordered another detainee to hit Franjo Rajić which he did However because the military police officer considered that the blows were not hard enough he began to hit a prisoner who already had a broken arm with a truncheon 2606 Likewise a witness stated that one day several 7th Brigade soldiers came down to the basement ordered the detainees to line up and face the wall and threatened them with a beating if they turned around Nevertheless the prisoners were all beaten until the soldiers unleashed their blows on detainee Dragan Jonjić alone kicking him and hitting him with shovels Dragan Jonjić fell to the ground and while the soldiers asked him to explain why he had dared to turn around the assault on him resumed more violently At this point Dragan Jonjić was in such bad condition that that he could no longer stand up afterwards The detainees were so terrorised that after the soldiers had gone away they did not dare to move from the wall for 20 minutes 2607 1183 According to the witness who testified before the Chamber the civilian prisoners and members of the HVO Drago Pandža Jure Babić Slavko Miletić Ivo Miletić Nikola Tavić Ivica Botić Nikola Botić Jozo Tolić Jozo Mišković Drago Lovrinović Vinko Tavić Drago Grubešić Ivo Akrapović Jozo Akrapović Mio Martulović Vlatko Ivanković Dragan Jerković Zoran Totić Dragan Gelić Marko Rajić Franjo Rajić Drago Pandža a minor and Ante Visković were also beaten frequently throughout their detention 2608 1184 One witness stated that since the beatings at the School he has not recovered full sight in one eye 2609 Kruno Rajić stated that he had his hands broken because he had used them to protect himself against blows to the head 2610 Another witness recounts that following the treatment he received at the School he had four broken ribs and a fracture of the hip for which he had to have an operation to fit a plastic hip 2611 1185 Lastly several witnesses stated that they had been threatened on several occasions with death or the worst physical violence against them or their families 2612 In this way two 7th Brigade 2606 Kruno Rajić CFR pp 1805-1806 P 402 under seal paras 39-41 2608 Kruno Rajić T F pp 1804-1806 and 1810-1811 P 398 under seal paras 6-8 18 and 30 P 401 under seal para 11 P 402 under seal paras 17-18 24-26 and 33 Ivan Bohutinski T F pp 4667 and 4670 Witness ZN T F pp 5272-5278 2609 P 401 under seal para 21 2610 Kruno Rajić T F p 1801 2611 P 398 under seal para 27 2612 Witness XA T F pp 1436-1437 P 398 under seal para 8 P 402 under seal para 43 2607 Case No IT-01-47-T 334 15 March 2006 342 21623 BIS military police made Witness XA and another prisoner go outside the School where they forced them to dig a ditch telling them it was their own grave and sharpening knives in front of them 2613 1186 The great majority of the detainees at the School who had been arrested in April were kept in detention for a period ranging from a few days to two to six weeks and were gradually transferred to the KP Dom in Zenica 2614 Pursuant to the agreement of 10 June 1993 between the HVO and the ABiH on the cessation of hostilities 2615 198 detainees at the KP Dom including several prisoners from the Music School were exchanged on about 19 June 1993 2616 1187 As from the second half of June 1993 however a third wave of arrests and transfers to the School was carried out by the 7th Brigade soldiers and the ABiH In fact following the outbreak of the fighting at Kakanj in June 1993 more precisely a few days after the departure of the 7th Brigade 2nd and 3rd Battalions from the sector of Ovnak to Kakanj on about 8 or 9 June 1993 2617 a group of Bosnian Croats and Bosnian Serbs including Witnesses Ivan Tvrtković and Ranko Popović who were civilians was arrested at Kakanj and transferred after transiting at Motel Sretno in Kakanj to the Zenica Music School 2618 On 27 July 1993 Alija Podrug a Muslim civilian was arrested by the 7th Brigade in Kakanj and taken to the Music School 2619 1188 Ivan Tvrtković and Ranko Popović stated that they were subjected to the same type of physical and psychological abuse as that described by the witnesses arrested in April Thus upon his arrival Ranko Popović was beaten up at the entrance to the basement by some ten soldiers forming a “hedge” using cables rifle butts and kicks 2620 The interrogations conducted by Jasmin Isić were also accompanied by beatings consisting of blows with rifle butts and kicks 2621 Ranko Popović came out of them covered with bruises and was barely able to walk 2622 According to the witnesses the ten other prisoners held in the basement including Ilija Cicak Ivica Andrijević Ivica Tvrtković Franci Zupancić Dane Majić together with a person named Cvijanović and another 2613 Witness XA T F pp 1437-1438 P 402 under seal paras 17-18 Kruno Rajić T F p 1823 Witness XA T F p 1459 P 398 under seal paras 21-24 P 401 under seal para 26 P 402 under seal para 45 2615 DH 163 3 2616 P 190 P 208 P 41 P 401 under seal para 28 Kruno Rajić T F p 1823 Witness XA T F p 1459 On 14 June 1993 several prisoners from the Music School were registered among 203 HVO soldiers at the reception centre for prisoners of war DH 163 8 2617 DK 23 DK 24 Safet Junuzović T F pp 18517-18519 and 18578 Kasim Alajbegović T F pp 18701-18702 2618 Ivan Tvrtković T F pp 1499-1503 Ranko Popović T F pp 1532-1533 and 1543 2619 Alija Podrug T F pp 4290-4293 and 4302 2620 Ranko Popović T F pp 1543-1545 2621 Ivan Tvrtković T F pp 1507-1508 Ranko Popović T F pp 1547-1548 and 1554-1555 2622 Ranko Popović T F pp 1548-1549 2614 Case No IT-01-47-T 335 15 March 2006 341 21623 BIS Markić had the same type of wounds to their bodies and were also victims of violent assaults 2623 Alija Podrug stated that he did not see any other prisoners since he had been locked away in a room alone 2624 1189 Ranko Popović was detained at the Music School until 20 August 19932625 while Ivan Tvrtković was kept there until 20 August 1993 or 20 September 1993 before being transferred to the KP Dom in Zenica 2626 Ivan Tvrtković remained at the KP Dom until 23 November 1993 the date on which he was exchanged 2627 Alija Podrug was locked up for seven days at the Music School before being transferred to the KP Dom on 2 August 1993 2628 1190 It appears from many accounts by former prisoners at the Music School that from 18 April 1993 until 20 August 1993 the basement of the Music School consistently housed a number between about ten and around thirty detainees so that each prisoner leaving was systematically replaced by a newly arrived prisoner 2629 Nevertheless between 11 June and 15 June 1993 nobody seems to have been imprisoned at the Music School 2630 Moreover that four-day period corresponds precisely to the period in respect of which Witness Lars Baggessen informed the Chamber that he had visited the School and found no detainees there 2631 1191 In addition many witnesses heard by the Chamber referred to the disastrous detention conditions between April and June 1993 Accordingly several witnesses concur in describing each in their own manner the food distributed to the detainees as consisting mainly of small amounts of bread or rice together with vegetable soup sometimes 2632 Some witnesses stated that detainees did 2623 Ivan Tvrtković T F p 1510 Ranko Popović T F pp 1548-1549 Alija Podrug T F p 4294 2625 Ranko Popović T F p 1546 2626 Ivan Tvrtković T F pp 1508 and 1521 2627 Ivan Tvrtković T F p 1508 2628 Alija Podrug T F p 4296 2629 Kruno Rajić T F p 1802 Ivan Tvrtković T F p 1505 P 401 under seal para 17 The periods of detention between 18 April 1993 and 20 August or 20 September 1993 of the former prisoners at the Music School who were heard by the Chamber are as follows Kruno Rajić 23 April 1993-10 June 1993 T F pp 1795 and 1823 P 41 Witness XA night of 21 22 April 1993-5 May 1993 T F pp 1426 and 1459 Witness Z16 18 April 1993-20 April 1993 P 398 under seal paras 2 and 21-24 Witness Z20 22 April 1993-4 May 1993 P 402 under seal paras 10 and 45 Witness Z19 25 April 1993-11 June 1993 P 401 under seal paras 4 and 26 Ivan Bohutinski 29 April 1993-18 May 1993 T F pp 4662 4664 4668 4677 and 4678 Ivan Tvrtković 15 June 1993-20 August 1993 T F pp 1499-1503 and 1521 Ranko Popović 21 June 1993-20 August 1993 T F pp 1543 and 1546 Alija Podrug 27 July 1993-2 August 1993 T F pp 4290-4292 and 4296 Each witness stated that during his period of imprisonment he shared the basement cell with a number of fellow detainees whose number varied between about ten and about thirty Kruno Rajić 1802 Witness XA T F p 1439 P 398 under seal para 6 P 402 under seal paras 23 and 31 P 401 under seal para 11 Ivan Bohutinski T F p 4667 Ivan Tvrtković 1505 Ranko Popović T F pp 1545 and 1549 2630 Witness Z19 was transferred on 11 June 1993 from the Music School to the KP Dom in Zenica and Ivan Tvrtković arrived at the Music School on 15 June 1993 2631 Lars Baggessen T F p 7033 2632 Kruno Rajić T F p 1812 Witness XA T F p 1439 P 401 under seal para 20 P 402 under seal para 44 2624 Case No IT-01-47-T 336 15 March 2006 340 21623 BIS not receive anything to eat for the first two days 2633 The lack of sufficient and proper food weakened the detainees considerably Kruno Rajić stated that he lost about 30 kilos during his detention while another detainee stated that he lost 22 kilos 2634 Moreover several witnesses stated that nothing was provided for the detainees to sleep on 2635 Accordingly prisoners were obliged to sleep on a few planks of wood and benches while others had to sleep sitting down 2636 As for hygiene several witnesses testified that there were toilets on the upper floor but that in order to avoid the inevitable beating if they went upstairs detainees tried to hold themselves in or had to make do with a plastic bucket instead of a toilet 2637 In addition detainees were not permitted to take a shower or to wash2638 and prisoners did not receive medical care or the least medical treatment 2639 1192 Lastly a particular aspect of the Music School was its limited access for international organisations 2640 Several pieces of evidence including an ICRC report show that the 7th Brigade consistently refused the ICRC access to the Music School between May and August 1993 with the exception of a visit in May 1993 2641 On 14 August 1993 Rasim Delić intervened with the Accused Hadžihasanović and informed him of the ICRC's complaints in this regard In particular he indicated in his letter as follows T he Zenica ICRC has attempted on several occasions to visit the prisoners who fall under the jurisdiction of the 7th Brigade of the BH Army 3rd Corps and are detained in the prison in the former Secondary Music School in Zenica Except for one visit in May 1993 the ICRC has constantly been denied access to the prisoners detained with the 7th Brigade The International Committee of the Red Cross also claims that visits to prisoners in the aforementioned prison that had been planned for 4 and 9 August this year were prevented in spite of the fact that that the ICRC asked the Third Corps to make them possible 2642 2633 Witness XA 1438 Kruno Rajić T F p 1812 P 353 para 2832 P 366 5th Periodic Report of 17 November 1993 of the United Nations Human Rights Commission on the human rights situation in the territory of the former Yugoslavia para 41 2634 Kruno Rajić T F p 1813 P 401 under seal para 20 2635 Ivan Bohutinski T F p 4667 Ivan Tvrtković T F p 1504 2636 Kruno Rajić T F p 1811 Witness XA T F p 1438 2637 Kruno Rajić T F pp 1813-1814 Witness XA T F p 1431 Ivan Bohutinski T F p 4668 P 401 under seal para 20 2638 Ivan Bohutinski T F p 4668 P 401 under seal para 20 P 353 2639 Witness XA T F p 1436 Ivan Bohutinski T F p 4667 P 398 under seal para 17-21 2640 P 168 Report of 4 October 1993 of the United Nations Human Rights Centre pp 6 and 9 P 366 5th Periodic Report of 17 November 1993 of the United Nations Human Rights Commission on the human rights situation in the territory of the former Yugoslavia para 41 2641 A Annex C under seal of P 371 P 165 p 00080589 Accordingly the Chamber cannot give credence of the statements of Witness Ramiz D aferović on this point He denied that the ICRC was refused access to the Music School and stated that in fact the international organisations refused to visit the Music School T F pp 14232-14234 2642 P 670 Case No IT-01-47-T 337 15 March 2006 339 21623 BIS He ended his letter by ordering the Accused Hadžihasanović to issue an order to the 7th Brigade allowing the next visit of the ICRC scheduled for 18 August 1993 to take place 2643 Lastly two witnesses stated that before the visit of the ICRC all the detainees with the exception of three were moved to Bilmište and brought back to the basement of the Music School after the visit 2644 Džemal Merdan however denied that the detainees held at the School were moved before the ICRC arrived 2645 b Mistreatment Paragraph 42 a of the Indictment 1193 The Chamber cannot accept the argument of the Defence for the Accused Hadžihasanović to the effect that on the basis of the testimony of Jasmin Šarić there is still a doubt about the detention of six members of the HVO imprisoned at the Music School from 26 January 1993 and hence about the mistreatment they allegedly suffered 2646 There is cogent evidence to show that following the murder of Zvonko Rajić on 26 January 1993 six Croatian soldiers taken prisoner by the ABiH namely Perica Radoš Jozo Krišto Srecko Krišto Viktor Rajić and Witnesses Franjo Batinić and Dragan Radoš were placed on a bus by members of the 7th Brigade and taken to the Zenica Music School 2647 What is more the precise consistent testimony of Franjo Batinić and Dragan Radoš proves beyond a reasonable doubt that the six aforementioned prisoners underwent repeated physical abuse at the Music School such as to cause great suffering or physical or mental pain 2648 1194 The Chamber heard no witness however as to the detention conditions obtaining in the Music School in January 1993 with the result that it dismisses as unfounded the allegation made by the Prosecution to the effect that living conditions during the detention in January 1993 were insufficient 1195 As described above numerous pieces of evidence as to the physical and psychological abuse constantly endured by Bosnian Croats and Bosnian Serbs and prisoners of war at the Music School from the second half of April until 20 August 1993 or 20 September 1993 were presented to the 2643 P 670 Kruno Rajić CFR p 1822 P 401 under seal paras 23-25 The Chamber notes that Witness Z19 stated that the detainees were moved from the School before the ICRC arrived on two occasions the first in early June and the second 10 days later P 401 under seal para 24 2645 Džemal Merdan T F p 13633 2646 Hadžihasanović Defence Final Brief paras 889-890 2647 Franjo Batinić T F pp 512 513 and 525 Dragan Radoš T F pp 1059-1061 Kruno Rajić T F pp 1796 and 1843 P 314 P 206 P 744 see also supra paras 1013 and 1026 2648 Dragan Radoš T F pp 1061-1067 Franjo Batinić 513-515 2644 Case No IT-01-47-T 338 15 March 2006 338 21623 BIS Chamber in the course of the proceedings That evidence suffices to prove beyond a reasonable doubt that defenceless victims were constantly subjected to the cruellest physical abuse often in front of the other detainees Apart from that mistreatment witnesses gave an account of the fear that they felt during their detention and stated that the guards and soldiers at the Music School often threatened the detainees with death thereby heightening their feelings of insecurity and anxiety In addition on the basis of the aforementioned testimony the Chamber concludes that during the period of the crimes committed between April and June 1993 the lack of food the lack of access to adequate sanitary facilities and medical care together with the fact that it was impossible to sleep in acceptable conditions are punishable as cruel treatment insofar as they were intended to cause great suffering or serious injury to body and health 1196 The Chamber concludes that it appears from the testimony of the former prisoners held at the Music School that the perpetrators of the cruel treatment were undeniably motivated by the intention to inflict serious pain and suffering on the prisoners held at the Music School 1197 As regards the perpetrators of the mistreatment the witnesses who testified before the Chamber identified Vehid Subotić aka Geler 2649 a member of the 7th Brigade 2nd Battalion 2650 Našid Delalić 2651 a member of the 7th Brigade Special Military Police 2652 and Sabahudin Saraljić 2653 also a member of the 7th Brigade Special Military Police 2654 Moreover it appears from the testimony of many witnesses that the interrogations accompanied by beatings were often carried out by Jasmin Isić 2655 a 7th Brigade soldier 2656 In addition the combination of the statements by witnesses in which they recognised their tormentors as 7th Brigade soldiers or military police2657 together with evidence proving that the unit present at the School belonged to the 7th Brigade Military Police2658 satisfies the Chamber beyond a reasonable doubt that the perpetrators of the cruel treatment were 7th Brigade soldiers mostly military police subordinated to the 7th Brigade and were subordinated to the Accused Hadžihasanović and the Accused Kubura 2649 Dragan Radoš T F p 1067 P 542 P 713 2651 P 401 under seal para 19 2652 P 708 2653 P 402 under seal para 28 2654 P 708 The presence of Sabahudin Saraljić at the Music School was confirmed by Witness Z19 P 401 under seal paras 4-6 2655 Franjo Batinić T F p 517 Kruno Rajić T 1799 1800 and 1859 Ranko Popović T F pp 1547-1548 and 15541555 2656 DK 5 under seal DK 6 under seal DK 14 under seal Annex B under seal to P 371 2657 Witness XA T F pp 1431-1432 P 402 under seal paras 32 and 34 2658 P 143 P 405 DK 62 para 22 Witness ZA T F p 2324 2650 Case No IT-01-47-T 339 15 March 2006 337 21623 BIS 1198 Conversely the Chamber finds that there is no evidence to support the Prosecution's allegation that mujahedin subordinated to the 7th Brigade took part in the cruel treatment meted out to the victims in the Music School Consequently the Chamber cannot accept that allegation 1199 The Chamber finds that the victims of the cruel treatment were not participating directly in the hostilities The six HVO soldiers brought to the School on 26 January 1993 had been taken prisoner previously by the ABiH at the end of the fighting in Dusina 2659 Moreover the evidence produced in the proceedings shows that the people arrested and transferred to the Music School between April and June 1993 had the status of Bosnian Croat or Bosnian Serb civilians 2660 or of prisoners of war 2661 or were unarmed members of the HVO in civilian dress at the time of their arrest 2662 Consequently they were all protected persons by virtue of the laws or customs of war as recognised by common Article 3 of the Geneva Conventions 1200 On the basis of the foregoing the Chamber concludes that the elements of the crime of cruel treatment at the Zenica Music School have been established for the period from 26 January 1993 to 20 August 1993 or 20 September 1993 as far as the serious physical and psychological abuse is concerned and from April to June 1993 as regards the conditions of detention iii Findings of the Chamber regarding the Responsibility of Enver Hadžihasanović a Effective Control of Enver Hadžihasanović over the Perpetrators of the Crime 1201 The Chamber concludes that the cruel treatment alleged in paragraphs 41 a and 42 a of the Indictment was committed by soldiers of the 7th Brigade for the most part by military police subordinated to the 7th Brigade Given that the 7th Brigade was subordinated de jure to the 3rd Corps at the material time 2663 it is presumed that the Accused Hadžihasanović exercised effective control over that unit and over the perpetrators of the mistreatment belonging to it 2664 1202 Moreover the evidence shows that the 7th Brigade in particular the 7th Brigade Military Police was carrying out the orders of the Accused Hadžihasanović By way of example the 2659 Witness BA T F p 758 Franjo Batinić T F p 509 Kruno Rajić T F p 1793 P 401 under seal para 2 2661 Ivan Bohutinski T F pp 4675-4677 2662 Witness XA T F pp 1420-1422 and 1468 P 398 under seal para 2 P 402 under seal paras 7-8 2663 See supra para 381 2664 See supra para 79 2660 Case No IT-01-47-T 340 15 March 2006 336 21623 BIS Accused Hadžihasanović ordered the 7th Brigade to release a prisoner from the Music School 2665 Likewise the Accused Hadžihasanović authorised certain international observers to visit the Music School 2666 Witness Džemal Merdan and Witness HF senior officers of the 3rd Corps Command stated that they went to the Music School on several occasions 2667 That evidence testifies to a relationship of subordination with the 7th Brigade soldiers located at the Music School 1203 Likewise the Defence for the Accused Hadžihasanović did not contest the claim that the 7th Brigade was subordinated to the Accused Hadžihasanović and presented no evidence in rebuttal of that presumption 1204 Consequently the Chamber concludes that the Accused Hadžihasanović exercised effective control over the perpetrators of the mistreatment and that there was a superior-subordinate relationship within the meaning of Article 7 3 the Statute b Knowledge of Enver Hadžihasanović 1205 The Defence for the Accused Hadžihasanović submits that the Accused Hadžihasanović did not have knowledge of the mistreatment which allegedly took place in January 1993 2668 Conversely as regards the crimes allegedly committed between April and June 1993 the Defence for the Accused Hadžihasanović does not deny that the Accused Hadžihasanović was aware of allegations of mistreatment but maintains that he took a number of immediate measures to check on the allegations in question 2669 In this way the Defence for the Accused Hadžihasanović maintains that Džemal Merdan the 3rd Corps Deputy Commander inspected the School on several occasions between April and June 1993 2670 It further contends that Nesib Talić Assistant Commander for Security in the 7th Brigade was asked to carry out an investigation into the allegations of mistreatment and that Witness HF went to the Music School in person on several occasions 2671 According to the Defence for the Accused Hadžihasanović however the visits made by Džemal Merdan and Witness HF did not turn up any evidence of prisoners at the School and the investigation did not find any evidence of the existence of detainees other than persons suspected of having committed a criminal act falling within the jurisdiction of military justice who could 2665 Witness ZN T E p 5278 Annex D under seal to P 371 Lars Baggesen T F pp 7031-7032 2667 Džemal Merdan T F pp 13194-13196 Witness HF T F pp 17187-17188 2668 Hadžihasanović Defence Final Brief para 891 2669 Ibid para 895 2670 Ibid paras 896-900 2671 Ibid paras 902-910 2666 Case No IT-01-47-T 341 15 March 2006 335 21623 BIS legally be imprisoned for 72 hours or of the existence of mistreatment at the Zenica Music School 2672 1206 The Chamber cannot agree with the reasoning of the Defence for the Accused Hadžihasanović for the following reasons 1207 The Chamber considers that since late April or early May 1993 the Accused Hadžihasanović had been aware that the Zenica Music School was used as a detention centre for non-Muslim civilians and HVO soldiers Following the capture of Witness Kruno Rajić on 23 April 1993 the wife of Kruno Rajić tried to procure the release of her husband and telephoned Džemal Merdan the 3rd Corps Deputy Commander to this end asking him to go to the Zenica Music School He answered that the 7th Brigade was not at the Music School 2673 During his testimony however Džemal Merdan stated that he had never been contacted by Kruno Rajić’s wife 2674 There is evidence however that the 3rd Corps Command was in fact the military authority called upon to release the civilians and HVO soldiers imprisoned at the Music School Accordingly following a complaint from the wife of Anto Visković the former head of the security services in Zenica and Sarajevo that her husband had been arrested and imprisoned in the Zenica Music School a member of the MUP contacted the Accused Hadžihasanović in order to so inform him Shortly after this intervention Anto Visković was released from the Music School 2675 Likewise on 6 May 1993 the headquarters of the local Civil Defence and the Roman Catholic parish of Čajdraš approached the 3rd Corps Commander in order to complain that several persons had been abducted by the 7th Brigade and that it was possible that some of them were at the Music School 2676 1208 Subsequently the information which came to the knowledge of the Accused Hadžihasanović became more specific and on 7 May 1993 Tihomir Blaškić sent a letter in particular to the 3rd Corps Command and to the ECMM in which he complained in particular that he had no access and no information about the number of detainees held in the Zenica Music School and about the existence of “extreme maltreatment” there 2677 The Chamber notes that the letter does not indicate the nature of the maltreatment at the School in respect of whether it consisted of physical violence or poor detention conditions or both 2672 Ibid paras 898-910 Kruno Rajić T F pp 1815-1816 2674 Džemal Merdan T E pp 13632-13633 2675 Witness ZN T E p 5278 2676 Appendix 1 under seal of Annex E to P 371 Likewise on 26 May 1993 Tihomir Blaškić sent to the 3rd Corps Commander among others a complaint relating to its failure to comply with the agreement of 18 May 1993 between 2673 Case No IT-01-47-T 342 15 March 2006 334 21623 BIS 1209 On the same day that is 7 May 1993 most probably prompted by the letter from Tihomir Blaškić an ECMM representative visited the head of the ICRC in Zenica Mr Noverraz He asked him about access to the Music School and Mr Noverraz answered that he had no access to the Zenica Music School or to the MUP Later that day Witness HI an ECMM international observer met the Accused Hadžihasanović and asked him about access to the prisoners in the School The Accused Hadžihasanović told him that he had no knowledge of prisons such as the Music School and the MUP The Accused Hadžihasanović went on to add that access to the Music School was not a problem but that he would first have to make a telephone call He advised him in the end to meet a member of the command in order to go into this question in greater detail 2678 1210 On the following day 8 May 1993 Witness HI accompanied by two priests and Witness HF a senior 3rd Corps Command officer went to the KP Dom in Zenica to meet the HVO soldiers detained there The ECMM daily report on this visit mentions that of the HVO soldiers detained at the KP Dom “some of them … claimed that they were arrested by the Military Police of the 7th Muslim brigade and mistreated HRC visited the location of this unit in the secondary music school in the centre of Zenica ”2679 The ECMM daily report went on to mention that on the occasion of the visit to the Music School “everything had been obviously be prepared in the meantime and only three prisonners were there” and that “they were extremly afraid and without witness claimed also that they were beaten regularly ”2680 1211 The Defence for the Accused Hadžihasanović argues on the basis of the testimony of Witness HF and Witness HI that Exhibit P 264 admitted under seal does not seem to be related to the aforementioned visit to the Music School on 8 May 1993 2681 In order to rule on the probative value of sealed Exhibit P 264 the Chamber examined the following evidence 1212 First Witness HI states in a stipulation that when he visited the Music School with Witness HF there was only one prisoner a Bosnian Croat He spoke to him confidentially and the prisoner told him that he was frightened about what was going to happen to him but that he was not treated the HVO and the ABiH on the mutual release of civilians in which he complained inter alia of the imprisonment of civilians in the Zenica Music School without mentioning the mistreatment there P 385 see also P 383 2677 P 593 2678 Annexes C and D under seal to P 371 2679 P 264 under seal 2680 P 264 under seal 2681 Hadžihasanović Defence Final Brief para 907 and footnote 1285 Case No IT-01-47-T 343 15 March 2006 333 21623 BIS badly Nevertheless Witness HI stated that he could not explain the content of sealed Exhibit P 264 though it appeared to him to be connected with that visit of 8 May 1993 Lastly he did not rule out the possibility that he observed that the place seemed to have been well prepared but acknowledged that he went to the School as soon as he obtained information in this connection from Witness HF 2682 1213 Second Witness HF reported that he visited the Music School with Witness HI that he found a detainee there who did not complain of mistreatment and that he proposed to Witness HI that he interview this prisoner confidentially Witness HF stated that following this interview Witness HI did not intimate to him that the prisoner in question had informed him of mistreatment 2683 When questioned by the Defence for the Accused Hadžihasanović about sealed Exhibit P 264 however Witness HF denied that he had visited the Music School with Witness HI under the circumstances described in sealed Exhibit P 264 2684 1214 Third Witness Kruno Rajić stated before the Chamber that before a visit by international representatives which he placed around 16 May 1993 all the prisoners held in the Music School were moved to another place and that the three remaining prisoners including himself were placed on the first floor During that visit they were asked if they were subjected to beatings and despite the presence of microphones in the room he stated that it happened some times 2685 1215 Fourth the author of sealed Exhibit P 264 states that what is set out in that document reflects the visit of 8 May 1993 2686 1216 After analysing the aforementioned evidence the Chamber considers that credence should be given to sealed Exhibit P 264 This is because that document dating from 8 May 1993 is contemporaneous with the visit in question whereas the statement of Witness HI was made 12 years after the events In addition the deposition of Witness HI recorded by way of stipulation has less probative value than a statement made under oath at the hearing since it reflects what the 2682 DH 2098 under seal para 12 Witness HF T F pp 17186-17188 2684 Witness HF T F pp 17189-17191 2685 Kruno Rajić T F pp 1822 and 1846-1847 The Chamber points out however that in the part of Kruno Rajić’s testimony relating to that visit he initially mentioned a visit by the ICRC and not by the ECMM and subsequently in answer to the questions put by the Defence for the Accused Hadžihasanović a visit by “two international organisations” T F pp 1846-1847 Consequently the Chamber considers without being certain that it is possible that the visit mentioned by Kruno Rajić is the one described in Exhibit P 264 under seal 2686 Dieter Schellschmidt T F pp 7938-7939 2683 Case No IT-01-47-T 344 15 March 2006 332 21623 BIS witness would probably state if he had to appear before the Chamber Lastly the content of sealed Exhibit P 264 seems to be corroborated by the testimony of Witness Kruno Rajić and according to its author faithfully reflects the visit of 8 May 1993 Consequently the Chamber is convinced that the document accurately describes the visit of 8 May 1993 as it actually took place 1217 It appears from sealed Exhibit P 264 that the three prisoners in the Music School questioned by Witness HI stated in the absence of witnesses that they were regularly beaten The fact that that interview took place in the absence of witnesses is moreover borne out by Witness HI who states that he had a confidential conversation with a prisoner 2687 It appears therefrom that Witness HF was therefore not present during the interview conducted by Witness HI with that prisoner and that therefore he could not know on the basis of that interview that mistreatment was meted out at the Music School The Chamber finds however that sealed Exhibit P 264 also indicates that among the HVO prisoners visited by Witness HI and Witness HF to the KP Dom in Zenica “some of them … claimed that they were arrested by the Military Police of the 7th Muslim Brigade and mistreated ” with the result that the ECMM observer “visited the location of this unit in the secondary music school in the centre of Zenica ”2688 It clearly appears from that passage that the prisoners at the KP Dom in Zenica complained in the presence of Witness HF and of Witness HI that they had been mistreated by the 7th Brigade Military Police based at the Zenica Music School and that it was those statements by HVO prisoners which prompted Witness HF and Witness HI to go to the premises of the Music School 1218 Consequently on the basis of sealed Exhibit P 264 as corroborated by the aforementioned evidence by the letter from Blaškić of 7 May 1993 to the 3rd Corps Command and by the fact that following his interview of 7 May 1993 with Witness HI the Accused Hadžihasanović instructed Witness HF to go to the Music School 2689 the Chamber is convinced beyond a reasonable doubt that from 8 May 1993 the Accused Hadžihasanović had reason to know that crimes of cruel treatment namely physical abuse were committed by his subordinates at the Zenica Music School It should be noted that this evidence provides no information about the detention conditions obtaining at the Music School 1219 The Defence for the Accused Hadžihasanović asserts that when between late April 1993 and June 1993 the Accused Hadžihasanović was informed of rumours that persons were detained at 2687 DH 2098 under seal para 12 P 264 under seal 2689 Appendix 1 under seal of Annex E to P 371 2688 Case No IT-01-47-T 345 15 March 2006 331 21623 BIS the Music School and were being mistreated there his Deputy Commander Džemal Merdan and Witness HF together with members of his staff went to the Zenica Music School to inspect all its facilities Despite their repeated visits however which included an inspection of all the rooms of the School the persons in question never saw prisoners there except on one occasion when Witness HF accompanied by Witness HI saw a detainee there who did not complain of mistreatment The Defence for the Accused Hadžihasanović cites the depositions of the Defence Witnesses Džemal Merdan and HF in support of his claims 2690 1220 After reconstituting the chronology of the occupation of the Music School by prisoners between April and June 1993 on the basis of the statements of the many witnesses who were imprisoned there the Chamber questions the exactitude of the statements made by Džemal Merdan and witness HF concerning their respective visits to the Music School As has been shown it appears from the testimony of the former prisoners held at the Music School that between 18 April 1993 and 20 August 1993 the basement of the School constantly held between about ten and about 30 detainees which means that each prisoner was systematically replaced by an arrival2691 with the exception of the period between 11 June and 15 June 1993 2692 Moreover neither Džemal Merdan nor Witness HF mentioned specific dates for their respective visits Džemal Merdan stated that he visited the Music School on two occasions between April and June 1993 the first in the company of representatives of the international community the second having been improvised at the insistence of the international community 2693 Witness HF stated that he went to the Music School for the first time with Witness HI around April or May 1993 and subsequently went on his own two or three times on unspecified dates 2694 He added that he frequently instructed his staff to inspect the Music School although he gave no indication of the period when those inspections took place 2695 Consequently even though the large number of visits by the two persons in question and of their staff cannot be precisely dated in view of the evidence discussed above including the statements of the two persons concerned it is impossible that the visits were concentrated between 11 June and 15 June 1993 As a result the Chamber considers that on the assumption that the two witnesses in question visited the Music School it is surprising to say the least that they never saw detainees at the Zenica Music School 2690 Hadžihasanović Defence Final Brief paras 895-901 and 905-910 See supra para 1190 2692 See supra para 1190 2693 Džemal Merdan T F p 13632 2694 Witness HF T F pp 17187-17188 and 17214-17215 2695 Witness HF T F pp 17188 and 17259 2691 Case No IT-01-47-T 346 15 March 2006 330 21623 BIS 1221 The fact that the Accused Hadžihasanović knew that the Zenica Music School was used as a detention centre for non-Muslim civilians and HVO soldiers and that he had reason to know that they were mistreated is further borne out by the testimony of Vlado Adamović investigating judge at the Zenica District Military Court in 1993 and 1994 Witness Vlado Adamović stated before the Chamber that he unofficially received complaints from several persons at the Military Court who maintained that persons close to them had been arrested and taken to the Zenica Music School 2696 Since as investigating judge he had no authority to initiate proceedings he sent the citizens in question to the Zenica District Military Prosecutor’s Office in order to lodge a complaint in accordance with the proper procedure He tried on several occasions to go to the Music School but the ABiH did not authorise him to enter the building 2697 At a meeting at the Hotel Internacional in Zenica chaired by members of the ECMM and the President of the Zenica District Military Court at the time Vlado Adamović spoke to the Accused Hadžihasanović and warned him about the Zenica Music School He informed him what civilians had confided to him that is that the army brought people to the Music School and that they were beaten there with shovel handles and other objects 2698 The Accused Hadžihasanović replied that he “had heard that himself that he either had investigated the matter or the investigation was under way” 2699 Once again it should be noted that the warnings by Vlado Adamović referred to physical abuse suffered by prisoners at the School and not to the poor detention conditions obtaining there 1222 The Defence for the Accused Hadžihasanović and the Defence for the Accused Kubura each maintain that Vlado Adamović’s warning to the Accused Hadžihasanović related only to the rumours about the Music School going around the town at the time The Defence for the Accused Kubura adds that mere knowledge of the rumours does not satisfy the mens rea requirement in Article 7 3 of the Statute 2700 1223 The Chamber shares the view of the Defence for the Accused Kubura insofar as the information relating to mere rumours circulating in the streets does not suffice to constitute the mens rea of command responsibility within the meaning of Article 7 3 of the Statute On the other hand the Chamber finds in this case that Witness Vlado Adamović's conversation with the Accused Hadžihasanović did not specifically relate to rumours but to complaints of arrests and mistreatment at the Music School submitted unofficially to an investigating judge at the Zenica District Military 2696 Vlado Adamović T F p 9477 Vlado Adamović T F pp 9477-9478 2698 Vlado Adamović T F pp 9480-9481 9580 and T E p 9483 2699 Vlado Adamović T F p 9481 2700 Hadžihasanović Defence Final Brief paras 915-917 and 944 Kubura Defence Final Brief paras 128-138 2697 Case No IT-01-47-T 347 15 March 2006 329 21623 BIS Court by persons close to those who had disappeared 2701 The Chamber considers that in view of its content and source the information was of a nature to at least put the Accused Hadžihasanović on notice that there was a real and current likelihood that mistreatment was being or was about to be inflicted by his subordinates at the Music School and that it should have prompted an additional investigation on his part in order to verify whether such crimes had been or were about to be committed 1224 While Vlado Adamović's warning about the mistreatment at the Music School enabled the Accused Hadžihasanović to conclude that his subordinates were committing or were about to commit mistreatment the Chamber finds it difficult to date the meeting between Vlado Adamović and the Accused Hadžihasanović Vlado Adamović stated that he cannot recall the date of the meeting but remembers that it took place in 1993 in the presence of Witness HI 2702 Since Witness HI arrived in Zenica in February 1993 2703 the meeting in question must have logically taken place after then Moreover the fact that the unofficial complaints made by relatives of Vlado Adamović reporting a large number of arrests suggests that they must have followed a period of fighting between the HVO and the ABiH in the Zenica region A study of the evidence adduced by the Parties in the proceedings however does not indicate any period of fighting between the HVO and the ABiH in that geographical area between February 1993 and the second half of April 1993 2704 but that there was a new outbreak of hostilities between the two armies and the subsequent arrests of HVO soldiers by the ABiH in the region of Zenica Vitez and Busovača starting from the second half of April 1993 2705 In addition the Chamber did not hear any witness alleging that he was detained between February 1993 and the second half of April 1993 2706 Consequently the Chamber considers it highly probable that the conversation between Vlado Adamović and the Accused Hadžihasanović took place around late April 1993 or in the course of May 1993 1225 The Chamber will now consider whether the circumstances surrounding the release of Anto Visković the former head of the MUP security services allow the conclusion that the Accused 2701 Consequently the Chamber does not share the view of Witness Alastair Duncan that a commander has the duty to initiate an investigation both where information comes from his chain of command and when its source is in the public sphere for instance radio or television T E pp 7419-7420 2702 Vlado Adamović T F pp 9480 and 9580 2703 DH 2098 under seal para 1 2704 The Chamber notes that on the basis of the evidence produced by the Parties the only fighting by the 3rd ABiH Corps in Central Bosnia between February and April 1993 occurred around Visoko and Bijelo Bučje against the Serbs in March 1993 P 720 P 746 P 737 and P 538 Since those two geographical areas are remote from the Zenica region the Chamber takes the view that it is very unlikely that the complaints made in Zenica to an investigating judge from the Zenica District had anything to do with the arrests which took place following fighting around Visoko and Bijelo Bučje 2705 The tension between the HVO and the ABiH resumed on 13 April 1993 in the Travnik region see in particular P 218 P 315 P 620 P 623 and P 594 Case No IT-01-47-T 348 15 March 2006 328 21623 BIS Hadžihasanović knew or had reason to know that mistreatment was being committed at the Music School As mentioned above 2707 following the abduction of Anto Visković his wife contacted the MUP and informed it that her husband was imprisoned at the Music School The MUP then tried unsuccessfully to contact Halil Brzina 7th Brigade Assistant Commander for Logistics and sent a report thereon to the 3rd Corps Military Police Commander A member of the 3rd Corps replied to him that this information would be checked However in the absence of any further news from the 3rd Corps and without any news from the 7th Brigade the MUP contacted the Accused Hadžihasanović personally Following this intervention Anto Visković was released around the end of May 1993 2708 Once he had been released Anto Visković informed the MUP that he had been detained in the basement of the Music School where he had been humiliated and beaten Anto Visković also wished to thank the Accused Hadžihasanović since he considered that he was released as a result of his intervention 2709 Following the release of Anto Visković the detention conditions at the Music School improved temporarily At the time the person concerned was released Jusuf Karalić although he had been present at the Music School before his release introduced himself for the first time as the 7th Brigade Military Police Commander and assured the detainees that from then on they no longer had any reason to be concerned 2710 Following that intervention a guard who had gone back into the cell to beat the detainees was punished and three new guards were stationed in turn in front of the door of the cell in order to prevent the other Muslim soldiers at the Music School from entering to beat the detainees 2711 Jusuf Karalić also carried out an investigation into the alleged thefts of property from the detainees and returned the property to the prisoners when it had been found 2712 In addition the detainees were authorised to receive clothing and food from their families 2713 1226 On the basis of those facts the Defence for the Accused Hadžihasanović alleges that although Jusuf Karalić was the commander of the centre at the Music School since the arrival of 2706 See supra footnote 2592 See supra para 1207 2708 Kruno Rajić stated that Anto Visković was released about one month after his arrival at the School T F p 1813 Kruno Rajić arrived at the Music School on 23 April 1993 T F p 1795 2709 Witness ZN T F pp 5277-5878 see also Annex B under seal P 371 p 2 2710 Kruno Rajić T F pp 1844 and 1857-1858 P 401 under seal paras 17-18 Jusuf Karalić was a 7th Brigade Military Police Commander P 727 P 708 P 706 2711 Kruno Rajić T F p 1845 P 401 under seal paras 17-18 2712 Kruno Rajić T F pp 1812 1845 and 1853-1854 P 401 under seal para 18 2713 Kruno Rajić T F p 1845 2707 Case No IT-01-47-T 349 15 March 2006 327 21623 BIS Kruno Rajić that is since 23 April 1993 he was unaware that the detainees were undergoing mistreatment at the Music School until Anto Visković was released 2714 1227 The Chamber has heard testimony from only one witness Kruno Rajić as to the presence of Jusuf Karalić at the Music School before Anto Visković's release Kruno Rajić stated that between his arrival at the Music School and before the release of Anto Visković he often saw Jusuf Karalić who was in a position to see the injuries suffered by the detainees as a result of the beatings carried out at night 2715 Kruno Rajić however contradicted himself when he stated that he thought that Jusuf Karalić was not aware of mistreatment before Anto Visković was released 2716 Since that testimony is not corroborated by any other evidence and is contradictory in that respect the Chamber considers that it should not be given credence as to whether or not Jusuf Karalić knew about the mistreatment at the Music School before he took the aforementioned measures in late May 1993 The Chamber has questions however about the reasons which prompted Jusuf Karalić to take those measures It is possible that Jusuf Karalić spontaneously decided to punish the previous excesses committed by his subordinates Alternatively the Chamber finds that the steps taken by Jusuf Karalić to improve the lot of the detainees immediately followed the release of Anto Visković which was made possible by the intervention of the Accused Hadžihasanović It is conceivable that Jusuf Karalić was reprimanded by one of his superiors The evidence adduced in the proceedings however is not such as to allow the Chamber to conclude that the 3rd Corps Command reprimanded Jusuf Karalić such that it cannot be considered beyond a reasonable doubt on the basis of the evidence considered in this paragraph alone that the Accused Hadžihasanović knew or had reason to know that mistreatment was about to be committed or had been committed by his subordinates at the Music School 1228 The Chamber will now consider the position put forward by the Defence for the Accused Hadžihasanović that a small group of 7th Brigade soldiers including Jasmin Isić concealed from the Accused Hadžihasanović and the 3rd Corps Command the fact that the detainees at the Music School had been arrested and subjected to mistreatment 2717 1229 Several witnesses before the Chamber described the subterfuges used by soldiers at the Music School to conceal what was happening there One detainee explained that before he was transferred to the KP Dom in Zenica military police ordered him to wash off the blood with which 2714 Hadžihasanović Defence Final Brief paras 923-925 Kruno Rajić T F pp 1844 1856-1858 and 1860-1861 2716 Kruno Rajić T E p 1826 2717 Hadžihasanović Defence Final Brief paras 935-943 2715 Case No IT-01-47-T 350 15 March 2006 326 21623 BIS he was covered 2718 Another witness stated likewise that detainees were given time to “recover” before they were transferred to the KP Dom in Zenica 2719 In addition the interrogations of detainees conducted by Jasmin Isić and the mistreatment inflicted on them during the interrogations took place during the night2720 and the guards had loud music played in order to cover up the screams of the detainees being beaten 2721 Moreover Witness Vlado Adamović testified about a visit which he made to the Music School accompanied by ECMM observers who were looking for one Marković On that day the observers did not find the person in question but a month later one of them informed Vlado Adamović that they had found the person they were looking for and that he had in fact been detained at the Music School during the first visit but that he had been hidden in the School attic 2722 Likewise two witnesses testified that before the visit of the ICRC all the detainees with the exception of three had been moved to another location and brought back to the basement of the Music School after their visit 2723 The Chamber notes in this regard that the witnesses stated that movements of detainees outside the School were organised only during the visits of international organisations and not during the visits of members of the 3rd Corps Command in person Lastly several pieces of evidence tend to show that the international organisations had very limited access to the Music School 2724 For example the ICRC was constantly refused access to the Music School except for one visit in May 1993 2725 1230 Although the evidence set out above is indicative of an intention on the part of the soldiers present at the School to conceal the mistreatment inflicted on the detainees the Chamber considers that this has no bearing on the criminal responsibility of the Accused Hadžihasanović insofar as he was informed as described above 2726 by sources outside the 7th Brigade namely the ECMM the HVO Judge Vlado Adamović and Witness HF a senior officer of the 3rd Corps Command that his subordinates were committing mistreatment at the Music School Consequently the Chamber rejects the claim of the Defence for the Accused Hadžihasanović with regard to this point 2718 Witness XA T F pp 1456-1457 Kruno Rajić T F p 1826 2720 Kruno Rajić T F p 1800 P 401 under seal para 15 2721 P 402 under seal para 18 P 353 para 2832 2722 Vlado Adamović T F pp 9482-9483 2723 Kruno Rajić CFR p 1822 P 401 under seal paras 23-25 2724 P 168 Report of 4 October 1993 of the United Nations Centre for Human Rights pp 6 and 9 P 366 5th Periodic Report of 17 November 1993 of the Commission on Human Rights on the human rights situation in the territory of the former Yugoslavia para 41 2725 P 670 Annex C under seal to P 371 P 165 p 00080589 2726 See supra paras 1218 and 1223 2719 Case No IT-01-47-T 351 15 March 2006 325 21623 BIS c Measures Taken 1231 Since it has been proved beyond a reasonable doubt that as of 8 May 1993 the Accused Hadžihasanović had reason to know that his subordinates were committing mistreatment at the Zenica Music School in the form of physical abuse and not of poor conditions of detention he was under a duty to take the necessary and reasonable measures to stop the violence punish the perpetrators and prevent further mistreatment 1232 Having concluded that it has been proved that the Accused Hadžihasanović had effective control over the perpetrators of the crimes committed at the School the Chamber considers that there is no doubt that the Accused Hadžihasanović had the power to prevent any violations of international humanitarian law at the Music School The Chamber recalls that the Defence for the Accused Hadžihasanović has not sought to maintain otherwise 1233 The Defence for the Accused Hadžihasanović maintains that he took all such preventive measures as were reasonable in order to ensure that the civilian population and the prisoners of war were treated in accordance with the rules of international humanitarian law 2727 It argues that once the Accused Hadžihasanović became aware of allegations of mistreatment he immediately took steps to verify those allegations the 3rd Corps Assistant Commander for Military Security asked Nesib Talić 7th Brigade Assistant Commander for Military Security to report to him on the situation in the School and Witness HF like Džemal Merdan inspected the Music School on several occasions 2728 Lastly the Defence argues that when the mistreatment at the Music School was discovered in December 1993 Nesib Talić was relieved of his duties 2729 1234 The Chamber would first recall as it concluded above that in view of the establishment of a sanctioning military system coupled with general measures taken by the Accused Hadžihasanović notably with a view to having his subordinates respect the provisions of the Geneva Conventions and other instruments of international humanitarian law relating to the treatment of prisoners of war and the civilian population the Accused Hadžihasanović sought to lay down disciplinary rules within the 3rd Corps designed to prevent and punish the unlawful actions of his subordinates 2730 Having made this finding the Chamber will now consider whether the Accused took the necessary and reasonable measures to prevent the crimes and punish the perpetrators 2727 Hadžihasanović Defence Final Brief paras 882-884 Ibid paras 895-912 2729 Ibid para 942 2730 See supra paras 856-859 and 1161-1167 2728 Case No IT-01-47-T 352 15 March 2006 324 21623 BIS 1235 The Defence for the Accused Hadžihasanović maintains that among the measures allegedly taken by the Accused Hadžihasanović the 3rd Corps Assistant Commander for Military Security ordered Nesib Talić the 7th Brigade Assistant Commander for Military Security to report to him on the situation in the Music School 2731 It adds that pursuant to this order Nesib Talić informed the 3rd Corps security officer that people were being taken to the School to gather information but that the length of their detention did not exceed the three days prescribed by law therefore suggesting that they had been arrested for a legitimate reason 2732 and that they were not being subjected to any mistreatment 2733 1236 The Chamber finds that Witness HF a senior officer in the 3rd Corps Command described the measure in question in the terms used by the Defence for the Accused Hadžihasanović 2734 The Chamber notes however that the testimony of Witness HF is not corroborated by any evidence Additionally the Chamber finds that at the time Nesib Talić reported on the findings of the investigation the Accused Hadžihasanović had already been informed by various sources outside his chain of command that people were being abducted in Zenica by 7th Brigade soldiers and taken to the Music School for reasons which had nothing to do with any legitimate suspicion that they had committed an illegal act and hence had been the subject of arbitrary arrests 2735 Knowledge of this information which was alarming in itself and the fact that he had been informed on several occasions by various sources placed him under a duty not to content himself with the conclusions of the report What is more as has already been concluded the Accused Hadžihasanović had alarming information as of 8 May 1993 on the commission of mistreatment by his subordinates at the Music School with the result that he could not in any event be satisfied with Nesib Talić’s investigation alone As for the argument put forward by the Defence for the Accused Hadžihasanović to the effect that after the investigation Džemal Merdan and Witness HF took the necessary and reasonable measures to verify the allegations of mistreatment by visiting the School the Chamber refers to the conclusions set out above in this connection in the part of the Judgement dealing with 2731 Witness HF T F para 17185 See supra para 1175 2733 Witness HF T F p 17185 2734 Witness HF T F pp 17185-17186 2735 Kruno Rajić T F pp 1815-1816 complaint by Kruno Rajić’s wife to Džemal Merdan Witness ZN T E p 5278 complaint by Anto Visković’s wife to the MUP and the MUP’s subsequent intervention before the Accused Hadžihasanović Appendix 1 under seal to Annex E to P 371 complaint of 6 May 1993 by the local Civil Defence Staff and the Roman Catholic parish of Čajdraš to the 3rd Corps Command P 685 complaint of 26 May 1993 by Colonel Blaškić made in particular to 3rd Corps Command P 593 complaint of 7 May 1993 by Colonel Blaškić addressed in particular to the 3rd Corps Command The Chamber notes that while Witness HF did not specify when Nesib Talić handed over the findings of his investigation his testimony indicates that they directly preceded Witness HF’s first visit to the Music School on 8 May 1993 Witness HF T F pp 17185-17187 2732 Case No IT-01-47-T 353 15 March 2006 323 21623 BIS the knowledge of the Accused Hadžihasanović 2736 On the basis of these conclusions the Chamber rejects the arguments of the Defence for the Accused Hadžihasanović with regard to this point 1237 Next the Chamber finds that while Nesib Talić 7th Brigade Assistant Commander for Military Security was in fact relieved of his duties that measure was taken very late in December 1993 that is more than six months after the Accused Hadžihasanović had been informed of the mistreatment meted out to the detainees at the Music School 2737 1238 Moreover several witnesses stated before the Chamber that the 3rd Corps Command did not initiate any proceedings whether disciplinary or criminal against the perpetrators of the acts in question Thus Osman Hasanagić the 7th Brigade officer responsible for legal affairs stated that his section never had to deal with offences committed by members of the 7th Brigade against civilians either since he took up his duties or before that time 2738 Next Vlado Adamović an investigating judge at the Zenica District Military Court from 1993 to 1994 stated that he was not aware of a single case ever being opened as a result of unofficial complaints by civilians relating to mistreatment at the Zenica Music School 2739 Hilmo Ahmetović a judge in the Zenica District Military Court between October 1993 and July 1996 likewise stated that he had never received any criminal report concerning the Music School 2740 Witness HF confirmed that 3rd Corps Command had not lodged any criminal complaint against the perpetrators of cruel treatment at the School 2741 1239 Lastly the absence of any appropriate investigation by the 3rd Corps or the 7th Brigade is borne out by the fact that the judicial authorities did not bring an action against Jasmin Isić for his acts in the context of the Music School until 2001 that is more than seven years after the events 2742 The Chamber would stress that unlike what the Defence for the Accused Kubura maintains the proceedings brought against Jasmin Isić are not the consequence of efforts made by the 7th Brigade or the ABiH The Defence for the Accused Kubura submits on the basis of sealed exhibits DK 5 and DK 6 and the testimony of Vlado Adamović and Sulejman Kapetanović that in 1993 the complaints from civilians relating to the Music School were brought before the Zenica District Military Prosecutor 2743 Indeed analysis of the evidence adduced in the proceedings shows that many files registered at the Zenica District Military Prosecutor’s Office originate in the 2736 See supra para 1220 Safet Junuzović T F p 18556 P 498 2738 Osman Hasanagić T F pp 18900-18901 and 18907 2739 Vlado Adamović T F p 9482 2740 Hilmo Ahmetović T F p 16217 2741 Witness HF T F p 17259 2742 DK 5 under seal DK 6 under seal Kruno Raji T F p 1854 Osman Hasanagi T F p 18902 2743 Kubura Defence Final Brief para 158 2737 Case No IT-01-47-T 354 15 March 2006 322 21623 BIS registries of the public prosecutor working in the areas formerly controlled by the HVO 2744 according to an exchange of files which took place following the signature of the Dayton Agreements and the establishment of the cantons in 1996 2745 The files so exchanged in 1996 include the file relating to the investigation of Jasmin Isić on account of his conduct in the context of the Music School 2746 That file therefore showed that until 1996 an office of the military prosecutor in Vitez and not its counterpart in Zenica was responsible 2747 What is more evidence indicates that in 1993 and 1994 the complaints relating to the Music School were lodged in the municipalities of Vitez and Kiseljak by Bosnian Croat refugees 2748 On the basis of this analysis the Chamber concludes that it is not possible that the criminal complaints relating to violence suffered at the Music School were lodged at the initiative of the 7th Brigade or the 3rd Corps 1240 In conclusion the Chamber is convinced beyond a reasonable doubt that since the Accused Had ihasanovi had reason to know as of 8 May 1993 that his subordinates were committing cruel treatment namely physical abuse at the Music School the Accused Hadžihasanovi failed in his duty as a superior to take the reasonable measures necessary to punish the perpetrators and prevent such acts The Accused Hadžihasanović did not make genuine efforts to initiate an appropriate investigation into the allegations of cruel treatment whereas such an investigation would have enabled him to discover the identity of the persons responsible for the violence Moreover he did not fulfil his obligation as commander to take every appropriate measure to put an end to the violence that his subordinates were inflicting on the detainees Nor did he fulfil his obligation to punish the soldiers who would have been identified had he held an investigation as responsible for the violence or to take steps to ensure that they were punished Lastly it cannot be stressed enough that by failing to punish the perpetrators of the crimes committed the Accused Hadžihasanović failed in his duty to prevent the subsequent commission at the Music School of crimes of cruel treatment against Bosnian Croat and Bosnian Serb civilians and against prisoners of war detained there 2744 The municipalities of Vitez Žepče Busovača Novi Travnik Kiseljak and part of Gorji Vakuf Sulejman Kapetanović T E p 3816 and T F pp 3895-3896 3913-3914 See also supra paras 901 and 917 2746 Sulejman Kapetanović T F pp 3895-3896 3913-3914 and 3921-3922 2747 DK 5 under seal DK 6 under seal p 5 Sulejman Kapetanović T F pp 3913-3914 3921-3922 2748 DK 6 under seal p 5 Sulejman Kapetanović T E pp 3816-3817 In January 1994 Kruno Rajić lodged a complaint for mistreatment at the Music School in Kiseljak with the competent authorities of the HVO T F p 1850 2745 Case No IT-01-47-T 355 15 March 2006 321 21623 BIS iv Findings of the Chamber regarding the Responsibility of Amir Kubura a Effective Control of Amir Kubura over the Perpetrators of the Crime 1241 The Chamber has concluded that the cruel treatment alleged in paragraph 42 a of the Indictment was committed by 7th Brigade soldiers mostly military police subordinated to the 7th Brigade Having concluded that the Accused Kubura had de facto command of the 7th Brigade including the 7th Brigade Military Police from 12 April 1993 2749 the Chamber refers to the discussion set out earlier on this subject in the Judgement 1242 For example the Accused Kubura was responsible for deciding on the disciplinary measures to be taken against the members of the 7th Brigade 2750 It was also the task of the Accused Kubura to ensure compliance with international humanitarian law among the members of the 7th Brigade and to take severe measures in the event of any violation of those rules 2751 Moreover he exercised effective control over the military security service and the military police of the 7th Brigade 1243 Consequently the Chamber concludes that the Accused Kubura exercised effective control over the perpetrators of the mistreatment during the period starting on 12 April 1993 and that there was a superior-subordinate relationship within the meaning of Article 7 3 of the Statute b Knowledge of Amir Kubura 1244 The Prosecution alleges that the Accused Kubura knew or had reason to know that his subordinates were about to commit crimes at the Music School or had done so It sets out two submissions to this effect 1245 First it alleges that the 7th Brigade Command was informed of the cruel treatment inflicted upon detainees at the Music School 2752 It supports its contention by the fact that Anto Visković’s wife met Halil Brzina to inform him of her husband's detention at the Music School2753 and that it was ultimately as a result of the intervention of the Accused Hadžihasanović that Anto Visković was released 2754 The Chamber notes however on the basis of the evidence adduced that the 2749 See supra paras 350-380 P 472 P 500 p 3 Osman Hasanagić T F pp 18883 and 18884 2751 P 426 P 427 2752 Prosecution Final Brief para 237 2753 Witness ZN T F p 5277 2754 Witness ZN T F pp 5277-5878 2750 Case No IT-01-47-T 356 15 March 2006 320 21623 BIS discussion between Anto Visković's wife and Halil Brzina related to the abduction of her husband and not to the mistreatment he suffered Likewise the Chamber finds that it was not until he was released that Anto Visković reported the mistreatment that he had endured to the MUP 2755 Lastly Halil Brzina himself testified that he had never heard about mistreatment at the Music School 2756 Consequently in view of that evidence the Chamber is unable to conclude that Halil Brzina was informed of the violence inflicted on Anto Visković at the Music School and therefore rejects the first Prosecution submission 1246 Second the Prosecution states that officers subordinated to the Accused Kubura saw that detainees were being mistreated at the Music School 2757 It refers to the testimony of Witness XA and another witness who stated that they had seen three persons at the Music School “wearing better-quality uniforms” and “Jasmin Isić and his boss” 2758 The Chamber observes however that while the testimony of those two witnesses mentioned the presence of persons who seemed to them to be officers it does not make it possible to establish positively that members of the 7th Brigade Command were present at the School and they could have seen the injuries sustained by the detainees Likewise the Prosecution submits on the basis of the testimony of Ivan Bohutinski that Mahmut Karalić the emir of the 7th Brigade was present at the Music School and he had extorted money from him However Ivan Bohutinski stated only that he had spoken to “Mr Karalić” in the context of negotiations connected with his exchange 2759 Nevertheless it has already been shown that “Jusuf Karalić” the 7th Brigade Military Police Commander was present at the School Consequently given the absence of supporting evidence the Chamber considers that the presence of the 7th Brigade emir Mahmut Karalić at the Music School has not been demonstrated The Chamber rejects therefore the Prosecution’s second submission 1247 The Defence for the Accused Kubura denies that he knew or had reason to know of mistreatment on the basis of the following arguments First the Prosecution bases the knowledge of the Accused Kubura on the existence of widespread rumours whereas the evidence relating to the alleged rumours is contradictory and the rumours do not suffice to establish the mens rea of a commander under Article 7 3 of the Statute 2760 Second many visits both by 3rd Corps Command officers and by international organisations were made to the Music School but none of the visitors 2755 Witness ZN T F pp 5277-5278 DK 62 para 23 2757 Prosecution Final Brief para 238 2758 Witness XA T E p 1456 P 401 under seal paras 7 and 15 2759 Ivan Bohutinski T F p 4680 and T E p 4683 2760 Kubura Defence Final Brief paras 128-138 Kubura Defence Closing Arguments T F p 19321 2756 Case No IT-01-47-T 357 15 March 2006 319 21623 BIS spoke to the Accused Kubura 2761 Third the allegations of mistreatment were limited both geographically and temporally 2762 Lastly the information relating to the violence was concealed from the Accused Kubura by those responsible for operating the Music School 2763 1248 As to the argument of the Defence for the Accused Kubura with regard to the rumours circulating about mistreatment at the Music School the Chamber refers to its previous conclusions on that subject in the part of the Judgement dealing with the knowledge of the Accused Hadžihasanović 2764 1249 The Chamber attaches importance to the fact that of the witnesses who visited the Music School in Zenica 2765 none mentioned having made personal contact with the Accused Kubura with a view to visiting the Music School initiating an investigation lodging a complaint or reporting the situation The witnesses who were international observers stated that they approached or were referred to the 3rd Corps Command in order to obtain information about the School or to have access to it 2766 That observation could be due to the hierarchical structure obtaining in the organisation of the 3rd Corps as regards matters connected with military security Indeed as mentioned earlier 2767 the military security service had a dual hierarchical chain of command In accordance with a “vertical” chain of command the corps’ military security service obeyed the orders and instructions of the Supreme Command Main Staff Chief of Security This same chain of command meant that the security service of the corps had the command of the security units subordinated to it In accordance with a “horizontal” chain of command the corps’ security service obeyed the orders of the corps commander Thus within the 7th Brigade Nesib Talić Assistant Commander for Military Security was responsible not only to the 7th Brigade Commander but also to the 3rd Corps Commander for the Military Security Service In limited cases the security bodies were not under a duty to report to the corps commander to the brigade commander or to the commander of the operations group Thus in the case in question Nesib Talić was instructed by the 3rd Corps Assistant Commander for Security to carry out an investigation into the Music School and to notify him of the result of that investigation 2768 That chain of communication therefore did not 2761 Kubura Defence Final Brief paras 139-140 Kubura Defence Final Brief para 143 Kubura Defence Closing Arguments T F p 19322 2763 Kubura Defence Final Brief paras 156-157 2764 See supra para 1223 2765 The Chamber refers principally to Vlado Adamović Lars Baggesen Džemal Merdan Witness HF and Witness HI 2766 Lars Baggessen T F p 7032 Vlado Adamović T F pp 9479-9483 DH 2098 under seal para 12 2767 See supra paras 327 and 333 2768 Witness HF T F p 17185 2762 Case No IT-01-47-T 358 15 March 2006 318 21623 BIS necessarily mean that the Accused Kubura was informed of the investigation into the Music School or mutatis mutandis of any other question falling with the scope of the vertical chain of command 1250 Having examined the relevant evidence as to the possible knowledge of the Accused Kubura the Chamber concludes that the Prosecution has failed to prove beyond a reasonable doubt that as from 12 April 1993 the Accused Kubura knew or had reason to know that his subordinates were about to carry out mistreatment or had done so at the Zenica Music School Consequently the Chamber cannot conclude that the Accused Kubura is criminally responsible within the meaning of Article 7 3 of the Statute As a result there is no reason for it to consider the other factors constituting command responsibility under the Statute v Conclusions of the Chamber 1251 The Chamber considers that there is no proof that the Accused Kubura knew or had reason to know that his subordinates were about to commit crimes at the Zenica Music School The Accused Kubura therefore cannot be held responsible for the offence mentioned in count 4 paragraphs 41 a and 42 a of the Indictment Conversely the Chamber concludes that the Accused Hadžihasanović had reason to know as of 8 May 1993 that his subordinates were committing cruel treatment namely physical abuse at the Zenica Music School and that he failed in his duty as a commander to initiate an appropriate investigation into the previous commission of mistreatment to put an end to violations to punish the perpetrators and to prevent the subsequent commission of mistreatment at the Zenica Music School It has not been proved however that the Accused Hadžihasanović had knowledge of the poor detention conditions obtaining at the Music School The Accused Hadžihasanović is therefore held criminally responsible for the cruel treatment with the exception of the poor detention conditions charged in count 4 paragraphs 41 a and 42 a of the Indictment d Former JNA Barracks in Travnik 1252 The Indictment alleges that members of the 17th Brigade murdered a Bosnian Croat detainee in May 1993 in the former JNA Barracks in Travnik 2769 The Chamber notes that in its Response to Defence Motions for Acquittal the Prosecution admits that it was unable to prove that a Croatian detainee was beaten to death in May 1993 2770 Consequently the Chamber refers to its Decision on Motions for Acquittal of 27 September 2004 in which it considered that the Accused 2769 2770 Indictment paras 41 b and 43 a Prosecution’s Response to Defence Motions for Acquittal 1 September 2004 footnote 189 Case No IT-01-47-T 359 15 March 2006 317 21623 BIS Hadžihasanović should be acquitted of the crime of murder as far as the former JNA Barracks are concerned 2771 1253 The Indictment alleges that Bosnian Croats and Bosnian Serbs were detained at the former JNA Barracks in the town of Travnik which was guarded and administered by members of the 17th Mountain Krajina Brigade of the OG Bosanska Krajina from about May 1993 to 31 October 1993 and that they were regularly mistreated there The detainees were allegedly regularly beaten by soldiers of the 17th Brigade The Indictment alleges that the Accused Hadžihasanović knew or had reason to know that members of that unit placed under his command and effective control were about to plan prepare for or commit cruel treatment or had done so and that he failed to take the necessary and reasonable measures to prevent those acts from being committed or to punish the perpetrators 2772 1254 It is therefore alleged that the Accused Hadžihasanović committed cruel treatment a violation of the laws or customs of war punishable by Articles 3 and 7 3 of the Statute and recognised by common Article 3 of the Geneva Conventions i Arguments of the Parties 1255 The Prosecution maintains that prisoners were held in the basement of a building of the former JNA Barracks in Travnik which was used as the headquarters of the 17th Brigade and were regularly beaten by members of that brigade or by members of its military police 2773 The Prosecution further maintains that the Accused Hadžihasanović had knowledge that he was under an obligation to find out about or even had actual knowledge of the criminal conduct of his subordinates in the former JNA Barracks2774 and took no steps to initiate an investigation 2775 1256 The Defence for the Accused Hadžihasanović submits that the Prosecution failed to prove that cruel treatment was meted out to the detainees in the former JNA Barracks and that the Accused Hadžihasanović was informed of the said mistreatment The Defence for the Accused Hadžihasanović adds that throughout 1993 the 3rd Corps took steps to prevent the commission of such crimes and to punish the perpetrators 2776 2771 Decision on Motions for Acquittal 27 September 2004 para 65 Indictment paras 41 b and 42 b 2773 Prosecution Final Brief para 203 2774 Ibid paras 206 and 209 2775 Ibid paras 207 209 and 210 2776 Hadžihasanović Defence Final Brief para 811 2772 Case No IT-01-47-T 360 15 March 2006 316 21623 BIS ii Findings of the Chamber regarding Mistreatment at the Former JNA Barracks a Description of the Facts from May 1993 to Late October 1993 at the Former JNA Barracks in Travnik 1257 The military barracks in Travnik which were used by the JNA before the war 2777 were two or three hundred metres from the Travnik Military Court2778 and a few hundred metres from Travnik hospital and the Orient Hotel 2779 Following the creation of the 17th Brigade its command was installed in these barracks 2780 The OG Bosanska Krajina Command together with the military police company of the operations group which was created in late June 1993 2781 were also stationed at the Barracks in 1993 2782 Salko Beba the OG Bosanska Krajina Assistant Commander for Security and Fikret Čuskić the Commander of the 17th Brigade and later of the OG Bosanska Krajina had their offices in the Barracks 2783 1258 The basement of the former JNA Barracks housed the district military prison and the 17th Brigade detention centre 2784 Those two entities were distinct and separated by an iron fence 2785 The district military prison came under the sole responsibility of the military court the 17th Brigade and the OG Bosanska Krajina had no control over it 2786 In contrast the 17th Brigade detention centre was placed under the authority of the 17th Brigade Military Police and from late June 1993 2787 the OG Bosanska Krajina Military Police Company 2788 1259 The principal purpose the 17th Brigade detention centre was to hold persons suspected of having committed offences The period of remand could not exceed 72 hours until a criminal complaint was submitted by the military police after which the prisoners held had to be transferred to the district military prison 2789 Secondly the centre was used to detain members of the 17th 2777 Witness XD T F p 1756 Ivo Fišić T F p 2269 Sead Žerić T F p 5633 2779 Hendrik Morsink T F p 8025 2780 Fikret Čuskić T F pp 12049 12050 and 12123 2781 See supra para 878 2782 Samir Sefer T F p 11988 Osman Menković T F p 14674 Fikret Čuskić T F pp 2123-12124 Hendrik Morsink T F p 8025 2783 Ivo Fišić T F p 2270 P 399 under seal para 11 Jasenko Eminović T F p 584 2784 Osman Menković T F pp 14656 and 14658 Sead Žerić T F p 5634 Fikret Čuskić T F p 12076 2785 Osman Menković T F p 14658 2786 Osman Menković T F pp 14657 and 14659 2787 The OG Bosanska Krajina Military Police Company was set up in late June 1993 See supra para 878 2788 Osman Menković T E pp 14659-14660 and 14698-14700 Fehim Muratović T F p 14967 2789 Osman Menković T E pp 14660-14661 2778 Case No IT-01-47-T 361 15 March 2006 315 21623 BIS Brigade ordered to undergo disciplinary measures 2790 The military authorities could place a soldier in detention for a maximum of 30 days which could be extended by decision of the investigating judge 2791 Lastly the detention centre housed prisoners of war 2792 HVO prisoners of war were to be held in the Barracks only for a brief period before being transferred to the KP Dom in Zenica 2793 1260 ABiH and HVO soldiers and also civilians were held in the detention centre located in the basement of the former JNA Barracks for greatly varied periods Witness XE2794 stated that he was brought to the Barracks in May 19932795 in order to be mobilised in the ranks of the ABiH 17th Brigade 2796 Since he was opposed to being mobilised he was locked in a room with Muslims and Croats2797 for seven or eight days 2798 Witness Ivo Fisić was detained in the Barracks between 6 November 1993 and 30 or 31 January 1994 2799 Witness XD 2800 who surrendered on 18 or 19 September 1993 to the forces of the ABiH 2801 was brought to the Barracks five or six days after his surrender 2802 During his period of detention which lasted six months as of the end of September 1993 2803 Witness XD was placed in three different cells with ABiH soldiers held for theft murder or desertion 2804 Croats belonging to the HVO and one civilian 2805 Witness Dalibor Adžaip2806 was arrested by members of the ABiH in about mid-June 1993 and taken to the Barracks 2807 He remained in a cell for 11 days in the company of 20 other detainees all of whom were catholic Croats from the region of Travnik and most of whom were civilians 2808 Witness Z172809 was captured near Travnik in about mid-June 1993 by the Krajišnici Brigade even though he was armed 2790 Osman Menković T E pp 14660 Fikret Čuskić T F pp 12076-12077 Sead Žerić T F p 5640 2792 Osman Menković T E p 14660 2793 Samir Sefer T F p 11988 Jasenko Eminović T F p 5762 2794 The Chamber will not take account of the statements of Witness XE which do not afford sufficient guarantees of reliability 2795 Witness XE T E 1936-1937 2796 Witness XE T E 1939 2797 Witness XE T E 1939-1940 2798 Witness XE T E 1949-1950 2799 Ivo Fi ić T F pp 2268 and 2274-2275 The Chamber notes that Witness Ivo Fi ić was held outside the period material to in the Indictment As a result the Chamber will not take into account the statements of Witness Ivo Fi ić Likewise Ivo Rajković was released from Orašac Camp and transferred to the Barracks on 6 November 1993 at the same time as Witness Ivo Fi ić Ivo Fišić T F pp 2268-2269 2800 Witness XD joined the ranks of the HVO brigade located at Vitez in June 1993 Witness XD T F pp 1744-1745 2801 Witness XD T F p 1752 2802 Witness XD T F p 1754 2803 Witness XD T F pp 1754 1760 and 1761 2804 Witness XD T F p 1764 2805 Witness XD T F pp 1758-1760 2806 Witness Dalibor Adžaip became a member of the HVO in June 1992 Dalibor Adžaip T F pp 2393-2394 2807 Dalibor Adžaip T F pp 2395-2396 The circumstances of the arrest of Witness Dalibor Adžaip are not specified 2808 Dalibor Adžaip T F pp 2396-2397 2809 Witness Z17 joined the ranks of the HVO brigade at Travnik in 1992 P 399 under seal para 2 2791 Case No IT-01-47-T 362 15 March 2006 314 21623 BIS and was wearing camouflage uniform 2810 and was subsequently taken to the Barracks 2811 Witness Z17 was detained in a cell at the Barracks until 13 July 19932812 with Croats he did not know and other members of the HVO 2813 The neighbouring cell to that of Witness Z17 housed Muslims who refused to fight for the ABiH 2814 Witness Ivan Josipović2815 was arrested by ABiH police on 7 August 1993 near Travnik when he was returning from work in his own vehicle and taken to the Barracks 2816 where he was detained until 24 December 1993 when he was transferred to the KP Dom in Zenica 2817 The witness was kept in a room for 30 or 40 days with ABiH soldiers and subsequently in another room with 12 HVO soldiers 2818 According to Witness Fikret Čuskić the number of HVO prisoners of war held in the Barracks varied between 20 and 40 depending on developments in the fighting 2819 1261 Immediately or shortly after they arrived at the detention centre the HVO prisoners were interrogated by officers of the ABiH 2820 in particular military police 2821 Some detainees were interrogated by Salko Beba OG Bosanska Krajina Assistant Commander for Security 2822 1262 The witnesses who were held in the former JNA Barracks described the guards of the detention centre as wearing uniforms of the army of Bosnia-Herzegovina 2823 that is uniforms with white belts and fleur-de-lys insignia on the sleeves 2824 1263 The detainees were locked up in cells2825 in the detention centre which were next to each other and measured approximately five or six metres long by four metres wide 2826 The number of 2810 P 399 under seal para 3 P 399 under seal para 6 2812 P 399 under seal para 14 2813 P 399 under seal paras 8-9 2814 P 399 under seal para 8 2815 Ivan Josipović was the investigating officer of the HVO 4th Battalion Military Police Ivan Josipović T F pp 24362437 2816 Ivan Josipović T F pp 2437-2438 2817 Ivan Josipović T F p 2452 2818 Ivan Josipović T F pp 2449-2450 2819 Fikret Čuskić T E 12076 2820 P 399 under seal para 7 Dalibor Adžaip T F p 2397 Ivo Fišić T F pp 2269-2270 Ivan Josipović T F pp 2444 2446 and 2447 2821 Ivan Josipović T F pp 2444-2445 2822 Ivo Fišić T F pp 2269-2270 P 399 under seal para 7 2823 Witness XD T F p 1757 2824 Ivan Josipović T F p 2439 2825 Witness XD T F p 1757 Witness XD referred to four cells Jasenko Eminović T F p 5778 Witness Jasenko Eminović remembers having seen two or three rooms 2826 Witness XD T F p 1757 Witness XE T F p 1942 2811 Case No IT-01-47-T 363 15 March 2006 313 21623 BIS detainees in each cell generally varied between five and ten 2827 Witness Jasenko Eminović who visited the Travnik detention centre in connection with the exchange commission does not think that there could have been more than ten detainees in each cell2828 and 20 detainees in the detention centre 2829 Witness Dalibor Adžaip stated however that the cell in which he was detained held around 20 persons 2830 while Witness Ivan Josipović was held in a cell with 12 other soldiers 2831 1264 The detainees slept on military beds 2832 each being provided with a mattress and blankets 2833 They were given three meals a day 2834 The detainees could walk around in a green area provided for the purpose 2835 They could also attend mass and celebrate their religious festivities and received free cigarettes 2836 There was also a dispensary providing medical care at the detention centre 2837 1265 When Witnesses Fehim Muratović and Edib Zlotrg went to the Barracks on 16 August 19932838 to find out about the course of the investigation into detainee Ivan Josipović 2839 they found that the detention conditions were better than good 2840 Witness Edib Zlotrg stated that the conditions were the same as those found today in a normal prison and that they satisfied or even exceeded the requirements of the Geneva Conventions 2841 On this occasion those two witnesses spoke with detainees who had no complaints about the detention conditions 2842 1266 Witness Fikret Čuskić stated that the prisoners of war held at the detention centre at the former JNA Barracks enjoyed exactly the same conditions as the 17th Brigade's prisoners in respect of hygiene and food in particular The witness had instructed his assistant responsible for morale to 2827 Witness XD T F pp 1759-1760 Witness XD was held in three different cells and stated that there were between 7 and 10 detainees in the first about 10 in the second and nine in the third Witness XE T F p 1941 Jasenko Eminović T F p 5849 2828 Jasenko Eminović T F p 5849 2829 Jasenko Eminović T F p 5778 2830 Dalibor Adžaip T F p 2396 2831 Ivan Josipović T F p 2450 2832 P 399 under seal para 11 2833 Edib Zlotrg T F p 15004 2834 Edib Zlotrg T F p 15004 P 399 under seal para 11 Fikret Čuskić T F p 12077 2835 Edib Zlotrg T F p 15004 2836 Fikret Čuskić T F p 12077 2837 Angus Hay T F p 8100 2838 Fehim Muratović T F pp 14960 and 14967 Edib Zlotrg T F pp 14991-14992 DH 1392 2839 Edib Zlotrg T F p 14992 DH 1392 2840 Fehim Muratović T F p 14967 2841 Edib Zlotrg T F pp 15005-15006 2842 Fehim Muratović T F p 14968 Edib Zlotrg T F p 14994 Case No IT-01-47-T 364 15 March 2006 312 21623 BIS check that the detention conditions satisfied international standards and international conventions 2843 1267 As part of his tasks in UNPROFOR 2844 Witness Angus Hay had the opportunity to visit the detention centre in Travnik2845 and found that the detention conditions there were satisfactory 2846 1268 The ICRC had access to the detention centre and was entitled to visit the detainees In this way an ICRC delegation went to the detention centre in particular on 10 June 19932847 and 9 July 1993 2848 Both Witness Fikret Čuskić and Witness Osman Menković stated that the ICRC had free regular access to the detainees held at the Barracks and could monitor the detention conditions2849 and Witness Fikret Čuskić stated that the ICRC praised the detention centre 2850 1269 Moreover Witness Z17 stated that he had been satisfied by his detention conditions Witness Z17 stated that living conditions were tolerable in the detention centre2851 but that he did not receive medical attention for his injuries even though he asked for it every three days Still he did receive treatment for his leg 2852 1270 It appears from the testimony however that some of the witnesses were beaten on one or more occasions during their detention at the former JNA Barracks Some were beaten with various objects and were punched and kicked 2853 1271 Witness XD was beaten once during his detention and stated that the other Croatian detainees were treated much worse than he The beatings took place in the morning when the detainees went upstairs to wash They were then received by members of the Black Coyotes of the Krajisnici unit under the command of Mehmed Alagić 2854 2843 Fikret Čuskić T F p 12077 Witness Angus Hay belonged to the British Battalion and his tour of duty in Bosnia lasted approximately seven months between May 1993 and October or November 1993 Angus Hay T F pp 8093-8094 2845 Angus Hay T F p 8100 Witness Angus Hay did not specify the date on which he visited the military barracks at Travnik 2846 Angus Hay T F p 8100 2847 DH 1189 2848 P 399 under seal paras 12-14 2849 Osman Menković T F p 14689 Fikret Čuskić T F p 12077 2850 Fikret Čuskić T F p 12077 See Fehim Muratović T F p 14968 Edib Zlotrg T F p 14994 2851 P 399 para 11 Witness Ivo Fi ić stated that the detention conditions at the centre were very good Ivo Fišić T F pp 2271-2272 Although Witness Ivo Fi ić arrived after the period material to the Indictment the Chamber considers that the statements of Witness Ivo Fi ić with regard to the conditions are corroborated by other testimony 2852 P 399 para 10 2853 Witness XD T F pp 1762-1763 Ivan Josipović T F pp 2440-2443 and 2450 to 2451 P 399 under seal para 9 2854 Witness XD T F pp 1762-1763 Mehmed Alagić was OG Bosanska Krajina Commander from March 1993 to November 1993 See P 144 and P 209 2844 Case No IT-01-47-T 365 15 March 2006 311 21623 BIS 1272 Witness Ivan Josipović was physically and mentally mistreated beginning on his first night at the detention centre Three or four soldiers wearing white belts beat him with various objects and punched and kicked him When he passed out the soldiers revived him with cold water and gave him some clothes 2855 That abuse continued virtually every evening over the first 50 days of his detention The beatings inflicted by the guards generally took place during the interrogations of the witness or in the evening 2856 As a result of this abuse the witness was allegedly still suffering in 2004 from frequent serious headaches which caused him to have regular recourse to sedatives 2857 In addition Witness Ivan Josipović recalls that other detainees who were members of the HVO also suffered mistreatment in particular detainee Kruno Bonić who was beaten on several occasions by a guard named Mujo and the detainee Ivo Rajković2858 who on one occasion was punched and kicked by an ABiH soldier 2859 During his detention the witness found out that those responsible for the mistreatment belonged to the Krajiska police 2860 1273 Witness Z17 was not subjected to mistreatment but stated that detainees sharing his cell who were members of the HVO were beaten For instance Frano Žabić and Željko Šakić were each taken to the room where the guards were to be beaten from his cell Witness Z17 could hear the noise of the beating and their crying and moans During the period Witness Z17 was in detention Kruno Bonić was beaten around ten times 2861 1274 As part of his duties in the exchange commission in Travnik Witness Jasenko Eminović went regularly – once or twice a week – to the former JNA Barracks to speak to Salko Beba 2862 During one of his visits to the barracks 2863 Witness Jasenko Eminović learned that a young man of 16 from the HVO named Krunoslav Bonić had been arrested and had been found with the severed ears of an ABiH combatant 2864 The witness immediately went to the basement of the Barracks 2855 Ivan Josipović T F pp 2440-2441 Ivan Josipović T F pp 2442-2443 2857 Ivan Josipović T F pp 2452-2453 2858 The Chamber notes that that detainee Ivo Rajković was released from Orašac Camp and transferred to the Barracks on 6 November 1993 Ivo Fišić T F pp 2268-2269 and Witness HE T F pp 17008-17009 The Chamber concludes that the detainee Ivo Rajković was kicked and punched after 6 November 1993 which was outside the material time of the Indictment Consequently the Chamber will not take account of the statements of Witness Ivan Josipović concerning the detainee Ivo Rajković 2859 Ivan Josipović T F pp 2450-2451 2860 Ivan Josipović T F p 2442 See P 378 which mentions the 17th Krajina Brigade as forming part of the 3rd Corps 2861 P 399 under seal para 9 2862 Jasenko Eminović T F pp 5760-5761 2863 The Witness did not mention the date he went to the barracks in Travnik and witnessed the beating of the detainee Krunoslav Bonić 2864 Jasenko Eminović T F pp 5760-5761 2856 Case No IT-01-47-T 366 15 March 2006 310 21623 BIS where Bonić was being held 2865 He saw a soldier hit the detainee Bonić several times 2866 The witness did not have any other contacts with prisoners in the detention centre 2867 1275 Witness Mešud Hadžialić ran the OG Bosanska Krajina transmission centre 2868 located in the basement of the Barracks 2869 The witness never heard of any mistreatment or saw or heard anything unusual 2870 The witness did not however enter the cells where the detainees were held 2871 During their visit to the Barracks on 16 August 1993 2872 Witnesses Fehim Muratović and Edib Zlotrg observed that the detainees2873 had not undergone any mistreatment2874 and that they did not complain about the conduct of members of the military police 2875 As Commander of the OG Bosanska Krajina Military Police Company Witness Osman Menković never received any complaints about mistreatment from detainees members of their families or the ICRC 2876 1276 As regards the detainee Ivan Josipović Witnesses Fehim Muratović and Edib Zlotrg stated that he had been injured when he was arrested because he resisted arrest and added that the detainee had been given medical attention before he was transferred to the Travnik detention centre and that disciplinary sanctions had been imposed on the two 17th Brigade police responsible for injuring Ivan Josipović 2877 Witness Edib Zlotrg stated that Ivan Josipović had not suffered mistreatment when he was detained at the Barracks 2878 b Mistreatment Paragraphs 41 b ba and 42 b of the Indictment 1277 The Chamber finds that the Indictment does not raise the question of detention conditions at the former JNA Barracks in Travnik and does not allege that they constituted mistreatment Accordingly since the Chamber is not seized of the question of the detention conditions it will make no finding as to the detention conditions at the Barracks 2865 Jasenko Eminović T F p 5761 Jasenko Eminović T F p 5844 2867 Jasenko Eminović T F pp 5761 and 5846-5847 2868 Mešud Hadžialić T F p 12254 2869 Mešud Hadžialić T F p 12255 2870 Mešud Hadžialić T F pp 12256-12257 2871 Mešud Hadžialić T F pp 12257 and 12273 2872 Fehim Muratović T F pp 14960 and 14967 DH 1392 2873 Fehim Muratović T F pp 14967-14968 Edib Zlotrg T F pp 14992-14994 and 15003-15004 DH 1392 When they visited the detention centre in Travnik Witnesses Fehim Muratović and Edib Zlotrg saw three detainees whose names were Josipović Bonić and Baškarad 2874 Fehim Muratović T E pp 14967 and 14968 2875 Edib Zlotrg T F p 14994 2876 Osman Menković T F pp 14690 and 14699 2877 Fehim Muratović T F pp 14967-14968 Edib Zlotrg T F pp 14992-14993 2878 Edib Zlotrg T F p 14993 2866 Case No IT-01-47-T 367 15 March 2006 309 21623 BIS 1278 The Chamber notes a contradiction between the statements of the Prosecution witnesses and those of the Defence witnesses as regards the treatment of the prisoners of war As regards the Defence witnesses who were members of the 3rd Corps at the material time the Chamber finds that they deny that mistreatment was meted out to certain detainees in the former JNA Barracks 2879 The Chamber first notes however that the fact that those 3rd Corps officers did not receive any information about mistreatment inflicted in the Barracks does not mean that mistreatment did not take place and that guards did not beat detainees Second the Chamber takes note of the statements of Prosecution Witness Jasenko Eminović who as a member of the exchange commission in Travnik was subordinated to Salko Beba and saw the detainee Kruno Banić beaten in the barracks 2880 As regards the statements of the Prosecution witnesses detained in the Barracks the Chamber notes that far from being contradictory the statements corroborate one another in particular as regards the beatings suffered by Kruno Bonić 2881 1279 In view of the above evidence and in particular the testimony of persons who were detained at the former JNA Barracks in Travnik the Chamber finds that cruel treatment was inflicted on civilians and prisoners of war held at the detention centre in the Barracks during the whole of the period at issue It appears from the testimony therefore that detainees were beaten during the period material to the Indictment 2882 The detainees in question were beaten sometimes for several hours with various objects and kicked and punched 2883 1280 The Chamber further finds that such beatings were carried out repeatedly Witness Ivan Josipović was also beaten almost every evening during the first 50 days of his detention 2884 As for Kruno Bonić it appears from the testimony that he was beaten on several occasions over a period of several months 2885 1281 The Chamber concludes that from the testimony of former detainees at the former JNA Barracks in Travnik it appears that the perpetrators of the cruel treatment undeniably intended to cause the detainees held in the Barracks serious pain and suffering 2879 Mešud Hadžialić T F pp 12256-12257 Fehim Muratović T E p 14967 Osman Menković T F pp 14690 and 14699 2880 Jasenko Eminović T F p 5844 2881 P 399 under seal para 9 Ivan Josipović T F pp 2450-2451 2882 Ivan Josipović T F pp 2439 to 2443 Witness Ivan Josipović was beaten as of his first night in detention 7 August 1993 and regularly during the first 50 days of his detention That witness stated that other detainees were beaten Witness XD T F pp 1754 1760-1763 Witness XD was beaten once during his detention from September 1993 to March 1994 and stated that other detainees were beaten P 399 under seal paras 3 9 and 14 Witness Z17 who was detained between mid-June 1993 and July 1993 stated that several detainees were beaten during that period 2883 Ivan Josipović T F pp 2440-2441 2884 Ivan Josipović T F pp 2442-2443 Case No IT-01-47-T 368 15 March 2006 308 21623 BIS 1282 As regards the perpetrators of the mistreatment the Chamber first finds that the guards of the detention centre in the former JNA Barracks in Travnik were part of the 17th Brigade Military Police Unit and from June 1993 also the OG Bosanska Krajina Military Police Company 2886 Second the Chamber finds that the witnesses stated that the mistreatment suffered by the detainees was inflicted by the guards of the detention centre2887 or more specifically by members of the 17th Krajina Brigade 2888 The Chamber therefore considers that the perpetrators of the mistreatment belonged to the 17th Brigade Military Police Moreover the Chamber does not rule out the possibility that members of the Bosanska Krajina Military Police Company participated in the mistreatment of the detainees The Chamber notes however that the Indictment refers to the mistreatment only insofar as it was inflicted by members of the 17th Brigade and finds therefore that it is not seized of the question of the mistreatment which might have been inflicted by the OG Bosanska Krajina military police 2889 1283 As regards the victims of the cruel treatment at the former JNA Barracks the Chamber finds that because of their detention they were not directly involved in the hostilities and were therefore protected persons under the laws or customs of war as recognised by common Article 3 of the Geneva Conventions 1284 On the basis of the foregoing the Chamber concludes that the elements of the crime of cruel treatment at the former JNA Barracks have been established for the material period between May 1993 and October 1993 iii Findings of the Chamber regarding the Responsibility of Enver Hadžihasanović a Effective Control of Enver Hadžihasanović over the Perpetrators of the Crimes 1285 The Chamber concludes that the cruel treatment alleged in paragraph 41 b of the Indictment was committed by military police subordinated to the 17th Brigade Given that the 17th Brigade was de jure subordinated to the 3rd Corps at the material time it is presumed that the 2885 P 399 under seal para 9 Ivan Josipović T F pp 2450-2451 See Osman Menković T E pp 14659-14660 and 14698-14700 Fehim Muratović T F p 14967 2887 P 399 under seal para 9 2888 Witness XD T F pp 1762-1763 Witness XD stated that the perpetrators of the beatings were members of the Krajina unit Ivan Josipović T F p 2442 Witness Ivan Josipović stated that the perpetrators of the mistreatment were members of the Krajina police 2889 Reference to the part on the duty to obtain information 2886 Case No IT-01-47-T 369 15 March 2006 307 21623 BIS Accused Hadžihasanović exercised control over that unit and over the perpetrators of the mistreatment belonging to it 1286 Moreover the evidence shows that the 17th Brigade carried out the orders of the Accused Hadžihasanović and answered to the 3rd Corps Command for the actions it undertook and the activities it carried out In accordance with an order from the 3rd Corps Command relating to regularity in submitting reports the 17th Brigade sent a report to the 3rd Corps Command dated 23 June 1993 in which it gave an account of the patrols carried out by the military police criminal reports submitted to the military prosecutor and disciplinary measures taken against soldiers 2890 1287 The Defence for the Accused Hadžihasanović does not dispute the subordination of the 17th Brigade to the Accused Hadžihasanović and has adduced no evidence to rebut such a presumption 1288 Consequently the Chamber concludes that the Accused Hadžihasanović exercised effective control over the perpetrators of the mistreatment and that there was a superior-subordinate relationship within the meaning of Article 7 3 of the Statute b Knowledge of Enver Hadžihasanović 1289 The Prosecution submits that the Accused Hadžihasanović had actual knowledge or knowledge such as to put him under an obligation to obtain more information on the mistreatment inflicted on detainees at the former JNA Barracks in Travnik 2891 First the Prosecution relies on a report of the president of the Travnik Military Court Exhibit P 622 addressed to the Accused Hadžihasanović which gave an account of the increase in criminal activities by the ABiH in Travnik The Prosecution asserts that on 1 June 1993 Colonel Blaškić complained to the Accused Hadžihasanović about the criminal conduct of the 3rd Corps soldiers and that the question of the problems which had arisen with the Croatian detainees in Travnik was broached on 19 June 1993 at a joint meeting between the Accused Hadžihasanović and Colonel Blaškič The Prosecution adds that following that meeting the Accused Hadžihasanović agreed to restore discipline among the criminal elements of the 3rd Corps 2892 Third the Prosecution submits that the Accused Hadžihasanović who took part in a meeting on 24 August 1993 at the former JNA Barracks with Merdan Alagić Čuskič Beba and Delić had the possibility to obtain information about and 2890 DH 1246 Prosecution Final Brief paras 206 and 209 2892 Ibid para 206 2891 Case No IT-01-47-T 370 15 March 2006 306 21623 BIS investigate the allegations relating to the abuse of the prisoners 2893 Lastly the Prosecution submits that since the officers of the OG Bosanska Krajina Mehmed Alagić and Salko Beba had approved a list drawn up by Witness Sefer containing the names of HVO soldiers held at the barracks who were to be exchanged in July 1993 they were aware that HVO soldiers were being held at the Barracks 2894 1290 The Defence for the Accused Hadžihasanović alleges that the Prosecution has failed to prove that the Accused Hadžihasanović was informed about the said mistreatment meted out to detainees at the former JNA Barracks 2895 The Defence for the Accused Hadžihasanović submits that Exhibit P 622 used by the Prosecution to argue that the Accused Hadžihasanović had been informed about an upsurge in the number of crimes committed by ABiH soldiers 2896 shows that the 3rd Corps Command had asked the judicial authorities to increase their effectiveness 2897 1291 The Chamber first notes the Prosecution’s argument that the officers of the OG Bosanska Krajina Mehmed Alagić and Salko Beba knew that HVO soldiers were being held in the former JNA Barracks in Travnik 2898 The Chamber considers that mere knowledge of the fact that HVO soldiers were detained does not imply knowledge of the mistreatment suffered by those detainees 1292 The Chamber finds that on 20 May 1993 the President of the Travnik District Military Court Kemal Poričanin sent a report to the 3rd Corps Command in which he reported on the procedure concerning the criminal reports submitted by the 17th Brigade That document also mentioned the report sent by the OG Bosanska Krajina Commander Mehmed Alagić to the 3rd Corps Command describing the increase in criminal activities on the part of members of the ABiH in the Travnik district “The commander of the Operations Group Bosnian Krajina Mr Mehmed ALAGIC informed you in his written report number 09 66-1 dated 2 May 1993 of certain problems related to the rise in crimes committed by members of the Armed Forces of the BH Army in Travnik District With regard to that problem it was baselessly and unscrupulously stated that the cause of the increase in criminal activities performed by members of the Armed Forces was the slow and dilatory work of Travnik District Military Court ”2899 The Chamber finds that the document refers generally to the criminal activities of ABiH soldiers in Travnik district and not more specifically to the cases of mistreatment at the former JNA Barracks 2893 Ibid para 207 Ibid para 208 2895 Hadžihasanović Defence Final Brief para 811 2896 Ibid para 807 2897 Ibid para 809 2898 See Prosecution Final Brief para 208 2899 P 622 2894 Case No IT-01-47-T 371 15 March 2006 305 21623 BIS Contrary to what the Prosecution affirms the Chamber considers that this document does not prove that the Accused Hadžihasanović had knowledge of the mistreatment inflicted on the detainees at the former JNA Barracks in Travnik 1293 The Chamber also notes that the letter of 1 June 1993 sent by Tihomir Blaškić to the 3rd Corps Command does not mention any cases of mistreatment at the Barracks but arrests and expulsions of Croats and the plunder of their property That letter also reports an incident on 31 May 1993 when members of the ABiH accosted three HVO soldiers in the street mistreated them and seized their weapons and their vehicle “Muslim gentlemen this is what you are doing in Travnik - You arrest prominent Croats in their flats such as Dr Markunović imić and Solomun - You break into flats loot them and expel the Croats or force them by threats to move out without delay - You disrupt road communications by setting up illegal checkpoints at which you maltreat the Croats and seize their vehicles - On 31 May 1993 you accosted on the street the HVO officers who were returning from a joint 2900 Croat-Muslim meeting maltreated them and seized their weapons and their vehicle…” Consequently the Chamber finds that the letter from Tihomir Blaškić of 1 June 1993 which does not refer to the mistreatment suffered by detainees at the Barracks does not prove knowledge on the part of the Accused Hadžihasanović 1294 The Chamber finds that on 19 June 1993 a meeting took place in Vitez between representatives of the HVO the ABiH and the international community in order to discuss among other things the release of prisoners The Accused Hadžihasanović Stjepan Šiber and Džemal Merdan represented the ABiH while Tihomir Blaškić among others represented the HVO JeanPierre Thébault of the ECMM and Alastair Duncan of UNPROFOR were also present 2901 According to the report drawn up by the ECMM after that meeting the representatives of the two armed forces complained of mistreatment of the prisoners “To date the BIH have released 201 prisoners from Zenica and the HVO 66 and 33 from Kiseljak 2902 and Kaonic respectively both sides complained of maltreatment of prisoners ” 2900 P 486 P 904 2902 P 213 2901 Case No IT-01-47-T 372 15 March 2006 304 21623 BIS When questioned about this report however Witness ZP stated that those complaints were general in nature and that no particular place of detention was mentioned in connection with the issue of mistreatment “Q And the reproaches from the HVO side did they relate to the KP Dom in Zenica or to other places or to places outside Zenica maybe I don't know A As far as I can remember these were complaints of a general nature They probably had in mind some other locations as well So that is my opinion Q So may I conclude that no specific places were mentioned and no specific names were given Is that a proper conclusion 2903 A Yes absolutely ” Moreover the decision taken at the end of the meeting to control the criminal elements in the respective areas of responsibility of the two commands was taken in the context of the problems connected with displaced persons and not in the context of the mistreatment meted out to the prisoners of war 2904 In reporting on the decisions taken at the meeting of 19 June 1993 that document also does not mention the question of the mistreatment of the detainees held in the former JNA Barracks in Travnik 2905 Consequently the Chamber considers that the documents relating to the meeting of 19 June 1993 do not make it possible to establish that the Accused Hadžihasanović had knowledge of the mistreatment suffered by detainees in the Barracks 1295 Lastly the Chamber considers that the fact that the Accused Hadžihasanović took part in a meeting at the Barracks on 24 August 19932906 does not prove as such that he had knowledge of the mistreatment suffered by the detainees at the detention centre at the Barracks 1296 In addition the Chamber takes note of the Prosecution argument that the Accused Hadžihasanović had information such that he was under a duty to apprise himself and that his presence at the Travnik Barracks on 24 August 1993 gave him an opportunity to inquire into the allegations of mistreatment inflicted on the prisoners 2907 The Chamber considers that the Accused Hadžihasanović did not have information alerting him that his subordinates had mistreated or were about to mistreat the detainees at the Barracks and therefore rejects that argument put forward by the Prosecution 2903 Witness ZP T F pp 8849-8851 P 208 para 5 c 2905 P 208 2906 P 354 2907 Prosecution Final Brief paras 206 207 and 209 2904 Case No IT-01-47-T 373 15 March 2006 303 21623 BIS 1297 As regards mistreatment in other places of detention the Chamber notes that the Prosecution has put forward the theory of prior knowledge according to which the prior commission of criminal acts by a group of subordinates suffices in itself to prove the risk of subsequent commission of similar unlawful acts by another group of subordinates 2908 The Chamber observes that the Prosecution has not applied this theory to the mistreatment in the Barracks but makes it clear nevertheless that the knowledge of mistreatment inflicted previously by a group of subordinates in other detention centres does not as such imply knowledge of mistreatment inflicted by the 17th Brigade Military Police at the Travnik Barracks 2909 1298 Having considered the relevant evidence relating to the possible knowledge of the Accused Hadžihasanović the Chamber concludes that the Prosecution has not proved beyond a reasonable doubt that the Accused Hadžihasanović knew or had reason to know that his subordinates were preparing to commit mistreatment at the former JNA Barracks or had done so Accordingly the Chamber cannot conclude that the Accused Hadžihasanović is criminally responsible within the meaning of Article 7 3 of the Statute As a result there is no need to consider the other constituent elements of command responsibility under the Statute iv Conclusions of the Chamber 1 The Chamber considers that there is no evidence that the Accused Hadžihasanović knew or had reason to know that his subordinates were about to commit or had committed crimes of mistreatment at the former JNA Barracks in Travnik The Accused Hadžihasanović cannot therefore be held criminally responsible for the offence mentioned in count 4 paragraphs 41 b ba and 42 b of the Indictment e Village of Mehurići Mehurići Elementary School and Mehurići Blacksmith Shop 1299 The Indictment alleges that Bosnian Croats and Bosnian Serbs were detained at Mehurići Elementary School which was guarded and administered by members of the ABiH 3rd Corps OG Bosanska Krajina 306th Brigade from around 6 June 1993 until at least 24 June 1993 and at the Mehurići Blacksmith Shop also guarded and administered by members of the ABiH 3rd Corps OG Bosanska Krajina 306th Brigade from around 6 June 1993 until at least 13 July 1993 During their detention those Bosnian Croats and Bosnian Serbs were allegedly regularly subjected to mistreatment It is alleged that they were beaten and physically and or mentally abused by 3rd Corps 306th Brigade soldiers The detention conditions were allegedly inadequate in terms of food and 2908 See supra paras 1748-1749 Case No IT-01-47-T 374 15 March 2006 302 21623 BIS hygiene From around 26 January 1993 to 31 October 1993 the Accused Hadžihasanović knew or had reason to know that members of that unit who were placed under his command and effective control were about to commit the crimes of mistreatment or had done so and he failed to take the necessary and reasonable measures to prevent those acts from being committed or to punish the perpetrators 2910 1300 It is therefore alleged that the Accused Hadžihasanović committed cruel treatment a violation of the laws or customs of war punishable by Articles 3 and 7 3 of the Statute and recognised by common Article 3 of the Geneva Conventions i Arguments of the Parties 1301 The Prosecution maintains that mistreatment was inflicted both on the detainees held in the School during the interrogations carried out by three members of the Zenica police and on the detainees held at the Blacksmith Shop during the interrogations carried out at the School by “military police of Zenica” and outside the school building 2911 It submits that the School and Blacksmith Shop were guarded and administered by the 306th Brigade and the ABiH 2912 It adds that the living and sanitary conditions during the imprisonment at the School and Blacksmith Shop were completely unsuitable and inadequate2913 and that the mujahedin were a constant threat to the detainees 2914 The Prosecution maintains that the Accused Hadžihasanović had knowledge of the mistreatment meted out to the detainees2915 and that he failed to take the necessary and reasonable measures to prevent mistreatment from being committed or to punish the perpetrators 2916 1302 The Defence for the Accused Hadžihasanović maintains that more than 250 persons were taken to the Mehurići School for their protection and that although the 306th Brigade Military Police protected them for the first four or five days the civilian police subsequently took charge of them in collaboration with the 306th Brigade 2917 According to the Defence the living conditions at 2909 See supra paras 102-120 Third Amended Indictment paras 41 bb and 42 c and d 2911 Prosecution Final Brief paras 246 and 248 2912 Ibid paras 250-251 2913 Ibid paras 244 and 252 2914 Ibid paras 244 and 249-252 2915 Ibid paras 250 and 253-256 2916 Ibid para 257 2917 Hadžihasanović Defence Final Brief paras 826 and 831 Hadžihasanović Defence Closing Arguments T F p 19233 2910 Case No IT-01-47-T 375 15 March 2006 301 21623 BIS the School were satisfactory and the people placed in the School did not suffer mistreatment 2918 It also maintains that the HVO soldiers held at the Blacksmith Shop were treated well given the prevailing circumstances at the time and that they were not mistreated 2919 In addition the Defence for the Accused Hadžihasanović submits that the Prosecution has not proved that the Accused Hadžihasanović was informed of the mistreatment allegedly inflicted on persons housed in the School and the Blacksmith Shop2920 and lastly that the Accused Hadžihasanović failed to take the necessary preventive measures throughout the year 1993 2921 ii Findings of the Chamber regarding Mistreatment Committed at Mehurići Elementary School and Mehurići Blacksmith Shop a Sequence of Events from 6 June 1993 to 4 July 1993 at Mehurići School and Mehurići Blacksmith Shop 1303 Two detention centres were set up in the village of Mehurići 2922 in Mehurići Elementary School2923 and in the smithy known as Mehurići Blacksmith Shop 2924 The School took in approximately 250 Bosnian Croat civilians between 6 June and 24 June 1993 2925 while the Blacksmith Shop held 20 to 30 Bosnian Croat civilians and HVO soldiers between 6 June 1993 and 4 July 1993 2926 1304 Initially in the autumn of 1992 the Mehurići Elementary School housed the Mehurići detachment of the TO 2927 Later in the year following an order of the War Presidency to the headmaster of the School to authorise the presence of representatives of humanitarian organisations some 10 mujahedin occupied the upper floor of the School 2928 Those mujahedin left the School 2918 Hadžihasanović Defence Final Brief paras 829-845 and 851-854 Hadžihasanović Defence Closing Arguments T F p 19233 2919 Hadžihasanović Defence Final Brief paras 833-858 2920 Ibid para 872 2921 Hadžihasanović Defence Final Brief paras 822-824 862-863 865 868 and 872 2922 See photograph P 934 2923 See photographs P 28 and P 28 1 under seal 2924 See photographs P 42 P 43 P 44 P 45 P 46 and P 47 2925 P 430 P 431 DH 167 7 DH 243 under seal Witness HE T F p 16982 Witness AH T F p 1221 Witness ZL T F p 4393 Witness XC T F pp 1691-1693 2926 Vinko Tadić T F p 1893 Witness XC T F pp 1709-1710 Asim Delalić T F p 16397 2927 DH 1663 Haso Ribo T F p 10806 Sulejman Ribo T F p 11039 Derviš Suljić T F p 11302 Hamid Suljić T F p 11875 Fahir Čamdžić T F pp 11692-11693 Remzija Šiljak T F pp 10608-10609 2928 Fahir Čamdžić T F pp 11694-11695 Halim Husić T F p 10873 Sulejman Ribo T F p 11039 Sejad Jusić T F p 11121 Derviš Suljić T F pp 11305-11306 Munir Karić T F p 11436 Ferid Jašarević T F pp 1154711548 Hamid Suljić T F pp 11879 and 11881 Salim Tarakčija T F p 11793 Esed Sipić T F pp 14787 14803 14825 Asim Delalić T F p 16354 Remzija Šiljak T F pp 10608-10609 Case No IT-01-47-T 376 15 March 2006 300 21623 BIS when the 306th Brigade 1st Battalion was installed there in late 1992 or early 1993 2929 They then moved to Poljanice a hamlet some 500 metres from the village of Mehurići 2930 although they retained one or two offices upstairs in the School in Mehurići 2931 The 1st Battalion 306th Brigade occupied the School until July or August 1993 2932 1305 Bosnian Croat civilians and HVO soldiers were detained in the Mehurići Elementary School and in the Mehurići Blacksmith Shop on two occasions first on 6 June 1993 following the sporadic fighting in Velika Bukovica and Ričice and second on 8 June 1993 following a fresh outbreak of fighting between the HVO and ABiH in Maline 2933 i Mehurići School 1306 According to Witness Vinko Tadić a Bosnian Croat civilian a group of 13 or 14 armed soldiers wearing camouflage uniforms arrived in Konjska on the slope of Mount Vlasić early in the morning of 6 June 1993 2934 The day before Vinko Tadić had rejoined his family in Konjska in order to tend to a flock of sheep with other shepherds 2935 He stated that he was unable to identify the military unit to which the group of soldiers belonged but said that some of them wore a green armband with a badge marked “MOS” 2936 The soldiers then assembled and arrested a group of villagers that included men women and children 2937 The prisoners included Vinko Tadić and the members of his family Jozo Tadić Ferdo Tadić and Mato Tadić together with Nikola Volić Dragan Volić Frano Volić his wife Ljuba Volić Mladen Volić another person identified as Frano 2929 Halim Husić T F pp 10883 and 10910 Derviš Suljić T F pp 11306-11307 Ferid Jašarević T F p 11549 Fahir Čamdžić T F p 11764 Esed Sipić T F pp 14787 14803 and 14825 Asim Delalić T F pp 16354 and 16382 Hamid Suljić T F p 11912 Salim Tarakčija T F p 11793 Suad Menzil T F pp 14097-14098 Esed Sipić T F pp 14787 14803 and 14825 2930 Halim Husić T F pp 10883 and 10910 Ferid Jašarević T F p 11549 Fahir Čamdžić T F p 11697 Salim Tarakčija T F p 11793 Suad Menzil T F p 14138 Esed Sipić T F pp 14787 14803 and 14825 Asim Delalić T F p 16354 2931 Sulejman Ribo T F p 11053 Suad Menzil T F pp 14098 and 14141 Remzija Šiljak T F pp 10611-10612 10488 and 10668 P 355 The Chamber notes however that Witness HB does not recall seeing any mujahedin at the School between January and June 1993 T F pp 12620-12621 2932 Halim Husić T F pp 10883 10897 and 10910 Derviš Suljić T F 11303-11304 Sulejman Ribo T F p 11092 Esed Sipić T 14749 Witness HB T F p 12583 Munir Karić T F p 11448 Vezir Jusufspahić 306th Brigade Commander between August and November 1993 stated that no 306th Brigade Battalion was stationed at the School during the period when he commanded the 306th Brigade T F 14044-14045 2933 As regards the fighting at Velika Bukovica and Ričice in early June 1993 see Haris Jusić T E p 11256 Witness ZK T F p 4366 Munir Karić T F pp 11450-11452 Remzija Šiljak T F p 10514 Sejad Jusić T E 11133 For the outbreak of fighting at Maline on 8 June 1993 see supra paras 1110-1127 2934 Vinko Tadić T F pp 1887-1889 1910 and T E p 1889 2935 Vinko Tadić T F pp 1887-1888 2936 Vinko Tadić T F pp 1890-1891 2937 Vinko Tadić T F pp 1889 and 1893 Case No IT-01-47-T 377 15 March 2006 299 21623 BIS Volić and Mijo Jelović 2938 Next on the order of a soldier named Hadžija the soldiers brought them to the village of Mehurići 2939 When they arrived in Mehurići the villagers were taken to Mehurići Elementary School and installed in its sports room 2940 After about an hour the men including Vinko Tadić were separated from the women and children and taken to the Mehurići Blacksmith Shop about 100 metres from the school gymnasium 2941 1307 As indicated previously in the Judgement on 8 June 1993 following a fresh outbreak of fighting between the HVO and the ABiH in Maline 306th Brigade military police escorted a column of approximately 250 prisoners consisting of Bosnian Croat civilians and HVO soldiers who had surrendered previously to Mehurići Elementary School 2942 The civilian prisoners and at least one member of the HVO including Witness Ivanka Tavić Witness AH Witness XC Witness ZF Witness ZK Witness ZL Witness Z 11 and Witness Z 15 were installed in the sports room of the School 2943 while a few other prisoners were taken to the Mehurići Blacksmith Shop 2944 The Chamber will first consider the situation at the School and subsequently that at the Mehurići Blacksmith Shop 1308 Most of the detainees assembled in the school sports room were elderly people women and children including very young children and pregnant women 2945 According to the witnesses all the prisoners were Bosnian Croats2946 who came mainly from the village of Maline but also from neighbouring villages such as Postinje Miletići Brajkovići Podovi Čukle or even Orašac 2947 Some witnesses stated that the civilians were locked up in the School in order to protect them from the mujahedin given the proximity of their camp in Poljanice 2948 or to safeguard the civilian population in view of the intensifying fighting in the region 2949 while other witnesses mentioned as 2938 Vinko Tadić T F pp 1889 and 1893 P 92 under seal para 33 Vinko Tadić T F pp 1889 and 1891-1892 2940 Vinko Tadić T F p 1892 See photograph P 29 2941 Vinko Tadić T F pp 1892-1893 Witness AH confirmed that a group of shepherds was held at the Blacksmith Shop after being arrested before his arrival that is before 8 June 1993 at Mount Vlasić T F p 1224 Witness ZK confirmed that he saw members of the Volić family in the Blacksmith Shop and learned that they had been arrested on a hill near Krpeljići where they were looking after their livestock P 92 under seal para 33 2942 See supra para 1120 2943 Ivanka Tavić T F pp 1167 and 1175 Witness AH T F pp 1220-1221 P 393 under seal para 18 2944 Vinko Tadić T F p 1905 2945 Ivanka Tavić T F p 1175 Suad Menzil T F p 14149 Witness XC T F pp 1691 and 1693 Lars Baggesen T F p 7037 Sejad Jusić T F p 11133 P 387 under seal para 20 and DH 167 7 2946 Ivanka Tavić T F p 1172 Witness AH T F p 1222 Sejad Jusić T E p 11134 2947 P 277 Ivanka Tavić T F p 1172 Witness AH T F p 1222 2948 Witness HB T F 12652 Sejad Jusić T F 11132 Haris Jusić T F pp 11222-11223 2949 Remzija Šiljak T F pp 10551 and 10668 Munir Karić T F pp 11454 and 11530 Witness HB T F p 12652 2939 Case No IT-01-47-T 378 15 March 2006 298 21623 BIS a reason the ABiH’s intention to exchange those prisoners for Muslim prisoners captured by the HVO 2950 1309 During the first days following the arrival of the civilians at the School 306th Brigade soldiers including 306th Brigade military police guarded the detainees in the School 2951 Subsequently according to Sejad Jusić head of the civilian police in Mehurići and Witness HB the civilian police provided the guard until the prisoners were exchanged on 24 June 1993 2952 However while some witnesses stated that the prisoners were guarded solely by the civilian police 2953 others testified that the guard was organised in collaboration with the 306th Brigade 2954 1310 Two witnesses testified before the Chamber to the existence of mistreatment during their interrogations of some men detained in the gymnasium Witness XC an HVO soldier stated that initially he was interrogated virtually every night somewhat informally by soldiers he knew and that the interrogations were made official following the arrival of three members of the ABiH from Zenica 2955 While he awaited his turn at the door of the interrogation office of the soldiers from Zenica Witness XC heard another detainee being hit 2956 When his turn came he was questioned about subjects of a military nature and then threatened with being beaten and handed over to the mujahedin for further interrogation 2957 Those threats however were not carried out 2958 Ivanka Tavić a civilian detainee then stated that some of the men held in the sports room underwent interrogations and returned with visible marks of mistreatment 2959 In contrast Witness AH a civilian detainee testified that although the detainees were taken for interrogation in groups of three or four they returned after two or three hours without any signs of blows or other mistreatment 2960 1311 The fact that the interrogations were conducted by the 306th Brigade and by officers of the Zenica 3rd Corps is corroborated by Witness Haris Jusić an officer in the 306th Brigade Military Security Service Haris Jusić received an order from Asim Delalić 306th Brigade Assistant 2950 Witness HB T E p 12597 and T F p 12649 Haris Jusić T F pp 11222-11223 The Chamber notes that Haris Jusić stated that the main reason for detaining Croatian civilians at the School was to exchange them for Muslim civilians from Velika Bukovica held by the HVO 2951 Ivanka Tavić T F p 1175 P 92 under seal para 35 Sejad Jusić T F p 11158 Witness HB T F p 12603 2952 Sejad Jusić T F pp 11131-11132 pp 11158 11178 and 11191 Witness HB T F p 12603 2953 Witness HE T F p 16989 Enes Ribić T F pp 11387 and 11420 Suad Menzil T F p 14116 2954 Halim Husić T F pp 10899-10900 Sejad Jusić 11158 2955 Witness XC T F p 1700 2956 Witness XC T F p 1701 2957 Witness XC T F p 1701 2958 Witness XC T F p 1701 2959 Ivanka Tavić T F p 1177 2960 Witness AH T F p 1223 Case No IT-01-47-T 379 15 March 2006 297 21623 BIS Commander for Military Security to take statements from Croatian men of weapon-bearing age imprisoned in Mehurići 2961 In compliance with this order he arrived in Mehurići after 8 June 1993 and interrogated about 20 to 30 Croatian men aged 20 to 60 over a period of about a week 2962 He testified that he knew most of the detainees he interrogated and asked them questions of a military nature such as whether they belonged to the HVO the names of the HVO commanders or the type of weapons available to the Croatian forces 2963 He stressed that he never used force during these interrogations2964 and added that while he was carrying out his tasks at the School two 3rd Corps officers from Zenica whom he regarded as his superiors arrived at the School to take statements from certain persons 2965 The officers from Zenica remained for one or two days before returning to Zenica 2966 1312 Among the former detainees at the School gymnasium Witness ZK and Witness ZL stated that they had been treated properly during their incarceration in the gymnasium 2967 Likewise Witness Z 11 did not mention having been mistreated during his detention 2968 1313 Most of the former prisoners in the School agree in stating that mujahedin were present at the School and that they adopted a threatening attitude towards the detainees held in the gymnasium 2969 Witness XC stated that on one occasion one of the mujahedin pointed a weapon at him shouting “Ustasha Ustasha I’ll shoot you ”2970 Likewise Witness ZK stated that one day one of the mujahedin entered the gymnasium and played dangerously with his firearm in front of the prisoners 2971 The witnesses heard by the Chamber stated however that the local ABiH soldiers present in the School protected the civilians from the mujahedin For example Witness AH testified that when he arrived at the School he was escorted to the sports room by a soldier who recommended that for safety reasons he hide behind him should they meet mujahedin 2972 Witness ZL also mentioned that on one occasion one of the mujahedin tried to enter the gymnasium but was 2961 Haris Jusić T F p 11218 Asim Delalić T E p 16395 Haris Jusić T F pp 11219 and 11221 Asim Delalić T E pp 16395-16397 The Chamber notes that Haris Husić began his interrogations on 10 or 11 June 1993 DH 2091 para 10 Asim Delalić T E pp 16395-16396 Haris Jusić T F p 11218 2963 Haris Jusić T F pp 11219-11220 2964 Haris Jusić T F pp 11220 and 11256 2965 Haris Jusić T F pp 11255-11257 and 11264 T E p 11260 2966 Haris Jusić T F p 11256 2967 P 92 under seal para 35 Witness ZL T E p 4405 2968 P 393 under seal paras 18-21 2969 For the presence of mujahedin at the School see Witness ZF T F p 3596 Witness ZL T F pp 4394-4395 and 4405 P 92 under seal para 36 Vinko Tadić T F pp 1908-1909 Vinko Tadić stated that they were located on the third floor of the School T F p 1908 2970 Witness XC T F p 1700 2971 P 92 under seal para 36 2972 Witness AH T F p 1221 2962 Case No IT-01-47-T 380 15 March 2006 296 21623 BIS prevented from doing so by the gymnasium guards who had been given orders by their commander to kill any mujahedin entering the sports room 2973 However Sejad Jusić a civilian police officer from Mehurići denied that there were any mujahedin at the School during the period when the civilians were imprisoned there but admits that on one occasion they tried to enter the gymnasium 2974 1314 Moreover many witnesses heard by the Chamber raised the issue of the detention conditions at the School Some 250 civilians were installed in the sports room which was 10 metres wide by 15 metres long such that there was not enough room 2975 The food rations distributed to the detainees were limited and of poor quality 2976 During the first days therefore the detainees had to make do with a few pieces of cheese and bread made from flour intended for cattle feed 2977 Subsequently the prisoners received two meals a day generally consisting of a large loaf of bread and a large tin of jam for six or seven prisoners to share in the morning and a piece of bread together with a spoonful of boiled rice in the afternoon 2978 Sufficient drinking water was available2979 and small children received powdered milk daily 2980 Several witnesses for the Defence for the Accused Hadžihasanović stated that the civilians received the same food as the soldiers at the School 2981 The food rationing was organised on the basis of an exhaustive register of the prisoners’ details 2982 Lastly both the Civilian Protection and villagers brought in food for the civilians particularly the children imprisoned in the School 2983 1315 Some witnesses for the Defence for the Accused Hadžihasanović testified that straw blankets mattresses and beds were made available to the detainees 2984 Witness XC however 2973 Witness ZL T F pp 4405-4406 This episode was corroborated by Sejad Jusić T F p 11134 Sejad Jusić T F pp 11134 11158 and 11177-11178 2975 Witness AH T F p 1221 2976 Ivanka Tavić T F pp 1175-1176 Witness XC T F p 1699 Witness ZF T F p 3599 P 92 under seal para 37 2977 Ivanka Tavić T F pp 1175-1176 2978 Witness XC T F p 1699 P 92 under seal para 37 2979 P 92 under seal para 37 P 393 under seal para 19 2980 Suad Menzil T F p 14149 Witness XC T F p 1699 2981 Sejad Jusić T F p 11133 Haris Jusić T F p 11221 2982 Witness AH T F p 1222 2983 Witness HB T F p 12603 Witness ZK T F p 4368 Witness XC T F pp 1699 and 1728 The Chamber notes that Exhibits DH 1241 DH 1247 DH 1248 DH 1249 DH 1497 DH 1621 and DH 1622 deal with the shipment of goods including rations from the Civilian Protection of the municipality of Travnik intended for the Mehurići Elementary School and that they provide evidence that a certain quantity of goods and rations were lost during transport to Mehurići 2984 Enes Ribić T F p 11386 Witness HB T F p 12597 Suad Menzil T F p 14119 2974 Case No IT-01-47-T 381 15 March 2006 295 21623 BIS explained that there were not enough blankets for all the detainees and that for that reason the blankets were given to the oldest persons 2985 1316 As for sanitation there was only one toilet accessible between 0700 and 1900 hours 2986 The fact that there was only one toilet for approximately 250 detainees meant that it was blocked and that there was a long queue to use it 2987 According to Witness XC the detainees had no facilities to wash whereas according to Witness HB a witness for the Defence for the Accused Hadžihasanović access to the shower was restricted to civilians 2988 Ivanka Tavić testified that the detainees received five litres of hot water per day to bathe the small children and to clean prisoners’ wounds 2989 According to Witness HE diapers were provided for the infants 2990 1317 Several witnesses including Dr Enes Ribić a doctor temporarily assigned to the School in Mehurići and Suad Menzil an administrator of the 306th Brigade 1st Battalion medical service described to the Chamber the medical care provided to the detainees at the School Dr Enes Ribić worked in a dispensary about 150 metres from the School in Mehurići and went there three times to assess the conditions in which the civilians were housed 2991 Dr Enes Ribić did not however treat prisoners at the School directly and acted as a stand-in doctor 2992 According to Dr Enes Ribić and Suad Menzil a woman doctor present among the civilian detainees was made responsible for administering the necessary treatment to the civilians and was assisted in this task by Suad Menzil 2993 They stated that they had made the medical services and medical equipment in their possession available to her 2994 Witness ZK and Witness XC former detainees at the School confirmed that the ABiH medical personnel had given the woman doctor the medicine they had2995 and Witness AH confirmed that Dr Ribić collaborated with the woman doctor 2996 Suad Menzil stated that he visited the prisoners at the School four or five times each time accompanied by the woman doctor 2997 2985 Witness XC T F p 1698 P 393 under seal para 19 Witness HB T F p 12602 2987 Ivanka Tavić T F pp 1173 and 1176 Witness XC T F p 1699 2988 Witness HB T F p 12602 2989 Ivanka Tavić T F p 1176 2990 Witness HE T F p 17082 2991 Enes Ribić T F pp 11397 and 11420 2992 Enes Ribić T F p 11397 2993 Enes Ribić T F p 11397 Suad Menzil T F p 14109 2994 Enes Ribić T F p 11386 Suad Menzil T F p 14109 2995 Witness XC T F p 1727 Witness ZK T F p 4367 2996 Witness AH T F p 1249 2997 Suad Menzil T F pp 14156-14157 2986 Case No IT-01-47-T 382 15 March 2006 294 21623 BIS 1318 According to Witness XC Davo Tajić a man who was already ill when he arrived at the gymnasium died while in detention 2998 Furthermore a young pregnant woman stated that she had a miscarriage and fell seriously ill as a result of which she was very debilitated at the end of her period of detention 2999 1319 According to the ICRC report on 19 June 1993 representatives of the ICRC visited a detention centre in the village of Mehurići and registered 27 prisoners 3000 Witness XC stated that before the ICRC visit civilian police entered the gymnasium with a list and took away a number of prisoners whose names were on it including Witness XC to another building not far from the School 3001 In that other building the detainees brought there met the representatives of the ICRC and were given registration cards and questionnaires intended to inform their families 3002 Witness XC met other Croatian detainees there who were imprisoned in the sports room including some women and children who were subsequently taken to the gymnasium 3003 In contrast after that visit Witness XC together with other prisoners was taken to the Mehurići Blacksmith Shop 3004 According to some Defence witnesses however the ICRC representatives met the civilians in the sports room or drew up lists of the persons held in the gymnasium 3005 According to Ferid Jašarević a 306th Brigade soldier the ICRC representatives made no remarks concerning the conditions in which the civilians were housed at the School 3006 ii Mehurići Blacksmith Shop 1320 On the basis of the evidence adduced the Chamber will now consider the situation obtaining at the Mehurići Blacksmith Shop The Blacksmith Shop or former smithy is a brick building about one hundred metres from the Mehurići School gymnasium and consists of six rooms two of which were used as places of detention 3007 Prisoners were held there on three different occasions the first time following the arrests on Mount Vlasić on 6 June 1993 3008 the second time following the 2998 Witness XC T F p 1698 Witness ZF T F pp 3599 and 3610 3000 P 165 3001 Witness XC T F pp 1707 and 1716 3002 Witness XC T F pp 1707 and 1716 3003 Witness XC T E p 1707 3004 Witness XC T F pp 1707-1708 3005 Ferid Jašarević T F p 11591 Suad Menzil T F pp 14116-14117 Witness HE T F pp 16982 and 17094 3006 Ferid Jašarević T F p 11561 3007 Vinko Tadić T F p 1893 Sejad Jusić T F pp 11165-11166 See photographs P 42 P 43 P 44 P 45 P 46 and P 47 and videocassette P 761 3008 Vinko Tadić T F pp 1892-1893 Witness AH T F p 1224 2999 Case No IT-01-47-T 383 15 March 2006 293 21623 BIS outbreak of fighting between the HVO and the ABiH in Maline on 8 June 1993 3009 and the third time following the visit by the ICRC on 19 June 1993 3010 On 6 June 1993 the two detention rooms at the Blacksmith Shop housed some ten detainees3011 but after the events in Maline on 8 June 1993 the number of detainees in each of the two rooms increased to about 10 or 15 totalling 20 to 30 persons 3012 The detainees brought to the Blacksmith Shop were mainly HVO soldiers but also Bosnian Croat civilians including a woman and a minor 3013 Among them were Witness XC Witness Vinko Tadić Zejko Pušelja Jozo Tadić Ferdo Tadić Mato Tadić Nikola Volić Dragan Volić Frano Volić his wife Ljuba Volić Mladen Volić another person identified as Frano Volić Mijo Jelović Ivica Janković Stipo Pesa and Seljo Jurić 3014 1321 The witnesses are consistent in saying that the prisoners at the Blacksmith Shop were guarded by the civilian police Accordingly Witness XC stated that the civilian police guarded the Blacksmith Shop and escorted the detainees held there to the School building where the army then took charge of them 3015 Several witnesses for the Defence for the Accused Hadžihasanović including Sejad Jusić the chief of the civilian police in Mehurići stated that the role of the civilian police was to protect the persons detained at the smithy 3016 Sejad Jusić made it clear that the civilian police did not interrogate the detainees and had the sole task of guarding them 3017 1322 The Chamber heard two former prisoners held in the Blacksmith Shop Witness XC and Vinko Tadić testify about the mistreatment suffered by the detainees held at the Blacksmith Shop They drew a distinction between two periods in which the detainees underwent such treatment The first period was during the interrogations carried out by members of the Zenica Military Police that is two or three days between 10 and 20 June 1993 3018 The second period related to the end of their imprisonment at the Blacksmith Shop that is after the exchange of civilians on 24 June 1993 and before their departure from the Blacksmith Shop on 4 July 1993 3009 Vinko Tadić T F p 1905 Witness XC T F pp 1707-1708 3011 Vinko Tadić T F pp 1893 and 1905 P 92 under seal paras 32 and 33 3012 Vinko Tadić T F pp 1905-1906 Witness XC T F pp 1709-1710 Asim Delalić T F p 16397 3013 Witness XC T F pp 1708-1710 and 1713 P 92 under seal para 33 3014 Vinko Tadić T F pp 1889 1893 and T E p 1911 Witness XC T F pp 1709-1710 P 92 under seal para 33 3015 Witness XC T F p 1729 3016 Sejad Jusić T F p 11165 Asim Delalić T F p 16407 Witness HE T F p 16989 3017 Sejad Jusić T E p 11189 3018 The Chamber notes that the interrogations carried out by members of the Zenica police took place during the two days or so when Haris Jusić was present at the School to take statements from Croatian detainees Haris Jusić T F 11219-11220 and 11256 As mentioned earlier in the Judgement see supra para 1311 Haris Jusić started his mission on 10 or 11 June 1993 and ended his mission approximately one week later Haris Jusić T F p 11221 Asim Delalić T E p 16397 3010 Case No IT-01-47-T 384 15 March 2006 292 21623 BIS 1323 As regards the first period Vinko Tadić described the manner in which the interrogations were organised Over two or three consecutive days the detainees were taken one by one to a building where two men in military uniform with white belts were waiting for them 3019 The two soldiers were introduced to him as military police from Zenica 3020 One of them threatened him with a knife3021 while they asked him questions of a military nature such as the position of the Croatian forces of which he was completely ignorant 3022 Although he did not claim that he personally had been abused during the interrogations Vinko Tadić stated that the interrogations were calculated to harass intimidate and physically assault the detainees 3023 He illustrated this by stating that a young detainee Ivica Janković sustained a serious head wound during one of these interrogations 3024 1324 As regards the second period Witness XC and Vinko Tadić testified to the Chamber that several detainees held at the Blacksmith Shop had been beaten on three other occasions first during the interrogations second during the cleaning work and third on the way to the toilets First even though he was not an eyewitness of the events Witness XC described how two of his fellow detainees Stipo Pesa and Zeljo Jurić were subjected to physical violence during the interrogations at the end of their period of detention 3025 He stated that after admitting that he knew where a weapon was hidden Stipo Pesa was taken to the place he indicated but since the weapon was no longer there he was beaten all the way back while his hands were tied behind his back 3026 According to Witness XC when Pesa returned to the Blacksmith Shop his back was covered with bruises 3027 He likewise stated that Zeljo Jurić was forced to reveal where a sum of money was hidden and that when the money was not found he was beaten somewhat less violently this time 3028 Witness XC made it clear that he himself was never mistreated 3029 Lastly Ivanka Tavić stated that a detainee housed at the Blacksmith Shop Željko Pušelja was seriously injured in the arm and that his health worsened after each interrogation 3030 She stated that Željko Pušelja became 3019 Vinko Tadić T F p 1907 The Chamber notes that in view of the information provided by Witness Vinko Tadić about the place where the interrogations took place this could only be the Mehurići School building T F pp 1897 and 1900 3020 Vinko Tadić T E p 1907 3021 Vinko Tadić T E p 1907 3022 Vinko Tadić T E p 1907 3023 Vinko Tadić T E p 1911 3024 Vinko Tadić T E p 1911 3025 Witness XC T F p 1713 3026 Witness XC T F pp 1711-1712 3027 Witness XC T E p 1711 3028 Witness XC T E p 1711 3029 Witness XC T F p 1726 3030 Ivanka Tadić T F p 1177 The Chamber notes that Željko Pušelja is a survivor of the executions of Maline in which he was seriously injured Vinko Tadić T F p 1908 DH 10 confidential The Chamber further notes that Haris Jusić stated that he interrogated Željko Pušelja and observed that his arm was bandaged up to the elbow and his condition seemed to be normal T F pp 11261-11262 Case No IT-01-47-T 385 15 March 2006 291 21623 BIS an invalid as a result of the violence he suffered at the School 3031 Second Vinko Tadić stated that after the exchange of civilians on 24 June 1993 he was forced to do cleaning work which is when he went to the first floor of the School There all the detainees in his group himself included were beaten with wooden sticks by soldiers in the corridor 3032 Third Witness XC stated that on the last day of their detention a group of detainees was taken away and came back to the Blacksmith Shop covered with bruises caused by blows 3033 1325 Several Defence witness however such as Witness HE Dr Enes Ribić and Suad Menzil stated that they never heard about mistreatment meted out to detainees held at the Blacksmith Shop 3034 Dr Enes Ribić emphasised that he never heard cries or groans coming from the Blacksmith Shop 3035 Suad Menzil stated that he could see personally that the detainees held at the Blacksmith Shop did not show any signs of mistreatment but admits that they seemed to be terrified 3036 1326 Next Witness XC and Vinko Tadić testified about the detention conditions in which the prisoners held at the Blacksmith Shop lived In each of the two detention rooms some 10 to 15 detainees were confined in an area of two or three metres by three metres 3037 The rooms were unlit since the only opening of thirty centimetres in diameter initially intended to ventilate each room was blocked with a piece of cloth 3038 As for the conditions in which the detainees had to sleep practically nothing was provided three wooden benches were made available the floor was concrete and there was only one blanket for all the detainees 3039 The overcrowding in each of the two rooms was such that the detainees were unable to sleep 3040 Witness XC heard that in the other room of the Blacksmith Shop the detainees had to remain seated and that there was no room for 3031 Ivanka Tadić T F p 1177 Vinko Tadić T E p 1913 The Chamber notes that Vinko Tadić stated that the soldiers on the first floor were members of the ABiH T F p 1909 3033 Witness XC T E p 1713 3034 Enes Ribić T F p 11390 Witness HE T F p 16988 Suad Menzil T F p 14148 3035 Enes Ribić T F pp 11404-11405 The Chamber notes that Dr Enes Ribić stated that he saw silhouettes of persons through the window of the Blacksmith Shop without entering it and that he did not treat persons from the Blacksmith Shop T F pp 11389-11390 11399 and 11404 3036 Suad Menzil T F p 14116 and T E p 14157 3037 Witness XC T F p 1710 Vinko Tadić T F pp 1893-1894 Witness AH T F p 1224 3038 Vinko Tadić T F pp 1893-1894 Witness AH T F p 1224 3039 Witness XC T F p 1710 Vinko Tadić CFR pp 1893 1901 and 1905-1906 3040 Witness XC T F p 1710 3032 Case No IT-01-47-T 386 15 March 2006 290 21623 BIS them to extend their legs in order to rest 3041 Witness XC stated that the detainees were allowed to go outside the Blacksmith Shop only rarely 3042 1327 During the first three or four days of incarceration at the Blacksmith Shop the detainees were virtually deprived of food and water 3043 After the first three or four days they received a can of food and a loaf of bread from time to time to share between detainees 3044 That undernourishment caused the detainees to lose weight Vinko Tadić stated that he lost 26 kilos during his incarceration 3045 Nevertheless Asim Delalić 306th Brigade Assistant Commander for Military Security stated that the prisoners held at the Blacksmith Shop were given three meals a day 3046 As for the sanitary conditions Vinko Tadić stated that at the beginning of the detention the detainees had to make do with a slop pail for a toilet and that later the detainees were accompanied to a toilet 3047 1328 Several witnesses raised the question of prisoners’ access to medical treatment at the Blacksmith Shop Defence Witnesses Asim Delalić and Suad Menzil stated that medical treatment was given and in support of that statement Suad Menzil mentioned that he went to the Blacksmith Shop five or six times and that following a complaint of high blood pressure a sick detainee was given medical treatment 3048 He added that during his visits he did not notice any injured persons although the prisoners seemed to be terrified 3049 In contrast Vinko Tadić states that following an interrogation a fellow detainee Ivica Janković was seriously injured in the head and was refused treatment with the result that the detainees had to manage themselves to staunch the flow of blood from his injuries 3050 Likewise Ivanka Tavić stated that Željko Pušelja had a serious injury to his arm that the arm was fractured and that he had lost a lot of blood with the result that the woman doctor present among the detainees at the School asked that he be transferred immediately to the hospital in Zenica which was refused Instead Željko Pušelja was taken repeatedly to the interrogation office and each time he returned his health deteriorated 3051 Dr Enes Ribić explained 3041 Witness XC T F p 1710 Witness XC T F p 1711 3043 Vinko Tadić T F p 1906 3044 Vinko Tadić T F p 1906 3045 Vinko Tadić T F p 1910 Vinko Tadić stated that he had psychological and physical side effects as a result of the mistreatment he suffered at the Mehurići Blacksmith Shop and was 70 % invalid The Chamber notes that Vinko Tadić stated that this was not only the result of the violence he suffered during his incarceration but also of the injuries he received after his detention at the Blacksmith Shop T F pp 1910 and 1912 3046 Asim Delalić T E p 16369 3047 Vinko Tadić T F p 1906 3048 Asim Delalić T E p 16369 Suad Menzil T F p 14153 See also Haris Jusić T F 11221-11222 3049 Suad Menzil T F p 14116 3050 Vinko Tadić T F p 1911 3051 Ivanka Tavić T F p 1177 3042 Case No IT-01-47-T 387 15 March 2006 289 21623 BIS that he had not treated the detainees at the Blacksmith Shop 3052 Lastly several witnesses agree that ICRC representatives visited and registered the detainees held at the Blacksmith Shop 3053 1329 In the meantime on 12 June 1993 following an agreement reached on 10 June 1993 in Kiseljak between the HVO and the ABiH on the cessation of hostilities between the two armed forces 3054 the Accused Hadžihasanović forwarded to the subordinated units an order of 11 June 1993 from the ABiH Supreme Command relating to the creation of a joint humanitarian commission for supervising the release of all prisoners 3055 On 13 June 1993 the Accused Hadžihasanović ordered the subordinate units to provide him by no later than 14 June 1993 the list of detention centres the number of prisoners and the status civilian or HVO soldier of the persons detained by those units 3056 On 14 June 1993 pursuant to that order Mehmet Alagić authorised Enes Adžemović a member of the OG Bosanska Krajina Command to carry out an inspection of the ABiH units in the village of Mehurići to collect information about the captured members of the HVO and Croatian civilians 3057 1330 On the same day 14 June 1993 Rasim Delić acting pursuant to the agreement of 10 June 1993 ordered Stjepan Šiber to release all the prisoners who had not committed crimes likely to be prosecuted and stated that this distinction would fall within the jurisdiction of a joint humanitarian commission composed of representatives of the two armed forces the ICRC the HCR the European Community and UNPROFOR 3058 On 16 June 1993 Stjepan Šiber asked the 3rd Corps Command to guarantee free and safe passage for the released prisoners and the ICRC representatives in the territory under its control 3059 Pursuant to that order and to the order to release the prisoners Ramiz Dugalić the 3rd Corps Assistant Commander for Military Security ordered the subordinate unit commanders to permit the passage of the released prisoners the representatives of the ICRC and UNPROFOR 3060 Next on 20 June 1993 the Accused Hadžihasanović informed the subordinated units inter alia that the exchange would be guaranteed by the formation of a commission which would visit all the towns where prisoners were held 3061 3052 Enes Ribić T F pp 11399 and 11404 Vinko Tadić T F pp 1911-1912 Suad Menzil T F pp 14116-14117 Witness HE T F pp 16988-16989 3054 DH 163 3 DH 163 4 3055 DH 163 6 3056 P 157 3057 P 425 3058 DH 163 7 3059 DH 163 9 3060 DH 163 11 3061 DH 163 12 3053 Case No IT-01-47-T 388 15 March 2006 288 21623 BIS 1331 On 23 June 1993 the joint humanitarian commission consisting in particular of Ivan Negotević and Fadil Alihodžić for the ABiH and Lars Baggesen for the ECMM went to the village of Skradno in the municipality of Busovača where approximately 90 Muslim civilians from the village of Velika Bukovica were detained by the HVO and also to the village of Mehurići with Salko Beba where they found that 247 Croatian civilians were being held in the gymnasium of the Mehurići School 3062 On 24 June 1993 following an exchange agreement reached between the ABiH and the HVO the Croatian civilians held at the Mehurići School were exchanged for Muslim civilians held in Skradno while a few men were taken to the KP Dom in Zenica 3063 1332 The detainees held at the Blacksmith Shop remained incarcerated until they were transferred to the KP Dom in Zenica on 4 July 1993 3064 On that day Mehmet Alagić ordered Asim Delalić 306th Brigade Assistant Commander for Military Security to assemble the prisoners of war from the ABiH prisons in Krpeljići Mehurići and Han Bila by 1800 hours and to take them at that time to the KP Dom in Zenica 3065 The transfer to the KP Dom under the terms laid down in the order of 4 July 1993 is confirmed by Witness HE and Asim Delalić who stated that the transport to the KP Dom in Zenica was ultimately by bus 3066 Witness XC stated that he was incarcerated in the KP Dom in Zenica until 16 October 1993 when he was exchanged with another group of captured HVO soldiers 3067 b Mistreatment Paragraph 42 c and d 1333 After careful consideration of that evidence the Chamber finds that none of the nine persons held in the School gymnasium who testified before the Tribunal stated that he had personally suffered mistreatment during his stay One of those witnesses however stated that he heard that another detainee had been hit during an interrogation 3068 and another that he saw signs of mistreatment on one of the detainees returning from interrogation 3069 Three witnesses however made no mention of any physical violence 3070 three stated that they were treated properly during their detention 3071 and one stated that he had seen no signs of mistreatment on the men returning 3062 DH 167 7 P 430 DH 243 under seal Witness ZL T F p 4368 P 393 under seal para 21 Witness AH T F p 1222 DH 1915 and DH 167 8 3064 Vinko Tadić T F p 1909 Witness XC T F pp 1708 and 1715 3065 P 104 3066 Asim Delalić T F pp 16370 and 16409 3067 Witness XC T F pp 1730-1731 3068 Witness XC T F p 1701 3069 Ivanka Tavić T F p 1177 3070 Witness ZF T F p P 396 under seal P 397 under seal 3071 P 92 under seal para 35 Witness ZL T E p 4405 P 393 under seal paras 18-21 3063 Case No IT-01-47-T 389 15 March 2006 287 21623 BIS from interrogation 3072 Moreover with regard to the persons held in the gymnasium Witness Lars Baggesen stated that “during the circumstances we think that they were well treated”3073 and did not mention any mistreatment 1334 Accordingly the Chamber finds that two cases of mistreatment were reported one by Witness XC the other by Ivanka Tavić and that both cases related to mistreatment during interrogations 3074 The evidence indicates that the interrogations were carried out solely on captured HVO soldiers or on Croatian detainees of weapon-bearing age likely belonging to the HVO who were detained except for a very small number of cases in the Blacksmith Shop and not on Croatian civilians detained in the gymnasium not suspected of having directly participated in the hostilities 3075 That finding is borne out by the fact that Witness XC was a soldier in the HVO3076 and the person he heard being beaten was very probably detained at the Blacksmith Shop 3077 Furthermore the Chamber notes that the testimony of Ivanka Tavić is contradicted by Witness AH who stated that he saw no signs of mistreatment on detainees returning from interrogation 3078 1335 On the basis of the foregoing the Chamber considers that since the testimony relating to mistreatment of detainees held in the gymnasium comes from a small number of witnesses and is uncorroborated it does not prove beyond a reasonable doubt that serious physical violence was used against Croatian civilian detainees imprisoned in the sports room 1336 As for the conditions of detention the Chambers finds that while the 10-by-15 metre gymnasium was too small to accommodate approximately 250 prisoners the witnesses did not generally complain of lack of space or overcrowding in the sports room Furthermore even though the food was of poor quality and distributed in small amounts the testimony is not such as to establish that there was a serious lack of food at the School The detainees were fed and received food from the Civilian Protection and villagers of Mehurići The School had running water in the toilets to which the detainees had access Witness Lars Baggesen stated moreover that during his visit on 23 June 1993 “we spoke with the persons detained in the gymnasium and they said ‘Okay we have something to drink we have something to eat We can have fresh air ’”3079 In 3072 Witness AH T F p 1223 Lars Baggesen T F p 7071 3074 Witness XC T F p 1701 Ivanka Tavić T F p 1177 3075 Haris Jusić T F pp 11218-11219 Asim Delalić T F pp 16369 and 16395-16396 DH 2091 para 10 Witness XC T F pp 1700-1701 1711-1712 and 1728 Vinko Tadić T F pp 1907 and 1911 3076 Witness XC T F p 1678 3077 Witness XC T F pp 1701 and 1709 3078 Witness AH T F p 1223 3079 Lars Baggesen T F p 7071 3073 Case No IT-01-47-T 390 15 March 2006 286 21623 BIS addition the testimony does not show that that there was any intention to starve the people detained or that there was any difference of treatment between the detainees and the soldiers present at the School In contrast blankets were not distributed to the detainees in sufficient numbers As for the sanitary conditions the witnesses generally agree in stating that the sanitary facilities namely only one toilet were insufficient in view of the large number of detainees Conversely the testimony is inconsistent as regards access to a shower Next the witness statements show that in general medicine and medical personnel including a doctor a military reservist doctor and a medical assistant were made available to the detainees Moreover no witness from the School complained of not having received medical treatment Lastly during the 17 days of detention the ICRC was authorised to visit the detainees held at the School 1337 In conclusion even though the detention conditions at the School could most probably be regarded as inadequate during normal times the general situation of the detainees housed in the School gymnasium does not appear to the Chamber to have been so serious as to evidence a deliberate intention to harm or damage the physical integrity or health of the persons concerned Consequently the Accused Hadžihasanović cannot be held responsible for the count of mistreatment on this basis 1338 Conversely the Chamber finds that the detainees held at the Blacksmith Shop were treated very differently The testimony as to physical violence suffered by detainees at the Blacksmith Shop is specific consistent and detailed and as a result the Chamber finds it credible The Chamber considers that despite the fact that only two Prosecution witnesses Witness XC and Vinko Tadić were called by the Prosecution to testify about the physical violence inflicted on the detainees at the Blacksmith Shop their testimony is supported to a certain extent by Ivanka Tavić even though she named only one specific victim and is such as to convince the Chamber that repeated cruel treatment was meted out to the detainees at the Blacksmith Shop The Chamber concludes moreover that it appears from that testimony that the perpetrators of the cruel treatment intended to cause the prisoners at the Blacksmith Shop serious pain and suffering 1339 As far regards the perpetrators of the mistreatment a distinction should be made between the two above-mentioned periods during which the crimes of mistreatment were committed 3080 As regards the first period the testimony of Vinko Tadić shows that the interrogations accompanied by beatings were carried out by members of the Zenica Military Police 3081 Moreover as previously indicated in the Judgement Haris Jusić informed the Chamber that two officers of the Zenica 3rd 3080 3081 See supra para 1322 Vinko Tadić T E p 1907 Case No IT-01-47-T 391 15 March 2006 285 21623 BIS Corps whom he regarded as his superiors arrived at the School in Mehurići to take statements from certain persons 3082 He did not mention the arrival at the School of other officers from Zenica responsible for interrogating the detainees Consequently in the Chamber’s opinion the perpetrators of the mistreatment meted out during the interrogations in question can belong only to the ABiH 3rd Corps Military Police Paragraph 42 d of the Indictment however alleges that mistreatment was inflicted on detainees by ABiH 3rd Corps 306th Brigade soldiers As a result the Chamber finds that as regards the first period indicated the evidence adduced by the Prosecution during the trial does not correspond to the material fact set out in the Indictment relating to the identity of the subordinates In line with its previous finding 3083 the Chamber considers the Indictment is vitiated by an error which should have prompted the Prosecution to apply to the Chamber for leave to amend the Indictment accordingly Since no such application has been received by the Chamber it concludes that it need not rule on this matter 1340 As for the second period the Chamber finds that with regard to the mistreatment of the detainees in the Blacksmith Shop on the occasion of the cleaning work Vinko Tadić testified to the Chamber that the treatment was meted out on the first floor of the School by soldiers in the corridor 3084 He stated that he already knew some of those soldiers by sight and that they were not civilian police 3085 As for the beatings of the detainees at the Blacksmith Shop during the interrogations and on the way to the toilets as described by Witness XC the Chamber finds that he gave no indication of the identity of the attackers The Chamber notes however that the witnesses systematically stated that the interrogations were carried out in the building of the Mehurići Elementary School 3086 The Chamber considers that the aforementioned testimony of Vinko Tadić combined with the finding that during this period the only ABiH soldiers present at the School responsible for interrogating Croatian detainees belonged to the OG Bosanska Krajina 306th Brigade 1st Battalion 3087 is such as to prove beyond a reasonable doubt that the perpetrators of the mistreatment in question were members of the 3rd Corps 306th Brigade 1341 As to the detention conditions at the Blacksmith Shop while it appears from consideration of the evidence that the amount of the rations varied somewhat over the period in question the 3082 Haris Jusić T F pp 11255-11257 and 11264 T E p 11260 See the part of the Judgement relating to the duty to inform an accused of the nature of and the reasons for the charges brought against him 3084 Vinko Tadić T E p 1913 The Chamber notes that Vinko Tadić stated that the soldiers on the first floor belonged to the ABiH T F p 1909 3085 Vinko Tadić T F p 1914 3086 Witness XC T F pp 1712-1713 and 1728 Vinko Tadić T F pp 1897 1900 and 1907 3087 Witness XC T F p 1696 Halim Husić T F pp 10883 10897 and 10910 Derviš Suljić T F pp 11303-11304 Sulejman Ribo T F p 11092 Esed Sipić T F p 14749 Witness HB T F p 12583 Munir Karić T F p 11448 3083 Case No IT-01-47-T 392 15 March 2006 284 21623 BIS Chamber has no doubt that the food given to the detainees was in any event insufficient Moreover the testimony leaves no doubt as to the small amount and therefore definite inadequacy of the space available for 10 to 15 detainees per cell and the degree of discomfort in which the detainees were forced to sleep The detainees did not have blankets beds or even mattresses on which to sleep and there were too many detainees to allow them all to lie down Furthermore even though the testimony is inconsistent as to access to medical care at the Blacksmith Shop the Chamber is not convinced by the efforts of the Defence for the Accused Hadžihasanović to show that the detainees at the Blacksmith Shop were properly cared for It finds that of the two Defence witnesses who stated that medical treatment was provided to the prisoners at the Blacksmith Shop Suad Menzil and Asim Delalić the latter did not mention having seen a detainee at the Blacksmith Shop except on one occasion for a few minutes at an interrogation 3088 and hence in the Chamber’s opinion that testimony is not reliable on this point Lastly the fact that the prisoners at the Blacksmith Shop were confined in a room without any light persuades the Chamber that the detainees were exposed to conditions such as clearly to violate their human dignity punishable as cruel treatment In addition the Chamber concludes that these privations and conditions were the result of a deliberate decision and not the result of necessity insofar as the conditions obtaining at the School – albeit insufficient in normal times – were much better than those at the Mehurići Blacksmith Shop Lastly the OG Bosanska Krajina and the 306th Brigade were de facto the authorities with the power to decide on the detention of the persons incarcerated at the Blacksmith Shop and on maintaining the detention and transferring those prisoners 3089 Consequently responsibility for the detainees held at the Blacksmith Shop was borne entirely by the ABiH The fact that the civilian police guarded the prisoners at the Blacksmith Shop is evidence solely of coordination between the civil and the military authorities and is capable in no case of affecting the conclusion that the detainees at the Blacksmith Shop came under the sole responsibility of the ABiH 1342 The Chamber finds that the victims of the cruel treatment at the Blacksmith Shop were not directly involved in the hostilities Indeed the evidence adduced in the proceedings shows that the prisoners transferred to the Blacksmith Shop had the status of Bosnian Croat civilians3090 or prisoners of war 3091 3088 Asim Delalić T F pp 16395-16397 See supra paras 1306 1307 and 1332 3090 Vinko Tadić T F p 1910 3091 Witness XC T F pp 1678 and 1689 P 104 3089 Case No IT-01-47-T 393 15 March 2006 283 21623 BIS 1343 On the basis of the foregoing the Chamber concludes that the elements of the crime of cruel treatment at the Mehurići Blacksmith Shop have been established for the period running from 6 June 1993 to 4 July 1993 iii Findings of the Chamber regarding the Responsibility of Enver Hadžihasanović a Effective Control of Enver Hadžihasanović over the Perpetrators of the Crime 1344 The Chamber has concluded that the cruel treatment alleged in paragraph 42 c and d of the Indictment was committed by soldiers of the OG Bosanska Krajina 306th Brigade Since that Brigade was de jure subordinated to the 3rd Corps at the material time 3092 it is presumed that the Accused Hadžihasanović exercised effective control over that unit and the perpetrators of the mistreatment belonging to it 3093 1345 Moreover the evidence shows that the 306th Brigade was carrying out the orders of the Accused Hadžihasanović through the intermediary of the OG Bosanska Krajina For example following an order by the Accused Hadžihasanović on 13 June 1993 to the subordinated units to provide him with a list of detention centres and the number and status of the prisoners held by those units 3094 Mehmet Alagić the OG Bosanska Krajina Commander ordered one of its members Enes Adžimović to inspect the units stationed at Mehurići School in order to gather information about the members of the HVO and the Croatian civilians who had been captured 3095 1346 Likewise the Defence for the Accused Hadžihasanović does not dispute the fact that the 306th Brigade was subordinated to the Accused Hadžihasanović and adduced no evidence to rebut that presumption 1347 Consequently the Chamber concludes that the Accused Hadžihasanović exercised effective control over the perpetrators of the mistreatment and that there was a superior-subordinate relationship within the meaning of Article 7 3 of the Statute 3092 See supra para 391 See supra para 79 3094 P 157 3095 P 425 3093 Case No IT-01-47-T 394 15 March 2006 282 21623 BIS b Knowledge of Enver Hadžihasanović 1348 The Prosecution submits that the Accused Hadžihasanović had reason to know and knew that his subordinates were committing crimes at the Mehurići Blacksmith Shop First it submits that following the detention of the persons at the Blacksmith Shop the Accused Hadžihasanović had knowledge such that he was under a duty to obtain information about the said detention conditions there It bases itself on the fact that Mehmet Alagić asked for information about the detention centres and the persons imprisoned in Mehurići and released a civilian held captive in his zone of control 3096 Second it alleges on the basis of Exhibit P 904 that the Accused Hadžihasanović was actually informed of the situation during a meeting held on 19 June 1993 in the presence of among others Tihomir Blaškić 3097 Third it submits by reference to Exhibit P 589 and the testimony of Witness ZP that the Accused Hadžihasanović was questioned by Witness ZP his superior about the detainees at the camp in Mehurići and that the Accused Hadžihasanović answered that he would find out about the arrest of those detainees 3098 Lastly the Prosecution argues on the basis of Exhibit P 431 in which Witness ZP informed the Presidency of the Republic of Bosnia and Herzegovina and the ABiH Supreme Command Main Staff Commander about specific problems within the 3rd Corps notably in connection with the mistreatment of civilians in Mehurići 3099 1349 The Defence for the Accused Hadžihasanović submits that the Accused Hadžihasanović had no knowledge of the alleged mistreatment 3100 In support of this submission the Defence argues that while Salko Beba was informed further to the report from Enes Adžemović that there were 10 to 15 HVO soldiers held at the Mehurići Blacksmith Shop he was not informed of any mistreatment against them 3101 Moreover it alleges that weight should not be given to the documents from Witness ZP in as much as Witness ZP himself recognised at the time he wrote his reports that he did not have good information 3102 1350 First the Chamber finds that on 19 June 1993 a meeting took place between representatives of the HVO the ABiH and the international community in Vitez in order to discuss in particular the release of the prisoners Stjepan Šiber the Accused Hadžihasanović and Džemal Merdan represented the ABiH and Tihomir Blaškić in particular represented the HVO ECMM 3096 Prosecution Final Brief para 253 Ibid para 254 3098 Ibid para 255 3099 Ibid para 256 3100 Hadžihasanović Defence Final Brief para 872 3101 Ibid paras 866-867 3097 Case No IT-01-47-T 395 15 March 2006 281 21623 BIS representative Jean-Pierre Thébault and UNPROFOR representative Alastair Duncan were also present On this occasion Tihomir Blaškić complained that the agreement on the release of prisoners was not being respected and emphasised the problem of the detainees held in Travnik Mehurići and elsewhere The 3rd Corps Commander responded to this complaint by stating that some of the towns mentioned were not in his zone of responsibility 3103 In the absence of any other indication the Chamber considers that the intervention of Tihomir Blaškić like the response of the Accused Hadžihasanović had to do only with the problems connected with the fact that the agreement concluded between the parties on the release of prisoners was not being respected and not as the Prosecution alleges with any mistreatment at Mehurići This being so the Chamber observes that according to the ECMM report drafted after that meeting the representatives of the two armed forces complained about the mistreatment of prisoners 3104 When questioned about the report however Witness ZP stated that those complaints consisted of general criticisms and that no specific place of detention had been mentioned in connection with the issue of mistreatment 3105 Consequently the Chamber rejects the Prosecution’s allegation with regard to this point as unfounded 1351 Second the Chamber notes that on 20 June 1993 Witness ZP put a series of questions orally to the Accused Hadžihasanović on the situation obtaining in his zone of responsibility Among the list of questions recorded in Exhibit P 589 the second and third are as follows “2 Do you know t hat on 8 June 1993 in Bikoši village near Guča Gora about 35 people were executed by a firing squad They were selected from the large number of arrested men because they were younger four survived by chance They are all from Maline village and they were detained in the Mehurići collection centre The answer to both questions was 'I did not know’ 3 Do you or your security organs know how many people have been arrested and are currently in 3106 the camp in Mehurići The answer is 'I do not know but I will check’ ” It appears from these passages that while the questions sought to find out from the Accused Hadžihasanović what he knew about the existence and the number of prisoners held in Mehurići it must be observed that they were not designed to inform him about the mistreatment suffered by the prisoners at Mehurići Moreover when questioned by the Chamber about the content of Exhibit P 589 Witness ZP merely stated that he remembered his conversation with the Accused 3102 Ibid para 869 P 904 3104 P 213 3105 Witness ZP T F pp 8849-8851 3106 P 589 3103 Case No IT-01-47-T 396 15 March 2006 280 21623 BIS Hadžihasanović and that it had taken place face to face in the Accused’s office 3107 Consequently in the Chamber’s opinion there is no doubt that on the basis of this evidence the Accused Hadžihasanović could neither have known nor had reason to know that his subordinates were committing or were about to commit crimes of mistreatment against the prisoners held at the Mehurići Blacksmith Shop Accordingly the Chamber does not give credence to the Prosecution’s argument on this point 1352 Third the Chamber finds that on 25 June 1993 following the conversation he had on 20 June 1993 with the Accused Hadžihasanović3108 and a report of 23 June 1993 from the members of the joint humanitarian commission 3109 Witness ZP sent the Presidency of the RBiH and the ABiH Supreme Command Main Staff Commander a report complaining of acute problems in the 3rd Corps and recommending changes of personnel within the 3rd Corps The problems identified by Witness ZP included the following “On 22 June 1993 members of the Commission for the release of prisoners Alihodžić and Negovetić learnt from Salko Beba from Operations group West that on the previous day the mujahedin executed about 50 civilians in the vicinity of the village Mehurići near Vlašić Salko Beba’s unit is guarding 247 civilians in that village against the so-called “Death Brigade” which is mistreating even the local Muslim population looting and killing On the same day mujahedin from that “Death Brigade” who are attracting our soldiers with money almost shot at UNPROFOR vehicles carrying the Commission members with Zolja and Osa handheld rocket launchers I emphasise looting and crime prevail Soldiers from the “positions” are carrying bags full of goods through Zenica and I have received information that some refuse to go to positions unless there is something to loot the 309th bbr Mountain Brigade The police of certain brigades are still arresting and beating up civilians in basements The MUP Ministry of the Interior that is the Security Services Centre and the 3rd Corps security service are not cooperating whatsoever as was 3110 seen by Mr Ganić during his meeting at the 3rd Corps on 15 May 1993 ” When questioned by the Chamber about Exhibit P 431 Witness Džemal Merdan stated that he did not know how Witness ZP had that information 3111 As for the content of the document the Chamber would observe that the information set out in the first passage does not report crimes of mistreatment by subordinates of the Accused Hadžihasanović against the civilian population detained in Mehurići and also that the information set out in the second passage related to crimes of 3107 Witness ZP T F pp 8816-8817 When Witness ZP gave evidence the Chamber further questioned him on Exhibit P 589 The Chamber notes however that the additional remarks did not relate to the substance of his conversation on 20 June 1993 with the Accused Hadžihasanović or to the knowledge of the Accused Hadžihasanović about mistreatment inflicted on the detainees imprisoned in Mehurići In making those additional remarks Witness ZP stated that he had received oral information about mistreatment from Jean-Pierre Thébault but recognised that while JeanPierre Thébault probably mentioned the names of certain places of detention he no longer remembered them T F pp 8852-8854 In addition the Chamber notes that Exhibit DH 1257 cited by the Defence for the Accused Hadžihasanović in footnote 831 of its Final Brief was not produced in the proceedings as an admitted document 3108 P 589 3109 P 430 DH 243 confidential 3110 P 431 Case No IT-01-47-T 397 15 March 2006 279 21623 BIS mistreatment by the police of some brigades in basements in Zenica Consequently that document could not serve in any way to substantiate the knowledge of the Accused Hadžihasanović of the physical violence inflicted on the persons detained at the Mehurići Blacksmith Shop 1353 After considering the relevant evidence as to the possible knowledge of the Accused Hadžihasanović the Chamber concludes that the Prosecution has not proved beyond a reasonable doubt that the Accused Hadžihasanović knew or had reason to know that his subordinates were preparing to commit or had committed mistreatment at the Mehurići Blacksmith Shop As a result it cannot conclude that the Accused Hadžihasanović is criminally responsible within the meaning of Article 7 3 of the Statute Consequently the Chamber need not consider the other constituent elements of command responsibility under the Statute iv Conclusions of the Chamber 1354 The Chamber considers that the evidence does not prove beyond a reasonable doubt that crimes of mistreatment were committed against Bosnian Croats detained at the Mehurići Elementary School In addition the Chamber concludes that there is no proof that the Accused Hadžihasanović knew or had reason to know that his subordinates were preparing to commit or had committed crimes of mistreatment at the Mehurići Blacksmith Shop The Accused Hadžihasanović cannot therefore be held criminally responsible for the offence mentioned in count 4 paragraphs 41 bb and 42 c and d of the Indictment f Village of Orašac Mistreatment of Prisoners and Beheading of Dragan Popović at Orašac Camp 1355 The Indictment alleges that Bosnian Croats and Bosnian Serbs were detained at Orašac camp which was guarded and administered by mujahedin subordinated to the ABiH 3rd Corps OG Bosanska Krajina from around 15 October 1993 to 31 October 1993 and were regularly subjected to mistreatment there Allegedly those detainees were seriously beaten and subjected to physical and psychological abuse inflicted by mujahedin subordinated to the OG Bosanska Krajina The Indictment also alleges that mujahedin subordinated to the OG Bosanska Krajina committed the crime of murder by ritually decapitating Dragan Popović a Bosnian Serb civilian on 20 October 1993 at Orašac camp From around 26 January 1993 to 31 October 1993 the Accused Hadžihasanović knew or had reason to know that those mujahedin placed under his command and 3111 Džemal Merdan T F pp 13750-13752 Case No IT-01-47-T 398 15 March 2006 278 21623 BIS effective control were about to commit crimes of mistreatment or had done so and he failed to take the necessary and reasonable measures to prevent those acts from being committed or to punish the perpetrators 3112 1356 The Accused Hadžihasanović is therefore alleged to have committed cruel treatment and murder violations of the laws or customs of war punishable by Articles 3 and 7 3 of the Statute and recognised by common Article 3 of the Geneva Conventions i Arguments of the Parties 1357 The Prosecution alleges that the El Mujahedin unit administered a detention centre in Orašac from around 15 October 1993 to December 1993 that members of that unit abducted Bosnian Croats and Bosnian Serbs on two occasions 15 October 1993 and 18 or 19 October 1993 and held them at Orašac camp 3113 According to the Prosecution they mistreated and threatened the prisoners and executed Dragan Popović a Bosnian Serb civilian by beheading him at Orašac camp 3114 The Prosecution submits that the perpetrators of those crimes were under the effective control of the Accused Hadžihasanović3115 and that the Accused Hadžihasanović had reason to know that his subordinates were about to commit the crimes of mistreatment and the murder of Dragan Popović and that subsequently he knew that his subordinates had committed those crimes 3116 It maintains that he did not however take the necessary and reasonable measures to prevent the mistreatment and the murder or to punish the perpetrators 3117 1358 The Defence for the Accused Hadžihasanović does not dispute that the crimes of mistreatment and murder were committed by mujahedin but alleges that they were perpetrated in an unknown place 3118 It states however that the Accused Hadžihasanović did not exercise control over the mujahedin in Orašac3119 and that he had knowledge neither of the abduction of Bosnian Croats and Bosnian Serbs nor of the crimes of mistreatment and murder 3120 Lastly it submits that even though the mujahedin were not placed under the effective control of the 3rd Corps the military authorities took every possible measure to ensure that the prisoners were released 3112 Third Amended Indictment paras 41 bc 42 e and 43 e Prosecution Final Brief paras 260 and 262-263 3114 Ibid paras 260 262 and 267 3115 Ibid paras 270-271 3116 Prosecution Final Brief paras 259 265-266 and 274 Prosecution Closing Arguments T F pp 19074-19078 3117 Prosecution Final Brief paras 266 269 and 273-274 Prosecution Closing Arguments T F pp 19078-19079 3118 Hadžihasanović Defence Final Brief paras 1087 1091 1099 and 1122 3119 Hadžihasanović Defence Final Brief paras 1112-1114 1124-1126 1131 1137-1139 1142-1144 and 1145 3120 Hadžihasanović Defence Final Brief paras 1117 1139 1141 and 1145 Hadžihasanović Defence Closing Arguments T F pp 19242-19243 3113 Case No IT-01-47-T 399 15 March 2006 277 21623 BIS ii Findings of the Chamber regarding the Mistreatment and Murder Committed at Orašac Camp a Sequence of Events between early October 1993 and January 1994 1359 As indicated previously 3121 Orašac was a Croatian village in the municipality of Travnik consisting of 35 houses 3122 The Croatian villagers seem to have left Orašac between 24 April 1993 and 8 June 1993 following the murders in Miletići on 24 April 1993 3123 The mujahedin set up in Orašac in the second half of 19933124 and built a four-storey breeze-block building there 3125 They also set up in the Croatian villagers’ houses 3126 1360 On 3 October 1993 five members of the El Mujahedin detachment drove through an area controlled by the HVO near Novi Travnik Following an ambush by the HVO four of them including Wahiudeen the military commander of the mujahedin 3127 were killed and Emsud Kadirić who was wounded was taken prisoner and taken to the prison in Kaonik 3128 1361 After that incident Abu Džafer a mujahedin 3129 went on several occasions to the premises of the exchange commission in Travnik to request the exchange of Emsud Kadirić Salko Beba OG Bosanska Krajina Assistant Commander for Military Security3130 and the president of the State municipal exchange commission 3131 explained to him how the proper procedure for exchanges worked but from the outset Abu Džafer threatened him with abducting as many Croats as necessary to procure that exchange 3132 Salko Beba explained to him that prisoners of war could be exchanged but that in no case could Croats be collected in the manner Abu Džafer described 3133 3121 See supra paras 427-430 P 760 Tomislav Rajić T F pp 2813-2814 3123 Tomislav Rajić T F pp 2813-2814 3124 Tomislav Rajić T F p 2814 Witness HE T F pp 17010 and 17011 P 394 under seal para 11 3125 Tomislav Rajić T F p 2814 3126 Tomislav Rajić T F p 2814 Videocassette P 761 shows the various facilities used by the mujahedin in the camp including a building for meetings and prayers and a detention centre See photograph P 52 3127 P 482 T E p 8538 3128 Witness HE T F p 16998 DK 15 P 216 P 379 P 709 C 13 entry 3 October 1993 3129 P 461 Witness HE T F pp 17043-17046 The Chamber notes that Abu D afer himself had been exchanged for HVO soldiers including Živko Totić on 17 May 1993 P 155 3130 Jasenko Eminović T F p 5806 Ivo Fi ić T F pp 2269-2270 3131 Samir Sefer T F p 11958 Jasenko Eminović T F pp 5732 and 5742 3132 Witness HE T F pp 16998-17000 3133 Witness HE T E p 16999 3122 Case No IT-01-47-T 400 15 March 2006 276 21623 BIS 1362 Salko Beba reported those threats to his higher command and informed UNPROFOR the ECMM and the ICRC in Zenica 3134 Mehmed Alagić threatened the mujahedin and told them not to do anything which might involve civilians 3135 1363 On 7 October 1993 a meeting was held in Zenica between the ABiH 3rd Corps exchange commission and the HVO exchange commission when Salko Beba announced that nothing would be settled unless the prisoner of war Emsud Kadirić was exchanged immediately Salko Beba added that unless Emsud Kadirić was released 20 innocent Croats would be arrested in Travnik every day 3136 1364 On 15 October 1993 in spite of all the warnings of commander Alagić and the measures taken by Fikret Čuskić to forestall any harmful action by Abu Džafer the mujahedin carried out their threats 3137 At around 1100 hours four or five armed mujahedin entered the offices of the humanitarian organisation “Caritas” in Travnik and abducted six Croatian civilians Father Vinko Vidaković Sister Ljubica Šekerija Zvonko Kukrić Živko Gašo Witness Z12 and Witness Z13 3138 They forced them to board a truck and to cover their heads with their jackets with the exception of Živko Gašo who managed to escape 3139 and drove the remaining five Croatian civilians to Orašac camp 3140 After her arrival at Orašac camp Sister Ljubica Šekerija was promptly released 3141 1365 Witnesses Z12 and Z13 described to the Chamber the treatment and threats to which Father Vinko Vidaković Zvonko Kukrić and they themselves had been subjected at Orašac Camp during their incarceration 1366 Thus upon their arrival at the camp the prisoners were forced to tread on a rosary after having answered the question whether they were Christians in the affirmative 3142 Witness Z13 stated that he was careful not to step on the cross and Witness Z12 said that when Father Vinko Vidaković refused to comply the mujahedin did not try to force him 3143 According to Witness Z12 the detainees were also given Muslim names 3144 Next with their heads covered with jackets and 3134 Witness HE T F pp 16999-17000 and T E 17000 Witness HE T E p 17000 3136 P 709 See also Witness HE T F p 17001 3137 Witness HE T F p 17002 and T E p 17001 3138 P 394 under seal para 6 P 395 under seal paras 12-16 P 740 under seal See also Witness HE T F p 17002 3139 P 394 under seal paras 7 and 9 P 395 under seal paras 17-18 and 22 3140 The Chamber notes that Witnesses Z12 and Z13 learned after they were released that they had been detained in the village of Orašac P 394 under seal para 11 P 395 under seal para 45 See also infra the discussion in para 1391 3141 P 394 under seal para 12 3142 P 394 under seal para 10 P 395 under seal para 24 3143 P 394 under seal para 10 P 395 under seal para 24 3144 P 394 under seal para 15 3135 Case No IT-01-47-T 401 15 March 2006 275 21623 BIS their hands tied behind their backs Witnesses Z12 Z13 and Zvonko Kukrić were taken to a room where they were detained and Father Vinko Vidaković was locked up in another room 3145 During the night Witness Z12 who suffered acutely from prostate trouble begged to be allowed to go to the toilet but his request was refused 3146 Witness Z13 stated that he heard cries from Father Vinko Vidaković until the morning and inferred from this that he was being mistreated and beaten 3147 1367 The next day Witness Z12 was allowed to go to the toilet under escort and he passed by Father Vinko Vidaković whose nose he observed was covered with blood 3148 Next a guard hit Witness Z12 in the stomach because he was unable to answer a question 3149 Witness Z13 states that he was ordered to suck Zvonko Kukrić’s penis When the latter had unbuttoned his trousers however the guards told him that he did have to do so but imitate fellatio while Zvonko Kukrić’s trousers were not open 3150 Subsequently Witness Z13 was taken to the room where Father Vinko Vidaković was detained and ordered to hit him while Father Vinko Vidaković was lying on the ground with his hands tied behind his back and his legs tied When he refused to do so the guards pointed rifles in his direction and forced him to strike him He stated however that he only struck lightly and did not cause Father Vinko Vidaković any pain 3151 Lastly the former prisoners at Orašac Camp consistently maintained that from time to time the guards kicked them and threatened to cut their ears off with a knife 3152 They add however that the threats were not carried out and they were not beaten 3153 1368 In the evening of 16 October 1993 Witnesses Z12 and Z13 were released 3154 They were taken to the office of the exchange commission in Travnik where they were received by Salko Beba 3155 Witness HE adds that after releasing them the mujahedin went to the office of the OG Bosanska Krajina Command to offer their apologies 3156 3145 P 394 under seal para 12 P 395 under seal paras 25-28 P 394 under seal para 13 P 395 under seal paras 28 and 35 3147 P 395 under seal para 35 3148 P 394 under seal para 13 3149 P 394 under seal para 14 3150 P 395 under seal para 38 3151 P 395 under seal para 39 3152 P 394 under seal para 15 P 395 under seal paras 32 and 36-37 3153 P 394 under seal para 15 P 395 under seal paras 37-38 3154 P 394 under seal para 18 P 395 under seal paras 40-41 Witness HE stated that the five Croatian civilians were all released by the mujahedin two days later T E p 17002 Nevertheless the depositions of Witnesses Z12 and 13 are consistent in stating that they were the only prisoners released on 16 October 1993 P 394 under seal para 18 P 395 under seal paras 40-41 The evidence analysed infra however shows that Father Vinko Vidaković and Zvonko Kukrić were not released until the night of 19 to 20 October 1993 or on 20 October 1993 3155 P 394 under seal para 19 P 395 under seal para 43 3156 Witness HE T F pp 17001-17002 3146 Case No IT-01-47-T 402 15 March 2006 274 21623 BIS 1369 According to Witness HE before the prisoners were released a member of the OG Bosanska Krajina Command put pressure on the mujahedin and threatened to attack them with mortar fire He added that as a result of this pressure and the threats the mujahedin released the abducted prisoners 3157 While Witness HE did not specify the date on which those threats were made the time frame he described strongly suggests that they were made before Witnesses Z12 and Z13 were released on 16 October 1993 3158 1370 On 18 October 1993 a representative of UNPROFOR showed representatives of the foreign mujahedin based in Mehurići a videocassette proving that four of their fellows had been killed in an ambush set by the HVO near Novi Travnik 3159 On that the representatives of the El Mujahedin unit intimated that it was their intention to release the two Croats held in detention 3160 1371 In the evening of 19 October 1993 the mujahedin abducted five prominent members of the Croatian and Serbian community of Travnik3161 in the Amerikanka quarter in Travnik near the seat of the ABiH exchange commission 3162 Witness Ivo Fišić Witness Dalibor Adžaip Kazimir Pobrić 3157 Witness HE T F p 17007 and T E p 17007 Witness HE puts these threats before the release of the first five prisoners T F p 17007 and T E 17007 He puts their release at two days after their abduction T E p 17002 Moreover given that Witness HE indicates that those first threats had a measure of success it is highly unlikely that they were made between the release of the first prisoners on 16 October 1993 and the release of the last two prisoners on 20 October 1993 insofar as five additional hostages had been abducted on 19 October 1993 3159 P 216 The Chamber notes that Angus Hay Britbat officer received from the HVO the video recording of the bodies of the four mujahedin following the ambush set by the HVO near Novi Travnik Angus Hay T F pp 8116-8117 and 8120 3160 P 216 3161 In 1981 Ivo Fišić a Bosnian Croat was elected president of the Travnik Municipal Executive Committee and before the war participated in the formation of the HVO government in Travnik Ivo Fišić T F pp 2279-2281 P 740 under seal Dalibor Adžaip a Bosnian Croat was a member of the HVO in Travnik Dalibor Adžaip T F pp 2393 and 2400 Kazimir Pobrić a Bosnian Croat worked for the territorial defence of the municipality of Travnik Ivo Fišić T F p 2248 Ivo Rajković a Bosnian Croat was a teacher and headmaster at the school and seems to have taken part in the formation of the HVO government in Travnik Ivo Fišić T F p 2251 P 740 under seal Witness HE T F p 17003 Dragan Popović was the offspring of a mixed marriage with a Serbian father and a Croatian mother but because of his name “Dragoljub” he was regarded as a Serb He was the financial manager of a company and before that had worked for the civilian police in Travnik P 496 P 380 Ivo Fišić T F p 2252 According to Witness HE Dragan Popović had worked before the war in the reserves of the State Security Service Witness HE T F p 17003 3162 Witness HE T F pp 17002-17003 3158 Case No IT-01-47-T 403 15 March 2006 273 21623 BIS Ivo Rajković and Dragan Popović 3163 They covered their heads with blankets and took them in an all-terrain vehicle to Orašac camp3164 where they were all imprisoned in the same room 3165 1372 Witnesses Ivo Fišić and Dalibor Adžaip raised before the Chamber the physical and psychological violence they underwent throughout their detention at Orašac camp Thus from their arrival in the evening of 19 October 1993 the detainees were subjected to beatings 3166 Ivo Fišić stated that the beatings were directed by an Arab trained in karate and that a group of soldiers punched and kicked them 3167 He stated that Dragan Popović was beaten more severely than the other detainees 3168 Next the prisoners were given nicknames to go with their physical appearance or ethnic origin such as “fat pig” or “Serb pig” The beatings then resumed and stopped or continued depending on whether or not the detainees used their nicknames 3169 Dalibor Adžaip states that the guards came into the room in which they were held in turns and hit the prisoners with anything that came to hand 3170 1373 The two former detainees at Orašac Camp are consistent in stating that the physical violence continued during the night of 19 to 20 October 1993 and the day of 20 October 1993 sometimes during interrogations 3171 Ivo Fišić stated that during that night he heard cries and groans from the next room and recognised the voice of one of his neighbours and colleagues “Zvonko” who had been abducted at the same time as the Travnik parish priest 3172 3163 Dalibor Adžaip T F pp 2400-2403 P 496 P 740 under seal Witness HE T F pp 17002-17003 Ivo Fišić T F pp 2246 2248 and 2250-2252 The Chamber notes that Witness Ivo Fišić stated that he had been arrested on 18 October 1993 In his statement however Ivo Fišić constantly refers to days of the week which correspond according to the calendar for October 1993 to dates coming after the dates he mentions The reasons why five more persons were abducted after the initial wave of abductions of five persons are not clear It cannot be ruled out that it was linked to the fact that on 18 October 1993 the mujahedin saw a videocassette proving the death of four of their fellows including Wahiudeen the military commander of the mujahedin P 216 That explanation however is confounded by the fact that at the time of the second wave of abductions on 19 October 1993 the mujahedin were still holding two Croatian civilians and did not release them until 20 October 1993 see infra para 1374 3164 Ivo Fišić T F pp 2249-2250 and 2256 Dalibor Adžaip T F pp 2401-2402 The Chamber notes that Ivo Fišić recognised the place where he was detained on photograph P 52 T F pp 2257-2260 Dalibor Adžaip indicated that he was held in a village probably located among the Croatian villages to the north of Guča Gora Maline and Mehurići T F p 2403 See infra para 1391 3165 Dalibor Adžaip T F p 2403 Ivo Fišić T F p 2250 3166 Dalibor Adžaip T F pp 2403-2404 Ivo Fišić T F pp 2250-2251 3167 Ivo Fišić T F p 2251 3168 Ivo Fišić T F pp 2251 and 2253-2254 3169 Ivo Fišić T F p 2251 3170 Dalibor Adžaip T F pp 2403-2405 3171 Dalibor Adžaip T F pp 2403-2405 Ivo Fišić T F pp 2253-2254 and 2263 3172 Ivo Fišić T F p 2253 The Chamber concludes that the person in question must be Zvonko Kukrić Case No IT-01-47-T 404 15 March 2006 272 21623 BIS 1374 In the night of 19 October 1993 to 20 October 1993 or on 20 October 1993 Zvonko Kukrić and Father Vinko Vidaković seem to have been released 3173 On 20 October 1993 Ivo Fišić entered the room in which “Zvonko” had been He did not see him but noticed blood on the walls 3174 1375 In the meantime the OG Bosanska Krajina Command had learned of the abduction of this second group of civilians 3175 According to Witness HE after the exchange commission and the civilian police had confirmed the news Mehmed Alagić summoned the chief of the Travnik civilian police and ordered the members of the command to take every step to identify the persons who carried out the abduction and the place where the hostages had been taken Following these measures it was discovered that the mujahedin were behind the abduction 3176 Witness HE added that when he learned the news a member of the OG Bosanska Krajina Command spoke about it to the ICRC the ECMM and the HCR in order to give them a list of persons abducted and that the representatives of those international organisations went to Travnik 3177 1376 According to Samir Sefer the president of the OG Bosanska Krajina commission for prisoner of war exchanges 3178 there was a rumour that the mujahedin had abducted Croatian civilians in order to exchange them for mujahedin taken prisoner by the HVO 3179 He stated that he contacted the HVO exchange commission but that it told him it was holding no imprisoned or dead mujahedin 3180 1377 On 20 October 1993 Mehmed Alagić ordered the mujahedin to release the prisoners who had been abducted the day before 3181 According to Witness HE a member of the OG Bosanska Krajina Command went to the mujahedin camp in Poljanice where he met Abu Haris the head of the El Mujahedin unit 3182 and Abu Džafer and gave them Mehmed Alagić’s order to release the prisoners immediately 3183 3173 Ivo Fišić T F pp 2253-2254 See also P 173 which indicates that on 20 October 1993 instead of releasing their last two Croatian hostages the mujahedin captured three other hostages 3174 Ivo Fišić T F pp 2253-2254 3175 Witness HE T F pp 17002-17003 3176 Witness HE T F pp 17003-17004 3177 Witness HE T F p 17004 3178 Samir Sefer T F p 11956 3179 Samir Sefer T F pp 11972-11973 3180 Samir Sefer T F p 11973 3181 P 173 P 376 See also Witness HE T F pp 17003-17004 3182 P 482 T F p 8542 and T E p 8538 see also P 656 3183 Witness HE T F pp 17004 and 17011 T E p 17003 Case No IT-01-47-T 405 15 March 2006 271 21623 BIS 1378 Witnesses Ivo Fišić and Dalibor Adžaip described to the Chamber the circumstances of the death of Dragan Popović On the morning of 21 October 19933184 the guards took Ivo Fišić Dalibor Adžaip Kazimir Pobrić and Dragan Popović hands tied out of the house where they were detained 3185 A considerable number of uniformed soldiers took them to a meadow not far from their place of detention which was accessible by means of an asphalted road 3186 When they arrived in the meadow between 50 and 100 uniformed soldiers formed a semi-circle around a ditch shouting incessantly “Tekbir Allah-u-Akbar” 3187 The prisoners were taken near the ditch and their hands untied 3188 At this moment a soldier brought Dragan Popović up to the edge of the ditch and another soldier tripped him up Dragan Popović fell on to the side of the ditch 3189 A soldier standing in front of the group of soldiers called a soldier named “Hasan” and gave him a hatchet 3190 Hasan knelt down to be level with Dragan Popović and cut his throat 3191 Hasan was given the order to cut the head from the body but when he failed to do so another soldier came up and carried out the task 3192 That soldier held up the head of Dragan Popović proudly and the other soldiers started to shout 3193 He then came up to the prisoners and made them kiss the dead man’s head which they did 3194 The prisoners were ordered to bury the body and the head of the dead man While they did so the soldiers started shouting even louder 3195 The two witnesses stated that the scene of the execution of Dragan Popović suggested a ritual 3196 1379 Subsequently the prisoners were escorted to the house where they had been detained 3197 Once the detainees arrived there a guard informed Ivo Fišić that it would be his turn the next day and Kazimir Pobrić was forced to give a detailed account of the ritual execution to Ivo Rajković 3184 Dalibor Adžaip refers in his deposition to the second or third morning following his arrest which corresponds to 21 or 22 October 1993 T F p 2405 Ivo Fi i refers to Thursday 20th October 1993 T F p 2254 Nevertheless according to the calendar for October 1993 Thursday of the week in question was 21 October 1993 The Chamber therefore considers that it is very likely that the execution of Dragan Popović took place on 21 October 1993 3185 Dalibor Adžaip T F p 2405 Ivo Fišić T F pp 2254-2255 Ivo Rajković stayed in the house where the prisoners were detained Ivo Fišić T F p 2255 Dalibor Adžaip T F p 2405 3186 Dalibor Adžaip T F p 2405 Ivo Fišić T F pp 2254-2255 Witness Ivo Fišić recognised the place where Dragan Popović was executed see photograph P 52 Ivo Fišić T F pp 2258-2260 3187 Dalibor Adžaip T F pp 2405-2407 Ivo Fišić T F pp 2254-2255 and 2257 3188 Dalibor Adžaip T F p 2405 Ivo Fišić T F p 2255 3189 Dalibor Adžaip T F p 2406 Ivo Fišić T F p 2255 3190 Dalibor Adžaip T F pp 2406 and 2408 Ivo Fišić T F p 2255 3191 Dalibor Adžaip T F p 2406 Ivo Fišić T F p 2255 3192 Dalibor Adžaip T F pp 2406 and 2408 Ivo Fišić T F p 2256 3193 Dalibor Adžaip T F p 2406 3194 Dalibor Adžaip T F p 2406 Ivo Fišić T F p 2256 3195 Dalibor Adžaip T F p 2406 Ivo Fišić T F p 2256 3196 Dalibor Adžaip T F p 2408 Ivo Fišić T F p 2256 3197 Dalibor Adžaip T F p 2408 Ivo Fišić T F p 2256 Case No IT-01-47-T 406 15 March 2006 270 21623 BIS who was not present 3198 Ivo Fišić stated that each time Kazimir Pobrić omitted a detail he was struck and had to start his account again from the beginning 3199 1380 Witness Ivo Fišić mentions that in the afternoon of the day of Dragan Popović’s execution Hasan and the soldier who finished off the execution ordered him to say which of them had executed the dead man Considering it better not to answer that question Ivo Fišić merely said that he did not recognise them as being the persons who carried out the execution That answer did not satisfy the two soldiers who beat Ivo Fišić so violently that he fell and lost consciousness 3200 Ivo Fišić went on by stating that on the following day a guard ordered him to strike Ivo Rajković with a stick When he took hold of it however Ivo Fišić realised that it was a heated metal bar and burned his hand Ivo Fišić added that the guard saw this as a joke and did not insist on his picking up the metal bar again 3201 Ivo Fišić stated that the detainees received no medical attention during their detention 3202 1381 On 22 or 23 October 1993 3203 Kazimir Pobrić was released from Orašac camp According to Witness HE he was released after Mehmed Alagić the OG Bosanska Krajina Commander spoke with the circle of Muslim clerics and naturalised Bosnian Muslims with a view to influencing the mujahedin 3204 Witness HE stated that after his release Kazimir Pobrić was not prepared to make a statement to the members of the OG Bosanska Krajina Command insofar as he was concerned about his safety and merely informed them that the other prisoners were still alive 3205 Ivo Fišić stated that from the day Kazimir Pobrić was released the mistreatment at Orašac Camp became less intense 3206 1382 According to Witness HE a member of the OG Bosanska Krajina Command went to Poljanice Camp in order to later summon Abu Haris to the office of the OG Bosanska Krajina Commander Since Abu Haris was not at the camp when he visited it he went back there the following day when he was able to speak with Abu Haris On that occasion Abu Haris stated that 3198 Ivo Fišić T F p 2257 Ivo Fišić T F p 2257 3200 Ivo Fišić T F p 2263 3201 Ivo Fišić T F p 2264 3202 Ivo Fišić T F p 2261 3203 Witness Dalibor Adžaip stated that Kazimir Pobrić was released two days after the incident involving Popović which works out as 23 October 1993 T F p 2408 Ivo Fišić refers to Friday 21st October 1993 T F p 22632265 According to the calendar for October 1993 the Friday of the week in question was 22 October 1993 See also P 496 3204 Witness HE T F p 17008 3205 Witness HE T E p 17008 3206 Ivo Fišić T F p 2265 3199 Case No IT-01-47-T 407 15 March 2006 269 21623 BIS Abu Džafer had abducted persons without his authorisation that they would soon be released and that he would be giving an explanation to Mehmed Alagić 3207 1383 On 29 October 1993 a meeting took place between Abu Haris and Mehmed Alagić in Alagić’s office 3208 Witness HE stated that on this occasion Mehmed Alagić threatened Abu Haris that if the mujahedin did not release the abducted Croats he would be obliged to disarm and attack them and told him that they should leave the region of Mehurići 3209 1384 On one occasion between 20 and 29 October 1993 a representative of the ICRC tried with the help of an officer from the OG Bosanska Krajina Command to pay a visit to the abducted civilians being held in detention 3210 To this end they went to the entrance of the mujahedin camp 3211 but when the officer announced the visit of the ICRC they were refused admission 3212 1385 Witness Ivo Fišić testified that on 5 November 1993 Mehmed Alagić informed the witness’ wife that he could no longer do anything to free Ivo Fišić or the other detainees 3213 1386 On 6 November 1993 Ivo Fišić and Ivan Rajković were released from Orašac Camp and transferred to the former JNA Barracks in Travnik 3214 the seat of the ABiH 3rd Corps 17th Brigade Command 3215 where they were received by Salko Beba 3216 Ivo Fišić and Ivo Rajković received medical treatment 3217 Two or three days later3218 or about mid-November 1993 3219 Ivo Fišić made a statement to Salko Beba in Beba’s office and subsequently to Fikret Čuskić the 17th Brigade Commander about the mistreatment of the prisoners and the beheading of Dragan Popović at Orašac camp 3220 He added that on those two occasions Salko Beba and Fikret Čuskić made it clear that they were unhappy with this3221 and that Fikret Čuskić expressed an intention to inform the RBiH President Alija Izetbegović about it According to Fikret Čuskić Mehmed Alagić 3207 Witness HE T F pp 17007-17008 P 177 P 179 Witness HE T F pp 17047-17049 3209 Witness HE T F pp 17047 and 17049-17050 3210 P 177 p 2 Witness HE T F pp 17004-17005 3211 Neither Witness HE nor Exhibit P 177 mention whether they tried to visit the mujahedin camps at Poljanice or Orašac Witness HE stated however that the officer in question of the OG Bosanska Krajina Command never went to Orašac Camp T F p 17034 Consequently it is more likely that the two persons in question went to the camp at Poljanice 3212 P 177 p 2 Witness HE T F pp 17004-17005 3213 Ivo Fišić T F p 2268 3214 Ivo Fišić T F pp 2268-2269 P 496 Witness HE T F p 17008 3215 Fikret Čuskić T F p 12050 C 16 entry 11 July 1993 The document indicates the date of 11 July 1997 but the war diary C 16 describes only one period of 1993 3216 Ivo Fišić T F pp 2268-2269 3217 Ivo Fišić T F p 2270 3218 Ivo Fišić T F p 2269 3219 Witness HE T F p 17010 3220 Ivo Fišić T F pp 2269-2272 Fikret Čuskić T F pp 12167-12169 3221 Ivo Fišić T F pp 2268-2270 3208 Case No IT-01-47-T 408 15 March 2006 268 21623 BIS contacted the President of the RBiH 3222 In about mid-November 1993 Alija Izetbegović did in fact go to the former JNA Barracks in Travnik 3223 Ivo Fišić was kept in detention in the former JNA Barracks until late January 1994 3224 1387 Dalibor Adžaip was released from Orašac Camp and transferred to the former JNA Barracks in Travnik on about 7 December 1993 3225 He states that he was there for one night before being taken to the KP Dom in Zenica where he was kept in detention until 21 March 1994 3226 1388 After he received a letter dated 11 December 1993 from the wife of Dragan Popović asking for information about what had happened to her husband 3227 Peter Williams a Britbat officer met Mehmed Alagić the then ABiH 3rd Corps Commander to raise this matter 3228 Although he was aware of the death of Dragan Popović Mehmed Alagić informed him that the news about Dragan Popović was not satisfactory and that he preferred not to answer his wife rather than to lie to her 3229 By letter of 1 January 1994 Martin Garrod replied to the letter from Dragan Popović’s wife in which he stated that he had met Mehmed Alagić on two occasions and that Alagić had assured him that he would do everything in his power to find out what had happened to her husband 3230 1389 Ivo Fišić stated that following the mistreatment he underwent at Orašac camp he had broken ribs a broken nose and bruises over his entire body 3231 He added that owing to the many blows he received to his head he still suffered from headaches 3232 1390 According to Samir Sefer Emsud Kadirić was exchanged in early 1994 3233 b Mistreatment Paragraph 42 e of the Indictment 1391 The Chamber first finds that the two groups of prisoners abducted in the case of the first group on 15 October 1993 and in the case of the second on 19 October 1993 were taken to Orašac camp a mujahedin base not far from Mehurići and not to an unknown location as the 3222 Fikret Čuskić T F p 12169 Fikret Čuskić T F p 12169 Ivo Fišić T F pp 2271 and 2278 3224 Ivo Fišić T F pp 2274-2275 3225 Dalibor Adžaip T F p 2409 P 496 P 309 3226 Dalibor Adžaip T F pp 2409-2410 3227 P 496 3228 Peter Williams T F p 5922 3229 Peter Williams T F p 5923 See also P 381 3230 P 182 3231 Ivo Fišić T F pp 2261and 2262 3232 Ivo Fišić T F p 2261 3233 Samir Sefer T F pp 11992 and 12007 3223 Case No IT-01-47-T 409 15 March 2006 267 21623 BIS Defence for the Accused Hadžihasanović suggests in its Final Brief 3234 Witness Ivo Fišić stated that he was held in Orašac recognised the building in which he was detained and the place where Dragan Popović was executed on photograph P 52 and mentioned that he had subsequently returned to the place in question with the Prosecution’s investigators 3235 Next even though they learned of this information after their period of incarceration Witnesses Z12 and Z13 stated that they were detained in Orašac 3236 The Chamber notes that this recognition after the event may be due to the fact that the prisoners were systematically kept from seeing during their journeys to and from Orašac Lastly a member of the OG Bosanska Krajina Command also stated that the prisoners were taken to the mujahedin camp in Orašac 3237 1392 The Chamber notes at this juncture that it appears from many pieces of evidence that the purpose of the two waves of abductions of five Croatian civilians by the mujahedin was to secure the exchange of Emsud Kadirić mujahedin wounded and detained by the HVO following an ambush carried out by the HVO in early October 1993 or even the exchange of the bodies of the four mujahedin including that of Wahiudeen who were killed in that ambush 3238 The fact that five Croats were abducted symbolically bears out the conclusion that the mujahedin wanted to exchange them for five of their fellows 3239 1393 Next as far as the first group of prisoners is concerned the Chamber is convinced on the basis of the depositions of Witnesses Z12 and Z13 that on several occasions the mujahedin threatened Witnesses Z12 Z13 and Zvonko Kukrić with physical injury and kicked them The Chamber is also convinced that the mujahedin humiliated the detainees whether by forcing them to tread on a rosary or by ordering Witness Z13 to simulate fellatio on Zvonko Kukrić without the latter exposing his genitals Although that treatment was without any doubt dishonouring and painful the Chamber is not convinced that the abuse was sufficiently serious to constitute cruel treatment within the meaning of Article 3 of the Statute As for Father Vinko Vidaković the Chamber notes that there was no eyewitness to what he suffered in the night of 15 to 16 October 1993 and that aside from the deposition of Witness Z12 to the effect that he saw Father Vinko Vidaković the next day with his nose covered in blood there is no indication of the nature and seriousness of the violence inflicted on him Consequently the Chamber considers that the violence 3234 Hadžihasanović Defence Final Brief paras 1091 and 1099 Ivo Fišić T F pp 2256-2260 and 2273 3236 P 394 under seal para 11 P 395 under seal para 45 3237 Witness HE T F p 17011 3238 P 216 P 176 P 177 p 2 P 376 P 379 P 381 P 740 under seal Samir Sefer T F pp 11972-11973 P 394 under seal para 16 P 395 under seal para 40 3239 It is recalled that on 15 October 1993 the mujahedin took five Croatian civilians to Orašac after one civilian succeeded in escaping see supra para 1364 3235 Case No IT-01-47-T 410 15 March 2006 266 21623 BIS inflicted on Father Vinko Vidaković albeit without any doubt painful did not attain the degree of seriousness required for cruel treatment punishable under Article 3 of the Statute 1394 As regards the second group of prisoners the Chamber considers that the testimony of Ivo Fišić and Dalibor Adžaip former detainees held in Orašac camp about the physical and psychological abuse of the prisoners during their detention is specific consistent and detailed and hence credible It proves beyond a reasonable doubt that the detainees were subjected to particularly violent and frequent beatings between their arrival at the camp on 19 October 1993 and 22 or 23 October 1993 the date on which Kazimir Pobrić was released and that after that date the mistreatment diminished in intensity 3240 The Chamber notes that on top of the physical violence there were death threats harassment of every type and the trauma of having seen the particularly violent murder of Dragan Popović The Chamber further considers that the aforementioned testimony shows that such cruel treatment was inflicted deliberately and was designed to inflict serious pain and suffering on the prisoners 1395 The evidence adduced demonstrates that the perpetrators of the mistreatment in question were members of the El Mujahedin detachment Accordingly after mentioning that he had been abducted by mujahedin and taken by them to a place of detention Dalibor Adžaip stated that the mistreatment was inflicted by the guards of that place that is soldiers of the Muslim forces to which the mujahedin belonged 3241 Next Ivo Fišić stated that he found out after his detention that the perpetrators of the mistreatment were “from the camp of El Mujahed forces In that camp there were some foreign citizens but there were also local lads” 3242 He added that this was a military unit 3243 That testimony and the fact that the village of Orašac was used as a camp by members of the El Mujahedin detachment at the material time 3244 leave no doubt that the perpetrators of the cruel treatment belonged to the El Mujahedin detachment 1396 The Chamber finds that the victims of the mistreatment were not participating directly in the hostilities Indeed the evidence adduced during the proceedings shows that they had the status of Bosnian Croat or Bosnian Serb civilians or were members of the HVO who were unarmed or in civilian dress at the time of their arrest 3245 3240 See supra para 1381 Dalibor Adžaip T F pp 2401 2404 and 2407 3242 Ivo Fišić T F pp 2252-2253 3243 Ivo Fišić T F p 2253 3244 See supra paras 427-430 3245 Dalibor Adžaip T F pp 2393 and 2400-2403 P 496 Witness HE T F p 17003 Ivo Fišić T F pp 2246 2248 and 2250-2252 P 740 under seal 3241 Case No IT-01-47-T 411 15 March 2006 265 21623 BIS 1397 On the basis of the foregoing the Chamber concludes that the elements of the crime of cruel treatment at Orašac Camp have been established beyond a reasonable doubt for the period at issue between 19 October 1993 and 31 October 1993 c Murder Paragraph 43 e of the Indictment 1398 The Chamber considers that the testimony of Ivo Fišić and Dalibor Adžaip eyewitnesses to the death of Dragan Popović as described above proves beyond a reasonable doubt that Dragan Popović died on 21 October 1993 as a result of having been decapitated near the mujahedin camp in Orašac Apart from a few minor discrepancies those witnesses are consistent with each other and provide many details about the beheading of Dragan Popović The Chamber notes in this respect that the murder of Dragan Popović seems to have been organised in accordance with a ritualistic ceremony and that it cannot be ruled out that his murder was an act of retaliation following the death a few weeks before of Wahiudeen the Commander of the El Mujahedin detachment 1399 As for the perpetrators of the crime it appears from the evidence that the beheading was carried out by members of the El Mujahedin detachment Witness Dalibor Adžaip stated that the soldiers present at the execution of Dragan Popović were the same as those guarding him at the place of detention that is soldiers of the Muslim forces of which the mujahedin formed part 3246 Witness Ivo Fišić stated that the soldiers were members of the military unit present on the site namely members of the “El Mujahed forces” 3247 That testimony coupled with the fact that the village of Orašac served as a camp for the members of the El Mujahedin detachment at the material time 3248 leaves no doubt that the perpetrators of this crime were members of the El Mujahedin detachment 3249 1400 As for the status of the victim the evidence indicates that Dragan Popović a Bosnian Serb was a member of the civilian police in Travnik at the time of his arrest 3250 The Chamber concludes that he had the status of a civilian afforded the protection offered by the laws or customs of war as recognised by common Article 3 of the Geneva Conventions 1401 On the basis of the foregoing the Chamber concludes that the elements of the crime regarding the murder of the civilian Dragan Popović have been established beyond a reasonable doubt 3246 Dalibor Adžaip T F pp 2401 2404 and 2407 Ivo Fišić T F pp 2252-2253 and 2257 3248 See supra paras 427-430 3247 Case No IT-01-47-T 412 15 March 2006 264 21623 BIS iii Findings of the Chamber regarding the Responsibility of Enver Hadžihasanović a Effective Control of Enver Hadžihasanović over the Perpetrators of the Crime 1402 The Defence for the Accused Hadžihasanović submits that the Accused Hadžihasanović did not exercise effective control over the El Mujahedin detachment in Orašac 3251 In support of its assertion the Defence for the Accused Hadžihasanović submits that 1 the “mujahedin question” came under and had to be dealt with by the political leaders of the RBiH 3252 2 communications with the mujahedin were carried out through certain persons in particular through the intermediary of the religious authorities 3 the only way for the ABiH to resolve the question of the mujahedin was to use military assets 3253 4 the mujahedin had no structure and no chain of command 3254 and 5 the lack of effective control on the part of the 3rd Corps over the mujahedin was also perceived by UNPROFOR and the ECMM 3255 1403 As indicated in the part of the Judgement dealing with the links between the ABiH and the mujahedin following the creation of the El Mujahedin unit 3256 the Chamber concluded that the El Mujahedin detachment was de jure and de facto under the command of the Accused Hadžihasanović as from 13 August 1993 1404 By way of example it has been established that the El Mujahedin detachment carried out two orders from the 3rd Corps dated 6 September 1993 and 4 December 1993 attaching the detachment to the OG Bosanska Krajina in order to take part in combat operations Next in September and October 1993 the detachment took part in fighting on several occasions alongside other units under the OG Bosanska Krajina Command Lastly criminal proceedings were initiated in autumn 1993 in the Travnik court against a member of the detachment for driving out Witness Remzija Šiljak’s wife on the ground that she was the child of a mixed couple 1405 The Chamber recognised however that the detachment held a special position within the 3rd Corps for instance insofar as it reserved the right to decide whether or not to take part in the 3249 The detachment was subordinated to OG Bosanska Krajina P 440 See also supra paras 824-829 P 496 P 380 Ivo Fišić T F pp 2275-2276 3251 Hadžihasanović Defence Final Brief paras 1112-1114 1124-1126 1131 1137-1139 and 1142-1144 3252 Hadžihasanović Defence Final Brief paras 1124-1125 and 1131 3253 Ibid paras 1124-1125 and 1131 3254 Ibid paras 1112-1114 3255 Ibid paras 1142-1144 3256 See supra discussion in paras 808-853 3250 Case No IT-01-47-T 413 15 March 2006 263 21623 BIS fighting and communications with its members were precarious Yet as has been seen its special position was fully accepted by the 3rd Corps 1406 As for the argument put forth by the Defence for the Accused Hadžihasanović that the need to use military assets to settle the “mujahedin question” confirms the lack of effective control over the El Mujahedin detachment the Chamber recalls that the presumption of the exercise of effective control associated with the de jure authority of a commander is not rebutted automatically by the fact that a commander needs to use force to control his troops 3257 It cannot be overemphasised that a commander has the duty to ensure that the laws and customs of international humanitarian law are respected even when that would involve the use of force against his own subordinates The Chamber considers that this is a question of fact and that if a commander has the material ability to use force he is under a duty to do so as a last resort 1407 The Chamber will subsequently consider the material ability of the Accused Hadžihasanović The Chamber notes at this juncture that the Defence for the Accused Hadžihasanović has not put forward any argument in support of its defence plea b Knowledge of Enver Hadžihasanović i Did the Accused Hadžihasanović Have Actual Knowledge 1408 The Chamber finds that no evidence has been adduced by the Parties to show that the crimes of the murder of Dragan Popović and of mistreatment of the prisoners taken to Orašac Camp were brought to the actual knowledge of the OG Bosanska Krajina Command and the 3rd Corps Command prior to 31 October 1993 that is before the Accused Hadžihasanović left his post as 3rd Corps Commander 3258 1409 According to the testimony of Witness HE following the release of Kazimir Pobrić on 22 or 23 October 1993 the latter did not make any statement to members of the OG Bosanska Krajina Command about the treatment suffered and seen at Orašac Camp and merely informed them that the other prisoners were still alive 3259 Following the release of Ivo Fišić and Ivo Rajković however Ivo Fišić gave a detailed statement to Salko Beba and Fikret Čuskić concerning the mistreatment of 3257 See supra paras 85-88 The Accused Hadžihasanović was appointed Chief and Deputy Commander of the ABiH Supreme Command Main Staff by order of 1 November 1993 of President Alija Izetbegović P 209 P 278 3259 Witness HE T E p 17008 3258 Case No IT-01-47-T 414 15 March 2006 262 21623 BIS the prisoners and the beheading of Dragan Popović at Orašac camp 3260 The witnesses however all place that statement in the first half of November 1993 3261 Since the Accused Hadžihasanović had given up his duties on 31 October 1993 he could not have known before that date that crimes of mistreatment and murder had been committed by his subordinates ii Did the Accused Hadžihasanović Have Reason to Know 1410 The Chamber will now consider whether the Accused Hadžihasanović had reason to know that his subordinates were about to commit or had committed those crimes In making this analysis the Chamber finds that several pieces of evidence must first be discussed 1411 First an UNPROFOR milinfosum dated 18 October 1993 Exhibit P 216 reports on an interview that an UNPROFOR officer had with the Accused Hadžihasanović in Zenica on that day After reviewing various subjects discussed with the Accused that document states as follows Questioned on the actions of Muslim extremists towards remaining Croat minorities in BiH controlled areas Hadžihasanović side-stepped the issue completely He did not acknowledge that 3262 there was a problem When questioned on that report after stating that he was the officer who had that conversation with the Accused Hadžihasanović 3263 Witness Alastair Duncan replied in the affirmative to the question of whether the content of the conversation reflected the Accused Hadžihasanović’s attitude towards the mujahedin 3264 1412 The question as to precisely what was meant by “actions of Muslim extremists towards remaining Croat minorities in BiH controlled areas ” as put by Alastair Duncan in his conversation with the Accused Hadžihasanović is not clear The milinfosum of 18 October 1993 mentions such actions not only in Travnik but also in Bugojno Accordingly as far as the zone of Travnik is concerned it mentions that two Croats were kept in detention by the mujahedin and the intention expressed by the representatives of the mujahedin to release them after the showing of a videocassette proving that four of their fellows had been killed in an ambush held near Novi Travnik 3265 As for the zone of Bugojno it mentions the lack of confidence of the 2 500 Croats residing in Bugojno in the assurances of security given by the Muslim authorities in view of the 3260 Ivo Fišić T F pp 2269-2272 Fikret Čuskić T F pp 12167-12169 Ivo Fišić T F p 2269 Witness HE T F 17010 Fikret Čuskić T F pp 12166-12168 3262 P 216 3263 Alastair Duncan T F p 7290 3264 Alastair Duncan T F pp 7297-7298 3265 P 216 p 1 3261 Case No IT-01-47-T 415 15 March 2006 261 21623 BIS fact that they were constantly victims of “Muslim extremist actions” 3266 Consequently even if it is highly likely that the questions put by Alastair Duncan to the Accused Hadžihasanović related to the abductions of Croats by mujahedin in Travnik and other mujahedin actions with regard to Croats in Bugojno the Chamber nevertheless considers that this has not been formally established especially since it is not ruled out that other actions of this type may have taken place in other places 1413 Second an UNPROFOR milinfosum dated 22 October 1993 marked as P 226 sets out the content of the conversation conducted on the same day between Alastair Duncan3267 and Džemal Merdan According to that report Džemal Merdan informed Alastair Duncan “ t hat 3 Corps had tasked Alagić commander OPs Group “Bosanska Krajina” to resolve the ongoing problems with the 'Mujahadeen' in Travnik” 3268 The Chamber heard both parties to that conversation Witnesses Džemal Merdan and Alastair Duncan on what interpretation should be given to the passage 1414 When asked by the Chamber about this milinfosum Witness Džemal Merdan stated Q But do you remember having said to a member of BritBat that Alagic was charged by the 3rd Corps to solve the problems of -- the ongoing problems with the mujahedin in Travnik A Your Honours I can't remember that event very precisely This occurred in October I remember that around that time we issued an order stating that the El mujahedin detachment should be subordinated - not subordinated resubordinated the difference is important - to the Bosanska Krajina OG At the time the commander of the Bosanska Krajina OG was General Alagic Q May we not assume that you were aware of the kidnappings of a number of Croats in Travnik in October or weren't you 3269 A No Your Honour I wasn't aware of that ” Subsequently Witness Džemal Merdan stated “A Your Honour I can claim with full responsibility before this Trial Chamber that Colonel Alistair Duncan never informed me of some Croats having been kidnapped in Travnik Similarly I claim with full responsibility that I signed an order or perhaps even two orders on behalf of the 3rd Corps commander according to which the El mujahedin detachment was to be resubordinated to the Bosanska Krajina OG which was led by the late General Alagic So if I said that Colonel Alistair Duncan probably paraphrased what I said but I would like to emphasise the 3270 fact that Colonel Alistair Duncan never told me that Croats had been kidnapped in Travnik ” 3266 P 216 p 3 Alastair Duncan stated that code CO 1 PWO designated him in his capacity as the number one command officer of the Britbat Alastair Duncan T F p 7290 3268 P 226 italics added 3269 Džemal Merdan T F pp 13673-13674 3270 Džemal Merdan T F pp 13675-13676 3267 Case No IT-01-47-T 416 15 March 2006 260 21623 BIS Džemal Merdan therefore stated to the Chamber that the conversation with Alastair Duncan on the ongoing problems referred to in the milinfosum of 22 October 1993 did not refer to the abduction of the Croats in Travnik but to the difficulties in attaching the El Mujahedin detachment to the OG Bosanska Krajina 1415 Next under examination Witness Alastair Duncan recalled that on one occasion Džemal Merdan told him that he had instructed Mehmed Alagić to deal with the question of the mujahedin in Travnik 3271 Subsequently when cross-examined by the Defence for the Accused Hadžihasanović on that conversation with Džemal Merdan Duncan answered as follows Q Now if I turn General you met with Mr Merdan and you made reference to this conversation yesterday when you were told by Mr Merdan that the commander of the Operational Group Bosanska Krajina or OGBK that is Mehmet Alagic had been given instructions to deal with the Mujahedin problem in Travnik Do you recall this event A Yes It was the 22nd of October Q The 22nd of October Now would you agree with me that this specific -- what Mr Merdan was referring to at that time had nothing to do with what we are talking about now of resubordination but actually dealt with five Croats which had been kidnapped by unknown Mujahedin elements in Travnik Would that recall some souvenirs for you 3272 A Yes Yeah It appears from this passage that according to Alastair Duncan the conversation on 22 October 1993 between Džemal Merdan and himself dealt with the abduction of five Croats in Travnik at that time by mujahedin and not with difficulties in attaching the mujahedin to the operations group 1416 In view of those contradictory interpretations the Chamber would state the following 1417 First as indicated earlier in the Judgement 3273 while the members of the El Mujahedin detachment refused to carry out the order given by the Accused Hadžihasanović on 28 August 1993 to attach themselves to the 306th Brigade this was manifestly not the case with the two orders to attach themselves to the OG Bosanska Krajina given on 6 September 1993 and 4 December 1993 respectively by the 3rd Corps Command On the contrary the evidence proves that the El Mujahedin detachment fought and operated under the OG Bosanska Krajina Command in September and October 1993 and that the detachment did not mount any independent operations 3271 Alastair Duncan T F p 7296 Alastair Duncan T F p 7403 3273 See supra paras 823-831 and 847 3272 Case No IT-01-47-T 417 15 March 2006 259 21623 BIS outside that command 3274 The order to become attached to the OG Bosanska Krajina was therefore carried out 1418 Assuming however as Witness Džemal Merdan indicates that there were difficulties in attaching the detachment to the operations group the respective dates of the orders to become attached suggest instead that those difficulties occurred at times considerably before or subsequent to the conversation between Alastair Duncan and Džemal Merdan 1419 Moreover even if the problems mentioned by Džemal Merdan were not confined to those periods consideration of the two milinfosums preceding that of 22 October 1993 dated 18 October 1993 and 20 October 1993 respectively 3275 shows that the only problems relating to the mujahedin in Travnik raised between the army and UNPROFOR at that time had to do with the persecution by the mujahedin of the Croatian population and the abductions of Croatian civilians and not with problems of attaching the El Mujahedin detachment to the OG Bosanska Krajina 1420 In view of these factors the Chamber considers that there is no evidence to suggest that at the time of the conversation in question the tension with the mujahedin had to do with the problems of attaching the detachment to the operations group 1421 Second the Chamber finds that as far as it knows on 22 October 1993 the only “ongoing problems” in Travnik regarding the mujahedin had to do with the abduction of five Croatian and Serbian Civilians three days before that is on 19 October 1993 in Travnik and that as appears from the statement of the facts set out above this was already known both to the OG Bosanska Krajina Command and the international organisations including UNPROFOR on 20 October 1993 that is two days before the conversation in question It should also be noted that Witness Džemal Merdan did not highlight any other ongoing problems in Travnik at that time 1422 The Chamber therefore concludes that the only reasonable interpretation to give to Exhibit P 226 is the one put forward by Witness Alastair Duncan that is that the discussion between the UNPROFOR representative and the deputy of the Accused Hadžihasanović on 22 October 1993 related to the abduction of five civilians by the mujahedin three days earlier Consequently with respect to the fact that the milinfosum indicates that on 22 October 1993 Džemal Merdan had instructed Alagić to resolve the ongoing problems with the mujahedin and that on 20 October 1993 Mehmed Alagić did in fact order the mujahedin to release the five civilians abducted the previous 3274 3275 See supra paras 825-829 and 848 P 173 P 216 Case No IT-01-47-T 418 15 March 2006 258 21623 BIS day the Chamber is convinced beyond a reasonable doubt that Džemal Merdan was aware by 20 October 1993 at the latest of the abduction of the second group of Serbian and Croatian civilians 1423 Third when Witness HE appeared before the Court the Defence for the Accused Hadžihasanović questioned him as to whether the representatives of the ABiH could have taken other steps to save the lives of the persons detained in Orašac Witness HE answered in the following terms Q And finally … could you tell me given these dramatic circumstances in Travnik following the 19th of October could you tell us whether Commander Alagi … or any other representative of the army of Bosnia-Herzegovina could have done anything more to save these persons' lives or whether you could have done anything to investigate the information and possibly punish the perpetrators after you learned about the killing of Mr Popovi A … all the reasonable measures that could have been applied at that time were applied Commander Alagi Commander Cuskić did the same We also were supported by Mr Dugali and by the corps commander in what we were doing Nothing else reasonable could have been 3276 done … Witness HE stated that the OG Bosanska Krajina Commander Mehmed Alagić and the 17th Brigade Commander Fikret Čuskić had obtained the support of Ramiz Dugalić and of the Army Corps Commander in the steps taken right after the civilians had been abducted It therefore emerges clearly from this answer that the OG Bosanska Krajina Command informed and kept informed the 3rd Corps Command including the Accused Hadžihasanović of the measures taken after the civilians in Travnik were abducted as soon as such measures were taken 1424 On the basis of the foregoing the Chamber draws the following conclusions It has been proved beyond a reasonable doubt on the basis of Exhibit P 226 and the testimony of Alastair Duncan that Witness Džemal Merdan was informed at the latest by 20 October 1993 of the abduction of the second group of civilians the day before Knowledge on the part of the 3rd Corps Command including Ramiz Dugalić and the Accused Hadžihasanović of the abductions is further borne out by the statements of Witness HE appraised above Consequently the Chamber is convinced beyond a reasonable doubt that the Accused Hadžihasanović knew as of 20 October 1993 that five Croatian and Serbian civilians had been abducted by mujahedin the previous day 3277 1425 In addition the Chamber is convinced that the Accused Hadžihasanović knew as of 20 October 1993 what measures and steps had already been taken by the OG Bosanska Krajina Command to try to resolve the crisis brought about by the abductions As will be considered in the 3276 Witness HE T F p 17012 Case No IT-01-47-T 419 15 March 2006 257 21623 BIS following chapter relating to the measures when the Accused Hadžihasanović made the decision on 20 October 1993 not to use force against his subordinates he could do so only in view of the measures and steps already taken As concluded before 3278 the El Mujahedin detachment came under the OG Bosanska Krajina Command as regards combat operations when it was attached to that operations group but came directly under the authority and control of the 3rd Corps as regards the other aspects of its military existence Thus the detachment depended on the logistical support of the 3rd Corps Next the 3rd Corps called the detachment the “El Mujahedin independent unit” Moreover the 3rd Corps decided to assign the detachment to combat operations It followed that any step and measure to compel the detachment by force could be undertaken only with the consent of the 3rd Corps Furthermore the fact that the Accused Hadžihasanović knew as of 20 October 1993 what steps the OG Bosanska Krajina had taken before 20 October 1993 follows from the statements of Witness HE as analysed above 1426 Consequently the Chamber is convinced beyond a reasonable doubt that as of 20 October 1993 the Accused Hadžihasanović knew that in response to the threats made by Abu Džafer Mehmed Alagić had forbidden the mujahedin to abduct civilians He also knew that in spite of that prohibition the mujahedin had carried out their threats and abducted five Croatian civilians on 16 October 1993 He further knew that following those first abductions the OG Bosanska Krajina Command had threatened the mujahedin that they would attack them 1427 The Chamber will now consider the question of whether because he knew of the abductions carried out by the mujahedin the Accused Hadžihasanović had reason to know that his subordinates were about to commit or had committed the crimes of mistreatment and murder against Croats 1428 In this regard the Chamber notes that at the time the Accused Hadžihasanović had knowledge of the abductions he in fact had several pieces of information at his disposal such as to put him on notice of the imminent violations of the kind alleged in the Indictment 1429 First as has already been considered in detail in the part of the Judgement dealing with the de facto subordination of the mujahedin to the 3rd Corps on 15 April 1993 the mujahedin abducted Živko Totić the HVO Jure Francetić Brigade Commander in Zenica and killed his four bodyguards in the course of his abduction The abduction was carried out in reaction to the HVO’s arrest and detention independent any combat situation of foreign nationals from Arab countries The mujahedin’s claimed aim for this operation was to secure the release of “their brothers” who 3277 See also supra para 332 Case No IT-01-47-T 420 15 March 2006 256 21623 BIS had been detained by the HVO It was shown that given its albeit limited role as mediator in the negotiations connected with this exchange the 3rd Corps Command had knowledge of those events 3279 1430 Second as has been shown previously on 24 April 1993 the mujahedin and local Muslims based at Poljanice Camp killed four Croatian civilians in retaliation for the serious injuries inflicted on one of their fellows by the HVO independent of the fighting The evidence showed moreover that as a result of the inquiries carried out after those incidents the 3rd Corps Command was informed of the murders and of the fact that they were the work of mujahedin 3280 1431 Third as established above on 8 June 1993 some 10 mujahedin based at Poljanice camp consisting of foreign and local Muslim soldiers killed 24 Croats who had been taken prisoner and had surrendered their weapons after the ABiH took the village of Maline that day The investigation by the 306th Brigade following those events and subsequent communications between the Accused Hadžihasanović and Fikret Čuskić on this subject made it possible to establish that the Accused Hadžihasanović had knowledge of the massacre of 24 Croats of the fact that the mujahedin had carried out the massacre and of the fact that the victims were not killed in the fighting 3281 1432 In the Chamber’s opinion that evidence shows beyond a reasonable doubt that the Accused Hadžihasanović knew mainly when they were made aware of the loss or detention of one of their fellows as a result of HVO action in a situation independent of the fighting that the mujahedin were capable of particularly violent actions against the Croatian population in complete violation of international law Consequently in this case the Accused Hadžihasanović knew that so long as the HVO did not release or exchange Emsud Kadirić the mujahedin were capable of violent reprisals against the civilian detainees 1433 Furthermore the Chamber finds that in view of the evidence available to it there is no indication that at the time they joined the ABiH the mujahedin had been the subject of disciplinary or criminal sanctions on account of the unlawful conduct on the occasion of the abduction of Živko Totić and the massacres in Maline and Miletići Indeed as it appears from the conclusions of the Judgement on the murders committed in those two villages 3282 those crimes were not brought to the attention of either the military police or the military judiciary operating in the areas controlled by 3278 See supra para 815 See supra paras 501-503 506 and 521 3280 See supra paras 1085-1088 3281 See supra paras 1129-1133 and 1135-1144 3282 See supra paras 1085-1088 and 1128-1134 3279 Case No IT-01-47-T 421 15 March 2006 255 21623 BIS the ABiH It was very unlikely that those crimes were brought to the attention of the civilian judiciary and the civilian police considering the conditions of war the inaccessibility of Poljanice Camp and particularly in the case of Miletići its geographical isolation in the Bila Valley Consequently there was a risk that the mujahedin were not punished for those crimes 1434 The Chamber also notes that according to the evidence adduced by the Parties there is no indication that as from when the El Mujahedin detachment was integrated into the ABiH 3rd Corps on 13 August 1993 the Accused Hadžihasanović promoted the teaching and dissemination of international law among the troops of that detachment The appraisal of the general orders given by the Accused Hadžihasanović to ensure that his subordinates were trained in international law shows that after 13 August 1993 the Accused Hadžihasanović issued only one order on 18 September 1993 with a view to prohibiting the capture of unarmed civilians 3283 In addition that order was a general order to all the brigades of the operations groups and to all the independent units 3284 Furthermore since the mujahedin were not integrated into the ABiH before 13 August 1993 they obviously could not have received the instruction given and the orders issued prior to that by the Accused Hadžihasanović with a view to ensuring compliance with international humanitarian law The Accused Hadžihasanović could therefore not have been unaware of the detachment’s lack of training in customary international humanitarian law the Geneva Conventions and the Additional Protocols to which the RBiH was a party 3285 1435 The Chamber is convinced beyond a reasonable doubt that all the information just discussed which was available to the Accused Hadžihasanović at the time he became aware of the abduction of Croatian and Serbian civilians must have put him on notice of the real and present risk that the mujahedin were about to commit criminal acts similar to those they had already carried out on several occasions in similar circumstances such as the murder and the mistreatment alleged in paragraphs 42 e and 43 e of the Indictment 3286 3283 See supra paras 1161-1167 P 193 3285 DH 461 See also P 361 3286 As a result the Chamber cannot give credence to the argument of the Accused Hadžihasanović based on the testimony of Witness HE to the effect that the authorities in Travnik and the ABiH had no information or evidence suggesting that any of the hostages might be killed Hadžihasanović Defence Final Brief para 1117 See Witness HE T F p 17007 The Chamber notes moreover that Witness HE contradicted himself in his statement When questioned about the measures taken in relation to the abductions he acknowledged that if the army had attacked the mujahedin innocent people could have been killed Hadžihasanović Defence Final Brief para 17012 The Chamber notes that while the English transcript of Witness HE’s statement does not refer to the lives of the five hostages T E p 17012 the French transcript suggests that Witness HE was referring to the lives of the hostages detained in Orašac Camp T F p 17012 3284 Case No IT-01-47-T 422 15 March 2006 254 21623 BIS c Measures Taken 1436 Having concluded that the Accused Hadžihasanović had reason to know that his subordinates were about to commit the crimes of murder and cruel treatment against the abducted civilians the Chamber will now consider whether the Accused Hadžihasanović took the necessary and reasonable measures to prevent those crimes from being committed 1437 To that end the Chamber will first consider what preventive measures were taken by the Accused Hadžihasanović and the OG Bosanska Krajina Command once he had reason to know that his subordinates were about to commit criminal acts that is as of 20 October 1993 and before he left his post as 3rd Corps Commander on 31 October 1993 It will then consider whether those measures were reasonable and necessary i Preventive Measures Taken by the Accused Hadžihasanović between 20 October 1993 and 31 October 1993 1438 On 20 October 1993 at the latest Džemal Merdan ordered Mehmed Alagić to resolve the issue of the abductions in Travnik 3287 1439 On the same day Mehmed Alagić ordered the mujahedin to release the prisoners who had been abducted the day before 3288 To this end it appears that a member of the OG Bosanska Krajina Command went to Poljanice Camp in order to pass on to Abu Haris and Abu Džafer the order to release the prisoners immediately 3289 1440 On 22 or 23 October 1993 Kazimir Pobrić was released 3290 1441 Between 20 October 1993 and 29 October 1993 at the initiative of the ICRC a member of the OG Bosanska Krajina Command and a representative of the ICRC tried to visit the mujahedin camp but were refused entry 3291 1442 Lastly on 29 October 1993 after a member of the OG Bosanska Krajina Command had gone to Poljanice Camp to summon Abu Haris to Mehmed Alagić’s office 3292 Alagić met Abu 3287 P 226 Alastair Duncan T F pp 7296 and 7403 See supra the discussion of the interpretation of Exhibit P 226 paras 1413-1422 3288 P 173 P 376 See also Witness HE T F pp 17003-17004 3289 Witness HE T F pp 17004 and 17011 T E p 17003 3290 Dalibor Adžaip T F p 2408 Ivo Fišić T F pp 2263-2265 P 496 3291 P 177 p 2 Witness HE T F pp 17004-17005 3292 Witness HE T F pp 17007-17008 Case No IT-01-47-T 423 15 March 2006 253 21623 BIS Haris 3293 According to Witness HE on that occasion Mehmed Alagić threatened Abu Haris that unless he released the civilians who had been abducted he would be obliged to attack the mujahedin and they would have to leave the region of Mehurići 3294 As appears from the description of the facts however those threats were not carried out 1443 At this stage the Chamber makes the following observations on the foregoing 1444 The Chamber observes first that the release of Kazimir Pobrić on 22 or 23 October 1993 was most probably not attributable to the order transmitted on 20 October 1993 by the OG Bosanska Krajina Command insofar as had the order been carried out the life of Dragan Popović who was executed on 21 October 1993 namely the day after Mehmet Alagić’s order would most probably have been saved and the three other civilians would have been released This observation seems to bear out the testimony of Witness HE who maintained that the Kazimir Pobrić’s release was due to the influence brought to bear on the mujahedin by the circle of Muslim clerics and naturalised Bosnian Muslims 3295 1445 Second as has just been mentioned Witness HE stated that at the meeting between Abu Haris and Mehmed Alagić Alagić threatened the mujahedin with force if they did not release the civilians who had been abducted As appears from the description of the facts Witness HE also stated that before the first civilian prisoners were released that is very probably before Witnesses Z12 and Z13 were released on 16 October 1993 the OG Bosanska Krajina Command had already once threatened the mujahedin with a mortar attack if they did not release the civilians who had been abducted 3296 Witness HE added that the army had contemplated the possibility of attacking the mujahedin 3297 1446 The Chamber finds however that there is a fundamental difference between the intention to use force as expressed by the army to the mujahedin and the real intention of the army to use force against them Indeed when he appeared before the Chamber Witness HE mentioned that the ABiH did not wish to open a third front against the mujahedin insofar as the ABiH already had to face two armed forces the “Serbian Montenegrin aggressor” and the HVO 3298 By acknowledging that the ABiH did not wish to open a third front Witness HE revealed that the threats by the ABiH to the mujahedin to use force against them were not followed up by action Moreover subsequent events 3293 P 177 P 179 Witness HE T F 17047-17048 Witness HE T F pp 17047 and 17049-17050 3295 Witness HE T F p 17008 See also the testimony of Ivo Fišić according to which Nusret Efendija Avdibegović had been contacted by the family of Ivo Fišić with a view to obtaining his release Ivo Fišić T F p 2289 3296 Witness HE T F pp 17007 and T E p 17007 See also supra para 1369 3297 Witness HE T E p 17005 3294 Case No IT-01-47-T 424 15 March 2006 252 21623 BIS show that despite the deterioration of the situation the army never acted in conformity with what it had announced to the mujahedin in that it never used force against them to secure the release of the prisoners who had been abducted On the contrary even when Salko Beba and Fikret Čuskić were informed by Ivo Fišić that Dragan Popović had been decapitated by the mujahedin the army did not use its military assets to secure the release of Dalibor Adžaip Lastly as indicated earlier 3299 the OG Bosanska Krajina Command was using at the same time and continued to use – despite the two waves of abductions of civilians - the members of the El Mujahedin detachment to fight against the HVO 3300 Consequently contrary to the claims of the Defence for the Accused Hadžihasanović 3301 the Chamber considers that the intention of attacking the mujahedin as expressed by the army to the El Mujahedin detachment did not reflect any real intention on the part of the army to attack them insofar as the army had no internal intention to do so 1447 The lack of any intention to use force as a means to pressure the mujahedin leads the Chamber to conclude that the 3rd Corps Command gave preference to using negotiations with its subordinates in order to try to secure the release of the Croatian and Serbian civilians An analysis of the facts reveals that on 20 October 1993 the 3rd Corps Command through the intermediary of Džemal Merdan ordered Mehmed Alagić to resolve the issue of the abductions in Travnik and that on the same day Mehmed Alagić transmitted an order to the El Mujahedin detachment to release the abducted civilians It was not until the meeting between Mehmed Alagić and Abu Haris on 29 October 1993 that the talks materialised 1448 Consequently on 20 October 1993 the 3rd Corps Command made the decision not to use force against the El Mujahedin detachment Moreover that decision could only come from the 3rd Corps Command Indeed as already indicated on several occasions 3302 the El Mujahedin detachment fell under the OG Bosanska Krajina Command as regards combat operations when it was attached to that group but came directly under the authority and control of the 3rd Corps as regards the other aspects of its military existence It followed that the decision to use extreme means 3298 Witness HE T F p 17047 See supra para 829 3300 It is recalled that on 10 October 1993 the Accused Hadžihasanović informed the OG Zapad Command that the detachment was engaged in combat operations in the Lašva Valley under the OG Bosanska Krajina Command P 492 Likewise the war diary and the operations book of OG Bosanska Krajina mention fighting by the detachment and the 308th Brigade in the Novi Travnik – Gornji Vakuf region on 24 October 1993 following which the detachment had three dead and eight wounded P 925 4 p 4 C 13 entry 27 October 1993 pp 126-127 3301 Hadžihasanović Defence Final Brief paras 1110-1111 3302 See supra para 815 3299 Case No IT-01-47-T 425 15 March 2006 251 21623 BIS of pressure such as the use of force against its direct subordinates could be taken only with the consent of the 3rd Corps 3303 1449 Third the Chamber notes that nine days elapsed without any other meeting or substantial measure to resolve the ongoing problems between the time Mehmed Alagić transmitted the order to release the prisoners and that meeting The void of any substantial action during that period is highlighted by an ECMM report dated 27 October 1993 which comments on a meeting that day between an ECMM representative and Salko Beba on the question of the release of the prisoners held in detention by the mujahedin That report states as follows “After asking Mr Beba the BiH Chief of Security in Travnik for advice concerning the release of Croatian hostages in Travnik he responded by saying that he could do nothing for the 3304 moment ” And later “Presently Alagić O perational com an d er has other concerns When these are over he will 3305 demand control ” 1450 The Chamber will now consider whether the measures so taken by the Accused Hadžihasanović were necessary and reasonable ii Were the Preventive Measures Taken by the Accused Hadžihasanović Necessary and Reasonable 1451 The Chamber will first consider the argument of the Prosecution in its Final Brief that the basic units of the 3rd Corps such as the 17th Brigade and OG Bosanska Krajina had the material ability to secure the release of the persons detained by the El Mujahedin detachment insofar as they had succeeded in having an ABiH soldier detained by the mujahedin released 3306 1452 The facts of that incident are as follows According to an official note dated 25 June 1993 from the 17th Brigade legal officer in the night of 23 October 1993 members of the El Mujahedin detachment arrested Emir Kuduzović a 17th Brigade soldier who was drunk and on his way to Krpeljići to buy cigarettes They placed him in detention in Mehurići and mistreated him 3307 Fikret Čuskić the 17th Brigade Commander sent one of his officers to the mufti of Travnik Nusret 3303 See supra para 1425 P 176 3305 P 176 3306 Prosecution Final Brief para 269 3307 DH 1515 Fikret Čuskić stated that the content of Exhibit DH 1515 is correct T F p 12088 3304 Case No IT-01-47-T 426 15 March 2006 250 21623 BIS Efendija Avdibegović 3308 with a message that he was going to attack the camp in Mehurići if Emir Kuduzović was not released 3309 On 27 October 1993 a delegation from the camp in Mehurići composed of Abu Haris Maktauf and an emir went to Fikret Čuskić They held a meeting in the presence of the Mufti of Travnik and the president of the municipality at the end of which the mujahedin agreed to release Emir Kuduzović and made apologies 3310 The war diary and the OG Bosanska Krajina operations log for 27 October 1993 state that the mujahedin did not release the soldier in spite of Alagić’s order that the mujahedin were waiting for the signature of one of their commanders that Salko Beba took steps to obtain it and lastly that the mujahedin released Emir Kuduzović 3311 1453 The Chamber considers contrary to the Prosecution’s claims that the case described above may be compared to the case at issue only to a minor extent First the abductions of the Croatian civilians took place in the context of a precarious situation connected with the death of four mujahedin including the military commander of the El Mujahedin detachment and the detention by the HVO of one of their fellows Emsud Kadirić whereas no such situation obtained in the case of Emir Kuduzović Second the evidence shows that the reason for the 17th Brigade soldier’s abduction was that he was drunk 3312 whereas the reason for the Croats’ abduction was to secure the exchange of Emsud Kadirić and the bodies of the four killed mujahedin Third Emir Kuduzović was a Bosnian Muslim whereas the hostages of 15 and 19 October 1993 were all Bosnian Croats Consequently what was at stake with the detention of the Croatian civilians was much greater than in the case of the detention of Emir Kuduzović Consequently the Chamber considers that few inferences can reasonably be drawn from the means used to secure Emir Kuduzović’s release as regards the case of the detention of the Croatian civilians The Chamber therefore rejects the Prosecution argument on this point 1454 It has been proved on the basis of Exhibit P 226 and the statements of Alastair Duncan and Witness HE that the Accused Hadžihasanović knew as of 20 October 1993 that the mujahedin had abducted five Croatian and Serbian civilians the day before It has also been proved in particular on the basis of the statement of Witness HE that the Accused Hadžihasanović knew as of 20 October 1993 what measures and steps had already been taken by the OG Bosanska Krajina Command to try to resolve the crisis caused by the abductions Consequently the Accused Hadžihasanović knew 3308 The Chamber notes that according to Witness Ivo Fišić Nusret Efendija Avdibegović had been contracted by Ivo Fišić’s family with a view to securing his release Ivo Fišić T F p 2289 3309 Fikret Čuskić T F pp 12088-12089 and T E p 12126 See also P 179 3310 Fikret Čuskić T F pp 12088-12089 and T E pp 12126-12127 3311 C 11 entry 27 October 1993 C 13 entry 27 October 1993 3312 Fikret Čuskić T F pp 12088 and T E p 12125 P 179 DH 1515 Case No IT-01-47-T 427 15 March 2006 249 21623 BIS from that time that Mehmed Alagić acting in response to the threats of Abu Džafer had prohibited the mujahedin from abducting civilians He also knew that in spite of that prohibition the mujahedin had carried out their threats and abducted five Croatian civilians on 16 October 1993 He further knew that after those first abductions the OG Bosanska Krajina Command had threatened to attack the mujahedin Lastly he knew that despite those extreme threats the mujahedin had abducted five other civilians on 19 October 1993 1455 Admittedly after the first threats to use force made by the OG Bosanska Krajina Command the mujahedin had released two prisoners Witnesses Z12 and Z13 on 16 October 1993 It must be observed however that in spite of those extreme threats from their commander the mujahedin kept two other prisoners in detention and what is more worsened the crisis by abducting five other civilians with the result that in the evening of 19 October 1993 seven Croatian and Serbian civilians were detained by the mujahedin in Orašac camp 1456 Consequently when on 20 October 1993 at the latest the Accused Hadžihasanović learned that his subordinates had abducted five Croatian and Serbian civilians the situation which he had to evaluate had the following aspects First by abducting civilians his subordinates had committed a crime of infringement of individual liberty which was punishable under ordinary domestic law and military rules 3313 Second his subordinates had twice transgressed the instructions of their commander and ignored his threat to use military assets against them Third he knew that as long as the HVO did not release or exchange Emsud Kadirić the mujahedin were capable of violent reprisals against the Croats detained as in the case of the crimes committed in Miletići and Maline Last he knew that there was a risk that the mujahedin had not been punished for those crimes and that they had not had the benefit of any training in international humanitarian law Consequently on 20 October 1993 he had reason to know that his subordinates were preparing to commit the crimes of murder and mistreatment against their prisoners 1457 Consequently once he knew of the abductions a reasonable commander placed in the circumstances as described had to make immediate use of force as the measure which was necessary and reasonable to bring the crimes of abduction to and end and to prevent the crimes of murder and mistreatment his subordinates were about to commit 1458 A reasonable commander placed in such circumstances could not merely issue an order to release the prisoners and again threaten his subordinates with attack Indeed the members of the El 3313 In making this finding the Chamber is conscious of the fact that the crime of abduction is not alleged in the Indictment Case No IT-01-47-T 428 15 March 2006 248 21623 BIS Mujahedin detachment had already failed twice to obey the orders of their commander What was even more alarming was that the first threats to use force against his own subordinates had not had the deterrent effect counted on On the contrary the mujahedin had stepped up their criminal actions by abducting another five civilians Consequently it was unreasonable to think that fresh threats of the same kind would meet with success What is more fresh threats would have deprived the first threats of any credibility An additional reason prevented a reasonable commander placed in those circumstances from satisfying himself with talks The seriousness of the offences concerned and the lack of discipline shown by the El Mujahedin detachment were such that the initiation of talks would have discredited his power of action and control with regard to his other subordinated troops and hence encouraged his other subordinated troops to be undisciplined 1459 For all the reasons set out above the Chamber considers that the only way in which the 3rd Corps could deal with the situation it faced was to use military assets against the El Mujahedin detachment immediately The Chamber notes moreover that the Defence for the Accused Hadžihasanović seems to share this view in its written submissions 3314 1460 Nevertheless despite all the alarming facts of which he was aware on 20 October 1993 the Accused Hadžihasanović decided not to use force as a means of exerting pressure and made another decision which would have great consequences that is to negotiate passively the release of the civilians with his subordinates The aftermath of those events that is the absence of any practical approaches between 20 and 29 October 1993 with a view to releasing the abducted prisoners and the talks on 29 October 1993 with the commander of the El Mujahedin detachment shows that the Accused Hadžihasanović constantly maintained that position until the time he gave up his duties on 1 November 1993 Later and while this consideration applies only to Mehmed Alagić who took over on 1 November 1993 from the Accused Hadžihasanović even the announcement by Ivo Fišić of the beheading of Dragan Popović did not bring about a change of the position of the 3rd Corps even though Dalibor Adžaip was still in the hands of the El Mujahedin detachment The fact that the 3rd Corps persisted in maintaining this position in spite of the deterioration of the situation shows in the Chamber’s view that the 3rd Corps’ policy was set as from the onset of the crisis it was necessary to confine action to negotiating the release of the civilians and not to use military assets against the El Mujahedin detachment 1461 The Chamber considers that by deciding not to use force against his subordinated troops and by deciding on the contrary to adopt a passive attitude towards resolving the ongoing crisis 3314 Hadžihasanović Defence Final Brief para 1138 See also supra the discussion in paras 85-88 Case No IT-01-47-T 429 15 March 2006 247 21623 BIS the Accused Hadžihasanović failed to take the necessary and reasonable measures in view of the circumstances of the case in order to prevent the crimes of murder and mistreatment which he had reason to believe about to be committed 1462 Before finding the Accused Hadžihasanović criminally responsible however it should be asked both whether Accused Hadžihasanović could have prevented the crimes of murder and mistreatment by using force and whether the Accused Hadžihasanović had the material ability to use force against the El Mujahedin detachment iii Effectiveness of Using Force 1463 The Chamber has ruled that on 20 October 1993 the Accused Had ihasanovi should have used military assets against the El Mujahedin detachment to secure the release of the abducted civilians Nevertheless the execution of Dragan Popovi occurred the next day 21 October 1993 Taking into account the short period of time to intervene can the Accused Had ihasanovi be held criminally responsible for failing to prevent the murder of Dragan Popovi if a reasonable commander placed in the same circumstances fails to prevent that murder 1464 This question raises the issue of the relevance of the causal link between the commander’s failure to act in order to prevent the commission of an offence and the subordinate’s offence in the determination of command responsibility One could argue in fact that if the commission of the offence cannot be prevented by a commander there is no reason to allege the criminal responsibility of that commander for failing to prevent that offence 1465 Nevertheless as found previously 3315 the Chamber considers that the existence of a link between the failure to act to prevent a crime and the commission of that crime is implicit and therefore presumed Accordingly the Prosecution need not prove the success of the necessary and reasonable preventive measures that were required in view of the circumstances of the case On the contrary it is the Accused who must refute that presumption iv Material Ability of the Accused Hadžihasanović to Use Force Against his Subordinates to Prevent Crimes 1466 The Chamber first notes that from the evidence submitted by the Parties it is not possible to establish that prior to 6 November 1993 the OG Bosanska Krajina Command or any other basic 3315 See supra para 193 Case No IT-01-47-T 430 15 March 2006 246 21623 BIS unit in the 3rd Corps knew that Croatian civilians had been brought to the mujahedin camp in Ora ac Witnesses Z12 and Z13 only learned after the fact that they had been detained at Ora ac and did not specify in their evidence whether they had so informed the ABiH Another witness indicated that the OG Bosanska Krajina Command knew where the hostages were being held only when Ivo Fi i and Ivo Rajkovi made their statements3316 in the first half of November 1993 1467 Nonetheless in view of the evidence studied in the introductory section on the mujahedin 3317 two mujahedin camps existed in the area of Travnik Poljanice Camp near Mehuri i and Ora ac Camp some 10 kilometres from Poljanice Camp 3318 Additionally the OG Bosanska Krajina and the 17th Brigade were well aware of the existence and location of the two mujahedin bases 3319 1468 The ABiH also knew approximately how many mujahedin combatants were based at Poljanice Camp Several witnesses estimated their numbers at 100 and 150 3320 At the material time however there would have logically been fewer men at Poljanice Camp since the El Mujahedin detachment was engaged in combat operations in the Novi Travnik – Gornji Vakuf region on 24 October 1993 3321 1469 Witness HE stated that the ABiH did not know what type of weapons the mujahedin had or used 3322 Admittedly as indicated above it appears that the mujahedin had their own weapons which did not belong to the army 3323 The Chamber notes however that several witnesses said that the mujahedin were armed with automatic rifles and rocket launchers and that some of them had sabres or long knives 3324 Furthermore the ABiH must have known which type of weapons the mujahedin had since as demonstrated above the mujahedin fought alongside the ABiH on several occasions before the El Mujahedin detachment was integrated into the ABiH 3rd Corps in August 19933325 and right after its integration the El Mujahedin detachment also fought with other units several times against the HVO under the OG Bosanska Krajina’s command in September and October 1993 3326 3316 Witness HE T F p 17011 See supra paras 419-430 3318 Witness HE T F p 17032 3319 Witness HE T F pp 17011 and 17032 P 438 P 925 4 entry 27 October 1993 Fikret uski T F p 12088 DH 1515 3320 Witness HB T F p 12615 Witness HE T F p 17031 3321 P 925 4 p 4 C 13 entry 27 October 1993 pp 126-127 3322 Witness HE T F p 17006 3323 Mustafa Popari T F p 14490 See also P 439 DH 165 6 C9 3324 Witness XA T F p 1421 Witness XD T F p 1747 Mirko Ivki T F pp 4575 and 4576 Cameron Kiggell T F pp 4981-4982 Mark Bower T F p 5137 3325 See supra paras 529-540 3326 See supra paras 825-829 3317 Case No IT-01-47-T 431 15 March 2006 245 21623 BIS 1470 Moreover the OG Bosanska Krajina had the military assets to intervene to attack the mujahedin On 20 October 1993 the former JNA Barracks in Travnik which housed the 17th Brigade 3327 the OG Bosanska Krajina Command and the operations group Military Police Company3328 included more staff than it had had for several weeks 3329 While it is difficult to estimate the number of staff actually available on 20 October 1993 due to the ongoing combat operations the evidence indicates that the OG Bosanska Krajina had in principle a total of more than 6 000 troops available 3330 Furthermore the OG Bosanska Krajina and its basic units had enough heavy and light artillery available at the time to prepare an attack on a camp equipped with automatic rifles and rocket launchers The heavy artillery munitions included portable rocketlaunchers 60 82 and 120 mm shells mines 3331 and anti-aircraft weapons howitzers mortars 3332 and at least one missile launcher 3333 The light weapons ammunition included essentially 7 62 mm calibre rounds for pistols semi-automatic and automatic rifles and 7 9 mm calibre rounds for the M-48 rifles 3334 1471 The Chamber further notes that the ABiH Supreme Command Staff had considered engaging a third front of the 3rd Corps against the mujahedin in June 1993 As indicated on 16 June 1993 Rasim Deli ordered the 3rd Corps Command to send the mujahedin to Mt Igman and to merge them with an independent detachment from the Supreme Command Staff and unless the mujahedin accepted this to disarm them 3335 In a telephone conversation the same day after Rasim Deli gave the order however the Accused Hadžihasanović told Sefer Halilovi that he could not fully execute it because disarming the mujahedin would mean opening a third front 3336 While the opening of a third front seems to have been an argument against sending the mujahedin to Mt Igman in June 1993 it cannot be used here to justify the refusal to use force against the mujahedin In fact in this case the use of force was intended only to secure the release of a few civilians who had been abducted and not to disarm all the mujahedin 3327 Fikret uski T F pp 12049 12050 and 12123 Samir Sefer T F p 11988 Osman Menković T F p 14674 Fikret uskić T F pp 12123-12124 Hendrik Morsink T F p 8025 3329 P 173 p 1 3330 C 16 entry 11 July 1993 DH 1620 P 192 3331 P 192 pp 24 and 25 3332 Fikret uski T F p P 179 3333 C 11 entries 8 July 1993 5 September 1993 20 September 1993 24 September 1993 28 September 1993 and 4 October 1993 3334 To be read in conjunction with P 272 C 11 entries 1 September 1993 6 September 1993 7 September 1993 24 September 1993 C 13 entry 17 July 1993 C 18 entries 20 September 1993 21 September 1993 3335 DH 165 2 P 270 See also supra para 554 3336 DH 165 3 P 807 See also supra para 555 3328 Case No IT-01-47-T 432 15 March 2006 244 21623 BIS 1472 Based on the above the Chamber considers that the 3rd Corps had the material ability to use force to prevent the crimes of mistreatment and murder that the subordinates of the Accused Hadžihasanović were about to commit v Time Needed to Implement a Decision to Use Force 1473 The Chamber considers the issue of how much time the OG Bosanska Krajina needed to implement the military measures at its disposal to have relative relevance here 3337 1474 In fact it has been established that as of 20 October 1993 the Accused Hadžihasanović decided against using force and to adopt instead a passive attitude in order to resolve the ongoing crisis It has also been established that the Accused Hadžihasanović maintained that passive attitude until he left his post on 31 October 1993 It is therefore clear that the necessary and reasonable measures required were not taken in view of the circumstances of the case and that the 3rd Corps had no intention of considering a military action against the mujahedin Consequently since the Accused Hadžihasanović never even attempted to organise such an operation the time needed to carry it out cannot be measured 1475 Nevertheless had the 3rd Corps decided to use its military assets on 20 October 1993 the Chamber does not rule out the possibility that concrete and specific threats combined with clear preparations for an attack on Poljanice Camp would have intimidated the El Mujahedin detachment before Dragan Popovi was executed on 21 October 1993 For example a specific ultimatum to release the abducted civilians and the threat of shelling from artillery pointed at Poljanice Camp is one substantial measure that could have been taken within the time frame set 3338 1476 Given these considerations the Chamber is of the view that a decision to use force against the detachment would have had a fair chance of success also from a temporal standpoint 3337 The Chamber notes that while this temporal aspect may prove problematic for the murder of Dragan Popovi it is much less so as regards mistreatment at Ora ac Camp In fact as the Chamber found the mistreatment of Croatian and Serbian civilians continued after 21 October 1993 up until 22 or 23 October 1993 and to a lesser extent between 23 October 1993 and 31 October 1993 See supra paras 1394 and 1397 3338 The Chamber notes that to secure the release of the 17th Brigade soldier 17th Brigade Commander Fikret uski pointed his artillery towards Mehuri i Camp and threatened the mujahedin through Nusret Efendija Avdibegovi that he would attack Mehuri i Camp if they did not release Emir Kuduzovi In two days the mujahedin had released Emir Kuduzovi Fikret uski T F pp 12088-12089 and T E pp 12126-12127 P 179 C 11 entry 27 October 1993 C 13 entry 27 October 1993 P 925 4 DH 1515 The Chamber nevertheless recalls that the stakes were much higher in the case of the detained Croatian civilians than they were in the case of Emir Kuduzovi ’s detention so that for the case of the Croatian civilians few conclusions can be reasonably drawn from the means used to free Kuduzovi See supra paras 1451-1453 Case No IT-01-47-T 433 15 March 2006 243 21623 BIS vi Conclusions on Preventive Measures 1477 The Chamber considers that the 3rd Corps’ choice to negotiate the release of the Croatian civilians with its subordinates does not constitute a necessary and reasonable measure given the circumstances of this case As soon as the Accused Hadžihasanović learned of the abductions he had the power and the duty to order the OG Bosanska Krajina to step in with military force immediately to prevent the crimes of mistreatment and murder he had reason to know were about to be committed Consequently the Accused Hadžihasanović must incur criminal responsibility for failing to take the necessary and reasonable measures to prevent the crimes of cruel treatment and the murder of Dragan Popovi 1478 On the basis of a more general analysis of the situation the Chamber makes the following remarks 1479 As established above the Accused Hadžihasanović knew that members of the El Mujahedin detachment had a dangerous and violent temperament well before the detachment was integrated into the ABiH In fact he knew those troops had already committed heinous crimes specifically the massacre of 24 Croats in Maline in June 1993 and the execution of four Croatian civilians in Mileti i in April 1993 in breach of international humanitarian law 1480 The Accused Hadžihasanović also had information that the El Mujahedin detachment had not received training in international humanitarian law He obviously knew that before they were integrated into the ABiH members of the detachment had not received the training or received orders from the 3rd Corps to comply with international humanitarian law Moreover as soon as the detachment was integrated into the ABiH he failed to make sure that an internal disciplinary system was set up to ensure compliance with the rules of international law applicable in armed conflicts 1481 Consequently as soon as the detachment entered his ranks the Accused Hadžihasanović had all the information permitting him to conclude that there was a real risk his subordinates would commit crimes similar to those they had committed in the past As that information was at his disposal the Accused Hadžihasanović was therefore aware that there was a real and reasonably foreseeable risk that the members of the El Mujahedin detachment would commit violations of international humanitarian law 3339 1482 In spite of the considerable risk the Accused Hadžihasanović nevertheless decided with full knowledge of what he was doing to use the existence of the El Mujahedin detachment to military Case No IT-01-47-T 434 15 March 2006 242 21623 BIS advantage when in fact the 3rd Corps was under no obligation to use the detachment in combat Furthermore he accepted the special status of the El Mujahedin detachment as soon as it began working within the ABiH By deciding to derive military benefit from the El Mujahedin detachment in those conditions despite the body of alarming information at his disposal the Accused Hadžihasanović must have foreseen well before the Croatian civilians were abducted in October 1993 the potential consequences of that abduction 3340 1483 By acting in that manner even though international humanitarian law forbade him from using those troops in combat operations so long as he had not received assurances that they had received training in customary international humanitarian law the Geneva Conventions and Additional Protocol to which the RBiH was a party the Accused Hadžihasanović allowed or even created all of the conditions conducive to the repeated commission of crimes not unlike those already committed As a result assuming that the Accused Hadžihasanović lacked the time needed to attack the mujahedin camp before 21 October 1993 the fact remains that as soon as the El Mujahedin detachment was integrated into his ranks he had already put himself into a situation where he risked being incapable of taking the necessary and reasonable measures that might be required 3341 1484 On those grounds also the Chamber considers that the Accused Hadžihasanović must bear the criminal responsibility for the mistreatment of the civilians at Ora ac Camp and for the murder of Dragan Popovi vii Punitive Measures 1485 Since the 3rd Corps Command acquired actual knowledge of the mistreatment and of Dragan Popovi ’s murder in the first half of November 1993 at a time when the Accused Hadžihasanović had already left his position as 3rd Corps Commander the Chamber need not assess the possible punitive measures taken after that knowledge was acquired The Chamber acquits the Accused Hadžihasanović of the charges that he failed in his duty to punish the perpetrators of the mistreatment and of Dragan Popovi ’s murder 3342 3339 See supra paras 99 and 193 See supra paras 849-850 3341 See supra para 89 3342 See supra paras 194-197 3340 Case No IT-01-47-T 435 15 March 2006 241 21623 BIS iv Conclusions of the Chamber 1486 The Chamber is convinced beyond a reasonable doubt that although the Accused Hadžihasanović had reason to know that his subordinates were about to commit the crimes of cruel treatment and murder against detainees under their control he failed to take the necessary and reasonable measures to prevent the commission of those crimes The Chamber accordingly convicts the Accused Hadžihasanović of the crime of cruel treatment committed between 19 and 31 October 1993 and of the murder of Dragan Popovi referred to in count 4 paragraphs 41 bc 42 e and 43 e of the Indictment Conversely the Chamber acquits the Accused Hadžihasanović of charges that he failed in his duty to punish the perpetrators of the mistreatment and of the murder of Dragan Popovi g Motel Sretno 1487 The Indictment alleges that Bosnian Croats and Bosnian Serbs were detained at Motel Sretno in the town of Kakanj which was guarded and operated by members of the 7th Brigade 3rd Battalion from around 15 May 1993 until at least 21 June 1993 and were physically abused and threatened Soldiers from the 7th Brigade 3rd Battalion allegedly beat and physically and psychologically abused those detainees From around 26 January 1993 until 31 October 1993 and from 1 April 1993 until at least January 1994 respectively the Accused Hadžihasanović and the Accused Kubura knew or had reason to know that the members of that unit under their supervision and effective control were about to commit the crimes of mistreatment or had done so and failed to take the necessary and reasonable measures to prevent those acts from being committed and to punish the perpetrators 3343 1488 The Accused Hadžihasanović and the Accused Kubura are therefore alleged to have committed cruel treatment a violation of the laws or customs of war punishable by Articles 3 and 7 3 of the Statute and recognised by common Article 3 of the Geneva Conventions i Arguments of the Parties 1489 The Prosecution argues that members of the 7th Brigade’s 2nd battalion Gerila unit military police from Zenica and members of the 7th Brigade 3rd Battalion severely beat the detainees3344 at Motel Sretno which was operated by the 7th Brigade 3rd Battalion 3345 The Prosecution adds that the 3343 Third Amended Indictment paras 41 c and b and 42 f Prosecution Final Brief paras 275 279-281 286 and footnotes 897 and 902 3345 Prosecution Final Brief paras 275 and 280 3344 Case No IT-01-47-T 436 15 March 2006 240 21623 BIS Accused knew that detainees were being mistreated3346 but failed to take the necessary and reasonable measures to prevent the mistreatment from being committed and to punish the perpetrators 3347 1490 The Defence for the Accused Hadžihasanović does not seem to dispute that mistreatment took place at Motel Sretno on 18 and 19 May 1993 but argues that members of the 7th Brigade Military Police and not the 7th Brigade 3rd Battalion were responsible for it 3348 The Defence for the Accused Hadžihasanović made no objection to the factual allegations set out in the Indictment regarding the alleged mistreatment between 18 and 21 June 1993 The Defence for the Accused Hadžihasanović then argues that the Prosecution failed to prove that the Accused Hadžihasanović knew or had reason to know that the detainees at Motel Sretno3349 were mistreated and that he failed to take the necessary and reasonable measures to prevent the commission of those crimes or to punish the perpetrators 3350 1491 The Defence for the Accused Kubura submits that the Accused Kubura did not know or have reason to know about the alleged mistreatment at Motel Sretno 3351 and that he did not have the power or the duty to prevent or punish the alleged crimes 3352 ii Findings of the Chamber regarding Mistreatment at Motel Sretno a Sequence of Events of 18 and 19 May 1993 1492 Kakanj municipality lies to the southeast of Zenica municipality In 1991 the population there was approximately 56% Muslim 29% Croat and 8 to 9% Serb 3353 1493 As early as late March 1993 the 7th Brigade 3rd Battalion was stationed at Motel Sretno in Kakanj 3354 In April 1993 the building housed 55 soldiers from the 7th Brigade 3rd Battalion 3355 At the material time Nihad ati was the 7th Brigade 3rd Battalion Commander and Kasim Alajbegovi 3346 Prosecution Final Brief paras 279 282-285 and 289 Prosecution Closing Arguments T F pp 19040 19042 and 19044 3347 Prosecution Final Brief paras 284 and 288-289 3348 Had ihasanovi Defence Final Brief paras 967 and 981 3349 Had ihasanovi Defence Final Brief paras 991-1005 and footnotes 1415 and 1416 Had ihasanovi Defence Closing Arguments T F pp 19141-19142 3350 Had ihasanovi Defence Final Brief para 1007 3351 Kubura Defence Final Brief paras 128-129 and 161-163 Kubura Defence Closing Arguments T F pp 1927319279 3352 Kubura Defence Final Brief paras 147-152 3353 DH 345 2 Ranko Popovi T F p 1527 3354 P 153 P 728 P 560 Kasim Alajbegovi T F pp 18690-18691 Fuad Kulovi T F p 18816 See photographs P 10 P 50 and P 51 See also videocassette P 761 3355 P 728 Case No IT-01-47-T 437 15 March 2006 239 21623 BIS the Deputy Commander 3356 The 7th Brigade 3rd Battalion offices including that of Kasim Alajbegovi were on the ground floor of the Motel Sretno building behind the reception desk 3357 1494 On 18 May 1993 representatives from the HVO and the ABiH signed a cease-fire agreement in Me ugorje 3358 That same day however new incidents broke out between the HVO and ABiH in Kakanj 1495 Witnesses Kasim Alajbegovi Deputy Commander of the 7th Brigade 3rd Battalion and Fuad Kulovi Assistant Commander of the 7th Brigade 3rd Battalion for intelligence and security 3359 stated that on 18 May 1993 three or four members of the 7th Brigade Military Police came to Motel Sretno to alert the 7th Brigade 3rd Battalion soldiers that a group of 7th Brigade Military Police had been caught in an HVO ambush and that they were the only ones who had escaped 3360 As a result several members of the 7th Brigade Military Police went on patrol in Kakanj that day in an effort to arrest some of the 7th Brigade deserters 3361 While crossing through a village called Rampa near ati i they were caught off guard by HVO members who then took them prisoner 3362 According to Fuad Kulovi the HVO ambush caused panic among the 7th Brigade 3rd Battalion soldiers 3363 1496 Between noon and 1800 hours 14 Croatian and Bosnian Serb civilians an HVO soldier and an HVO TO member were arrested in or right around Kakanj and taken and detained in Motel Sretno Witnesses Niko Petrovi Nenad Bogelji and Marinko Maru i were among the persons arrested and detained 3364 1497 The evidence adduced by the Parties differs as to which 7th Brigade units captured and detained those 16 people According to Kasim Alajbegovi and Fuad Kulovi the members of the 7th Brigade Military Police who had escaped made the arrests on their own initiative 3365 Kasim Alajbegovi added that no 7th Brigade 3rd Battalion members participated in the arrests and 3356 P 498 P 728 P 475 Kasim Alajbegovi T F pp 18684 18693 and 18709-18710 Fuad Kulovi T F pp 1881618817 3357 Kasim Alajbegovi T F pp 18713-18715 and 18747 3358 P 684 3359 P 498 Fuad Kulovi T F pp 18806-18807 3360 Fuad Kulovi T F p 18808 The Chamber notes that Fuad Kulovi said that he had seen the police wearing military police insignia that is white belts and regular uniforms T F p 18819 3361 Fuad Kulovi T F pp 18839 and 18807 Kasim Alajbegovi T F p 18695 3362 Fuad Kulovi T F pp 18808 and 18810 Kasim Alajbegovi T F pp 18695 18757 and 18759 3363 Fuad Kulovi T F p 18820 3364 Niko Petrovi T F p 1565 Nenad Bogelji T F pp 2106-2108 Marinko Maru i T F pp 1592-1593 3365 Fuad Kulovi T F pp 18810 and 18831 Kasim Alajbegovi T F pp 18696 and 18715 Case No IT-01-47-T 438 15 March 2006 238 21623 BIS detention of those people 3366 Witness Niko Petrovi however stated that he saw a group of ten armed men in camouflage uniforms arresting civilians on that day 3367 and Witness Nenad Bogelji a former HVO member noted that he was arrested by 4 or 5 soldiers from the 7th Brigade who were stationed at Motel Sretno and not wearing ABiH military police insignia 3368 Furthermore a report drafted at 2330 hours on 18 May 1993 by the 7th Brigade duty officer indicates that the 7th Brigade 3rd Battalion had reinforcements from a 7th Brigade 2nd battalion guerrilla unit and additional police forces 3369 Finally an HVO report dated 21 May 1993 indicates that the arrest of 15 civilians on 18 May 1993 was the work of ABiH units led by the 7th Brigade from Zenica 3370 1498 In view of this evidence the Chamber finds that the three or four members of the 7th Brigade Military Police who escaped with the assistance of local soldiers from the 7th Brigade 3rd Battalion arrested and detained 16 Bosnian Croats and Bosnian Serbs and that later on the day of 18 May 1993 and in any case before 2330 hours those troops were reinforced by 7th Brigade 2nd Battalion soldiers and additional 7th Brigade Military Police forces 1499 Following the arrest of those 16 people the representatives of the armed forces of the ABiH and HVO in Kakanj began negotiating the release of their prisoners 3371 Fuad Kulovi and Kasim Alajbegovi thus stated that after the military police who had escaped arrived at Motel Sretno they each contacted Džemal Hadži ABiH 3rd Corps 309th Brigade Commander who attempted to negotiate with Nevin Mari HVO Commander in Kakanj the release of the prisoners each side was holding 3372 1500 Witnesses Niko Petrovi Nenad Bogelji and Marinko Maru i described to the Chamber how they were mistreated at Motel Sretno from the time of their arrest on 18 May 1993 until the early morning of 19 May 1993 Niko Petrovi and Marinko Maru i indicated that they were beaten on four separate occasions during that short period 3373 3366 Kasim Alajbegovi T F pp 18716 and 18747 Kasim Alajbegovi said that the 7th Brigade 3rd Battalion had two or three police but that they were mostly in charge of securing the building the entrance and reception desk at Motel Sretno T F p 18716 3367 Niko Petrovi T F p 1565 3368 Nenad Bogelji T F pp 2106-2107 2142-2143 and 2149-2150 3369 P 563 Nenad Bogelji ’s statements also refer to the 7th Brigade 2nd Battalion’s presence at Motel Sretno He indicated that one of the jailers present at the time he says he was being beaten was nicknamed “Geler” T F pp 21202121 Vehid Suboti a k a Geler was a member of the 7th Brigade 2nd Battalion P 542 P 713 3370 P 684 The Chamber will discuss the probative value of this document in the chapter dealing with the knowledge of the Accused Had ihasanovi 3371 P 563 3372 Fuad Kulovi T F pp 18809-18810 18822 and 18837 Kasim Alajbegovi T F p 18696 3373 Niko Petrovi T F pp 1569-1573 Marinko Maru i T F pp 1597 and 1599 Case No IT-01-47-T 439 15 March 2006 237 21623 BIS 1501 Niko Petrovi stated that after his arrest he was taken to a basement room in Motel Sretno where there were 15 other detainees 3374 He explained that the room included a narrow area where the detainees were locked up and a wider area where interrogations were carried out The layout of the room was such that whenever a detainee was interrogated the other detainees could see what was happening 3375 The witness stated that he was the first prisoner to be interrogated and he was ordered to sit on a chair surrounded by three soldiers standing one to his left who was armed another to his right and the last in front of him The soldier in front of him threatened him by saying he wanted to “see how bad his Ustasha blood smell ed ” 3376 The soldier to his right then kicked him in the side of the head with his boot the soldier to his left hit him with the butt of his rifle and the soldier in front of him kicked him in the chest 3377 Niko Petrovi then staggered and was dragged back to the cell He stated that afterwards the soldiers called the detainees one by one and that he saw them receive the same treatment 3378 1502 Niko Petrovi said that after the initial beatings a group of ten armed soldiers took the prisoners out of their cell and ordered them to beat one another Petrovi gave examples of how two brothers were ordered to slap each other in the face and how he had to slap the person standing next to him Since Petrovi could not bring himself to do it a member of the “MOS” hit him in the back with the butt of his rifle and ordered him to comply The soldiers then ordered the prisoners to hit each other harder this time in the stomach 3379 Niko Petrovi ’s testimony was corroborated by Marinko Maru i who stated that he was the person Niko Petrovi was ordered to beat during that incident He added that they were ordered to beat one another on two separate occasions First they had to slap and punch one other and each time the guards thought that the blows were not hard enough they would beat the prisoners themselves The guards then ordered Niko Petrovi to lie on the ground and ordered Marinko Maru i to kick him in the kidneys Maru i however wanted to avoid kicking him there or in the ribs so he targeted his thighs Since the soldiers were dissatisfied with Marinko Maru i ’s approach they ordered him to lie down on the ground One of the soldiers then jumped on his ribcage and began to kick him saying that was the only way to do it 3380 1503 Niko Petrovi continued his testimony stating that when night fell the prisoners were subjected to a third round of mistreatment which he described as the most violent The soldiers lined up along the walls in a corridor and after another prisoner was summoned and beaten Niko 3374 Niko Petrovi T F pp 1566-1567 Niko Petrovi T F pp 1567-1569 3376 Niko Petrovi T F p 1567 3377 Niko Petrovi T F pp 1567-1568 and T E pp 1567-1568 3378 Niko Petrovi T F p 1568 3379 Niko Petrovi T F p 1570 3380 Marinko Maru i T F p 1599 3375 Case No IT-01-47-T 440 15 March 2006 236 21623 BIS Petrovi had to walk through the line of soldiers He was hit in the back with the butt of a rifle and immediately afterward each soldier one after the other kicked him The beating became increasingly violent as the soldiers beat him with the butts of their rifles Niko Petrovi fell to the ground and before losing consciousness took 14 truncheon blows to the head 3381 Nenad Bogelji described undergoing a similar beating which lasted 45 minutes The soldiers trampled him beat him with the butts of their rifles and finally hit him in the back with a truncheon Despite his begging the soldiers not to hit him in his right kidney the soldiers were ordered to land their blows specifically there 3382 1504 Niko Petrovi stated that after he regained consciousness he realised that two soldiers including one of his former schoolmates had locked the cell door in an attempt to prevent further beatings When other soldiers arrived and noticed they could not get into the cell however they ordered the prisoners to put their heads between the cell bars The soldiers picked up pieces of wood and told the prisoners they were going to give them one last treatment before night came Niko Petrovi added that the prisoners were then beaten one last time 3383 Nenad Bogelji described the same beating and pointed out that after he was hit in the back of the neck all of the other prisoners were beaten 3384 1505 Marinko Maru i and Nenad Bogelji pointed out that the soldiers used various instruments to beat the prisoners such as wooden sticks rifle butts an S-shaped iron hook and the back of a metal chair 3385 The three other former detainees stated that the 16 prisoners at Motel Sretno including Ljubisa Vucenovi Josip Maru i Zeljko Krkeljas and Mladenko Krkeljas were all beaten at that time 3386 1506 Nenad Bogelji mentioned that he received death threats 3387 and stated like the other two former prisoners that the prisoners were forced on many occasions to shout the words “Allah-uakbar” whenever the soldiers shouted “Tekbir” 3388 1507 The beatings described above stopped at around 0400 hours on the morning of 19 May 1993 3389 A person introducing himself to the prisoners as an officer representing the ABiH then 3381 Niko Petrovi T F pp 1571-1572 Nenad Bogelji T F pp 2114-2115 3383 Niko Petrovi T F p 1573 3384 Nenad Bogelji T F pp 2119-2120 3385 Marinko Maru i T F pp 1596-1597 and T E pp 1597-1598 Nenad Bogelji T F p 2114 3386 Niko Petrovi T F p 1569 Marinko Maru i T F p 1600 Nenad Bogelji T F pp 2119-2120 3387 Nenad Bogelji T F pp 2116-2117 3388 Niko Petrovi T F p 1573 Marinko Maru i T F p 1600 Nenad Bogelji T F p 2120 3389 Marinko Maru i T F p 1602 Nenad Bogelji T F p 2121 3382 Case No IT-01-47-T 441 15 March 2006 235 21623 BIS arrived and asked the prisoners to give him their personal information 3390 Two witnesses specified that the officer could see the prisoners had been injured 3391 The prisoners were then released during the day on 19 May 1993 3392 1508 Niko Petrovi explained that after his release he went to see a doctor at the Kakanj dispensary The medical certificate from his visit on 19 June 1993 lists an open wound in the back of the head 5-centimetres long and down to the bone purple bruises on his back a bruised collarbone and scratches on his elbows and legs 3393 The certificate suggests that the patient required additional examinations but indicates that the dispensary was not in a position to transport him to the regional medical centre 3394 Niko Petrovi added that on the same day he was nevertheless transferred to the HVO hospital in Haljini i where he received further treatment and medication and he began treatment with a neuropsychiatrist in 1997 3395 1509 Marinko Maru i stated that as a result of being mistreated at Motel Sretno he suffered a completely bruised back damage to his eyes and an injury to the head Subsequent medical examinations revealed that he had an enlarged liver bruised ribs and an increased sedimentation rate 3396 He is still suffering from the effects of a damaged liver and increased sedimentation rate today 3397 1510 Finally Nenad Bogelji stated that on 20 May 1993 he and several other prisoners went to the medical centre in Kakanj There he learned that he had six broken ribs dislocated kidneys and bruises to one of his kidneys 3398 He explained that on the same day their injuries were filmed at the Haljini i medical centre and that he recognised six video clips showing the injuries that he and three fellow prisoners had sustained 3399 Three months later he visited a hospital in Croatia and learned that his spine was also damaged 3400 3390 Niko Petrovi T F p 1574 Nenad Bogelji T F p 2121 Niko Petrovi T F p 1575 Nenad Bogelji T F p 2121 3392 Niko Petrovi T F p 1574-1575 Nenad Bogelji T F pp 2122 and 2145 Marinko Maru i T F p 1605 Kasim Alajbegovi T F pp 18697 and 18748 3393 DK 3 See also Niko Petrovi T F p 1574 3394 DK 3 3395 Niko Petrovi T F p 1581 3396 Marinko Maru i T F p 1600 and T E p 1601 3397 Marinko Maru i T F pp 1601-1602 3398 Nenad Bogelji T F pp 2122-2123 3399 Nenad Bogelji T F pp 2123-2126 P 63 3400 Nenad Bogelji T F p 2122 3391 Case No IT-01-47-T 442 15 March 2006 234 21623 BIS b Sequence of Events from 18 to 21 June 1993 1511 Witness Ranko Popovi a Serbian civilian stated that he was arrested in Kakanj on 18 June 1993 by 7th Brigade soldiers who took him to Motel Sretno 3401 He indicated that he was beaten on two occasions When he arrived at Motel Sretno he was taken to the basement of the building where six soldiers were waiting in camouflage wearing distinctive insignia which he later learned designated the 7th Brigade 3402 The soldiers punched and kicked him and also beat him with cables 3403 He described the basement as a kind of foyer containing a number of small “boxes” enclosed with bars 3404 The next day a soldier ordered him to put his head between the cell bars and beat him with a wooden board until it shattered 3405 He explained that as a result of the beating his head was covered in blood and that he still has scars from the blows on his head 3406 1512 Ranko Popovi added that when he arrived there were no other prisoners at Motel Sretno but that another civilian was brought there later He pointed out that the civilian was not mistreated 3407 He did recall however that the soldier who beat him the second time ordered the two men to beat one another The prisoners did so but for the most part faked it 3408 Ranko Popovi stated that he remained at Motel Sretno until 21 June 1993 when he was taken to the Zenica Music School 3409 c Mistreatment Paragraph 42 f of the Indictment 1513 Based on the above the Chamber finds that 16 Bosnian Croats and Bosnian Serbs were physically and psychologically abused throughout their detention at Motel Sretno specifically from their arrival on the afternoon of 18 May 1993 until the early morning of 19 May 1993 The Chamber bases its finding on the specific and consistent evidence from three former detainees at Motel Sretno namely Niko Petrovi Nenad Bogelji and Marinko Maru i Their testimony is consistent in stating that the detainees were repeatedly subjected to the most terrible brutality sometimes in front of other detainees that the detainees were forced to beat one another and to frequently shout “Allah-u-akbar” and that they were brutalised with objects ranging from wooden sticks to clubs to rifle butts if not with punches or kicks The Chamber also accepts the videotape 3401 Ranko Popovi T F pp 1532-1535 Ranko Popovi T F pp 1536-1537 3403 Ranko Popovi T F p 1537 3404 Ranko Popovi T F p 1536 3405 Ranko Popovi T F p 1539 3406 Ranko Popovi T F p 1540 3407 Ranko Popovi T F pp 1537-1538 and 1541 3408 Ranko Popovi T F p 1541 3409 Ranko Popovi T F pp 1537-1538 and 1542 3402 Case No IT-01-47-T 443 15 March 2006 233 21623 BIS of the injuries suffered by the four former detainees at Motel Sretno 3410 filmed on 20 May 1993 the day after the events which leaves no doubt as to the seriousness of the bodily harm inflicted on the detainees The Chamber also finds on the basis of the testimony of the three former detainees that the perpetrators of the mistreatment intended to cause the prisoners at Motel Sretno serious pain and suffering 1514 The Defence for the Accused Hadžihasanović argues that the 7th Brigade Military Police not the 7th Brigade 3rd Battalion was responsible for the mistreatment of the prisoners at Motel Sretno 3411 It bases that assertion on the testimony of Fuad Kulovi alone who indicated that on 19 May 1993 he learned from members of his battalion that the 7th Brigade Military Police were responsible for beating the detainees 3412 1515 The Prosecution alleges that in addition to the members of the 7th Brigade 3rd Battalion and the 7th Brigade Military Police members of the 7th Brigade 2nd Battalion also took part in the mistreatment of the detainees at Motel Sretno 3413 1516 Consistent with its findings above 3414 the Chamber would first recall that the 16 Croatian and Serbian men were detained as part of an arrest operation conducted by at least three or four members of the 7th Brigade Military Police and 7th Brigade 3rd Battalion soldiers and that later during the day of 18 May 1993 in any case before 2330 hours those men were reinforced by 7th Brigade 2nd Battalion soldiers and additional 7th Brigade military police Consequently at the material time 7th Brigade military police 7th Brigade 2nd Battalion soldiers and local 7th Brigade 3rd Battalion soldiers were present at Motel Sretno 1517 The Chamber also notes that Witness Fuad Kulovi was not at Motel Sretno when the prisoners were mistreated In fact Fuad Kulovi stated that he left Motel Sretno on 18 May 1993 at around 1500 or 1600 hours and returned only the next day at around noon when the detainees had already been exchanged 3415 1518 The Chamber finds that while Witness Niko Petrovi stated that the perpetrators of the mistreatment were “MOS” soldiers in camouflage uniforms 3416 without giving any specific indication as to which unit or battalion they belonged Nenad Bogelji did point out that the same 3410 P 63 Had ihasanovi Defence Final Brief paras 967 and 981 3412 Fuad Kulovi T F p 18812 3413 Prosecution Final Brief para 279 and footnote 897 3414 See supra para 1498 3415 Fuad Kulovi T F pp 18812-18813 18822 and 18830 3416 Niko Petrovi T F pp 1570-1571 3411 Case No IT-01-47-T 444 15 March 2006 232 21623 BIS soldiers that is local soldiers based at Motel Sretno had brought him there 3417 Likewise Marinko Maru i indicated that the perpetrators of the beatings were local soldiers wearing military uniforms and “MOS” insignia on their belts 3418 Furthermore Nenad Bogelji identified Vehid Suboti aka Geler 3419 a member of the 7th Brigade 2nd Battalion 3420 as being present during one beating 1519 The fact that two victims described the perpetrators of the beatings as local soldiers combined with the fact that 7th Brigade 3rd Battalion soldiers were at Motel Sretno at the material time is sufficient to convince the Chamber beyond a reasonable doubt that 7th Brigade 3rd Battalion soldiers were among the perpetrators of the cruel treatment alleged With respect to the allegations that the 7th Brigade Military Police and or 7th Brigade 2nd Battalion also committed those crimes the Chamber first notes that they are not mentioned in the Indictment In fact Paragraph 42 f of the Indictment alleges that ABiH 3rd Corps 7th Brigade 3rd Battalion soldiers mistreated the detainees Consequently the Chamber finds that the evidence adduced by the Prosecution during the trial corresponds only partially to the alleged material fact set out in the Indictment which is the identity of the subordinates For this reason in line with its previous findings 3421 the Chamber considers the Indictment defective because of an error which should have prompted the Prosecution to request the leave of the Chamber to amend it accordingly Since the Chamber was seized of no such request it is of the view that it need not rule on the alleged commission of acts of which the 7th Brigade Military Police and or 7th Brigade 2nd Battalion are accused 3422 1520 As regards mistreatment at Motel Sretno between 18 and 21 June 1993 the Chamber heard only one witness Ranko Popovi According to his testimony the only other detainee at Motel Sretno at that time was not physically abused Ranko Popovi ’s statement is however extremely specific and both his description of the place of detention and the type of mistreatment inflicted on two occasions are consistent with the descriptions provided by the witnesses who had been detained at Motel Sretno on 18 and 19 June 1993 The Chamber therefore finds his testimony credible and is 3417 Nenad Bogelji T F pp 2106-2107 2114 2142-2143 and 2149-2150 Marinko Maru i T F p 1597 3419 Nenad Bogelji T F pp 2120-2121 3420 P 542 P 713 3421 See supra para 269 3422 Assuming it is established that members of the 7th Brigade 2nd Battalion and or 7th Brigade military police committed certain crimes of mistreatment the Chamber notes that the possibility that the local detaining authorities namely Nihad ati or Kasim Alajbegovi participated in those crimes must be considered The local detaining authority is under an obligation by virtue of its authority in that capacity to ensure the safety and well-being of detainees in its custody If that authority has knowledge that criminal acts have been committed against prisoners in its custody and fails to take measures to stop those detainees from being mistreated that authority plays a significant part in the commission of those crimes Nevertheless evidence adduced in this case does not establish beyond a reasonable doubt that Nihad ati or Kasim Alajbegovi knew that the crimes had been committed Consequently no conclusion can be drawn as to what form of responsibility those two persons incurred in this case 3418 Case No IT-01-47-T 445 15 March 2006 231 21623 BIS convinced beyond a reasonable doubt that cruel treatment was committed between 18 and 21 June 1993 1521 The Chamber notes however that Ranko Popovi was not able to specify to which 7th Brigade unit the perpetrators of the beatings belonged In fact at the material time in June 1993 conflict between the HVO and the ABiH had broken out in Kakanj and both the 7th Brigade’s 2nd and 3rd Battalions were deployed in Kakanj and its sector 3423 Moreover since Ranko Popovi was taken to the Zenica Music School on 21 June 1993 3424 and the 7th Brigade 2nd Battalion was based in Zenica 3425 it cannot be ruled out that the 2nd Battalion dealt with Ranko Popovi on their own before taking him to Zenica Consequently in the absence of any other information it cannot be established beyond a reasonable doubt that members of the 7th Brigade 3rd Battalion were responsible for mistreating Ranko Popovi 1522 Regarding the victims of the mistreatment the evidence admitted at trial demonstrates that Ranko Popovi and the other people arrested and transferred to Motel Sretno on 18 May 1993 were Bosnian Croat or Bosnian Serb civilians or prisoners of war 3426 or unarmed HVO members in civilian clothing at the time they were arrested 3427 Consequently they were all protected persons pursuant to the laws or customs of war as recognised by common Article 3 of the Geneva Conventions 1523 On the basis of the above the Chamber finds that the elements of the crime of cruel treatment at Motel Sretno have been established for the material periods from 18 to 19 May 1993 and 18 to 21 June 1993 Nevertheless since it has not been established beyond a reasonable doubt that the perpetrators of the mistreatment between 18 and 21 June 1993 belonged to the 7th Brigade 3rd Battalion the Chamber acquits the Accused Hadžihasanović and the Accused Kubura of the charges of mistreatment for the period 18 to 21 June 1993 3423 DK 23 DK 24 Safet Junuzovi T F pp 18517-18519 Kasim Alajbegovi T F pp 18701-18702 Ranko Popovi T F p 1543 3425 See supra para 344 3426 Marinko Maru i T F pp 1588-1589 Nenad Bogelji T F p 2119 Ranko Popovi T F pp 1528-1532 and 1541 3427 Niko Petrovi T F pp 1563 1565 and 1579 Nenad Bogelji T F pp 2106-2107 3424 Case No IT-01-47-T 446 15 March 2006 230 21623 BIS iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi a Effective Control of Enver Had ihasanovi over the Perpetrators of the Crime 1524 The Chamber has found that the cruel treatment alleged in paragraph 42 f of the Indictment was committed on 18 and 19 May 1993 by 7th Brigade 3rd Battalion soldiers Since the 7th Brigade was de jure subordinated to the 3rd Corps at the material time 3428 it is assumed that the Accused Hadžihasanović exercised effective control over the unit and its members who committed the mistreatment 3429 1525 Moreover the evidence has demonstrated that the 7th Brigade followed the orders of the Accused Hadžihasanović For example the 7th Brigade Command submitted to the 3rd Corps Command proposals for disciplinary measures against and appointments of 7th Brigade 3rd Battalion members 3430 Similarly the 7th Brigade Command reported to the 3rd Corps Command on the progress of the combat operations and the prevailing situation in the Kakanj sector This is evidenced by the minutes of two meetings on 21 June 1993 and 23 June 1993 during which the Accused Kubura reported to the 3rd Corps Command on the combat situation in Kakanj and the disciplinary measures taken within the 7th Brigade 3rd Battalion 3431 1526 The Defence for the Accused Hadžihasanović also did not challenge the fact that the 7th Brigade was subordinated to the Accused Hadžihasanović and adduced no evidence to reverse that presumption 1527 Consequently the Chamber finds that the Accused Hadžihasanović exercised effective control over the perpetrators of the mistreatment at Motel Sretno on 18 and 19 May 1993 and that a superior-subordinate relationship existed within the meaning of Article 7 3 of the Statute b Knowledge of Enver Had ihasanovi 1528 The Prosecution submits that the Accused Hadžihasanović knew about the mistreatment of the detainees at Motel Sretno on 18 and 19 May 1993 The Prosecution argues that the Accused Hadžihasanović was in Kakanj on 18 May 19933432 and then relies on two protest letters drafted by 3428 See supra para 381 See supra para 79 3430 P 475 3431 P 924 2 P 924 3 3432 Prosecution Final Brief paras 279 and 289 Prosecution Closing Arguments T F p 19040 3429 Case No IT-01-47-T 447 15 March 2006 229 21623 BIS Tihomir Bla ki on 20 May 1993 and 21 May 1993 documents P 682 and P 684 respectively the first asking the Joint Command and the second asking the Joint Command and specifically the 3rd Corps Command for their reaction to the events of 18 and 19 May 1993 in Kakanj 3433 The Prosecution adds that the Joint Command was already operational at the time to the extent that the HVO and the ABiH used it as a post-box to write messages back and forth to one another 3434 Finally the Prosecution uses the presence of the Accused Hadžihasanović at a meeting on 21 June 1993 between the HVO and the ABiH during which the issue of Kakanj was raised to draw the conclusion that he had knowledge of the offence charged 3435 1529 The Defence for the Accused Hadžihasanović submits that the Accused Hadžihasanović did not know or have reason to know that the detainees at Motel Sretno had been mistreated In support of that assertion it submits first that the Accused Hadžihasanović was not in Kakanj on 18 and 19 May 19933436 and second that the reports which constitute P 682 and P 684 were not addressed to the Joint Command because it was not yet operational in May 1993 and because the documents do not bear any stamps indicating that they were sent or received 3437 Third according to the Defence the 3rd Corps did not receive the report marked Exhibit P 684 because the information in it was not recorded in the 3rd Corps war diary or operations log book and because there were only four copies of the report when in fact six addressees are mentioned 3438 Fourth the Defence argues that the Accused Hadžihasanović never knew about the internal report of 18 May 1993 marked Exhibit P 5633439 drafted by the 7th Brigade duty officer to the 3rd Corps Operations Centre or about the HVO report of 19 May 1993 marked Exhibit P 643 3440 Fifth it adds that the Prosecution did not tender Exhibits P 563 P 682 P 684 P 643 and P 689 through a witness during deposition even though it could have done so 3441 Sixth and last the Defence for Hadžihasanović submits that the report of the meeting on 21 June 1993 between the HVO and the ABiH did not focus on one detention centre specifically and therefore did not deal with the incidents at Motel Sretno 3442 1530 The Chamber will first consider the question of whether the Accused Hadžihasanović was in Kakanj at the material time The Prosecution bases its argument that the Accused Hadžihasanović 3433 Prosecution Final Brief para 285 Prosecution Closing Arguments T F p 19044 3435 Prosecution Final Brief para 285 3436 Had ihasanovi Defence Final Brief paras 991-995 3437 Had ihasanovi Defence Final Brief paras 990 and 999 and footnote 1416 3438 Had ihasanovi Defence Final Brief para 1000 Had ihasanovi Defence Closing Arguments T F pp 1914119142 3439 Had ihasanovi Defence Final Brief para 1001 3440 Had ihasanovi Defence Final Brief para 998 and footnote 1415 3441 Had ihasanovi Defence Final Brief para 1002 3442 Had ihasanovi Defence Final Brief para 1005 3434 Case No IT-01-47-T 448 15 March 2006 228 21623 BIS was present on statements from Prosecution Witness Milenko Borov anin an ABiH soldier living in Kakanj Borov anin told the Chamber that he saw the Accused Hadžihasanović speaking with several soldiers in Kakanj on 19 May 1993 3443 The witness pointed out that he saw him from a distance of 70 to 200 metres but that he did not hear any of the conversation 3444 The Chamber notes however that Witness Milenko Borov anin’s testimony is indicative of an extremely approximate even erroneous knowledge of the Accused Hadžihasanović Indeed Milenko Borov anin stated that although the Accused Hadžihasanović lives close to him he has never met him personally 3445 The witness then explained that the first 3rd Corps Commander was Mehmed Alagi and that he was later replaced by the Accused Hadžihasanović 3446 Finally while being cross-examined by the Hadžihasanović Defence on a statement he made on 17 September 2001 the witness described the Accused Hadžihasanović in the following terms “Q You can look at the statement in B C S Is it true that you gave this statement on 17th September 2001 A Correct Q Can you please look at page 4 the last paragraph on that page Here you give a detailed description of Enver Had ihasanovi You say that you think that he was of about your age that he was about 1 80 metres tall and that he is of strong build Is that correct A Yes I would repeat the same thing today ” 3447 The Chamber notes that this description is very general says nothing distinctive about the Accused Hadžihasanović and is based on faulty knowledge of who he is 3448 The Chamber is of the view that those inaccuracies and ambiguities with regard to the identification of the Accused Hadžihasanović cast doubt on the reliability of Milenko Borov anin’s testimony such that the Chamber is not convinced beyond a reasonable doubt that Witness Milenko Borov anin saw the Accused Hadžihasanović in Kakanj on 19 May 1993 The Chamber further notes that no other witness stated that the Accused Hadžihasanović was at or near Motel Sretno on the days of the events On the contrary Witness Kasim Alajbegovi stated that he never met the Accused Hadžihasanović in 3443 Milenko Borov anin T F p 2185 Milenko Borov anin T F pp 2212-2213 3445 Milenko Borov anin T F pp 2183 and 2208-2210 3446 Milenko Borov anin T F p 2207 3447 Milenko Borov anin T F pp 2200-2201 3448 For example the Chamber notes that Witness Milenko Borov anin was born on 6 February 1940 Milenko Borov anin T F p 2178 The Accused Had ihasanovi however was born on 7 July 1950 Joint Statement on Agreement of Facts Annex A P 113 under seal As such there is ten years’ age difference between the two Another distinctive feature of the Accused Had ihasanovi is that he wears eyeglasses DH 190 Torbjorn Junhov T F pp 8402-8404 3444 Case No IT-01-47-T 449 15 March 2006 227 21623 BIS Kakanj 3449 In view of that evidence the Chamber considers that it has not been sufficiently established that the Accused Hadžihasanović was in Kakanj at the material time 3450 1531 The Chamber next observes that on 20 May 1993 Tihomir Bla ki wrote a letter to the Joint Command based in Travnik indicating that “At the request of the Kakanj HVO representative you the joint command are requested to visit and alleviate the situation in Kakanj where BH Army troops have been capturing mistreating and imprisoning Croatian citizens as this could lead to a wider conflict ”3451 The next day 21 May 1993 Tihomir Bla ki wrote a protest letter this time to the Joint Command and particularly to the ABiH 3rd Corps Command condemning the violation of the cease-fire agreements of 18 May 1993 and more specifically the incidents in Kakanj on 18 19 and 20 May 1993 in the following terms “In the afternoon of 18 May BH Army units led by the 7th Muslim Brigade from Zenica brought in fifteen Croatian and Serbian civilians from the Povezice suburb and kept them detained in the Sretno hotel for 24 hours They were dealt with in keeping with Muslim humanitarian law their extremities were broken stabbed in the neck and the body with knives and underwent other examples of physical torture as well as psychological torture intended to exalt Islam Audio photos and video evidence of this merciless behaviour of the BH Army’s ‘elite’ units towards innocent civilians solely because they are ‘infidel’ will be made available to the public at home and abroad ”3452 Tihomir Bla ki ’s letter ends as follows “We request that the Muslim side conduct an investigation into the incidents in Kakanj and raise the question of personal responsibility for the violation of the rules of international humanitarian law We would also request the international officials to react urgently and undertake all measures at their disposal to protect the Croats and other people in Kakanj municipality ”3453 1532 The Defence for the Accused Hadžihasanović put forth several arguments to counter the weight attached to the two reports Its main argument is that the Joint Command to which the two reports are written was not yet operational in May 1993 and that as a result it did not receive the 3449 Kasim Alajbegovi T F p 18708 With regard to the Prosecution argument that the Accused Had ihasanovi lived in Kakanj Prosecution Final Brief para 289 the Chamber first notes that it lacks sufficient information on that fact Only Witness Milenko Borov anin stated that the Accused Had ihasanovi lived in Kakanj with his family T F pp 2208-22010 2213-2214 Nevertheless since there is lingering doubt as to whether this witness identified the Accused Had ihasanovi and since this witness did not see Had ihasanovi inside or in front of the home he claims belongs to him or go inside the home himself the Chamber considers that the fact has not been proved beyond a reasonable doubt Moreover even if the Chamber were to assume the fact to be established it does not believe that would change its findings on whether the Accused Had ihasanovi was at Motel Sretno at the material time Regarding the Prosecution argument that the documents from the 3rd Corps Command dated 18 to 20 May 1993 bear either a typewritten signature of the Accused Had ihasanovi or the signature of someone replacing him Prosecution Closing Arguments T F p 19040 the Chamber finds the argument relevant only if the Accused Had ihasanovi ’s presence at or near Motel Sretno were demonstrated Since that is not the case the Chamber is of the view that it need not examine the issue 3451 P 682 3452 P 684 3453 P 684 3450 Case No IT-01-47-T 450 15 March 2006 226 21623 BIS reports Conversely the Prosecution argues that as of May 1993 the HVO and the ABiH used the Joint Command as a post-box to exchange messages The Chamber recalls that the Central Bosnia Joint Command to which D emal Merdan and the Accused Hadžihasanović belonged as members of the ABiH was set up following an agreement made in Zagreb on 25 April 1993 between Alija Izetbegovi and Mate Boban to set up a joint HVO-ABiH command to control the operations of the military districts for which they were responsible 3454 The Defence for the Accused Hadžihasanović and the Prosecution each presented documents in their written submissions intended to support or refute the arguments on the organisational functioning of the Joint Command at the material time 1533 Having closely examined the documents the Chamber makes the following observations First documents DH 1031 and DH 1040 referred to in the Hadžihasanović Defence Final Brief3455 and the Prosecution Closing Arguments 3456 were withdrawn from the proceedings following a decision by the Chamber on 22 June 2005 3457 Likewise Exhibit DH 1032 to which the Prosecution refers in its Closing Arguments 3458 was withdrawn from the proceedings pursuant to the same decision 3459 Conversely two other documents DH 1045 DH 1048 3460 letters from the 3rd Corps dated 22 May 1993 to which the Prosecution refers in its Closing Arguments attest to the fact that 3rd Corps correspondence was addressed to the Joint Command at the material time Exhibit P 738 which is a letter dated 9 May 1993 signed by D emal Merdan himself states that the Joint Command addressed correspondence to the HVO and to the 3rd Corps While those three letters do not indicate any dysfunction within the organisational structure of the Joint Command Exhibit DH 1081 to which both Parties refer in their submissions 3461 does say that there was a problem of HVO participation in the Joint Command The Chamber notes however that the document from the Joint Command merely criticises the refusal of the HVO representatives to be available to the Joint Command on 25 27 and 29 May 1993 That functional problem therefore arose after Tihomir Bla ki wrote the two protest letters referred to in the preceding paragraph Consequently none of the evidence adduced by the Parties in support of their arguments allows the Chamber to find that the Joint Command was not operating at least on an organisational level when the two letters were written that is as the Chamber recalls on 20 and 21 May 1993 The Chamber further notes that the 3454 DH 159 1 DH 958 Had ihasanovi Defence Final Brief footnote 1400 3456 Prosecution Closing Arguments T F p 19044 3457 Decision on the Admissibility of Documents of the Defence of Enver Had ihasanovi Case No IT-01-47-T 22 June 2005 Annex 2 In this Decision the Chamber in fact noted the Defence’s withdrawal of documents DH 1031 and DH 1040 3458 Prosecution Closing Arguments T F p 19044 3459 Decision on the Admissibility of Documents of the Defence of Enver Had ihasanovi Case No IT-01-47-T 22 June 2005 Annex 2 In this Decision the Chamber in fact noted the Defence’s withdrawal of documents DH 1032 3460 Prosecution Closing Arguments T F p 19044 3461 Prosecution Closing Arguments T F p 19044 Had ihasanovi Defence Final Brief footnote 1400 3455 Case No IT-01-47-T 451 15 March 2006 225 21623 BIS statements by Witness D emal Merdan the ABiH representative of the Central Bosnian Joint Command after it was officially created in late April 1993 3462 do not confirm the Hadžihasanović Defence argument that the Joint Command was not yet operational at the material time In fact D emal Merdan merely told the Chamber that the Joint Command was not operational from a military standpoint because the conflict between the HVO and ABiH armed forces had escalated in June 1993 3463 but said nothing of the organisational dysfunction shortly after it was set up in other words at the material time Consequently the Chamber dismisses the argument on this point put forth by the Defence for the Accused Hadžihasanović 1534 The Chamber now turns to the question of whether Tihomir Bla ki ’s two reports were received by the Joint Command in the case of document P 682 and by the Joint Command and 3rd Corps Command in the case of document P 684 The Defence for the Accused Hadžihasanović gave three reasons explaining why the answer to that question is negative First the two reports do not bear a date-received stamp Next the information contained in the report of 21 May 1993 Exhibit P 684 did not appear in the 3rd Corps war diary covering the period between 16 May 1993 and 28 July 1993 or in the 3rd Corps operations log covering the period between 6 February 1993 and 22 June 1993 3464 Finally the same report includes six addressees when in fact only four copies were made and sent 3465 1535 The Chamber would state the following about the arguments put forth by the Defence for the Accused Hadžihasanović 1536 First as to the absence of a date-received stamp on document P 684 one plausible explanation is that the document was most certainly taken from the HVO archives since it bears the stamp of the Croatian State Archives in Zagreb 1537 Second the Chamber is not convinced that because the information in Tihomir Bla ki ’s protest letters is not mentioned in the 3rd Corps war diary or operations log this means that the information was not brought to the 3rd Corps’ attention In fact the purpose of those two military logbooks was to record the information obtained from inside the ABiH itself such as information on combat operations and was not to keep a record of the content of correspondence exchanged with or received from external elements The Chamber observes in passing that the logbooks are not 3462 DH 159 1 DH 958 D emal Merdan T F p 13043 D emal Merdan T F pp 13044 and 13049 D emal Merdan referred to a series of documents to illustrate that from a military standpoint the situation had deteriorated between the HVO and the ABiH Among these documents he refers to the document marked Exhibit DH 1045 D emal Merdan T F p 13045 The Chamber notes that the Prosecution submitted this last document to illustrate how the HVO and ABiH used the Joint Command as a post-box 3464 C 16 C 20 3465 P 684 3463 Case No IT-01-47-T 452 15 March 2006 224 21623 BIS necessarily exhaustive to the extent that there is no entry in the 3rd Corps operations logbook for example between 4 May 1993 and 26 May 1993 which is the period in question 3466 1538 Third the Chamber recalls that the Joint Command was operational from at least 8 May 1993 and that much correspondence had already been exchanged within it 3467 1539 For all the foregoing reasons the Chamber is of the opinion that document P 682 was sent to and received by the Joint Command and that document P 684 was in fact sent to and received by at least the ABiH 3rd Corps Command or the ABiH and HVO Joint Command or even both military authorities 1540 The Defence for the Accused Hadžihasanović also argues that the probative value of documents P 682 and P 684 must be assessed in view of the fact that they were not tendered through a witness deposition even though the Prosecution had an opportunity to do so As it explained in its previous decisions on the admissibility of documents for the Prosecution and the Defence for the Accused Hadžihasanović the Chamber considers in line with Tribunal case law that there is no principle which automatically excludes a document merely because its alleged author was not called to testify during the trial 3468 Nevertheless the Chamber shares the view of the Trial Chamber in the Delali case according to which the probative value of a document may be diminished if it is not subject to the scrutiny involved in the cross-examination of a witness 3469 In this case the Chamber notes that no evidence has cast doubt or invalidated the veracity of the information contained in documents P 682 and P 684 On the contrary as shown above much Prosecution evidence corroborating the content of the reports was submitted to the Chamber during the trial The Chamber therefore considers the reports to have sufficient probative value 1541 In view of the foregoing and on the basis of Exhibits P 682 and P 684 the Chamber considers that the Accused Hadžihasanović knew that acts of mistreatment had been committed against civilian Croatian and Serbian detainees on 18 and 19 May 1993 at Motel Sretno 1542 The Chamber further notes that on 19 June 1993 there was a meeting in Vitez between representatives of the HVO the ABiH and the international community the main purpose of which was to discuss the release of the prisoners Stjepan iber the Accused Hadžihasanović and D emal 3466 C 20 p 154 P 738 DH 1045 DH 1048 DH 1081 3468 Decision on the Admissibility of Documents of the Defence of Enver Hadžihasanovi Case No IT-01-47-T 22 June 2005 para 33 Decision to Unseal Confidential Decision on the Admissibility of Certain Challenged Documents and Documents for Identification Case No IT-01-47-T 2 August 2004 para 18 footnotes omitted 3469 Decision on the Admissibility of Documents of the Defence of Enver Hadžihasanovi Case No IT-01-47-T 22 June 2005 para 33 citing The Prosecutor v Zejnil Delalić et al Case No IT-96-21-T Decision on the Motion of the Prosecution for Admissibility of Evidence 19 January 1998 para 22 3467 Case No IT-01-47-T 453 15 March 2006 223 21623 BIS Merdan represented the ABiH while Tihomir Bla ki represented the HVO ECMM representative Jean-Pierre Thébault and UNPROFOR representative Alastair Duncan were also present 3470 According to the ECMM report drafted after the meeting representatives of the two armed forces complained of the mistreatment of the prisoners 3471 After being questioned about the report however Witness ZP stated that the complaints were general in nature and that no specific place of detention had been mentioned as regards the issue of mistreatment 3472 According to the ECMM report the parties present then discussed on the basis of the HCR report the security concerns raised by the refugees in Kakanj “None wanted to return to their homes because they were not convinced by assurances of security from the BiH They did claim that it was external extremist units and not regular BiH soldiers from Kakanj who had been responsible Had ihasanovi in response claimed that it was the HVO who had provoked the hostilities in Kakanj but did not try to refute the findings of the UNHCR ”3473 Contrary to Prosecution allegations this passage does not relate to the mistreatment of prisoners at Motel Sretno As such the Chamber considers the Prosecution allegation on this point to lack foundation and accordingly dismisses it 3474 1543 Finally the Chamber considers that the knowledge the Accused Hadžihasanović had as of 8 May 1993 that mistreatment had been committed at the Music School by 7th Brigade members 3475 most of them military police subordinated to the 7th Brigade does not entail his responsibility for having failed to prevent the recurrence of similar acts perpetrated at Motel Sretno by 7th Brigade 3rd Battalion members In fact the perpetrators of those unlawful acts belonged to distinct groups of subordinates since they had a geographically distinct position and in respect of the detention centre fell under the authority and control of a distinct supervisory power c Measures Taken3476 1544 Since it has been established beyond a reasonable doubt that the Accused Hadžihasanović had knowledge of the mistreatment committed by his subordinates at Motel Sretno it was his duty to take the necessary and reasonable measures to punish the perpetrators 3470 P 904 P 213 3472 Witness ZP T F pp 8849-8851 3473 P 213 3474 The Chamber will examine the arguments put forth by the Defence for the Accused Had ihasanovi in relation to Exhibits P 643 and P 563 in the next chapter setting out the Chamber’s findings on the responsibility of the Accused Kubura 3475 See supra para 1218 3476 With regard to the examination of general measures taken by the Accused Had ihasanovi in relation to the detention of prisoners the Chamber refers to its findings in paras 856-859 and 1161-1167 3471 Case No IT-01-47-T 454 15 March 2006 222 21623 BIS 1545 The Prosecution alleges that the Accused Hadžihasanović failed to take any punitive measures in this regard On the basis of Exhibit P 544 the Prosecution argues that if some 7th Brigade 3rd Battalion officers were relieved of their duties in late June 1993 the punishment was because they failed in their duty to prevent acts of plundering not because of the mistreatment committed at Motel Sretno 3477 1546 Before discussing the evidence relating to punitive measures which might have been submitted by the Parties the Chamber must first examine whether the Prosecution discharged its duty to prove that the Accused Hadžihasanović failed to act with respect to his responsibility for the offences alleged at Motel Sretno 1547 The Chamber recalls that Kakanj municipality fell within the ratione loci jurisdiction of the Zenica District Military Court and the Zenica District Military Prosecutor’s Office 3478 Consequently as the Chamber explained in the section of this Judgement dealing with its factual findings on the duty to prove the failure to take measures the Prosecution could rely on two pieces of evidence to prove that no measures were taken to punish the mistreatment committed at Motel Sretno specifically a letter from the president of the Zenica Cantonal Court Exhibit P 771 and the investigation conducted by Witness Peter Hackshaw 3479 1548 The Chamber however did not consider the conclusions provided by Exhibit P 771 to have the decisive probative value for demonstrating that the Prosecution had met its burden to prove its case that the Accused Hadžihasanović failed to take any punitive measures Regarding the conclusions of Peter Hackshaw’s investigation the Chamber has reached the same conclusion with respect to the crimes of mistreatment alleged in count 4 of the Indictment 3480 1549 Consequently the Chamber must now analyse whether the Prosecution adduced any other evidence that might prove its case As indicated above relying on Exhibit P 544 the Prosecution merely argued that while punitive measures were taken against some 7th Brigade 3rd Battalion officers in late June 1993 the measures bore no relation to the mistreatment committed at Motel Sretno 3477 Prosecution Final Brief para 288 See supra para 911 3479 See discussion supra paras 970-976 3480 See discussion supra paras 977-1000 3478 Case No IT-01-47-T 455 15 March 2006 221 21623 BIS 1550 The Chamber notes that on 25 June 1993 the Accused Hadžihasanović wrote a letter to Stjepan iber following among other things a letter iber had written about the problems caused by the escalating conflict with the HVO 3481 Hadžihasanović wrote “Further to your letters … we are sending you a report on the measures taken with respect to the problems at issue On the strength of reports about crimes being committed and buildings looted all members of the SVB military security service and military police were ordered to take measures to prevent such occurrences during and after combat operations and clashes between the BH Army and HVO Croatian Defence Council units in the Kakanj and Kraljeva Sutjeska area A military police unit from the bvp Military Police battalion has been attached in order to prevent crime and monitor the territory Nesib Tali and Azer Bekta belong to the 7th Muslim Brigade M br and their conduct is currently under investigation that is to say the allegation that they looted property from a monastery is being verified Pursuant to the order of the 7th M br Command a battalion commander company commander and several other 7th M br battalion officers were relieved of their duties in Kakanj on 23 June 1993 for failing to carry out an order to prevent crime and looting Sweeping measures continue to be undertaken in order to expose and prevent looting by members of the BH Army ”3482 1551 The dismissal of several 7th Brigade 3rd Battalion officers at the end of June 1993 emphasised in this letter is confirmed by various pieces of evidence including an information chart Exhibit P 498 3483 on the length of service of and posts occupied by 7th Brigade members The chart indicates that on 20 June 1993 the 7th Brigade 3rd Battalion Commander Nihad ati the Commander of that Battalion’s 2nd Company Refik Husika and several 7th Brigade 3rd Battalion officers including Kasim Alajbegovi and Fuad Kulovi left their positions 1552 The Chamber notes that Witness Kasim Alajbegovi stated that he was unaware of the reasons behind these various dismissals 3484 Witness Fuad Kulovi stated that he knew that Nihad ati had left for Zenica in June 1993 but not that Nihad ati had been relieved of his duties 3485 The aforementioned letter from the Accused Hadžihasanović dated 25 June 1993 however strongly suggests that several 7th Brigade 3rd Battalion officers were punished following acts of plunder in the regions of Kakanj and Kraljeva Sutjeska An examination of the contemporaneous ABiH documents regarding Kakanj reveals that the problems prevailing there at the time had to do with increased acts of plunder in the municipality and its immediate vicinity specifically the plunder of 3481 DH 159 4 P 544 DH 161 19 3483 P 475 P 924 3484 Kasim Alajbegovi T E pp 18735 and 18738 3485 Fuad Kulovi T F pp 18817-18818 3482 Case No IT-01-47-T 456 15 March 2006 220 21623 BIS the Franciscan monastery of Kraljeva Sutjeska by 7th Brigade members 3486 The Chamber further notes that none of this evidence condemns specifically the mistreatment of the Croatian and Serbian prisoners detained at Motel Sretno on 18 and 19 May 1993 Consequently the Chamber is of the opinion that the evidence tendered at trial does not make it possible to conclude beyond a reasonable doubt that the punitive measures taken against several 7th Brigade 3rd Battalion members in late June 1993 were to punish the mistreatment committed at Motel Sretno 1553 Having resolved that issue the Chamber notes that the Prosecution failed to adduce any evidence with sufficient probative value to prove that the Accused Hadžihasanović failed to take punitive measures after the crimes were committed at Motel Sretno 3487 Accordingly the Chamber considers that the Prosecution failed to meet its burden to prove that the Accused Hadžihasanović failed to act with respect to the alleged offences at Motel Sretno It has not therefore been established beyond a reasonable doubt that the Accused Hadžihasanović failed to take the necessary and reasonable measures to punish the perpetrators of the crimes committed at Motel Sretno 1554 To conclude the Chamber acquits the Accused Hadžihasanović of the crime of mistreatment for the period of 18 to 19 May 1993 alleged in paragraph 42 f of the Indictment iv Findings of the Chamber regarding the Responsibility of Amir Kubura a Effective Control of Amir Kubura over the Perpetrators of the Crime 1555 The Chamber has found that the cruel treatment alleged in 42 f of the Indictment was committed by 7th Brigade 3rd Battalion soldiers Since the Chamber has found that the Accused Kubura was the de facto commander of the 7th Brigade 3488 it refers to its discussion of these matters in a previous section of this Judgement 1556 Moreover the evidence demonstrates that the 7th Brigade 3rd Battalion members followed orders from the 7th Brigade Command For example as indicated previously the 7th Brigade 3rd Battalion Commander and several 7th Brigade 3rd Battalion officers were dismissed on 20 June 1993 as a result of criminal acts of plunder This followed an order from the 7th Brigade Command 3489 3486 DH 161 14 P 924 2 DH 257 P 861 P 470 Zaim Mujezinovi T F pp 17476-17478 The Chamber notes that Witness Fuad Kulovi stated that he did not know whether there was an investigation into the beatings at Motel Sretno because no one informed him He further explained that he was not questioned on those incidents Fuad Kulovi T F pp 18832 and 18835 3488 See discussion supra paras 350-380 3489 P 544 P 475 P 429 See also Osman Hasanagi T E p 18884 3487 Case No IT-01-47-T 457 15 March 2006 219 21623 BIS 1557 Consequently the Chamber finds that the Accused Kubura exercised effective control over the perpetrators of the mistreatment during the period which began on 12 April 1993 and that a superior-subordinate relationship existed within the meaning of Article 7 3 of the Statute b Knowledge of Amir Kubura 1558 The Prosecution alleges that the Accused Kubura knew that his subordinates had committed mistreatment at Motel Sretno In support of its allegations the Prosecution first argues on the basis of Exhibit P 563 that the Accused Kubura was at Motel Sretno on 18 May 1993 3490 The Prosecution then submits on the basis of the testimony of Witness Nenad Bogelji and Exhibit P 643 that on 19 May 1993 the Accused Kubura was directly informed of the crimes committed by his subordinates during a meeting between the HVO and the ABiH attended by representatives of UNPROFOR 3491 1559 The Defence for the Accused Kubura submits that the Accused Kubura did not know or have reason to know about the alleged mistreatment at Motel Sretno 3492 It argues that there is no evidence that Kubura was at or near Motel Sretno at the material time and that Exhibit P 563 lacks probative value 3493 The Kubura Defence argues that on the basis of Prosecution evidence there is lingering doubt as to whether the Accused Kubura was at the alleged meeting of 19 May 1993 3494 Finally the Defence for the Accused Kubura claims that the Accused Kubura received no oral or written report on the alleged incidents and that no evidence shows that he should have had reason to know that the alleged crimes had taken place 3495 1560 The Chamber first notes that on 18 May 1993 at 2330 hours the 7th Brigade duty officer informed the 3rd Corps Operations Centre of the prevailing situation in Kakanj specifically that “ t he unit is at full readiness and the N Chief of Staff a guerrilla unit of the 2nd battalion of the 7th Mbbr and additional police forces are in the 3rd Battalion of the 7th Mbbr” 3496 The Prosecution submits that “Chief of Staff” in this document can refer only to the 7th Brigade Chief of Staff that is the Accused Kubura since the battalions did not have chiefs of staff The Prosecution concludes that the Accused Kubura was therefore at Motel Sretno on 18 May 1993 3490 Prosecution Final Brief paras 282-283 Prosecution Closing Arguments T F p 19042 Prosecution Final Brief para 284 3492 Kubura Defence Final Brief paras 128-129 and 161-163 Kubura Defence Closing Arguments T F pp 1927319279 3493 Kubura Defence Final Brief para 162 Kubura Defence Closing Arguments T F pp 19273-19278 3494 Kubura Defence Closing Arguments T F p 19279 3495 Kubura Defence Final Brief paras 128-129 and 163 3496 P 563 3491 Case No IT-01-47-T 458 15 March 2006 218 21623 BIS 1561 The Chamber notes however that Witnesses Kasim Alajbegovi and Fuad Kulovi disagree that the Accused Kubura was at Motel Sretno at the material time Kasim Alajbegovi states that the Accused Kubura did not come to Motel Sretno on 18 and 19 May 1993 adding that according to procedure the battalion command would be informed of the arrival of a superior officer from the brigade and that it would be impossible for such an officer to arrive without advance notice 3497 For his part Fuad Kulovi states that the Accused Kubura was in Zenica and that he did not see him on 18 and 19 May 1993 3498 The weight to be attached to Fuad Kulovi ’s testimony however is diminished by the fact that he also states that he left Motel Sretno on 18 May 1993 at around 1500 or 1600 hours and that he returned only the next day at around noon 3499 1562 Witness Nenad Bogelji a former detainee at Motel Sretno testified that on 19 May 1993 that is the day after he left Motel Sretno he accompanied Pavo Sljivi an HVO officer to a meeting between the ABiH and the HVO He pointed out that during the meeting there were three men in camouflage uniforms on one side and HVO representatives on the other along with a French colonel assisted by an officer and an interpreter 3500 Nenad Bogelji explained that Pavo Sljivi took the floor and said Look yesterday you killed one of our men and now sixteen men have almost been beaten to death and Kubura look what your men are doing And we are negotiating a truce and covering up our trenches 3501 Nenad Bogelji stated that he then took off his T-shirt and everyone at the meeting could see the injuries he had sustained 3502 Nenad Bogalji ’s testimony therefore suggests that the Accused Kubura was at the meeting of 19 May 1993 The Chamber also notes however that Witness Nenad Bogelji stated that he did not know anyone at the meeting apart from Pavo Sljivi and that he did not know whether the person who answered to the name of Kubura was an ordinary soldier or an officer 3503 It follows that Witness Nenad Bogelji heard Kubura’s name being called out but that he did not recognise who the Accused Kubura was 1563 The Chamber further notes that the presence of the ABiH at the 19 May 1993 meeting was contradicted by an HVO report drafted on 19 May 1993 at 1800 hours The report Exhibit P 643 indicates that after the ABiH had made some arrests in Kakanj the previous day the HVO asked for a meeting the same day at 1900 between the Main Command Staff the European Community and 3497 Kasim Alajbegovi T F pp 18697-18698 Fuad Kulovi T F p 18813 3499 Fuad Kulovi T F p 18822 3500 Nenad Bogelji T F pp 2127-2128 3501 Nenad Bogelji T F p 2128 3502 Nenad Bogelji T F pp 2128-2129 3503 Nenad Bogelji T F pp 2128-2129 3498 Case No IT-01-47-T 459 15 March 2006 217 21623 BIS UNPROFOR at the Canadian Battalion’s headquarters 3504 While the report indicates that three parties namely the HVO UNPROFOR and the European Community were to participate in the meeting it must be noted that no mention is made of the ABiH’s presence 1564 These various observations indicate that the evidence adduced by the Parties is contradictory as to whether the Accused Kubura was at Motel Sretno on 18 and 19 May 1993 and also whether he was at the 19 May 1993 meeting at which Nenad Bogelji showed his injuries Accordingly the Chamber is of the opinion that there is lingering doubt as to the Accused Kubura’s knowledge of the alleged acts at Motel Sretno 3505 Consequently the Chamber cannot find that the Accused Kubura entailed criminal responsibility within the meaning of Article 7 3 of the Statute for the charges set out in paragraph 42 f of the Indictment The Chamber therefore need not examine the other constituent elements of command responsibility under the Statute v Conclusions of the Chamber 1565 The Chamber considers that it cannot be established beyond a reasonable doubt that the mistreatment of Ranko Popovi between 18 and 21 June 1993 was committed by 7th Brigade 3rd Battalion members Accordingly the Chamber acquits the Accused Hadžihasanović and the Accused Kubura of allegations of mistreatment for the period of 18 to 21 June 1993 1566 The Chamber considers that although the Accused Hadžihasanović knew his subordinates had committed mistreatment at Motel Sretno on 18 and 19 May 1993 it is not established beyond a reasonable doubt that the Accused Hadžihasanović failed to take the necessary and reasonable measures to punish the perpetrators of those crimes Accordingly the Chamber acquits the Accused Hadžihasanović of the crime of cruel treatment referred to in count 4 paragraphs 41 c and 42 f of the Indictment 1567 Regarding the Accused Kubura the Chamber is not convinced beyond a reasonable doubt that he knew or had reason to know that his subordinates had committed crimes at Motel Sretno The Accused Kubura therefore may not be held criminally responsible for the offence referred to in count 4 paragraphs 41 b and 42 f of the Indictment 3504 P 643 Regarding the Prosecution argument that the Accused Kubura lived in Kakanj Prosecution Final Brief para 289 the Chamber first notes that the Accused Kubura stated that he came to Kakanj in May 1992 to be with his family Opening Statement of the Accused Kubura T F pp 18215 and 18217 The Chamber notes however that the Accused Kubura did not say whether he actually resided in Kakanj or how long he remained with his family Even assuming that the Accused Kubura lived in Kakanj at the material time the Chamber does not consider that this fact would alter its findings as to whether the Accused Kubura was at Motel Sretno at the material time or at the meeting of 19 May 1993 3505 Case No IT-01-47-T 460 15 March 2006 216 21623 BIS h Bugojno Municipality Murders of Mladen Havranek Slavonija Furniture Salon in Bugojno and Mario Zrno Bugojno Convent and the Mistreatment of Prisoners 1568 The Indictment alleges that Bosnian Croats and Bosnian Serbs were detained and regularly mistreated in various places of detention in Bugojno including the Gimnazija School Building from on or about 18 July 1993 to at least 13 October 1993 the Bugojno Convent Building from on or about 24 July 1993 to at least early August 1993 the Slavonija Furniture Salon from on or about 24 July 1993 to at least 18 August 1993 the FC Iskra Stadium from on or about 30 July 1993 to 31 October 1993 the Vojin Paleksi Elementary School from on or about 31 July 1993 to at least September 1993 and BH Banka from about September 1993 to 31 October 1993 The detainees were allegedly beaten and subjected to physical and psychological abuse administered by ABiH 3rd Corps OG Zapad Military Police and 307th Brigade soldiers from the same operations group It is alleged that the detention conditions including the available space food and sanitary conditions for the detainees were sorely inadequate The Indictment alleges that one of the detainees Mladen Havranek an HVO soldier died on 5 August 1993 at the Furniture Salon as a result of being beaten by members of the ABiH 3rd Corps OG Zapad military police Furthermore HVO soldier Mario Zrno is also alleged to have died as a result of mistreatment by members of the ABiH 3rd Corps OG Zapad Military Police in early August 1993 after being taken outside the Convent Building in Bugojno to do forced labour From on or around 26 January 1993 to 31 October 1993 the Accused Hadžihasanović knew or had reason to know that the members of those units under his command and effective control were about to commit the crimes of mistreatment and murder or had done so and failed to take the necessary and reasonable measures to prevent those acts from being committed and to punish the perpetrators 3506 1569 The Accused Hadžihasanović is therefore alleged to have committed murder and cruel treatment violations of the laws or customs of war punishable by Articles 3 and 7 3 of the Statute and recognised by common Article 3 of the Geneva Conventions i General Arguments of the Parties 1570 According to the Prosecution from 18 July 1993 until late October 1993 ABiH units under the authority of the Accused Hadžihasanović detained in various locations in Bugojno HVO soldiers who had been captured or who had surrendered as well as Bosnian Croat civilians The Prosecution submits that the detention centres in Bugojno were essentially guarded by ABiH 3rd 3506 Third Amended Indictment paras 41 d 42 g and 43 c and d Case No IT-01-47-T 461 15 March 2006 215 21623 BIS Corps OG Zapad Military Police units and by 307th Brigade soldiers subordinated to that operations group 3507 1571 The Prosecution argues that the detainees were regularly subjected to serious physical and psychological abuse and in some cases died as a result of the mistreatment 3508 The Prosecution further submits that the detention conditions including the available space in the cells the food and the sanitary conditions were sorely inadequate 3509 The Prosecution adds that observers from international organisations were barred access to the detention centres 3510 1572 The Prosecution submits that the Accused Hadžihasanović was informed that ABiH soldiers had previously committed crimes of mistreatment in other detention centres controlled by the 3rd Corps such as the Zenica Music School Motel Sretno and in Mehuri i and that in spite of that knowledge he still set up a similar detention system in Bugojno 3511 The Prosecution further submits that the mistreatment was a “common practice” in Bugojno and that the Accused Hadžihasanović knew that crimes were being committed there 3512 1573 According to the Prosecution despite the information at his disposal the Accused Hadžihasanović failed in his duty to put a stop to crimes committed by his subordinates in those detention centres to prevent the crimes and to punish the perpetrators 3513 1574 The Defence for the Accused Hadžihasanović argues that the detention conditions in the temporary detention facilities were satisfactory considering the prevailing circumstances in Bugojno at the material time and that the incidences of beatings in the various detention centres were rare 3514 1575 The Defence for the Accused Hadžihasanović submits that the Accused Hadžihasanović did not exercise effective control over the subordinates who allegedly committed the crimes 3515 The War Presidency in Bugojno allegedly exercised complete control over the town and had significant 3507 Prosecution Final Brief para 291 Prosecution Final Brief para 292 3509 Prosecution Final Brief para 292 3510 Prosecution Final Brief para 305 3511 Prosecution Final Brief paras 303-304 3512 Prosecution Final Brief para 304 3513 Prosecution Final Brief paras 304-305 3514 Hadžihasanović Defence Final Brief paras 1053-1057 3515 Hadžihasanović Defence Final Brief para 1077 3508 Case No IT-01-47-T 462 15 March 2006 214 21623 BIS influence over the military structure 3516 By way of example the War Presidency allegedly issued orders to the military units 3517 1576 The Defence for the Accused Hadžihasanović also submits that the Accused Hadžihasanović did not know about the murders and mistreatment that occurred in Bugojno 3518 It argues that the OG Zapad and 3rd Corps Command were not expecting the conflict that broke out in Bugojno which explains why the OG Zapad Commander was not in Bugojno when it erupted 3519 The Defence for the Accused Hadžihasanović points out that there was a large distance between Bugojno and the 3rd Corps headquarters3520 and that the communications between Zenica and Bugojno were very difficult 3521 1577 According to the Defence for the Accused Hadžihasanović the 3rd Corps Command did take measures to prevent and punish Accordingly as soon as it was announced on 24 July 1993 that civilians and HVO soldiers had been captured by the ABiH the Accused Hadžihasanović allegedly ordered the OG Zapad to send him a detailed list of the prisoners 3522 Witness HF then allegedly went to Bugojno to conduct an inspection with the aim of taking measures to protect the civilian population and Croatian property 3523 When information of mistreatment reached the 3rd Corps Command Fehim Muratović and Edib Zlotrg 3rd Corps military security service officers were allegedly sent to Bugojno on around 16 August 1993 to investigate the crimes and to make sure that all captured enemy soldiers were transferred to the KP Dom detention facility in Zenica 3524 The 307th Brigade allegedly informed Fehim Muratović and Edib Zlotrg on-site that six prisoners of war detained at the Furniture Salon had been beaten by two 307th Brigade members and that one of them Mladen Havranek died as a result of the beating 3525 The 307th Brigade allegedly informed them that it had arrested and imprisoned the perpetrators of the crime and initiated legal proceedings against them 3526 There was allegedly no need for Fehim Muratović and Edib Zlotrg to doubt the veracity of the 307th Brigade’s report to conduct a further investigation or to visit the detention facilities 3527 Upon their return to the 3rd Corps Command Fehim Muratović and Edib Zlotrg allegedly gave the Accused Hadžihasanović an inspection report on the prevailing situation 3516 Hadžihasanović Defence Final Brief paras 1062-1070 Hadžihasanović Defence Final Brief para 1067 3518 Hadžihasanović Defence Final Brief para 1077 3519 Hadžihasanović Defence Final Brief para 1028 3520 Hadžihasanović Defence Final Brief para 1023 3521 Hadžihasanović Defence Final Brief para 1025 3522 Hadžihasanović Defence Final Brief para 1034 3523 Hadžihasanović Defence Final Brief paras 1035-1036 3524 Hadžihasanović Defence Final Brief paras 1037-1038 3525 Hadžihasanović Defence Final Brief para 1042 3526 Hadžihasanović Defence Final Brief para 1042 3517 Case No IT-01-47-T 463 15 March 2006 213 21623 BIS particularly in Bugojno indicating that the 307th Brigade had taken measures against the two soldiers who abused the prisoners of war 3528 The Accused Hadžihasanović allegedly expressed satisfaction that such punitive measures had been taken 3529 1578 The Defence for the Accused Hadžihasanović adds that while it was the 3rd Corps’ policy to ensure the transfer of all captured enemy soldiers to the KP Dom in Zenica the 3rd Corps had received information that such a transfer could not take place because there were snipers on the road from Bugojno to Zenica in addition to a risk of putting a large number of prisoners within range of artillery fire 3530 1579 Finally the Defence for the Accused Hadžihasanović argues that representatives of international organisations were authorised to visit the detention facilities in Bugojno thereby further guaranteeing respect for the Geneva Conventions 3531 ii Sequence of Events from July 1993 to March 1994 1580 Bugojno municipality is relatively far from and to the southwest of the town of Zenica The road between Bugojno and Zenica was not easily accessible due to the fighting between the HVO and ABiH in the area of Bugojno 3532 1581 The 307th Brigade which includes the 307th Brigade Military Police was the only ABiH brigade stationed in Bugojno 3533 It was subordinated to the OG Zapad whose headquarters were also in Bugojno 3534 1582 In mid-1992 thousands of Muslim refugees driven out of Donji Vakuf Prozor and other regions arrived in Bugojno thereby changing its demographic makeup 3535 Beginning in late 1992 3536 there was an increasing number of incidents between the HVO and the ABiH especially 3527 Hadžihasanović Defence Final Brief para 1045 Hadžihasanović Defence Final Brief para 1046 3529 Hadžihasanović Defence Final Brief para 1046 3530 Hadžihasanović Defence Final Brief para 1039 3531 Hadžihasanović Defence Final Brief paras 1050-1052 and footnote 1464 3532 Vaughan Kent-Payne T F pp 4849-4850 Edib Zlotrg T E p 14991 Witness HF T F p 17198 3533 Tomislav Mikulić T F pp 4493-4494 and 4521 C 16 entry 11 July 1993 DH 708 See also supra para 393 3534 P 144 P 899 P 768 DH 1343 3535 Zdravko Žulj T F p 3633 Mijo Marijanovi T F 2778 According to a 1991 census Bugojno municipality included 19 697 Bosnians 16 031 Croats and 8 673 Serbs DH 345 21 see also Tomislav Mikuli T F p 4491 3536 Zdravko Žulj T F p 3634 Rudy Gerritsen T F pp 7152-7153 3528 Case No IT-01-47-T 464 15 March 2006 212 21623 BIS in Gornji Vakuf Prozor and Vrbanja which lasted until July 1993 when the conflict between the two armed forces broke out in Bugojno 3537 1583 On 24 July 1993 100 HVO soldiers and 150 civilians were captured by the 307th Brigade members in front of the Kalin Hotel in Bugojno 3538 After being captured many of the prisoners of war were transferred to various locations in Bugojno Since there was no permanent prison facility there the Bugojno War Presidency designated various detention centres to serve as prisons to hold prisoners captured by the ABiH 3539 1584 On 14 August 1993 the ABiH authorities reported to the ECMM that 98 percent of the Croatian civilians detained in Bugojno had been released but that some members of the Croatian civilian police had been arrested by the civilian police in Bugojno 3540 1585 On 19 September 1993 the Accused Hadžihasanović was informed by the OG Zapad Commander that the ABiH had captured 470 “HVO members” 383 of whom had the status of “prisoner of war” 3541 Among the 383 “prisoners of war” 66 were released because there were no grounds to keep them in custody 3542 The Chamber notes that the other 87 “HVO members” who remained in custody and were not considered prisoners of war were considered by the ABiH to be irregular combatants 1586 Most of the prisoners were transferred from one detention facility to another in Bugojno 3543 Some were detained in practically all the detention facilities mentioned in this section of the Judgement 3544 Iskra Stadium was open the longest of any of the detention facilities and the last detainees in Bugojno were released from there on 19 March 1994 3545 Many of those detainees were 3537 Zdravko Žulj T F pp 3635-3636 Zrinko Alvir T F p 2616 Witness ZB T F p 2976 Tomislav Mikulić T F p 4493 The Chamber notes that on 18 July 1993 the ABiH arrested many HVO soldiers Mijo Marijanovi T F pp 2744-2746 Witness ZC T F pp 3323-3325 Zoran Gvozden T F pp 3655 3657 and 3689 3538 P 437 C 16 entry 24 July 1993 P 608 Tomislav Mikulić T F p 4496 Zrinko Alvir T F p 2616 3539 DH 63 DH 176 3540 P 356 DH 171 2 3541 P 442 3542 P 442 3543 For example the following witnesses were transferred from one detention facility to another 1 from the Gimnazija School Building to the Slavonija Furniture Salon Mijo Marijanovi T F p 2751 Witness ZC T F p 3330 Tomislav Mikuli T F pp 4505-4506 2 from the Slavonija Furniture Salon to the Vojin Paleksi Elementary School Zdravko @ulj T F 3642 Tomislav Mikuli T F p 4508 3 from the Vojin Paleksi Elementary School to the FC Iskra Stadium Tomislav Mikuli T F pp 4517-4518 4 from the Slavonija Furniture Salon to the FC Iskra Stadium Zoran Gvozden T F pp 3672-3673 Mijo Marijanovi T F pp 2761-2762 3544 For example Witnesses Tomislav Miluki ZB and ZX were imprisoned at the Gimnazija School Building Slavonija Furniture Salon Vojin Paleksi Elementary School and FC Iskra Stadium 3545 The following witnesses were among them Mijo Marijanović Witness ZB Witness ZC Zdravko @ulj Zoran Gvozden Witness ZH Tomislav Mikuli Vinko Zrno Witness Z4 Witness Z9 Case No IT-01-47-T 465 15 March 2006 211 21623 BIS held in various detention facilities in Bugojno for up to eight months On 19 March 1994 there were still 292 detainees at Iskra Stadium 3546 iii Limitations on the Scope of the Judgement 1587 The Chamber heard many witnesses testify about how Croatian prisoners were forced to dig trenches and do forced labour in Bugojno on the line of separation between the ABiH and the Serbs3547 in Gornji Vakuf 3548 Pajić Polje 3549 Podripci 3550 Šugine Bare and Pernice close to Gornji Vakuf 3551 Vrbanja 3552 Kupre 3553 and Gara ki Podovi 3554 1588 The Chamber recalls that the Initial Indictment contained allegations of “unlawful confinement of civilians” and of “unlawful labour ” but that the Prosecution withdrew those charges from the Third Amended Indictment 1589 In a Decision of 16 March 2004 the Chamber ruled that it could find only that the Third Amended Indictment did not include the count of inhuman treatment consisting of the use of detainees to do forced labour For the purposes of this Judgement therefore the Chamber does not consider itself seized of this issue 3555 1590 The Chamber also heard many Prosecution witnesses testify about the “disappearance” of around 21 to 25 prisoners in Bugojno 3556 Those people were allegedly abducted by the ABiH soldiers from the detention facilities in Bugojno and subsequently murdered The Chamber notes that the Prosecution never seized it of the question of the disappearance of the prisoners in Bugojno and as such cannot rule on this point 1591 The Chamber will now examine the factual allegations of mistreatment and murder for each detention facility in Bugojno The Chamber will then examine the constituent elements of the Accused Hadžihasanović’s responsibility for all the detention facilities in a separate and distinct chapter 3546 Ivo Mr o T F p 2525 Witness ZH T F p 3758 P 391 under seal para 42 Zoran Gvozden T F pp 3677-3678 3548 Witness ZC T F p 3349 Mijo Marijanovi T F p 2763 3549 Witness ZC T F pp 3350-3352 3550 Witness ZC T F pp 3348-3350 P 386 under seal para 30 3551 P 391 under seal para 39 3552 Witness ZC T F p 3363 3553 Witness ZC T F p 3350 3554 P 391 under seal para 38 3555 Decision on Motion of the Accused Hadžihasanovi Regarding the Prosecution's Examination of Witnesses on Alleged Violations not Covered by the Indictment Case No IT-01-47-T 16 March 2004 3556 Vinko Zrno T F p 10087 Zoran Gvozden T F p 3708 Witness ZC T F p 3347 P 386 under seal para 39 3547 Case No IT-01-47-T 466 15 March 2006 210 21623 BIS iv Slavonija Furniture Salon in Bugojno Mistreatment of Prisoners and the Murder of Mladen Havranek a Arguments of the Parties 1592 According to the Prosecution the detention conditions in the basement of the Furniture Salon were sorely inadequate The Prosecution backs that assertion by explaining that the Furniture Salon’s basement was flooded and dark and that the detainees were forced to sleep on wooden pallets or on the concrete floor The Prosecution further argues that the prisoners at the Furniture Salon were violently beaten on a daily basis at night One of them Mladen Havranek is alleged to have died as a result of the beating 3557 1593 As for the arguments put forth by the Prosecution on the constituent elements of responsibility under Article 7 3 of the Statute the Chamber refers to the section of this Judgement dealing with the general arguments of the Parties 3558 1594 The Defence for the Accused Hadžihasanović argues that the conditions at the Furniture Salon were satisfactory considering the prevailing circumstances in Bugojno at the material time and that incidences of beatings were rare 3559 It also disputes the assertion that the basement in the building was flooded 3560 Conversely it does not dispute that six prisoners of war were mistreated by 307th Brigade members and that one of them Mladen Havranek died as a result 3561 1595 As for the arguments put forth by the Defence for the Accused Hadžihasanović on the constituent elements of responsibility under Article 7 3 of the Statute the Chamber refers to the section of this Judgement dealing with the general arguments of the Parties 3562 3557 Prosecution Final Brief paras 295-299 See supra paras 1572-1573 3559 Hadžihasanović Defence Final Brief paras 1053-1057 3560 Hadžihasanović Defence Final Brief footnote 1479 3561 Hadžihasanović Defence Final Brief paras 1042 and 1045 3562 See supra paras 1575-1577 3558 Case No IT-01-47-T 467 15 March 2006 209 21623 BIS b Findings of the Chamber on the Mistreatment of Prisoners and the Murder of Mladen Havranek i Sequence of Events from 24 July 1993 to 23 August 1993 1596 The Slavonija Furniture Store or “Salon” was really a furniture warehouse 3563 Between 24 July 1993 and 23 August 1993 3564 50 to 200 people were locked in the Furniture Salon basement 3565 Some of the prisoners were Bosnian Croat and Bosnian Serb civilians but most were HVO soldiers captured by the ABiH 3566 1597 Several former detainees described the prevailing detention conditions at the Furniture Salon to the Chamber The building’s basement was a 15 by 20 metre room3567 which had no light 3568 The ground was partly flooded with 10 to 20 centimetres of water 3569 A former detainee stated that the sewage pipes had burst and that excrement was in the water making the stench unbearable 3570 The prisoners used wooden pallets and old furniture to stay dry and to lie down 3571 As for the sanitary conditions the prisoners had severely restricted access to the toilets3572 which according to one witness were constantly clogged and out of order 3573 One detainee stated that when they were first taken into custody the prisoners did not have permission to go to the toilet and had to relieve themselves on the basement floor 3574 During the first days the detainees received nothing to eat 3575 3563 See photograph P 65 Witnesses Zrinko Alvir Zdravko @ulj and Z9 were among the first prisoners held at the Furniture Salon as of 24 July 1993 while Witnesses Mijo Marijanović and ZC were transferred to other detention facilities in Bugojno on 23 August 1993 Zrinko Alvir T F pp 2616-2617 and 2640 Zdravko @ulj T F pp 3620-3621 P 391 under seal para 3 3565 Witness ZR T F p 3068 Zdravko @ulj T F p 3621 P 391 para 8 Zoran Gvozden T F p 3668 Witness ZB T F p 2988 DH 170 6 See photograph P 66 3566 Mijo Marijanovi T F p 2754 Witness ZB T F p 2989 Zrinko Alvir T F pp 2616-2618 Tomislav Mikulić T F p 4506- 4507 P 386 under seal para 17 Zoran Gvozden T F p 3672 The Chamber recalls that the ABiH considered the prisoners in Bugojno as prisoners of war or more specifically as regular and irregular combatants P 442 and supra para 1585 3567 P 391 under seal para 4 3568 Mijo Marijanovi T F p 2758 Zoran Gvozden T F p 3666 P386 under seal para 17 Witness ZB T F p 2985 3569 Tomislav Mikulić T F pp 4506-4507 Mijo Marijanovi T F pp 2752-2753 Zdravko @ulj T F p 3622 Zrinko Alvir T F pp 2617-2618 P 391 under seal para 4 P 386 under seal para 17 Witness ZB T F p 2985 The Defence for the Accused Hadžihasanović in footnote 1479 of its Final Brief refers to the testimony of Peter Hauenstein who stated that he saw “puddles of water” in the basement of the Furniture Salon T E pp 7607-7608 The Chamber notes that the witnesses mentioned by the Defence for the Accused Hadžihasanović in that same footnote confirm that there were indeed 10 to 20 centimetres of water in the basement Witness ZR T F pp 3068-3069 Witness ZC T F p 3330 Zoran Gvozden T F p 3666 3570 Tomislav Mikulić T F p 4506 3571 Zdravko @ulj T F p 3622 P 391 under seal para 4 Witness ZC T F p 3330 3572 Mijo Marijanovi T F p 2758 3573 Witness ZC T F p 3331 3574 Zrinko Alvir T F p 2618 P 391 under seal para 4 3575 P 391 under seal para 10 Zdravko @ulj T F p 3622 3564 Case No IT-01-47-T 468 15 March 2006 208 21623 BIS The amounts of food distributed later were so meagre that the prisoners suffered from malnutrition 3576 From time to time some guards allowed civilians to bring the detainees food 3577 but others did not 3578 Witness Z9 stated that between 20 to 30 prisoners were forced to give blood and were taken to a hospital to do so 3579 1598 The Chamber also heard several witnesses speak about how the prisoners were physically abused Virtually every night the guards at the Furniture Salon called some detainees one by one and made them go upstairs in the building 3580 When they got upstairs the prisoners were beaten with weapons including wooden implements clubs and iron rods 3581 At times the prisoners were forced to wear bags over their heads so they would not recognise their attackers 3582 1599 Witness Zrinko Alvir stated that on his first night in custody the guards called him and he went upstairs to the ground floor of the building He was forced to lie face down and to spread out his arms and legs The soldiers beat him and as they interrogated him about the HVO organisational chart walked on his fingers 3583 1600 The night of 5 August 1993 was especially violent Detainees Zrinko Alvir Franc Kosak Mijo Marijanovi Dragan Breči and Mladen Havranek were called one by one and severely beaten 3584 Zrinko Alvir recalled being beaten with iron pipes for about 40 minutes As a result of the mistreatment the back of his body was covered in bruises and two of his ribs were broken requiring him to be hospitalised 3585 As will be illustrated subsequently Mladen Havranek died as a result of the mistreatment he suffered that night 1601 On 6 August 1993 Witness ZE went to the dispensary a medical unit of the Muslim army’s War Hospital in Bugojno to visit four detainees namely Franc Kosak Mijo Marijanovi Zrinko Alvir and Dragan Breči who had been hospitalised as a result of being mistreated at the Furniture 3576 Witness ZR T F pp 3068-3069 P 386 under seal para 7 P 391 under seal para 10 Zoran Gvozden T F p 3698 Mijo Marijanovi T F p 2758 3578 P 391 under seal para 10 3579 P 391 under seal para 9 3580 Zdravko @ulj T F p 3622 Zrinko Alvir T F p 2621 Witness ZB T F p 2989 P 386 under seal para 17 Witness ZC T F pp 3333-3334 3581 Mijo Marijanovi T F pp 2758-2760 Zrinko Alvir T F p 2621 Witness ZC T F p 3335 Zoran Gvozden T F p 3672 3582 Mijo Marijanovi T F pp 2758 and 2760 Zoran Gvozden T F p 3700 Zdravko @ulj T F pp 3640-3641 The Chamber notes that Witness Zdravko @ulj personally was not beaten and that other prisoners told him what had happened 3583 Zrinko Alvir T F pp 2620-2621 3584 Zrinko Alvir T F pp 2622-2623 Zoran Gvozden T F p 3669 Nevertheless the Chamber notes that Mijo Marijanovi stated that he was mistreated only once when he was forced to do cleaning work T F p 2793 3585 Zrinko Alvir T F pp 2619-2624 and T E p 2625 3577 Case No IT-01-47-T 469 15 March 2006 207 21623 BIS Salon the previous night Witness ZE noticed that Breči ’s legs bowed at the knees and that he lacked the strength to stretch them out or to turn over on his stomach to have his back examined 3586 1602 On the night of 9 or 10 August 1993 Witness ZC was himself called and went upstairs where four or five men were waiting for him in the dark He sat down and the men began to beat him one with a club and the others with their fists He was beaten for a few minutes and then sent back to the basement 3587 1603 Witness Tomislav Mikulić testified that in early August 1993 the guards from the Furniture Salon took him and a few detainees to the villages of Crni e and Vrbanja to do forced labour While the prisoners were working the guards hit them with clubs on the head back shoulders and kidneys and when the guards wanted to take a break they forced the prisoners to beat each another Sometimes the guards threw fist-sized stones at the detainees After being hit in the head by one of the stones Tomislav Mikulić fell to his knees and began to cry One of the guards picked up a shovel to hit him again but another detainee stood between them to stop the guard and as a result received more blows himself The prisoners were then taken back to the Furniture Salon Tomislav Mikulić is still suffering the after-effects of that mistreatment which include joint pain and severe headaches 3588 1604 According to the witnesses the following prisoners were also frequently physically abused while in detention Drago @ulj 3589 Mladen Barnjak 3590 Dragan Breči 3591 Frank Kosak 3592 Stipo Zeli 3593 Josip ubela 3594 Mljenko Bagari Zrinko Arazina a person called Dadi 3595 Milenko Behara Mario Miloš Tomislav Knezević Perica Jarčević Niko D‘aja 3596 and Marijan Glisi 3597 1605 On 28 July 1993 Witnesses Rudy Gerritsen and Peter Hauenstein ECMM observers visited the Furniture Salon and Gimnazija School Building 3598 Although the report from the visit indicates that the prisoners held at those locations seemed to be in good condition but lacked basic necessities 3586 Witness ZE T F pp 3479 and 3485-3486 See also Zrinko Alvir T F p 2624 Witness ZC T F p 3335 3588 Tomislav Mikulić T F pp 4511-4516 3589 Witness ZC T F pp 3331-3332 3590 Zoran Gvozden T F p 3700 Witness ZB T F p 2989 3591 Zdravko @ulj T F p 3623 P 391 under seal para 6 Zoran Gvozden T F pp 3669 3671 and 3700 Witness ZE T F pp 3485-3486 3592 Witness ZE T F p 3486 Zoran Gvozden T F pp 3669 and 3671 3593 Zdravko @ulj T F p 3623 P 391 under seal para 7 According to witnesses 3594 Zdravko @ulj T F p 3623 3595 Zdravko @ulj T F p 3623 3596 P 391 under seal para 12 3597 Witness ZB T F p 2989 3598 DH 170 6 Rudy Gerritsen T F pp 7134-7137 Peter Hauenstein T F pp 7607-7609 3587 Case No IT-01-47-T 470 15 March 2006 206 21623 BIS such as beds sheets soap and toilet paper 3599 the testimony of the two international observers paints a more sombre picture of how the prisoners were treated and of the detention conditions that prevailed Rudy Gerritsen and Peter Hauenstein testified that the basement of the Furniture Salon was dark that the floor was covered with water or puddles of water and that the accommodation and sanitary conditions were substandard 3600 The witnesses also agreed that they had the strong impression that the prisoners were fearful and could not express themselves freely since guards were present during their conversations with them 3601 Rudy Gerritsen added that it was obvious the prisoners had been physically abused 3602 and Peter Hauenstein stated that urgent measures needed to be taken at the Furniture Salon 3603 ii Mistreatment Paragraph 42 g of the Indictment 1606 As described above during the proceedings the Chamber heard much evidence relating to the physical violence inflicted upon the Bosnian Croat civilians and prisoners of war at the Furniture Salon between 24 July 1993 and late August 1993 That specific and corroborated evidence is sufficient to prove beyond a reasonable doubt that the victims were repeatedly subjected to physical abuse while in detention and that the perpetrators of the mistreatment had the intent to cause serious pain and suffering to the prisoners at the Furniture Salon 1607 Regarding the detention conditions the Defence for the Accused Hadžihasanović submits as a defence that the prevailing conditions in the temporary detention facilities in Bugojno were satisfactory considering the difficult circumstances which prevailed in Bugojno at the material time In support of its assertion the Defence argues that there were no appropriate detention facilities to accommodate a large number of detainees and that there was a lack of basic necessities including water and humanitarian assistance and that the roads controlled by the HVO were blocked 3604 1608 The Chamber recalls that persons deprived of their liberty for reasons related to an armed conflict must be provided the same level of basic necessities such as potable water and food as 3599 DH 170 6 Rudy Gerritsen T F p 7134-7137 Peter Hauenstein T F pp 7607-7608 3601 Rudy Gerritsen T F p 7135 Peter Hauenstein T F pp 7608-7609 3602 Rudy Gerritsen T F p 7135 3603 Peter Hauenstein T F p 7610 3604 Hadžihasanović Defence Final Brief paras 1054-1057 3600 Case No IT-01-47-T 471 15 March 2006 205 21623 BIS those provided to the local civilian population Furthermore persons deprived of their liberty for reasons related to an armed conflict must be afforded safeguards for their health and hygiene 3605 1609 In this case the Chamber notes that various documents submitted by the Defence for the Accused Hadžihasanović indicate that in August 1993 it became difficult to supply Bugojno with water because a water valve had been shut off in the area controlled by the HVO and that getting food to Bugojno was a source of concern for the town’s political officials 3606 In view of the foregoing the Chamber is of the opinion that although the documents depict a difficult situation with regard to the supplying of basic necessities they do not establish that the situation and shortages had become so serious in the war context of the time that they affected equally the local civilian population and civilian detainees and prisoners of war That evidence also fails to demonstrate that in spite of the difficult conditions the supply lines for the ABiH soldiers stationed in Bugojno were affected and that their food was rationed or that they lacked food in a way comparable to that of ABiH prisoners in Bugojno 3607 1610 The Chamber is not convinced that from a health and hygiene perspective in the detention facilities any other location in Bugojno would have offered more humane conditions For example once the ABiH forces stormed the Kalin Hotel in late July 1993 it was completely empty as of 12 August 19933608 and could have been requisitioned to accommodate a large number of prisoners of war captured by the ABiH In any case the Chamber notes that the Defence for the Accused Hadžihasanović made no attempt to demonstrate the absence of alternative solutions to remedy the problem of insufficient detention facilities it alleges existed 3609 1611 Moreover the Chamber cannot consider the argument put forth by the Defence for the Accused Hadžihasanović according to which the lack of appropriate detention facilities able to accommodate a large number of prisoners is a reason to excuse the very limited and even inexistent access to the toilets when those facilities are equipped with them or maintaining unsanitary conditions such as a flooded floor in a basement and the absence of light These facts established by the aforementioned testimony clearly indicate that such detention conditions were either the product of a deliberate policy or were allowed to happen and not the product of necessity 3605 See supra para 35 DH 1351 DH 1949 DH 171 1 DH 171 2 DH 171 4 DH 1715 DH 171 6 DH 171 8 Rudy Gerritsen T F pp 7171-7172 3607 See Rudy Gerritsen T F pp 7173-7174 3608 DH 1948 3609 The Chamber notes that footnote 1480 of the Had ihasanovi Defence Final Brief which seeks to support the argument by the Defence for the Accused Had ihasanovi that there was no appropriate detention facility to accommodate a large number of detainees refers to paragraph 30 of the Had ihasanovi Defence Final Brief which does not deal with this issue 3606 Case No IT-01-47-T 472 15 March 2006 204 21623 BIS 1612 To conclude the Chamber rejects the argument put forth by the Defence for the Accused Hadžihasanović regarding the living conditions which prevailed in Bugojno at the material time The Chamber finds that the deplorable and inappropriate detention conditions at the Furniture Salon described by the aforementioned witnesses which include insufficient even deprivation of food very limited and even inexistent access to toilets maintenance of unsanitary conditions such as the flooded basement floor the absence of light and the inability of the detainees to sleep in acceptable conditions constitute cruel treatment 1613 Regarding the perpetrators of the mistreatment the witnesses who testified before the Chamber were often unable to identify their attackers since they were frequently forced to wear bags over their heads 3610 The witnesses nevertheless agree that the beatings were administered by ABiH soldiers guarding the Furniture Salon 3611 Some witnesses specified that the guards of the Furniture Salon were members of the 307th Brigade which included the 307th Brigade Military Police 3612 Moreover the testimony of Fehim Muratović Edib Zlotrg and Witness HF who were witnesses for the Defence for the Accused Hadžihasanović and the inspection report drafted by Fehim Muratović after his visit to Bugojno attest to the fact that 307th Brigade members beat six detainees at the Furniture Salon which caused the death of one of them 3613 The above-mentioned evidence combined with the fact the 307th Brigade which includes the 307th Brigade Military Police was the only ABiH unit stationed in Bugojno 3614 convinces the Chamber beyond a reasonable doubt that the perpetrators of the alleged cruel treatment were 307th Brigade members including 307th Brigade Military Police 1614 The Chamber finds that the victims of the cruel treatment were not directly participating in the hostilities In fact the evidence adduced at trial demonstrates that the people arrested and transferred to the Furniture Salon had the status of Bosnian Croat or Bosnian Serb civilians or 3610 Mijo Marijanovi T F p 2758 and 2760 Zoran Gvozden T F p 3700 Zdravko @ulj T F p 3640-3641 The Chamber notes that Witness Zdravko @ulj was not personally beaten and that he learned this information from other prisoners The Chamber also notes that Witness Zrinko Alvir indicated that the two perpetrators of the mistreatment administered during the night of 5 August 1993 were named Edin Vrban and Sacir Durakovi T E p 2644 3611 Zrinko Alvir T F p 2620-2622 Zoran Gvozden T F p 3671 Witness ZC T F p 3341-3342 Mijo Marijanovi T F p 2759 Witness ZB T F p 2990 3612 Zrinko Alvir T F p 2622 Zoran Gvozden T F p 3671 Among the guards at the Furniture Salon Witness Tomislav Mikulić identified Enes Sijimija who according to him belonged to the military police of an ABiH unit T F p 4507 Enes Sijimija was an ABiH officer in Bugojno DH 51 Witness Z9 stated that on one occasion his fellow detainee Stipica Zeli Commander of the HVO Military Police was called upstairs by Enes Hand i 307th Brigade Assistant Commander for Military Security P 391 under seal para 7 3613 Fehim Muratović T F pp 14963-14964 Edib Zlotrg T F pp 14987 and 15015 Witness HF T F p 17196 DH 1392 3614 See supra para 393 Case No IT-01-47-T 473 15 March 2006 203 21623 BIS prisoners of war 3615 Consequently they were all protected persons pursuant to the laws or customs of war as recognised by common Article 3 of the Geneva Conventions 1615 Based on the above the Chamber finds that the elements of the crime of cruel treatment at the Furniture Salon have been established for the period of 24 July 1993 to 23 August 1993 iii Murder of Mladen Havranek paragraph 43 c of the Indictment 1616 Witnesses Zoran Gvozden Mijo Marijanović Zrinko Alvir and Witness ZC former prisoners at the Furniture Salon described to the Chamber the circumstances of Mladen Havranek’s death 3616 During the night of 5 August 1993 four detainees were beaten by the guards at the Furniture Salon before Mladen Havranek himself was called upstairs From the basement the aforementioned detainees could hear Mladen Havranek moaning and screaming and begging the guards to stop beating him Mladen Havranek could no longer walk so the prisoners dragged him down the stairs to the basement cell Mladen Havranek quickly lost consciousness and the prisoners called the guards for help He was taken by ambulance to a clinic According to what Mijo Marjanovi heard Mladen Havranek died on the way to the hospital 3617 while Zoran Gvozden states that Mladen Havranek was already dead in the cell before help arrived 3618 1617 Mladen Havranek’s death by beating is confirmed in a report of 20 August 1993 that Senad Dautović chief of the civilian police in Bugojno sent to the 307th Brigade military security organ among others Mladen Havranek’s name appears on a list entitled “Croats against whom war crimes have been committed” 3619 The list notes that Mladen Havranek was beaten and tortured to death A handwritten notation describes the information as “true” 3620 1618 As for the cause of death Mladen Havranek’s death certificate notes that he died on 5 August 1993 as a result of contusions to his head and thorax 3621 On 6 August 1993 Witness ZE a former attorney and friend of Mladen Havranek’s parents learned that Mladen Havranek was 3615 Mijo Marijanovi T F p 2754 Witness ZB T F p 2989 Zrinko Alvir T F p 2616-2618 Tomislav Mikulić T F p 4506-4507 P 386 under seal para 17 P 442 Rudy Gerritsen T F p 7137 Peter Hauenstein 3616 Mijo Marijanovi T F p 2758-2761 Witness ZC T F pp 3342-3343 Zoran Gvozden T F pp 3669-3672 Zrinko Alvir T F p 2623-2624 3617 Mijo Marjanovi T F pp 2760-2761 3618 Zoran Gvozden T F pp 3670-3671 3619 P 203 3620 P 203 3621 P 71 confidential Case No IT-01-47-T 474 15 March 2006 202 21623 BIS beaten to death and on his own initiative examined Havranek’s body before it was buried His examination of the body revealed that Havranek died as a result of a fractured temporal bone 3622 1619 For the reasons set out in the section of the Judgement dealing with the perpetrators of mistreatment at the Furniture Salon the Chamber has no reason to doubt that the perpetrators of that crime were 307th Brigade members including 307th Brigade Military Police 3623 Regarding the fact that paragraph 43 c of the Indictment alleges that the perpetrators of the murder of Mladen Havranek were members of the OG Zapad Military Police the Chamber also refers to its conclusions in that same section of the Judgement 1620 The evidence indicates that Mladen Havranek’s status was that of an HVO soldier and that he was arrested by the ABiH in front of the Kalin Hotel on 24 July 1993 at the same time as several hundred other HVO soldiers before he was detained at the Furniture Salon 3624 Mladen Havranek therefore acquired the status of a prisoner of war afforded the protection offered by the laws or customs of war as recognised by common Article 3 of the Geneva Conventions 1621 The Chamber has no doubt as to the existence of the mens rea for murder in this case and therefore finds that the elements of the crime of the murder of Mladen Havranek on 5 August 1993 have been established v Bugojno Convent Mistreatment of Prisoners and Murder of Mario Zrno a Arguments of the Parties 1622 The Prosecution argues that from 24 July 1993 until early August 1993 the Convent was used as a detention facility under the control of 3rd Corps units particularly the 307th Brigade and that those units subjected the detainees to mistreatment The Prosecution also alleges that in early August 1993 Mario Zrno an HVO soldier imprisoned at the Convent was taken to Vrbanja by ABiH soldiers to do forced labour and that while he was carrying out the assigned tasks he was severely beaten by ABiH soldiers and died as a result 3625 The Prosecution however submits that even assuming the perpetrators of Mario Zrno’s murder had only the status of civilians the ABiH soldiers had a duty to stop the civilians from mistreating the prisoners under their guard 3626 3622 Witness ZE T F pp 3479-3481 and T E pp 3479-3480 See supra para 1613 3624 P 391 under seal para 17 P 442 3625 Prosecution Final Brief para 294 3626 Prosecution Final Brief footnote 1009 3623 Case No IT-01-47-T 475 15 March 2006 201 21623 BIS 1623 As to the Prosecution’s submission on the constituent elements of responsibility under Article 7 3 of the Statute the Chamber refers to the section of this Judgement dealing with the general arguments of the Parties 3627 1624 The Defence for the Accused Hadžihasanović argues that the detention conditions at the Convent were satisfactory considering the prevailing circumstances in Bugojno at the material time and that the incidences of beatings were rare 3628 1625 As for the arguments put forth by the Defence for the Accused Hadžihasanović on the constituent elements of responsibility under Article 7 3 of the Statute regarding the alleged mistreatment at the Convent the Chamber refers to the section of this Judgement dealing with the general arguments of the Parties 3629 1626 As for the alleged murder of Mario Zrno the Defence for the Accused Hadžihasanović submits that the perpetrators were not under the effective control of the Accused Hadžihasanović since civilians were responsible for the beating which led to Mario Zrno’s death 3630 The Defence adds that the Accused Hadžihasanović was not aware of Mario Zrno’s alleged murder 3631 and that measures were taken against the perpetrators of the crime 3632 b Findings of the Chamber on the Mistreatment of Prisoners and the Murder of Mario Zrno i Sequence of Events Between 25 July 1993 and the End of July 1993 1627 Bugojno Convent 3633 which used to house an elementary school and a centre for Marxist studies was used as a detention facility for a few days between 25 July 1993 and the end of July 1993 3634 The detainees were held in classrooms upstairs 3635 on the ground floor 3636 and in the basement of the building 3637 According to the witnesses the prisoners brought to the Convent were 3627 See supra paras 1572-1573 Hadžihasanović Defence Final Brief paras 1053-1057 3629 See supra paras 1575-1577 3630 Hadžihasanović Defence Final Brief paras 1058 and 1060 3631 Hadžihasanović Defence Final Brief para 1060 3632 Hadžihasanović Defence Final Brief paras 1059-1060 3633 See photograph P 56 3634 Ivo Mršo T F p 2505 Witness ZE T F p 3473 Witness ZR T F p 3075 3635 Witness ZE T F p 3476 Ivo Mr o T F p 2493 3636 Witness ZE T F p 3476 3637 Ivo Mr o T F pp 2494 and 2497 Witness ZR T F p 3075 See photograph P 57 3628 Case No IT-01-47-T 476 15 March 2006 200 21623 BIS HVO soldiers and Bosnian Croat civilians some of whom were minors aged 14 to 16 3638 Witness Ivo Mršo counted 73 prisoners in the Convent basement3639 while during his visit to the Convent Witness ZR counted some 20 prisoners in addition to the 15 to 20 prisoners upstairs 3640 1628 Witness Ivo Mr o a former prisoner at the Convent and Witness ZR spoke about the prevailing detention conditions in the Convent basement The room was used as a cell and was poorly lit 3641 As for the sanitary conditions Ivo Mr o noted that the room was dirty3642 and that the prisoners had to make do with a slop pail to relieve themselves 3643 Regarding the accommodations witnesses did not say that there were mattresses or blankets but spoke only about a few boards 3644 During his visit to the Convent Witness ZR heard the prisoners say they were hungry and noticed that they indeed looked starved 3645 Later during the visit of a delegation including two doctors a lawyer a nun and a priest the detainees were given sandwiches and medicine 3646 1629 The Chamber heard the same two witnesses describe the recourse to physical violence inflicted on the prisoners Ivo Mr o stated that the first night in detention three soldiers who were guarding the Convent took one of his fellow detainees Marko Glisi out of the cell and began to beat him once he walked through the door 3647 He added that since the soldiers did not bother to shut the cell door the prisoners could hear Marko Glisi being beaten and screaming 3648 Furthermore during his visit to the Convent Witness ZR first noticed that all the detainees in the basement had bandages on one of their arms or legs 3649 He then approached a prisoner whose head was bruised and noticed his back was also covered in bruises While asking him how he got the bruises the other prisoners told him that the detainees were beaten at random during the night 3650 He also noticed that the prisoner in question had difficulty walking correctly 3651 1630 Witness Vinko Zrno a former prisoner at the Gimnazija School Building who was also Mario Zrno’s cousin and Witness Ivo Mr o to a lesser extent provided testimony to the Chamber 3638 Ivo Mršo T F pp 2494-2495 Witness ZR T F pp 3075-3076 The Chamber recalls that the ABiH considered the prisoners in Bugojno as prisoners of war or more specifically as regular and irregular combatants P 442 3639 Ivo Mršo T F p 2494 3640 Witness ZR T F p 3075 3641 Witness ZR T F 3077 3642 Ivo Mršo T F p 2495 3643 Ivo Mršo T F p 2495 3644 Witness ZR T F p 3077 3645 Witness ZR T F pp 3076-3077 3646 Ivo Mr o T F p 2501 Witness ZR T F p 3078 3647 Ivo Mr o T F pp 2498-2499 3648 Ivo Mr o T F pp 2498-2499 3649 Witness ZR T E pp 3076-3077 3650 Witness ZR T F pp 3076-3077 3651 Witness ZR T F p 3078 Case No IT-01-47-T 477 15 March 2006 199 21623 BIS about the circumstances surrounding Mario Zrno’s death Ivo Mr o stated that one day three soldiers from the Convent called for a few volunteers among the prisoners to do some type of work and that was how Mario Zrno was taken out of the Convent 3652 Vinko Zrno stated that on 30 July 1993 ten detainees including himself were taken from the Gimnazija School Building to the Vrbanja village cemetery to dig graves and bury bodies and that at the cemetery he saw other detainees including Dragan Keski Željko Milo and Mario Zrno 3653 Vinko Zrno stated that as they were doing the forced labour he and Mario Zrno were beaten in turn so that whenever Vinko Zrno lost consciousness Mario Zrno was beaten and vice-versa 3654 Vinko Zrno pointed out that the attackers rained blows on Mario Zrno several times with the butts of their guns their boots and stones 3655 Vinko Zrno explained that after those beatings he and his cousin were thrown into a truck which took off towards the Gimnazija School Building 3656 1631 During an interview with the Office of the Prosecutor on 16 February 2004 Željko Miloš a former prisoner captured by the ABiH stated that while he was digging ditches in Crni e in early August 1993 one of the Velagi brothers Safet or Heko hit Mario Zrno twice with a shovel and that as a result of the blows Mario Zrno lost consciousness 3657 1632 Witnesses disagree as to the exact date of Mario Zrno’s death Vinko Zrno stated that according to fellow detainees in the truck his cousin died on the road shortly after the vehicle took off 3658 Ivo Mr o however said that Mario Zrno was taken back to the Convent after the forced labour and that he was still alive but covered in blood unable to stand and with a very frightened look about him 3659 Mr o went on to say that the detainees taken back to the Convent at the same time as Mario Zrno told him they had been taken to the village of Vrpe or Crni e to bury some bodies and that there soldiers and local inhabitants beat them with shovels and threw stones at them 3660 ii Mistreatment Paragraph 42 g of the Indictment 1633 The Chamber considers that as a result of its corroborative nature the evidence presented heretofore although limited is sufficient to demonstrate beyond a reasonable doubt that Bosnian 3652 Ivo Mr o T F p 2504 Vinko Zrno T F p 10066 3654 Vinko Zrno T F p 10077 3655 Vinko Zrno T F p 10080 3656 Vinko Zrno T F pp 10053 and 10077-10078 3657 DH 341 3658 Vinko Zrno T F p 10077 3659 Ivo Mršo T E p 2504 3660 Ivo Mršo T E p 2504 3653 Case No IT-01-47-T 478 15 March 2006 198 21623 BIS Croat civilians and HVO soldiers were beaten repeatedly while they were detained at the Convent and that the perpetrators of the mistreatment acted with the intention of causing the prisoners at the Furniture Salon serious pain and suffering 1634 Moreover regarding the detention conditions at the Convent the Chamber is convinced beyond a reasonable doubt that despite the visit of the aforementioned delegation and even though the Convent operated as a detention facility only for a few days and that as a result the prevailing situation there did not deteriorate to the point where conditions became as difficult as those described at other places of detention such as the Furniture Salon or Iskra Stadium as will be examined subsequently the accumulation of the poor detention conditions in which the prisoners of war and the civilian detainees including minors lived such as insufficient food and the absence of accommodation and access to appropriate sanitary facilities constitutes mistreatment 3661 1635 Regarding the perpetrators of the mistreatment at the Convent while Witness ZR provided no details 3662 Witness Ivo Mr o told the Chamber that soldiers guarding the Convent were responsible for beating Marko Glisi 3663 Even though Ivo Mr o did not know to which brigade the guards at the Convent belonged he pointed out that during his incarceration Enes Hand i 307th Brigade Assistant Commander for Military Security 3664 visited the prisoners at the Convent once and assured them that everything would be fine and that they should not be afraid 3665 That testimony coupled with the fact that the 307th Brigade was the only ABiH unit stationed in Bugojno 3666 convinces the Chamber beyond a reasonable doubt that the perpetrators of the cruel treatment at the Convent were 307th Brigade members 1636 As regards the perpetrators of the mistreatment of Mario Zrno when he was taken outside of the Convent the Chamber finds that the evidence presented in this respect is contradictory 1637 First Vinko Zrno’s statements to the Chamber were contradictory In response to questions from the bench he indicated that his cousin was mistreated by four or five soldiers in ABiH uniforms including he said military police officer Safet Velagi and his brother Muhko Velagi 3661 As for the defence put forth by the Defence for the Accused Had ihasanovi regarding the detention conditions arguing that the circumstances prevailing in Bugojno at the material time were difficult the Chamber refers to its conclusions on that subject in the section of this Judgement dealing with the Furniture Salon see supra paras 16081612 3662 Witness ZR T F p 3076 3663 Ivo Mr o T F pp 2498-2499 3664 P 912 DK 62 Annex A DH 776 3665 Ivo Mršo T F pp 2499-2500 3666 See supra para 393 Case No IT-01-47-T 479 15 March 2006 197 21623 BIS whom he referred to as their supervisor 3667 When cross-examined by the Defence for the Accused Hadžihasanović however Witness Vinko Zrno stated the following Q While you were digging the graves there was an armed guard accompanying you and he treated you fairly is that correct A Yes someone who fled from us five minutes after he had taken us there Q After 10 or 15 people from Vrbanja came and started to beat you you soon lost consciousness as you were weak so you were in fact not really aware of what actually happened there is that correct A Well I know quite a few things and there are quite a few things that I don’t know 3668 Later Witness Vinko Zrno was cross-examined by the Defence for the Accused Hadžihasanović on the statements of Perica Sistov Dragan Keski and @eljko Milo detainees who like he had done work at the same cemetery and witnessed what happened to him 3669 Witness Vinko Zrno told Counsel Q If I were to put to you that Perica Sistov in his statement that he gave to the lawyer mentioned that while you worked you were guarded by six guards -- actually while the six of you worked there were two guards with you and that these two did not provoke you did not ill-treat you in any way they gave you water and cigarettes would that be correct A No No Q If Perica Sistov would also say that at the time when the other 14 prisoners came amongst whom Mario Zrno that at that time or a bit later some other men Muslim men came amongst whom Zilhad Hodžić from Vrbanja whose father worked in the gas station and also Mujo Pelagić phon who was the owner of a restaurant That's when the ill-treatment started and the only person who did not ill-treat you was Zilhad Hodžić He didn't do that because we worked together and he took a distance from the group and only observed what was going on I can't confirm who were the persons beating Mario because -- Zrno -- because I didn't know these people or I knew them only superficially I believe that those people who lived with them in Vrbanja could confirm that because they knew them And if I told you that Perica Sistov said all that would that be the correct description of what happened A Yes this is a correct description because they turned our backs to the guards They were ordered not to look in their faces Then with regard to Dragan Keski ’s statement Vinko Zrno stated “Q Mr Zrno if Dragan Keskić described the same event in the following way ‘Members of the Muslim army and civilians who had died during the conflicts and whose bodies had to be buried obviously this was the area of conflict and it was not easy to tell who was a soldier who was a civilian and who was shooting and who was not Our men were sent there Mario Zrno was one of them During the burial of their graves as interpreted Mario was killed with shovels axes and other things that these people who were there had in their hands So what is important is that the brigade policeman who was there and who were supposed to guard us simply could not offer us 3667 Vinko Zrno T F pp 073-10075 Vinko Zrno pointed out that three days before the conflict in Bugojno broke out he had a conversation with Safet Velagi Vinko Zrno T F 10074 3668 Vinko Zrno T E p 10066 3669 Vinko Zrno T F p 10082 Case No IT-01-47-T 480 15 March 2006 196 21623 BIS any protection And Mario Zrno was beaten by everybody by the women who arrived there by grandmothers by the elderly who were grieving the deaths of their close family ’3670 Would this be the correct description of what had happened in the Crniče cemetery And this description was provided by Dragan Keskić A Yes that is correct … ” Finally with regard to the statement by @eljko Milo Vinko Zrno stated “Q If Željko Miloš in his statement to the Prosecution on the 16th February 2004 at 10 00 said as follows ‘While Mr Miloš was digging graves in Crniče at the beginning of August 1993 as a prisoner of the BiH army one of the two brothers the Velagić brothers Safet and Muhko one of the two brothers hit Marko Zrno twice with a shovel As a result of that Mr Zrno fainted said Miloš and Mr Zrno did not come back with Mr Miloš and the other detainees to the furniture salon where he had been put previously The brothers that Željko Miloš named are the Velagić brothers both Bosniak Muslims They were both civilians said Miloš and in the cemetery they attended the burial of the dead bodies ’ Would this statement given by Željko Miloš represent a correct description of the incident A Mr Muhko Velagić wore the uniform of the BiH army I guarantee you that ”3671 1638 The following findings are the result of those statements First it appears that while Vinko Zrno was already doing forced labour at the cemetery another group of prisoners arrived including Mario Zrno Next the testimony suggests that men and women at the cemetery began to beat the prisoners including Mario Zrno Nevertheless the witness confirms that Perica Sistov and other prisoners could not see exactly who was beating Mario and Vinko Zrno because they were ordered to turn their backs to the guards as they dug the graves Finally the testimony suggests that at the time of those incidents one or several police officers were there to guard the detainees but offered them no protection whatsoever 1639 Later Witness Tomislav Mikulić a former prisoner at the Furniture Salon stated that on 1 August 1993 he was taken from the Furniture Salon to Crni e village to dig graves and that after finishing he and three other prisoners were taken to the village of Vrbanja by someone called Velagić who according to Mikulić was a member of the ABiH military police and by Muhko Velagi ’s cousin 3672 1640 Furthermore as indicated above during an interview with the Prosecution on 16 February 2004 Željko Miloš said that the perpetrators of the mistreatment the brothers Safet and Heko Velagić were Bosnian Muslim civilians at the time they attended the funerals at Crni e 3670 Vinko Zrno T E p 10084 Vinko Zrno T F pp 10082-10085 3672 Tomislav Mikulić T F pp 4511-4514 3671 Case No IT-01-47-T 481 15 March 2006 195 21623 BIS cemetery 3673 Nevertheless in an interview with the Prosecution on 17 April 2000 Željko Miloš stated that when he saw Safet Velagi at Crni e cemetery when Mario Zrno was beaten to death he was wearing a uniform like that of an ABiH soldier 3674 1641 Finally Witness Ivo Mr o a former prisoner at the Convent stated that the detainees brought back to the Convent at the same time as Mario Zrno told him that they were taken to bury bodies in Vrpe or Crni e village where soldiers and local inhabitants beat them with shovels and threw stones at them 3675 1642 Bearing this contradictory evidence in mind the Chamber considers that there is lingering doubt as to whether those perpetrators of the mistreatment of Mario Zrno and Vinko Zrno among others had civilian or military status The aforementioned evidence is in fact inconsistent and imprecise as to whether only the local inhabitants or only the military police on site were responsible for the beatings or if both the local inhabitants and military police together committed the beatings Specifically assuming that Muhko and Safet Velagi beat the victims the Chamber does not have sufficient information about whether Muhko and Safet Velagi belonged to the 307th Brigade Military Police at the time the crime was committed Accordingly the Chamber cannot find beyond a reasonable doubt that members of the 307th Brigade are responsible for the mistreatment of Mario Zrno 1643 In view of the aforementioned testimony in particular that of Vinko Zrno and assuming that civilians alone were responsible for the mistreatment the Chamber would be of the view that by failing to intervene to prevent the civilians from committing mistreatment when they had a duty to protect the prisoners under their guard the guards of the prisoners who were present when the crimes were committed to a great extent permitted and abetted the commission of those crimes Nevertheless as indicated in the previous paragraph it is not possible to establish from the evidence presented that the guards would have been in a position to protect Mario Zrno from being beaten by the civilians Consequently no findings may be made with respect to the form of responsibility incurred in this case 1644 Regarding the status of the victims the Chamber finds that they were not directly participating in the hostilities In fact the evidence admitted at trial demonstrates that the persons arrested and transferred to the Convent had the status of Bosnian Croat civilians or prisoners of 3673 DH 341 DH 341 3675 Ivo Mršo T E p 2504 3674 Case No IT-01-47-T 482 15 March 2006 194 21623 BIS war 3676 Consequently they were all protected persons under the laws or customs of war as recognised by common Article 3 of the Geneva Conventions 1645 For the foregoing reasons the Chamber considers that the elements of the crime of mistreatment of Bosnian Croat civilians and prisoners of war detained at the Convent have been established for the period between 25 July 1993 and the end of July 1993 Nevertheless the Chamber considers that it has not been established beyond a reasonable doubt that those responsible for mistreating the prisoners taken outside the Convent belonged to the 307th Brigade and that it has not been established that the 307th Brigade guards at the scene of the crime could have prevented the commission of those crimes iii Murder of Mario Zrno Paragraph 43 d of the Indictment 1646 As described above the testimony of Ivo Mr o and Vinko Zrno as well as the statement by Željko Miloš to the Office of the Prosecutor make it possible to establish that Mario Zrno died as a result of being beaten when he was being taken outside the Convent Mario Zrno’s death by beating was further confirmed by a report dated 20 August 1993 that Senad Dautović chief of the civilian police in Bugojno sent to the 307th Brigade military security service organ among others In the report Mario Zrno’s name appears on a list entitled “Croats against whom war crimes have been committed” 3677 The list notes that Mario Zrno was beaten and tortured to death A handwritten notation describes the information as “true” 3678 1647 Regarding the perpetrators of the crime the Chamber refers to its conclusions in the section of this Judgement dealing with the mistreatment of detainees outside of the Convent and finds that it has not been established beyond a reasonable doubt that 307th Brigade members were responsible for Mario Zrno’s death 1648 The Chamber notes that the evidence differs with respect to the date of Mario Zrno’s death While the statement by Željko Miloš places the event in early August 1993 3679 the testimony of 3676 Ivo Mršo T F pp 2494-2495 Witness ZR T F pp 3075-3076 P 203 P 203 3678 P 203 The Chamber notes however that this document indicates that after a meeting on 19 August 1993 attended by the municipal prosecutor and European Community observers it was concluded that the alleged acts described on the list in question were not war crimes but individual incidents of violent conduct 3679 DH 341 3677 Case No IT-01-47-T 483 15 March 2006 193 21623 BIS Vinko Zrno and Ivo Mr o suggests instead that Mario Zrno died on 30 July 1993 or in any case in late July 1993 3680 1649 Regarding the status of the victim the Chamber notes that Željko Miloš told the Office of the Prosecutor that Mario Zrno was an HVO soldier 3681 Furthermore the Chamber notes that the ABiH considered him as prisoner of war 3682 The Chamber is of the view that as a result of being detained Mario Zrno acquired the status of prisoner of war afforded the protection offered by the laws or customs of war as recognised by common Article 3 of the Geneva Conventions 1650 The Chamber has no doubt as to the existence of the mens rea for the crime of murder in this case and therefore is of the view that the elements of the crime of murder of the prisoner of war Mario Zrno have been established beyond a reasonable doubt Nevertheless the Chamber considers that it has not been established beyond a reasonable doubt that Mario Zrno’s murderers belonged to the 307th Brigade and it has not been established that the 307th Brigade guards present at the scene of the crime could have prevented the crime from being committed vi Gimnazija School Building a Arguments of the Parties 1651 The Prosecution argues that the School was used as a detention facility from 18 July 1993 until 13 October 1993 and that it was guarded by 307th Brigade soldiers 3683 The Prosecution submits that members of that unit severely beat the prisoners detained at the School and that the detention conditions there were sorely inadequate 3684 1652 As for the arguments put forth by the Prosecution on the constituent elements of responsibility under Article 7 3 of the Statute the Chamber refers to the section of this Judgement dealing with the general arguments of the Parties 3685 1653 The Defence for the Accused Hadžihasanović argues that the detention conditions at the School were satisfactory considering the prevailing circumstances in Bugojno at the material time and that incidences of beatings were rare 3686 3680 Vinko Zrno T F p 10066 Witness Ivo Mr o did not give a date but his testimony places the events during the time he was in detention at the Convent that is at some time between 25 July 1993 and 30 July 1993 T F pp 2485 24922493 and 2505 3681 DH 341 3682 P 203 3683 Prosecution Final Brief para 293 3684 Prosecution Final Brief para 293 3685 See supra paras 1572-1573 Case No IT-01-47-T 484 15 March 2006 192 21623 BIS 1654 As for the arguments put forth by the Defence for the Accused Hadžihasanović on the constituent elements of responsibility under Article 7 3 of the Statute the Chamber refers to the section of this Judgement dealing with the general arguments of the Parties 3687 b Findings of the Chamber regarding Mistreatment at the Gimnazija School Building i Sequence of Events from 18 July 1993 to 8 October 1993 1655 The Gimnazija School 3688 also known as the Mahmut Busatlija School 3689 was a secondary school near the old town centre of Bugojno 3690 Between 18 July 1993 and 8 October 1993 3691 more than a hundred persons were imprisoned in three cells in the School basement 3692 each holding between 35 to 50 detainees 3693 1656 According to several witnesses the ABiH military police unit in Bugojno ran and guarded the School 3694 Witness Tomislav Mikoli specified that the unit was the 307th Brigade Military Police 3695 Three witnesses indicated that the guards of the School were under the command of Nijaz Bevrnja a member of the Military Police Command which controlled the School 3696 3686 Hadžihasanović Defence Final Brief paras 1053-1057 See supra paras 1575-1577 3688 See photograph P 58 3689 Witness ZH T F p 3731 Tomislav Mikuli T F pp 4498 4501-4503 Ivo Mr o T F p 2507 3690 Rudy Gerritsen T F p 7138 3691 Witnesses Zoran Gvozden and Mijo Marijanovi were among the first prisoners detained at the School as of 18 July 1993 while Witness ZH was one of 39 prisoners at the School who were all transferred to Iskra Stadium on 8 October 1993 Zoran Gvozden T F p 3655 Mijo Marijanovi T F p 2744 Witness ZH T F pp 3748 and 3755-3756 In a letter dated 12 October 1993 Senad Dautović chief of the civilian police in Bugojno informed the Secretariat for Social Affairs Department of Education Bugojno Municipal Defence Staff that the MUP Ministry of Interior would hand over the Gimnazija building on 14 October 1993 DH 53 3692 See photographs P 59 and P 64 3693 Mijo Marijanovi T F pp 2745-2746 Ivo Mr o T F pp 2507-2508 Witness ZE T F p 3473 Zoran Gvozden T F p 3657 and 3691 Witness ZH T F pp 3744-3748 Vinko Zrno T F pp 10049-10050 Witness ZC T F p 3324-3325 Witness ZB T F p 2978 The Chamber notes that two witnesses stated that they were imprisoned for a limited time upstairs in the School gym where conditions seemed relatively better Witness ZB T F pp 2978-2979 and 3026-3027 Vinko Zrno T F p 10051 3694 Witness ZH T F p 3750 and 3754 Vinko Zrno T F p 10065 Witness ZC T F p 3324 P 391 under seal paras 2-3 3695 Tomislav Mikuli T E pp 4501-4506 The Chamber notes that Witness Tomislav Mikuli noticed 307th Brigade insignia on the uniforms of the School guards and additional 307th Brigade Military Police insignia T F p 4506 3696 Vinko Zrno T F p 10065 Tomislav Mikuli T F pp 4500-4503 Witness ZH T F pp 3737-3738 and 3750 The Chamber notes that Witness ZH pointed out that Nijaz Bevrnja was the deputy of Besim Hod i and that Besim Hod i was the commander of the military police unit that controlled the School Witness ZH T F pp 3737-3738 3750 3754 and 3777 P 391 under seal para 3 The Chamber also notes that during the cross-examination of Witness Tomislav Mikuli the Defence for the Accused Had ihasanovi asked him if he knew that Nijaz Bevrnja was the 3687 Case No IT-01-47-T 485 15 March 2006 191 21623 BIS 1657 The detainees at the School were HVO soldiers who were either captured by or who had surrendered to the ABiH after combat but also included Bosnian Croat civilians 3697 at least two of whom were women 3698 1658 Former prisoners at the School spoke about the prevailing detention conditions in the cells of the building’s basement In each cell between 35 and 50 detainees were confined in spaces ranging from three by three to three by eight metres 3699 so that the detainees could not lie down and had to remain seated with their legs curled up to sleep 3700 The cells did not have a window or any other light source and so the detainees were plunged into darkness 3701 Despite the hot summer temperatures there was absolutely no ventilation 3702 1659 Regarding sanitary conditions some of the former detainees mentioned that they had limited access to the toilets 3703 while others stated that they had a slop pail in the cell 3704 The detainees received no or little water for washing and also did not have access to a water faucet 3705 One witness described the place as being extremely dirty 3706 1660 Regarding food supplies generally all of the witnesses complained that too little food was handed out 3707 On the first days after the arrests on 18 July 1993 a few loaves of bread were passed out every day for 40 detainees to share 3708 Witness Mijo Marijanovi stated however that he did not receive anything to eat during the few days he was incarcerated 3709 According to Witnesses ZC commander of the Bugojno special civilian police force reserve Witness Tomislav Mikuli responded in the negative T E p 4532 3697 Zoran Gvozden T F p 3658 Witness ZB T F pp 2978 and 3026 Tomislav Mikulić T F p 4502 The Chamber recalls that the ABiH considered the prisoners in Bugojno as prisoners of war or more specifically as regular and irregular combatants P 442 3698 Mijo Marijanovi T F p 2745 Vinko Zrno T F pp 10049-10050 Witness ZH T F p 3746 Ivo Mr o T F p 2508 3699 Namely the wife and daughter of Witness Mijo Marijanovi Mijo Marijanovi T F p 2745 Witness ZH T F pp 3744-3746 Vinko Zrno T F pp 10049-10050 Witness ZC T F p 3325 Ivo Mr o T F pp 2508 and 2511 3700 Tomislav Mikulić T F p 4500 Zoran Gvozden T F pp 3657-3658 Witness ZC T F p 3325 Ivo Mr o T F p 2508 3701 Witness ZC T F pp 3325-3326 Zoran Gvozden T F p 3657 Mijo Marijanovi T F p 2746 3702 Witness ZH T F pp 3744 and 3748 Mijo Marijanovi T F p 2747 Zoran Gvozden T F p 3657 Vinko Zrno T F p 10049 The Chamber notes that according to Witness Ivo Mr o boards blocked the basement window T F p 2508 3703 Zoran Gvozden T F pp 3657 3691-3692 Witness ZC T F p 3327 3704 Vinko Zrno T F pp 10049-10050 Witness ZC T F p 3327 The Chamber notes that Witnesses Mijo Marijanovi and Ivo Mr o both testified that there were no toilets Mijo Marijanovi T F p 2747 Ivo Mr o T F p 2508 3705 Mijo Marijanovi T F p 2747 Ivo Mr o T F p 2508 3706 Ivo Mr o T F p 2508 3707 Witness ZC T F pp 3726-3727 Mijo Marijanovi T F p 2747 Zoran Gvozden T F pp 3658 and 3689 3708 Witness ZC T F p 3326-3327 Zoran Gvozden T F p 3658 3709 Mijo Marijanovi T F p 2747 Case No IT-01-47-T 486 15 March 2006 190 21623 BIS and Zoran Gvozden after a few days the food situation improved somewhat because in addition to the bread the prisoners received a second “meal” of soup with a few beans 3710 Witness Vinko Zrno however who arrived at the School on 23 July 1993 stated that the food was distributed once per day only to those prisoners who dared to come out of their cells He explained that for three days he did not want to come out of his for fear of being beaten Starving at the end of the three days he came out of his cell and ate a piece of bread and some noodles 3711 Some witnesses stated that water was distributed only when the guards felt like it 3712 whereas Witness Zoran Gvozden stated that considering the heat the detainees were given enough water 3713 1661 Finally Witness Zoran Gvozden stated that during his incarceration he was taken to the Bugojno war hospital where he was forced to give blood since he had the same blood type as a wounded ABiH military police officer 3714 1662 The former prisoners at the School told the Chamber about how the prisoners locked up in the basement were subjected to physical violence upon their arrival or during their detention at the School For example Witness ZH stated that on 23 July 1993 the day he was arrested ABiH soldiers took him to the School When he got to the entrance hall at the School ABiH soldiers lined up on both sides of the hall with their rifles in hand began to beat him with the butts of their weapons After being kicked in the stomach the witness fell to the ground and was then kicked in the right kidney He then lost consciousness Witness ZC pointed out that for a few days after the beating there was blood in his urine 3715 Witness ZB mentioned that when he arrived at the School on 25 July 1993 he was beaten in a way similar to that described by Witness ZH 3716 1663 Moreover the former detainees stated that while they were detained the guards would regularly come into the cells and call one or two of them by name and have them come upstairs to one of the rooms or to the School gymnasium so that they could beat them 3717 Witness Mijo 3710 Witness ZC T F pp 3326-3327 Zoran Gvozden T F p 3658 Vinko Zrno T F pp 10049-10050 Witness ZH stated that between 30 or 31 August 1993 and 8 October 1993 in spite of the heat the approximately 40 prisoners in his cell were given four and a half litres of water for a 24-hour period He added that the prisoners gave one and a half litres to a prisoner with diabetes another litre and a half to the prisoner who had been beaten and that they used the third bottle to moisten their lips and mouths to keep their lips from cracking as a result of their thirst T F pp 3748-3749 3712 Witness ZC T F p 3327 Mijo Marijanovi T F p 2747 3713 Zoran Gvozden T F p 3691 3714 Zoran Gvozden T F pp 3662-3663 The Chamber notes that Witness ZH indicated that the detention conditions during his second period of incarceration namely from 30 or 31 August 1993 to 8 October 1993 were identical to those during his first which lasted from 23 July 1993 to 31 July 1993 T F pp 3746-3748 3715 Witness ZH T F pp 3738-3741 3716 Witness ZB T F p 3026 Witness ZB added that later he was taken into the School gymnasium where he was hit with an iron bar and beaten on the back 3717 Witness ZH T F pp 3749-3753 Vinko Zrno T F pp 10050-10051 Mijo Marijanovi T F p 2747 See photograph P 78 3711 Case No IT-01-47-T 487 15 March 2006 189 21623 BIS Marijanovi explained that between late July and early August 1993 he was taken twice to the teachers’ lounge to be beaten The ABiH soldiers punched him and used wooden and rubber clubs to beat him in the chest back and stomach 3718 1664 Several witnesses indicated that they could hear the screams of some prisoners who were being beaten and could see the marks left by the beatings on the bodies of the detainees who came back downstairs 3719 The witnesses agree that the beatings of Franjo Jesid i Vinko Ivkovi Mario Subasi and Goran Raji were particularly frequent and violent 3720 For example Witness Vinko Zrno described how on one occasion Mario Subasi was violently pushed down the stairs and fell to the ground He could see that Mario Subasi ’s eye had come out of its socket and that his face was covered in blood 3721 1665 Witness ZH stated that he was beaten again on 17 September 1993 After he was taken to the School gymnasium ABiH soldiers used cables to beat him for 10 to 15 minutes in the chest back and kidneys On that occasion he noticed that the ground and walls of the gymnasium were covered in blood which according to him was a clear indication of what had already happened there 3722 1666 Witness ZH pointed out that following his beating at the School he had a broken collarbone lost 60 percent of his right kidney function and suffered two stomach hernias which required surgery 3723 1667 On 28 July 1993 Witnesses Rudy Gerritsen and Peter Hauenstein ECMM observers visited the Gimnazija School Building 3724 While Rudy Gerritsen did not provide other specifics about the prevailing detention conditions at the School than that the conditions seemed better than those at the Furniture Salon 3725 Peter Hauenstein did indicate that it seemed to him that the prisoners he saw at the School had been treated well and had adequate space and blankets 3726 1668 For his part Witness ZR went to the School three times to visit the prisoners but was turned away twice When he was authorised to enter the School he saw HVO 2nd Battalion Commander 3718 Mijo Marijanovi T F pp 2747-2749 Tomislav Mikuli T F pp 4504-4405 Witness ZH T F p 3749 Vinko Zrno T F p 10050 Witness ZC T F pp 3327-3329 3720 Zoran Gvozden T F p 3659 Witness ZH T F p 3749-3750 Witness ZC T F p 3327-3328 Vinko Zrno T F p 10051 Tomislav Mikuli T F p 4504 3721 Vinko Zrno T E p 10051 3722 Witness ZH T F pp 3750-3752 3723 Witness ZH T F pp 3739-3740 3724 DH 170 6 Rudy Gerritsen T F pp 7134-7137 Peter Hauenstein T F pp 7607-7609 3725 Rudy Gerritsen T F pp 7138-7139 and 7164 3726 Peter Hauenstein T F pp 7605-7606 3719 Case No IT-01-47-T 488 15 March 2006 188 21623 BIS Dragan Erkapi among the prisoners Erkapi told him in particular that the prisoners were crammed into a dark cell one on top of the other that the heat was unbearable and that the prisoners were hungry Erkapi added that the detainees were severely beaten when a Muslim guard called “Sabi ” along with several of his men took the prisoners out of the cell 3727 ii Mistreatment Paragraph 42 g of the Indictment 1669 After closely examining the great amount of aforementioned testimony and documents the Chamber is convinced beyond a reasonable doubt that the prisoners locked in the School basement were repeatedly subjected to grave physical violence and that those acts were intentional and caused serious physical or mental suffering 1670 Moreover the Chamber heard many witnesses describe the deplorable detention conditions in which the prisoners were held in the School basement On that basis the Chamber finds that the cells in the School basement were overcrowded that the food was insufficient and inappropriate that the detainees’ access to the toilets at the School was unjustifiably limited and that the prisoners were deprived of light and ventilation In the view of the Chamber there is no doubt that cumulatively such detention conditions which did not meet minimum requirements constitute a serious attack on the human dignity of those men and women 3728 1671 Regarding the testimony of Peter Hauenstein and Rudy Gerritsen and the report from their visit describing the detention conditions at the School as good the Chamber considers that the information in it has less probative value than the specific information given by the many detainees at the School and by Witness ZR who all agree that the detention conditions at the School were sorely insufficient 1672 Regarding the perpetrators of the beatings one witness indicated that Nijaz Bevrnja a member of the Military Police Command which controlled the School 3729 took part in the beatings 3727 Witness ZR T E pp 3077-3081 As for the defence put forth by the Defence for the Accused Had ihasanovi regarding the detention conditions pointing out that the circumstances prevailing in Bugojno at the material time were difficult the Chamber refers to its conclusions on that subject in the section of this Judgement dealing with the Furniture Salon see supra paras 16081612 3729 Vinko Zrno T F p 10065 Tomislav Mikuli T F pp 4500-4503 Witness ZH T F pp 3737-3738 and 3750 The Chamber notes that Witness ZH specified that Nijaz Bevrnja was the deputy of Besim Hod i commander of the military police unit controlling the School Witness ZH T F pp 3737-3738 3750 3754 and 3777 P 391 under seal para 3 The Chamber also notes that in cross-examination the Defence for the Accused Had ihasanovi asked Witness Tomislav Mikuli if he knew that Nijaz Bevrnja was the commander of the Bugojno special civilian police force reserve Witness Tomislav Mikuli responded in the negative T E p 4532 3728 Case No IT-01-47-T 489 15 March 2006 187 21623 BIS of the prisoners at the School3730 and that someone else was present when the witness regained consciousness after being beaten 3731 Several witnesses stated that their attackers were uniformed ABiH soldiers 3732 Those statements combined with the fact that an ABiH military police unit ran and guarded the School3733 and that the 307th Brigade including the 307th Brigade Military Police was the only ABiH unit stationed in Bugojno3734 leave no doubt that the perpetrators of the alleged acts were members of the 307th Brigade which included the 307th Brigade Military Police 1673 Regarding the status of the victims of the mistreatment the Chamber finds that they were not directly participating in the hostilities In fact the evidence demonstrates that the persons arrested and transferred to the School from July to October 1993 had the status of Bosnian Croat civilians3735 or prisoners of war 3736 or were unarmed HVO members in civilian clothing at the time they were arrested 3737 Consequently they were all protected persons pursuant to the laws or customs of war as recognised by common Article 3 of the Geneva Conventions 1674 On the basis of the foregoing the Chamber finds that the elements of the crime of cruel treatment at the Gimnazija School Building are established for the period of 18 July 1993 to 8 October 1993 vii Vojin Paleksi Elementary School a Arguments of the Parties 1675 The Prosecution argues that the School was used as a detention facility from 31 July 1993 until at least the end of September 1993 and that it was guarded by soldiers of the 307th Brigade 3738 The Prosecution submits that members of that unit inflicted serious injuries on the prisoners at the School and that even though the detention conditions were better there than in other detention facilities in Bugojno they were still insufficient 3739 3730 Tomislav Mikulić T F pp 4504-4505 The Chamber notes that this witness received the information from another prisoner 3731 Witness ZH T F p 3740 The Chamber notes that Witness ZH specified that most of the time Nijaz Bevrnja called the detainees and had them taken out of their cell T F p 3754 3732 Mijo Marijanovi T F pp 2748-2749 Witness ZH T F p 3750 3733 See supra para 1656 3734 See supra para 393 3735 Ivo Mr o T F pp 2477 and 2545 Witness ZH T F pp 3726 and 3731 3736 Tomislav Mikuli T F pp 4493-4496 Witness ZB T F p 2977 Witness ZC T F p 3359 Zoran Gvozden T F p 3689 Vinko Zrno T F p 10051 3737 Mijo Marijanovi T F pp 2745 and 2775 3738 Prosecution Final Brief para 301 3739 Prosecution Final Brief para 301 Case No IT-01-47-T 490 15 March 2006 186 21623 BIS 1676 As for the arguments put forth by the Prosecution on the constituent elements of responsibility under Article 7 3 of the Statute the Chamber refers to the section of this Judgement dealing with the general arguments of the Parties 3740 1677 The Defence for the Accused Hadžihasanović argues that the detention conditions at the School were satisfactory considering the prevailing circumstances in Bugojno at the material time and that incidences of beatings were rare 3741 1678 As for the arguments put forth by the Defence for the Accused Hadžihasanović on the constituent elements of responsibility under Article 7 3 of the Statute the Chamber refers to the section of this Judgement dealing with the general arguments of the Parties 3742 b Findings of the Chamber regarding Mistreatment at the Vojin Paleksi Elementary School i Sequence of Events Between Late July 1993 and Late August 1993 1679 The Vojin Paleksić School was an elementary school in Bugojno which housed the headquarters of the HVO 1st Battalion Eugen Kvaternik Brigade before the conflict broke out between the armed forces of the HVO and ABiH 3743 Between late July 1993 and late August 1993 about 250 to 280 people3744 were imprisoned in the School’s gymnasium 3745 The detainees in the gymnasium were HVO soldiers and Bosnian Croat civilians3746 and included two women two minors aged 16 and one person aged approximately 75 years 3747 1680 According to several witnesses the guards at the School wore ABiH uniforms or were ABiH soldiers 3748 and were under the command of Faruk Aganovi 3749 aka “Jupi” 3750 a 307th 3740 See supra paras 1572-1573 Hadžihasanović Defence Final Brief paras 1053-1057 3742 See supra paras 1575-1577 3743 Zdravko @ulj T F p 3642 Witness ZB T F 2990 Zoran Gvozden T F p 3673 See photograph P 60 3744 Tomislav Mikulić T F p 4509 P 386 under seal para 18 Zdravko @ulj T F p 3626 3745 Ivo Mr o T F pp 2517-2518 Witness ZE T F p 3477 Tomislav Mikulić T F pp 4516-4517 P 386 under seal para 18 See photograph P 61 3746 Ivo Mr o T F p 2519 DH 170 7 3747 Ivo Mr o T F p 2520 Mijo Marjanović T F p 2745 Tomislav Mikulić T F p 4509 The Chamber recalls that the ABiH considered the prisoners in Bugojno as prisoners of war or more specifically as regular and irregular combatants P 442 3748 Zdravko @ulj T F p 3624-3625 Ivo Mr o T F p 2519 Witness ZB T F p 2993 The Chamber notes that Witness Zdravko @ulj added that at the School he saw people in camouflage uniforms black uniforms and civilian clothes but that he believed most of the insignia were from the army 3749 Witness ZR T F p 3083 P 386 under seal para 21 3750 Tomislav Mikuli T F p 4494 P 702 P 180 P 386 under seal para 21 3741 Case No IT-01-47-T 491 15 March 2006 185 21623 BIS Brigade officer 3751 A former prisoner indicated that he heard from a fellow detainee that Enes Hand i 307th Brigade Assistant Commander for Military Security 3752 conducted the interrogations at the School 3753 Moreover according to the testimony of Witness ZR requests for permission to visit prisoners at the School went or were transited through Tahir Grahi 3754 307th Brigade Commander 3755 1681 Regarding the prevailing detention conditions at the School all of the former detainees there who appeared before the Chamber complained of the shortage and poor quality of the food 3756 According to two witnesses on the first day or two in custody the prisoners were denied food 3757 Later the approximately 250 to 280 detainees had to share a large pot of soup and a few loaves of bread 3758 Witness ZR stated that one detainee told him that the food situation at the School was such that the prisoners fought each other over loaves of bread 3759 Witness Tomislav Mikuli indicated that water was distributed in insufficient quantities but that the problem of water supply was widespread everywhere 3760 As for sanitary conditions one witness stated that there were no toilets or water in the gymnasium and that the detainees had to ask the guards for permission to use the toilets located outside the School gymnasium 3761 One witness compared the detention conditions at the School and the Furniture Salon and stated that at least the prisoners at the School had light and that conditions were dry 3762 1682 Those same witnesses also stated that the prisoners were frequently subjected to threats and physical abuse either when they arrived at the School or during their period of incarceration For example a witness indicated that upon his arrival at the School ABiH soldiers lined up in the entrance to the building and kicked some prisoners and slapped others 3763 Moreover two witnesses 3751 P 180 DH 1976 DH 1522 P 912 DK 62 annex A DH 776 3753 P 386 under seal para 22 3754 Witness ZR T F pp 3085-3086 3755 P 180 DH 497 Witness ZR T F p 3085 3756 Zdravko @ulj T F pp 3626 and 3643 P 391 under seal para 14 P 386 under seal para 19 Ivo Mr o T F pp 2515-2516 Tomislav Mikuli T F p 4510 3757 P 386 under seal para 19 Ivo Mr o T F pp 2515-2516 3758 Zdravko @ulj T F p 3626 Tomislav Mikuli T F p 4510 Witness Z4 stated that on the first day of detention the prisoners received nothing to eat and that on the second day the approximately 282 prisoners at the School received 5 kilograms of bread and some stew that was impossible to get out of its container Later 7 kilograms of bread were distributed for the same number of prisoners P 386 under seal para 19 For his part Ivo Mr o indicated that during the first two days in detention the prisoners were given nothing to eat and that at the end of the second day they were given a 10-litre pot of food and 5 or 6 loaves of stale bread T F pp 2515-2516 3759 Witness ZR T F pp 3084-3085 3760 Tomislav Mikuli T F pp 4509-4510 3761 Ivo Mr o T F p 2515 3762 Zdravko @ulj T F p 3625 3763 Zdravko @ulj T F pp 3624-3625 Witness Z9 indicated that upon arriving with a group of prisoners at the School gymnasium soldiers chose a few prisoners and took them out of the gymnasium and that despite the fact that the 3752 Case No IT-01-47-T 492 15 March 2006 184 21623 BIS described that after they arrived at the School ABiH soldiers fired a salvo of gunfire most likely in order to intimidate the new arrivals 3764 1683 The former detainees at the School who testified before the Chamber explained how they noticed often during the night that some detainees were called by the School guards and then taken to be beaten 3765 The witnesses stated that they could hear the screams of the prisoners who were taken away3766 and could see when the prisoners returned that they had been beaten 3767 Ivo Mr o indicated that on one occasion a detainee called Anto Bakula was beaten so violently that he nearly died of his injuries 3768 Several witnesses agree that a fellow detainee Ante Akrap was very severely beaten on several occasions 3769 Witness ZB specified that Ante Akrap was so badly abused that on one occasion he lost consciousness 3770 1684 The Chamber notes that none of the witnesses who testified said that they personally had been physically abused 3771 Conversely according to the witnesses Niko D‘aja3772 Franjo Jezid‘ić Ivan Kesci 3773 Miroslav Fabulić Ozren Gvozdenović Josip Škaro Zoran Galić 3774 Mario Suba i 3775 and Poric Milicevi were among the other detainees who were mistreated 3776 1685 On 29 July 1993 Witnesses Rudy Gerritsen and Peter Hauenstein visited the School 3777 Nevertheless while Peter Hauenstein limits himself to saying that the detention conditions at the School were better than at Iskra Stadium or at the Furniture Salon Rudy Gerritsen stated that he could not recall what the detention conditions there were like 3778 1686 Witness ZR stated that he went to the School in August 1993 to visit the prisoners but that Faruk Aganovi refused him access and crumpled up his laissez-passer The witness did however soldiers were playing loud music most probably to drown out the screams of the detainees being beaten the other prisoners could make out their screams P 391 under seal para 13 3764 Ivo Mr o T F pp 2513-2514 Zdravko @ulj T F p 3624-3625 3765 Zdravko @ulj T F pp 3643-3644 Ivo Mr o pp 2518-2519 Witness ZB T F pp 2993-2994 P 386 under seal para 20 3766 Ivo Mr o T F p 2518 Witness ZB T F p 2993 3767 P 386 under seal para 20 3768 Ivo Mr o T F p 2518 3769 Witness ZB T F p 2994 P 391 under seal para 13 3770 Witness ZB T F p 2994 3771 Witness ZB T F p 3030 Ivo Mr o T F p 2601 Zdravko @ulj T F pp 3643-3644 P 391 under seal para 13 3772 P 391 under seal para 13 P 386 under seal para 20 Witness ZB T F p 2993 3773 Witness ZB T F p 2993 3774 P 391 under seal para 13 3775 Witness Z4 para 20 P 386 under seal 3776 Ivo Mr o T F pp 2518-2519 3777 DH 170 7 3778 Peter Hauenstein T F pp 7604 and 7610 Rudy Gerritsen T F p 7141 Case No IT-01-47-T 493 15 March 2006 183 21623 BIS have time to see one detainee who told him that the quantities of food being handed out were sorely insufficient Witness ZR made it known that he intended to see Senad Dautovi to inform him of the incident regarding his visitation pass but a guard at the School advised him to see Tahir Grahi instead Witness ZR met Tahir Grahi and was informed two days later that Grahi would make sure that his future visits would go unfettered Witness ZR indicated that afterwards he was able to resume his visits 3779 ii Mistreatment Paragraph 42 g of the Indictment 1687 The aforementioned evidence establishes beyond a reasonable doubt that although the detention conditions prevailing at the School were relatively better than those at other locations such as the Furniture Salon or Iskra Stadium they were still inappropriate and insufficient especially as regards food and therefore constitute mistreatment 3780 1688 The Chamber is also of the view that the aforementioned testimony considering how much there was and the fact that it was consistent is sufficient to demonstrate beyond a reasonable doubt that detainees at the School were regularly subjected to physical abuse during their incarceration and that the perpetrators of the mistreatment acted with the intent to cause the prisoners at the School serious pain and suffering 1689 The witnesses did not identify the perpetrators of the mistreatment of the other detainees but some did point out that ABiH soldiers guarding the prisoners or otherwise present at the School were responsible 3781 That testimony in conjunction with serious indications that the guards at the School were under the command of 307th Brigade officer Faruk Aganovi aka “Jupi” and that permission to visit the School was granted by 307th Brigade Commander Tahir Grahi 3782 is sufficient to convince the Chamber beyond a reasonable doubt that the perpetrators of the alleged acts belonged to the 307th Brigade 1690 Finally the Chamber finds that the victims of the cruel treatment at the School were not directly participating in the hostilities In fact evidence establishes that the people transferred to the 3779 Witness ZR T F pp 3083-3086 As for the defence put forth by the Defence for the Accused Had ihasanovi regarding the detention conditions pointing out the prevailing circumstances in Bugojno at the material time were difficult the Chamber refers to its conclusions on that subject in the section of this Judgement dealing with the Furniture Salon see supra paras 16081612 3781 Ivo Mr o T F p 2519 Witness ZB T F p 2993 Zdravko @ulj T F p 3625 According to Witness Z9 they were “Muslim soldiers” P 391 under seal para 13 3782 See supra paras 394 and 1680 3780 Case No IT-01-47-T 494 15 March 2006 182 21623 BIS School had the status of Bosnian Croat civilians or prisoners of war 3783 Consequently they were all protected persons pursuant to the laws or customs of war as recognised by common Article 3 of the Geneva Conventions 1691 On the basis of the above the Chamber finds that the elements of the crime of cruel treatment at the Vojin Paleksi Elementary School have been established for the period between late July 1993 and late August 1993 viii FC Iskra Stadium a Arguments of the Parties 1692 The Prosecution argues that Iskra Stadium was used as a detention facility between 30 July 1993 until at least October 1993 and that ABiH 3rd Corps OG Zapad soldiers and military police continuously guarded the facility 3784 The Prosecution submits that the prisoners were regularly subjected to physical abuse and that the detention conditions at the Stadium were sorely inadequate 3785 1693 As for the arguments put forth by the Prosecution on the constituent elements of responsibility under Article 7 3 of the Statute the Chamber refers to the section of this Judgement dealing with the general arguments of the Parties 3786 1694 The Defence for the Accused Hadžihasanović argues that the detention conditions at Iskra Stadium were satisfactory considering the prevailing circumstances in Bugojno at the material time and that incidences of beatings were rare 3787 1695 As for the arguments put forth by the Defence for the Accused Hadžihasanović on the constituent elements of responsibility under Article 7 3 of the Statute the Chamber refers to the section of this Judgement dealing with the general arguments of the Parties 3788 3783 Ivo Mr o T F p 2519 DH 170 7 P 391 under seal para 12 Witness ZB T F p 2993 Prosecution Final Brief para 300 3785 Prosecution Final Brief para 300 3786 See supra paras 1572-1573 3787 Hadžihasanović Defence Final Brief paras 1053-1057 3788 See supra paras 1575-1577 3784 Case No IT-01-47-T 495 15 March 2006 181 21623 BIS b Findings of the Chamber regarding the Mistreatment Committed at the FC Iskra Stadium i Sequence of Events Between August 1993 and 31 October 1993 1696 In a decision of 24 August 1993 the War Presidency in Bugojno municipality decided to use the facilities beneath the stands at Iskra Stadium to detain civilians and soldiers until the communication channels between the KP Dom in Zenica and the Travnik military prison could be established 3789 Several witnesses described how Iskra Stadium formerly used by the Bugojno football team was turned into a prison camp complete with a sentry box fence and trenches around the building 3790 1697 Iskra Stadium3791 was used as a detention facility beginning in the second half of August 19933792 until 19 March 1994 3793 For the purposes of this Judgement however the Chamber will limit its examination to the period running from August 1993 to 31 October 1993 the date when the Accused Hadžihasanović left his duties as commander of the 3rd Corps 1698 The evidence presented by the Parties indicates that Iskra Stadium fell under the responsibility of the civilian authorities and the ABiH more specifically the 307th Brigade and the Bugojno TO Accordingly in its decision of 24 August 1993 the War Presidency decided that Iskra Stadium would be administered by a director a security commander and 12 guards six with civilian and six with military status and tasked the Executive Council of Bugojno municipality the 307th Brigade Command and the TO in Bugojno with carrying out the decision 3794 Several pieces of evidence indicate that Enes Hand i 307th Brigade Assistant Commander for Military Security was the security commander for Iskra Stadium 3795 Several witnesses stated that Iskra Stadium was initially under the command of Meho Sadikovi 3796 an official of the War Presidency 3797 who was 3789 DH 176 Witness ZC T F p 3343 Tomislav Mikulić T F pp 4518-4519 Witness ZB T F p 2996 3791 See photographs P 62 and P 67 3792 Tomislav Mikulić T F p 4517 Zrinko Alvir T F p 2642 DH 171 2 3793 The following witnesses were among them Mijo Marijanović Witness ZB Witness ZC Zdravko @ulj Zoran Gvozden Witness ZH Tomislav Mikuli Vinko Zrno Witness Z4 Witness Z9 3794 DH 176 3795 DH 1503 Witness ZH T E pp 3759-3760 Ivo Mr o T F pp 2527-2529 The Chamber notes that Ivo Mr o testified about attempts to negotiate better detention conditions at Iskra Stadium with D evad Mlaco president of the War Presidency in Bugojno who told him that such matters were not in his purview but that of Enes Hand‘ić When Ivo Mr o was finally able to meet with Enes Handžić Handžić told him that he was not in charge of Iskra Stadium but that Tahir Grani was When Ivo Mršo met with Tahir Grani in December 1993 Grani told him that in fact Enes Hand‘ić was in charge of such matters 3796 DH 63 3797 Witness ZB T F pp 3016-3017 Mijo Marijanovi T F p 2773 3790 Case No IT-01-47-T 496 15 March 2006 180 21623 BIS followed by an ABiH soldier called “Gasal” 3798 and that the guards at the Stadium were under the command of a soldier called “Kukavica” 3799 According to several witnesses the guards at Iskra Stadium were ABiH soldiers in particular military police who wore camouflage uniforms or black uniforms 3800 1699 As indicated previously 3801 many prisoners were transferred from one detention centre to another in Bugojno From August 1993 the great majority of the detainees held by the ABiH were transferred to Iskra Stadium which became the last place they were held before being exchanged or released 3802 1700 Between the second half of August 1993 and early November 1993 Iskra Stadium held more than 400 detainees 3803 most of whom were HVO soldiers but also included Bosnian Croat civilians and to a lesser extent Bosnian Serb civilians 3804 1701 The prisoners were locked up in various places within Iskra Stadium including in a room beneath the stands that was between 70 to 100 square metres 3805 in the locker rooms approximately 16 square metres also beneath the stands 3806 and in a small restroom 3807 1702 The Chamber heard many witnesses describe the detention conditions that prevailed at Iskra Stadium Several detainees complained of cramped detention quarters considering their large numbers 3808 For example Witness ZH stated that on one occasion 17 prisoners including himself were locked into a restroom so small that when they lay down the feet of some would overlap the heads of others They were forced to remain there for three days squeezed against one another 3809 3798 P 386 under seal para 37 P 391 under seal para 41 Witness ZB T F pp 3016-3017 Witness ZC T E p 3345 Witness ZH T E 3759 3799 P 391 under seal para 41 Witness ZC T E p 3345 Mijo Marijanovi T F p 2764 3800 Zdravko @ulj T F pp 3629-3630 Tomislav Mikuli T F pp 4519-4520 and 4523-4525 Vinko Zrno T F pp 10056-10057 Mijo Marijanovi T F p 2764 Witness ZH T F p 3760 The Chamber notes that Zoran Gvozden stated that most of the guards at Iskra Stadium were 307th Brigade Military Police but that there were also civilian police Nevertheless he pointed out that he did not see any of the military police wearing 307th Brigade insignia T F pp 3676-3677 and T E 3704-3705 3801 See supra para 1586 3802 Tomislav Mikulić T F pp 4517-4518 P 273 3803 Fehim Muratović T F pp 14963-14965 Mijo Marijanovi T F pp 2763 P 442 Witness ZC T F p 3344 Ivo Mr o T F p 2524 Witness ZH T F p 3758 3804 Mijo Marijanovi T F pp 2763-2764 Zoran Gvozden T F pp 3674-3675 Witness ZB T F p 2995 Witness ZH T F p 3761 Tomislav Mikulić T F p 4518 The Chamber recalls that the ABiH considered the prisoners in Bugojno as prisoners of war or more specifically as regular and irregular combatants P 442 3805 Witness ZR T F p 3089 Witness ZB T F p 2996 Tomislav Mikuli T F p 4520 P 386 under seal para 24 3806 Witness ZC T F p 3343 P 391 under seal para 25 3807 Witness ZH T F p 3757 3808 P 391 under seal para 26 Tomislav Mikuli T F p 4520 Witness ZB T E pp 2995-2996 Vinko Zrno T F p 10055 3809 Witness ZH T F p 3757 Case No IT-01-47-T 497 15 March 2006 179 21623 BIS 1703 Several former detainees at Iskra Stadium also complained that the food distributed to them was wholly insufficient and of very poor quality 3810 The detainees were fed in large part thanks to the civilians in the region who brought them food 3811 According to two witnesses however the guards let the prisoners have the food only after they had served themselves 3812 Even when food was given to the detainees it generally consisted of watery stock and loaves of bread 3813 Witness Tomislav Mikuli recalled that one guard advised him not to eat the food in the containers since the guards used the same containers to relieve themselves 3814 Several witnesses stated that after eating the food that was distributed the detainees came down with diarrhoea and abdominal pain 3815 The food situation was so precarious that the prisoners lost considerable weight Witness Z4 for example stated that he lost 22 kilograms while he was detained at Iskra Stadium while Witness Tomislav Mikuli stated that he lost 25 3816 1704 Regarding health and sanitary conditions the witnesses agree that early in the period of their incarceration the approximately 400 prisoners had to make do with one toilet that did not flush 3817 Later they explained three additional latrines were set up outside but that access to them was limited 3818 Witness Zdravko @ulj stated that each morning after roll call the prisoners were allowed to wash 3819 Nevertheless Witness Z4 complained that the prisoners were not able to wash or change their clothes for several months 3820 and Witness Vinko Zrno stated that as of September 1993 the detainees were infested with lice and had to be shaved and disinfected 3821 1705 Early on no provision was made for accommodations and the detainees were forced to sleep on the concrete floor or on planks 3822 Later some blankets were handed out but not enough for all the detainees 3823 3810 Tomislav Mikulić T F pp 4521-4522 Witness ZR T F pp 3089-3090 P 391 under seal para 35 Mijo Marijanovi T F p 2767 Zdravko @ulj T F p 3647 Vinko Zrno T F p 10055 Witness ZC T F p 3363 Witness ZE T F p 3476 3812 P 386 under seal para 35 Zdravko @ulj T F p 3647 3813 P 386 under seal para 35 Tomislav Mikuli T F p 4521 Vinko Zrno T F p 10055 3814 Tomislav Mikulić T F p 4521 3815 Vinko Zrno T F p 10055 P 386 under seal para 36 Tomislav Mikuli T F p 4521 The Chamber notes however that Witness Z4 pointed out that a diarrhoea epidemic broke out only in late December 1993 P 386 under seal para 36 3816 Tomislav Mikulić T F p 4522 P 386 under seal para 40 3817 Witness ZH T F p 3759 Tomislav Mikulić T F p 4520 Mijo Marijanovi T F p 2767 Zdravko @ulj T F p 3646 Vinko Zrno T F p 10055 3818 P 386 under seal para 24 Zdravko @ulj T F p 3646 Tomislav Mikuli T F p 4520 3819 Zdravko @ulj T E p 3647 3820 P 386 under seal para 35 3821 Vinko Zrno T F p 10055 3822 Mijo Marijanovi T F p 2767 Tomislav Mikuli T F pp 4520-4521 3823 Mijo Marijanovi T F p 2767 Tomislav Mikuli T F pp 4520-4521 The Chamber notes however that Witness Vinko Zrno pointed out that each prisoner had a blanket T F p 10055 3811 Case No IT-01-47-T 498 15 March 2006 178 21623 BIS 1706 Many witnesses stated that detainees were beaten on a regular basis either inside Iskra Stadium or while being interrogated at BH Banka outside Iskra Stadium 3824 Several former detainees said that when night fell the detainees were called out and taken outside their cells to be beaten 3825 They could sometimes hear the detainees screaming and could see marks from the beatings on the bodies of returning prisoners 3826 Some witnesses spoke about the constant anxiety about being the next person to be called out taken away and beaten just like other detainees 3827 1707 While Witness Tomislav Mikuli pointed out that the number of prisoner beatings depended on which guards made up a team 3828 Vinko Zrno stated that the beatings were most intense during the first month of incarceration 3829 Tomislav Mikuli added that at times some guards tried to prevent the violence inflicted on the prisoners 3830 1708 Witness Vinko Zrno stated that after spending 25 days in the Bugojno military hospital as a result of being severely beaten at Vrbanja cemetery he was taken to Iskra Stadium and just like all the detainees from the military hospital placed in what was called the “shock” room with all the other prisoners who had been beaten In the evening the detainees were called by name and taken out of the room with a plastic bag over their head They were then taken to the Stadium itself where they were given a beating before being sent back to the “shock room” 3831 1709 Witness Mijo Marijanovi stated that he was beaten on two occasions once in the stands and the second time on his way to the toilet He pointed out that in general the attackers feared that visitors to Iskra Stadium would suspect mistreatment there which is why the guards did not carry clubs and therefore did not use such instruments to beat the prisoner and also why they took the prisoners into the stands so they could not be seen 3832 3824 The Chamber will examine the allegations of mistreatment at “BH Banka” in the following section Tomislav Mikuli T F pp 4521-4522 Witness ZH T F p 3759 Witness ZC T F p 3345 Vinko Zrno T E pp 10053-10054 The Chamber notes that apart from Mijo Marijanovi and Vinko Zrno the former detainees heard by the Chamber stated that they were not personally beaten at Iskra Stadium or did not mention that P 391 under seal para 34 Zdravko @ulj T F p 3648 Zoran Gvozden T F p 3704 3826 P 391 under seal para 35 Zdravko @ulj T F p 3648 Vinko Zrno T E p 10054 3827 Vinko Zrno T F p 10056 P 391 under seal para 35 3828 Tomislav Mikulić T F p 4523 3829 Vinko Zrno T F p 10058 3830 Tomislav Mikulić T F pp 4524 – 4525 3831 Vinko Zrno T F pp 10053-10054 3832 Mijo Marijanovi T E p 2764 3825 Case No IT-01-47-T 499 15 March 2006 177 21623 BIS 1710 According to witnesses Dragan Erkapi Željko Spremo 3833 Ivo Lozan i Miroslav Dilber Branko Gavranovi Oleg Boriči Ivica Bartulovi Niko Bartulovi 3834 Ivica Lozančić Niko Visković Željko Lozić and Kazimir Kaić were among the prisoners who were beaten 3835 1711 ICRC representatives visited Iskra Stadium on several occasions 3836 As such on 14 September 1993 the Accused Hadžihasanović ordered the OG Zapad and 307th Brigade Commands to authorise a visit from an ICRC delegation planned for 20 and 21 September 1993 3837 Similarly on 20 October 1993 Enes Hand i 307th Brigade Assistant Commander for Military Security gave ICRC representatives permission to visit Iskra Stadium the same day 3838 1712 On 9 and 24 August 1993 Witnesses Rudy Gerritsen and Peter Hauenstein ECMM observers went to Iskra Stadium 3839 The report of their 9 August 1993 visit indicates that although the detention conditions had improved the detainees were still crammed together and had only planks to sleep on 3840 The report of the 24 August 1993 visit indicates that the delegation composed of three Muslim representatives from Prozor and local authorities expressed its satisfaction after the visit 3841 1713 Finally Witness ZR was able to visit the prisoners at Iskra Stadium on several occasions up until the end of October 1993 when Enes Hand i restricted his visits to contact with the prisoners’ guards Prior to that restriction detainees told Witness ZR that the prisoners were beaten at night and that they were starving 3842 ii Mistreatment Paragraph 42 g of the Indictment 1714 From the foregoing the Chamber has heard very compelling testimony from many former detainees regarding the inhuman conditions in which they had to live sometimes for months while they were imprisoned at Iskra Stadium It is apparent that the prisoners were confined into spaces which were too small considering their large numbers and had to sleep on the concrete floor or on planks without sufficient blankets for all the detainees From the testimony especially it is clear that food was deliberately rationed was grossly insufficient inappropriate and of mediocre quality and 3833 Witness ZH T F p 3759 P 391 under seal para 34 Witness ZH T F p 3759 3835 P 391 under seal para 34 The Chamber notes that Witness Z4 with the help of a few Croats detained with him at Iskra Stadium drew up a list of people who had been beaten there P 391 under seal Annex 1 3836 Mijo Marijanovi T F p 2773 Zoran Gvozden T F p 3679 P 386 under seal para 38 3837 P 441 3838 DH 1503 3839 Rudy Gerritsen T F pp 7195-7196 Peter Hauenstein T F pp 7609-7610 3840 DH 171 2 3841 DH 1958 3834 Case No IT-01-47-T 500 15 March 2006 176 21623 BIS that the detainees fell ill or became considerably weaker as a result of being subjected to that poor diet 3843 In addition to those physical deprivations the detainees suffered the anxiety of physical abuse which was administered repeatedly arbitrarily and mostly at night 1715 For these reasons relying on the aforementioned evidence the Chamber finds that the material deprivations forced on the prisoners at Iskra Stadium in conjunction with the climate of anxiety in which they lived were such that those men and women were pushed to the limits of their physical and psychological endurance Furthermore the Chamber finds that the victims were repeatedly subjected to physical violence while they were detained and that the perpetrators of the mistreatment acted with the intent to cause serious pain and suffering to the prisoners at Iskra Stadium 1716 A few witnesses indicated that it was difficult to identify the perpetrators of the mistreatment since the perpetrators wore masks or alternatively made the detainees put bags on their heads so that they would not recognise their attackers 3844 Other witnesses indicated that the guards at Iskra Stadium were responsible for the beatings 3845 As stated previously 3846 according to several witnesses the guards were ABiH soldiers including military police who wore camouflage uniforms or black uniforms Nevertheless the Chamber notes that no witnesses identified the attacker or attackers as belonging to the 307th Brigade and that the War Presidency’s decision of 24 August 1993 provided that Iskra Stadium would be monitored by six civilian and six military guards 3847 While the Chamber therefore cannot exclude the possibility that some of the perpetrators may have not been members of the ABiH 307th Brigade it nevertheless considers that given the fact that the 307th Brigade including the 307th Brigade Military Police was the only ABiH unit stationed in Bugojno3848 and that the 307th Brigade played a role in administering Iskra Stadium 3849 there are serious indications that at least some of the perpetrators of the mistreatment of the 3842 Witness ZR T F p 3088-3093 and 3109 As for the defence put forth by the Defence for the Accused Had ihasanovi regarding the detention conditions arguing that the circumstances prevailing in Bugojno at the material time were difficult the Chamber refers to its conclusions on that subject in the section of this Judgement dealing with the Furniture Salon see supra paras 16081612 3844 Zdravko @ulj T F p 3648 P 391 under seal para 34 Vinko Zrno T F p 10053 3845 Zdravko @ulj T F pp 3648 and 3629 Tomislav Mikulić T F pp 4521-4524 Vinko Zrno T F pp 10056-10057 Witness ZR T F pp 3089-3090 and 3109 Zoran Gvozden T F p 3705 3846 See supra para 1698 3847 DH 176 3848 See supra para 393 3849 See supra para 1698 3843 Case No IT-01-47-T 501 15 March 2006 175 21623 BIS prisoners at Iskra Stadium belonged to the 307th Brigade which included the 307th Brigade Military Police 3850 1717 The Chamber finds that the victims of the mistreatment were not directly participating in the hostilities 3851 Consequently they were all protected persons pursuant to the laws or customs of war as recognised by common Article 3 of the Geneva Conventions 1718 On the basis of the above the Chamber finds that the elements of the crime of cruel treatment at Iskra Stadium have been established for the period between August 1993 and 31 October 1993 ix BH Banka a Arguments of the Parties 1719 The Prosecution submits that the Bank was used as a detention facility from September 1993 until 31 October 1993 that the prisoners there were frequently subjected to physical abuse and the detention conditions there were sorely inadequate 3852 1720 As for the arguments put forth by the Prosecution on the constituent elements of responsibility under Article 7 3 of the Statute the Chamber refers to the part of this Judgement dealing with the general arguments of the Parties 3853 1721 The Defence for the Accused Hadžihasanović argues that the detention conditions at the Bank were satisfactory considering the prevailing circumstances in Bugojno at the material time and that incidences of beatings were rare 3854 3850 As will be discussed subsequently the ABiH 3rd Corps was responsible for the prisoners incarcerated in detention centres set up in Bugojno which included Iskra Stadium Assuming that civilian guards also mistreated the prisoners at Iskra Stadium the question of the possible participation of the local detaining authority in this case Enes Hand i in the commission of these crimes should also be considered Given his authority in that capacity the local detaining authority had a duty to ensure the well-being and safety of detainees in his custody In the case where he has knowledge that criminal acts have been committed against prisoners in his custody and where he fails to take measures to put a stop to the mistreatment of them he plays a significant role in the commission of those crimes Nevertheless the evidence presented in this case does not make it possible to establish beyond a reasonable doubt that civilians guards were responsible for the mistreatment or that Enes Hand i knew that those crimes had been committed Accordingly no conclusion may be drawn as to the form of responsibility incurred by Enes Hand i in this case 3851 Mijo Marijanovi T F pp 2745 and 2774-2775 Vinko Zrno T F pp 10069-10071 3852 Prosecution Final Brief para 302 3853 See supra paras 1572-1573 3854 Hadžihasanović Defence Final Brief paras 1053-1057 Case No IT-01-47-T 502 15 March 2006 174 21623 BIS 1722 As for the arguments put forth by the Defence for the Accused Hadžihasanović on the constituent elements of responsibility under Article 7 3 of the Statute the Chamber refers to the section of this Judgement dealing with the general arguments of the Parties 3855 b Findings of the Chamber regarding the Mistreatment at BH Banka 1723 Several witnesses stated that between late September 1993 and at least late October 1993 3856 prisoners were taken from Iskra Stadium to the Bank to be interrogated and beaten 3857 Some witnesses indicated that certain prisoners who were taken away never returned or disappeared thereafter 3858 Witness Mijo Marijanovi a former detainee at Iskra Stadium specified that some of the detainees who returned from the Bank had difficulty walking and bruises all over their bodies 3859 Witness Z9 also a former detainee at Iskra Stadium indicated in his testimony that he learned that @eljko Milo and Jadranko Gvozden had been beaten at the Bank 3860 1724 Witness ZE indicated that the Bank housed an interrogation centre headed by Enes Hand i 307th Brigade Assistant Commander for Military Security 3861 1725 As the Chamber indicated previously 3862 it has heard many Prosecution witnesses testify about the “disappearance” of around 21 to 25 prisoners in Bugojno Most of those people were allegedly taken from Iskra Stadium to the Bank never to be seen again The Chamber reiterates that the Prosecution never seized it of the issue of the disappearance of the prisoners in Bugojno Accordingly the Chamber cannot make findings on that issue 1726 Conversely the Chamber heard only two witnesses Mijo Marijanovi and Witness Z9 about mistreatment at the Bank The Chamber nevertheless finds that this testimony is circumstantial and says nothing of the nature of the abuse the perpetrators thereof or of the detention conditions at the Bank Consequently the Chamber considers that the testimony is not sufficient to establish that mistreatment was committed at the Bank 1727 Under those conditions the Chamber considers it appropriate to acquit the Accused Hadžihasanović of the allegations of the crime of mistreatment at the Bank 3855 See supra paras 1575-1577 P 391 under seal paras 29 and 32 P 386 under seal T F p 39 3857 Witness ZC T F pp 3345-3347 Mijo Marijanovi T F pp 2764 -2765 Ivo Mršo T F p 2528 Vinko Zrno T F p 10056 3858 Witness ZE T F p 3474 Ivo Mršo T F p 2528 Witness ZC T F pp 3345-3347 Vinko Zrno T F p 10056 3859 Mijo Marijanović T F pp 2764-2765 3860 P 391 under seal para 32 3861 Witness ZE T F p 3474 3856 Case No IT-01-47-T 503 15 March 2006 173 21623 BIS x Interpretation of the Indictment 1728 The Chamber notes that paragraph 42 g of the Indictment alleges that mistreatment was committed not only by ABiH 3rd Corps OG Zapad 307th Brigade soldiers but also by OG Zapad military police Likewise paragraphs 43 c and 43 d of the Indictment allege that members of the OG Zapad military police were responsible for the murders of Mladen Havranek and Mario Zrno The evidence demonstrates however that the only military police in Bugojno was the military police directly subordinated to the 307th Brigade 3863 which was itself subordinated to the OG Zapad and not the OG Zapad military police 1729 The Chamber first notes that this issue goes to the identification of the subordinates who perpetrated the crimes an essential element of a charge brought under Article 7 3 of the Statute The Chamber next notes that although the Indictment is vague with regard to the military unit of the alleged perpetrators of the offence charged the fact remains that the Defence for the Accused Hadžihasanović was sufficiently informed in a timely fashion that the charges against the Accused Hadžihasanović regarding Bugojno are based on the offences committed by the 307th Brigade Military Police in particular not the OG Zapad military police and that as a result that lack of clarity did not seriously prejudice the preparation of his defence 1730 Consequently in its Final Brief the Defence for the Accused Hadžihasanović argued from the outset that with regard to allegations of the crimes in Bugojno the OG Zapad did not have a military police unit contrary to the Prosecution’s assertion 3864 Nevertheless the Defence for the Accused Hadžihasanović did not submit that this lack of clarity prejudiced the preparation of its Defence It is worth adding that since the OG Zapad Military Police did not exist and that the police force was in fact that of the 307th Brigade the same subordinates were therefore concerned 3865 1731 The Chamber therefore finds that the references in the Indictment to the OG Zapad Military Police instead of the 307th Brigade Military Police satisfies the requirement to set out clearly the membership in an identifiable group and that the Defence for the Accused Hadžihasanović did not suffer prejudice in its preparations for the trial 3862 See supra para 1590 C 16 entry 31 May 1993 DH 708 3864 See para 1017 Had ihasanovi Defence Final Brief 3865 The Chamber notes that this particular case differs from those examined in relation to Motel Sretno and Mehuri i Blacksmith Shop where the evidence adduced by the Prosecution during the trial showed that a different 3rd Corps unit from the one alleged in the Indictment had in conjunction with that unit committed the crimes alleged therein 3863 Case No IT-01-47-T 504 15 March 2006 172 21623 BIS xi Particular Aspect Linked to the Context 1732 The Defence for the Accused Hadžihasanović submits that the 3rd Corps’ policy was to transfer the prisoners of war as quickly as possible to the KP Dom in Zenica 3866 Nevertheless it adds that the 3rd Corps received information indicating that in Bugojno such a transfer was not possible because the front lines were close the danger of putting a large number of prisoners within range of artillery fire and the absence of logistical assets 3867 1733 Admittedly several pieces of evidence suggest that ABiH troops working in Bugojno attempted to implement the 3rd Corps’ policy of transferring the prisoners of war to the KP in Zenica 3868 Certain witnesses for the Defence for the Accused Hadžihasanović also mentioned that the transfer of the prisoners of war to the KP Dom in Zenica was not possible because of security or material reasons such as the lack of an available vehicle able to handle the road up to Zenica 3869 Nevertheless the Chamber is of the view that even assuming the situation was as difficult as described by the witnesses for the Defence for the Accused Hadžihasanović the fact remains that the minimum requirements must be respected as regards the treatment of persons deprived of their freedom for reasons linked to armed conflict from the moment a person is deprived of freedom of movement and that no one may depart from this rule Consequently the Chamber considers that the aforementioned allegations of the Defence for the Accused Hadžihasanović do not in any way alter its findings 3866 Hadžihasanović Defence Final Brief paras 1021 and 1038 Hadžihasanović Defence Final Brief para 1039 3868 Witness HF stated that during their visit to Bugojno Edib Zlotrg and Fehim Muratović gave the order to transfer the HVO soldiers to the KP Dom in Zenica Witness HF T F p 17198 On 19 September 1993 after being informed by the OG Zapad Commander that the ABiH was detaining among others 23 HVO members who had committed particularly serious crimes P 442 the Accused Hadžihasanović ordered the OG Zapad Commander to transfer those 23 prisoners of war to the KP Dom in Zenica P 443 On 7 October 1993 the Accused Hadžihasanović renewed the order to the OG Zapad Commander P 274 According to Witness HF and Witness Fehim Muratovi however that transfer or any other transfer of prisoners to Zenica never took place Fehim Muratovi T F pp 15042-15043 Witness HF T F p 17198 See also Rudy Gerritsen T F pp 7178-7179 and DH 171 7 Later Witness Zaim Kablar Vice-President of the 3rd Corps prisoner exchange commission testified that during the period between 25 August 1993 until the end of 1993 he received information that 253 HVO soldiers were being detained at Iskra Stadium in Bugojno and added that the exchange of those prisoners was an issue raised two or three times within the exchange commission Zaim Kablar T F pp 14622-14626 3869 Witness HF and Witness Edib Zlotrg stated that there were snipers along the road from Bugojno to Zenica and that the vehicles transporting the prisoners were within range of HVO artillery Witness HF T F p 17198 Edib Zlotrg T F pp 14985-14986 Witness Fehim Muratović stated that from a security standpoint moving 400 prisoners by bus was not a viable option that the road from Bugojno to Zenica was impassable for an ordinary vehicle and that several buses broke down Fehim Muratovi T F p 14965 Witness HF added that according to the OG Zapad there were not sufficient assets to make such a transfer possible Witness HF T F p 17198 Finally a report sent by the OG Zapad on 17 August 1993 to the 3rd Corps Command stated that there was a plan to transport prisoners to Zenica but that it was postponed a day due to a vehicle breakdown DH 1391 3867 Case No IT-01-47-T 505 15 March 2006 171 21623 BIS xii Findings of the Chamber regarding the Responsibility of the Accused Hadžihasanović i Effective Control of the Accused Hadžihasanović over the Perpetrators of the Crime 1734 The Chamber has found that 307th Brigade members including the OG Zapad 307th Brigade Military Police committed cruel treatment at the Furniture Salon the Convent the Elementary School the Secondary School Building and Iskra Stadium and the murder of Mladen Havranek as alleged respectively in paragraphs 42 g and 43 c of the Indictment Since the OG Zapad 307th Brigade was de jure subordinated to the 3rd Corps at the material time 3870 it is presumed that the Accused Hadžihasanović exercised effective control over that unit and its members who were the perpetrators of the mistreatment and the murder 3871 1735 The Defence for the Accused Hadžihasanović argues as a defence that the War Presidency in Bugojno had total control of the city and exercised real power over the military structures It submits that the War Presidency dealt with the matters related to the prisoners and that it rendered several decisions to regulate the internal organisation of temporary detention centres and appoint staff in them The Defence points out that in order to carry out its decisions the War Presidency assumed the right to give orders to the 307th Brigade and the TO in Bugojno even though it did not have such power from a legal standpoint The Defence for the Accused Hadžihasanović adds that the civilian police also played a decisive role in the functioning of the detention centres in Bugojno The Defence for the Accused Hadžihasanović concludes that the War Presidency’s interference in military matters had an impact on the 3rd Corps’ supervision and command of its subordinate units deployed in the region such that no finding may be made beyond a reasonable doubt that the Accused Hadžihasanović exercised effective control over the subordinates alleged to have committed crimes 3872 1736 The Chamber first notes that the Defence for the Accused Hadžihasanović presented several pieces of evidence indicating that the War Presidency and the civilian police in Bugojno municipality provided significant logistical assets to the ABiH in relation to the detention centres in Bugojno For example on 28 July 1993 the War Presidency in Bugojno municipality appointed Mehmed Sadikovi head of the temporary detention centre in Bugojno charged him with regulating 3870 See supra paras 393-394 See supra para 79 3872 Hadžihasanović Defence Final Brief paras 1062-1074 and 1077 3871 Case No IT-01-47-T 506 15 March 2006 170 21623 BIS its organisation and appointing the staff 3873 Similarly on 24 August 1993 the War Presidency decided to convert the Iskra Stadium premises into a temporary detention facility and for that purpose regulated the Stadium’s internal organisation by providing for the appointment of its warden security commander and guards On that occasion the War Presidency tasked the Executive Council of Bugojno municipality the 307th Brigade Command and the TO Command in Bugojno with carrying out the decision 3874 Furthermore on 12 October 1993 Senad Dautović chief of the civilian police in Bugojno informed the Main Staff of the Municipal Defence in Bugojno that the MUP would hand over the Secondary School Building on 14 October 1993 insofar as it no longer needed it 3875 1737 The Chamber finds however that the ABiH more specifically the ABiH 307th Brigade and OG Zapad organised and carried out the arrests of the HVO soldiers and the Bosnian Croat and Bosnian Serb civilians after the conflict broke out in July 1993 in Bugojno On 18 July 1993 therefore the ABiH made its first arrests of HVO soldiers in Bugojno 3876 Later on 24 July 1993 although Witness Z9 stated that Senad Dautovi was in charge of arresting the civilians and the HVO soldiers on that day 3877 much evidence establishes that the OG Zapad and the 307th Brigade oversaw and organised the arrests of 100 HVO soldiers and 150 civilians in front of the Kalin Hotel on that date 3878 Specifically a report from the OG Zapad Commander Selmo Cikoti informed the Accused Hadžihasanović on 19 September 1993 that the army had arrested 470 “HVO members” while fighting in Bugojno 3879 After their capture the ABiH transferred a large number of the prisoners to the various detention facilities discussed in this section of the Judgement 1738 The Chamber further notes that on 27 July 1993 that is three days after the arrests by the ABiH in front of the Kalin Hotel Rasim Deli ordered the Accused Hadžihasanović to ensure that the captured prisoners of war were treated in compliance with the Geneva Conventions 3880 1739 As evidenced by an order dated 14 September 1993 to the OG Zapad 307th Brigade and TO commands in Bugojno the Accused Hadžihasanović was the person with the authority to authorise the ICRC visits to the detention facilities set up in Bugojno 3881 3873 DH 63 DH 176 3875 DH 53 3876 Mijo Marijanovi T F pp 2744-2746 Witness ZC T F pp 3324-3325 Zoran Gvozden T F pp 3655 3657 and 3689 3877 P 391 under seal para 3 3878 P 437 C 16 entry 24 July 1993 P 608 Tomislav Mikulić T F p 4496 Zrinko Alvir T F p 2616 3879 P 442 3880 P 473 3881 P 441 3874 Case No IT-01-47-T 507 15 March 2006 169 21623 BIS 1740 The Chamber further finds in view of the evidence adduced that the 3rd Corps decided on the transfer of the prisoners incarcerated in Bugojno to the KP Dom in Zenica For example Witness HF stated that during their visit to Bugojno Edib Zlotrg and Fehim Muratović 3rd Corps Military Security Service agents gave the order to transfer the HVO soldiers imprisoned in Bugojno to the KP Dom in Zenica 3882 Similarly on 19 September 1993 after being informed by the OG Zapad Commander that the ABiH was holding among others 23 HVO members who had committed particularly serious crimes 3883 the Accused Hadžihasanović ordered the OG Zapad commander to transfer the 23 prisoners of war to the KP Dom in Zenica 3884 On 7 October 1993 the Accused Hadžihasanović renewed the order to the OG Zapad commander 3885 1741 Finally various documents from the ECMM attest to the fact that the international observers from the ECMM considered that the ABiH was responsible for the civilian detainees and the prisoners of war incarcerated in Bugojno 3886 The Chamber notes that Witnesses Rudy Gerritsen and Peter Hauenstein indicated that while initially the civilian police were responsible for the prisoners of war as of 5 August 1993 the ABiH military police in Bugojno took over that responsibility 3887 1742 All these findings lead the Chamber to conclude that the ABiH 3rd Corps was the de facto authority with the power to take decisions as to the detention of the persons incarcerated in the alleged detention centres discussed in this section of the Judgement keeping those detainees in detention and transferring them Consequently the Chamber is of the opinion that the 3rd Corps was responsible for the prisoners incarcerated in the detention facilities set up in Bugojno The fact that the War Presidency and civilian police provided logistical assets to the ABiH with respect to the detention centres such as Iskra Stadium the Secondary School Building and the Furniture Salon and that the civilian authorities and ABiH 3rd Corps were responsible for running Iskra Stadium may in no way alter that finding and indicates only that there was coordination or even partial delegation of responsibility among the civilian and military authorities in order to settle certain material issues regarding the functioning of the detention system set up in Bugojno 1743 Consequently the Chamber cannot lend credence to the Had ihasanovi Defence argument that the interference of the War Presidency and civilian police in the functioning of the detention 3882 Witness HF T F p 17198 See also DH 1391 and DH 1392 P 442 3884 P 443 3885 P 274 3886 P 305 DH 170 6 DH 171 2 P 356 DH 171 4 P 273 3887 P 273 Rudy Gerritsen T F pp 7185-7186 and 7191-7194 Peter Hauenstein T F pp 7604-7605 3883 Case No IT-01-47-T 508 15 March 2006 168 21623 BIS centres in Bugojno altered the command that the Accused Hadžihasanović exercised over the OG Zapad and 307th Brigade Accordingly the Chamber rejects that argument 1744 The evidence further demonstrates that the 307th Brigade carried out the orders of the Accused Hadžihasanović and reported to the 3rd Corps Command on combat operations in the Bugojno sector For example on 14 September 1993 the Accused Hadžihasanović ordered the OG Zapad and 307th Brigade Commands to allow an ICRC delegation to visit the HVO members detained in Bugojno on 20 and 21 September 1993 3888 The 307th Brigade in fact authorised the visit to Iskra Stadium 3889 On 19 September 1993 Selmo Cikoti OG Zapad Commander then reported back to the Accused Hadžihasanović on combat operations in Bugojno 3890 1745 To conclude the Chamber finds that the Accused Hadžihasanović exercised effective control over the perpetrators of the mistreatment at the Furniture Salon Convent Elementary School Secondary School Building and Iskra Stadium and of the murder of Mladen Havranek and that a superior-subordinate relationship existed within the meaning of Article 7 3 of the Statute 1746 Conversely the Chamber considers that it cannot find beyond a reasonable doubt that the perpetrators of Mario Zrno’s murder and the mistreatment inflicted upon the prisoners taken outside of the Convent belonged to the 307th Brigade The Chamber also considers that it has not been established that the 307th Brigade guards present at the scene of the crime could have prevented the crimes from being committed Since the superior-subordinate relationship required by Article 7 3 of the Statute is lacking the Chamber finds that the Accused Hadžihasanović cannot be held criminally responsible for the murder of Mario Zrno by beating as alleged in paragraph 43 d of the Indictment and for the cruel treatment inflicted upon the prisoners outside of the Convent ii Knowledge of the Accused Hadžihasanović 1747 Since the Chamber has found that there was no superior-subordinate relationship as regards the perpetrators of the murder of Mario Zrno and the mistreatment of prisoners taken outside of the Convent it will limit its examination to the Accused Hadžihasanović’s knowledge of the crimes of mistreatment committed at the Furniture Salon Convent Elementary School Secondary School Building and Iskra Stadium and of the murder of Mladen Havranek 3888 P 441 Mijo Marijanovi T F p 2773 Zoran Gvozden T F p 3679 P 386 under seal para 38 3890 P 442 3889 Case No IT-01-47-T 509 15 March 2006 167 21623 BIS 1748 The Chamber will first respond to the Prosecution argument according to which the mistreatment administered by 3rd Corps soldiers at the detention centres at the Zenica Music School Mehuri i School and Motel Sretno of which the Accused Hadžihasanović had knowledge were such as to alert him to the possibility that mistreatment would subsequently be committed in the detention centres set up in Bugojno later that year 3891 In other words the Prosecution submits that the prior commission of criminal acts by a group of subordinates in itself is sufficient to prove the existence of a risk that another group of subordinates would commit similar unlawful acts in the future 1749 In law as in fact the Chamber must reject that argument As the Chamber noted in the section of this Judgement on the applicable law it considers it appropriate to adopt a narrow interpretation of the theory of prior knowledge 3892 Accordingly depending on the circumstances of the case that theory will only apply if the crimes alleged are of a similar nature and are committed by a same identifiable group of subordinates who have already committed such crimes in the past The Chamber has considered that the concept of a “same identifiable group of subordinates” must be understood as a group of subordinates whose unit shares the same geographical position and in respect of a detention centre falls under the authority and control of the same supervisory power In this case given the structure and operations of the 3rd Corps that “identifiable group of subordinates” must be interpreted as a brigade or brigade battalion assuming that a battalion has a geographical position different from the other units of the brigade to which it belongs 1750 In this case however the troops subordinated to the Accused Hadžihasanović implicated in the Indictment with regard to the detention centres at the Zenica Music School Mehuri i Elementary School Former JNA barracks and Motel Sretno did not belong to the 307th Brigade so that assuming that the crimes of mistreatment committed in those places of detention and the Accused Hadžihasanović’s knowledge of them have been established the Accused Had ihasanovi did not necessarily have reasons to think that members of the 307th Brigade were about to commit crimes of mistreatment in the detention centres subsequently set up in Bugojno Consequently the Chamber rejects this Prosecution argument 1751 The Chamber finds that after receiving information that crimes of mistreatment had been committed in Bugojno and by order of the 3rd Corps Command Fehim Muratovi and Edib Zlotrg ABiH 3rd Corps military security service agents went to see the 307th Brigade and OG Zapad commands on 16 August 1993 to verify the information and check on the conduct of members of 3891 3892 Prosecution Final Brief paras 303-304 See supra para 118 Case No IT-01-47-T 510 15 March 2006 166 21623 BIS those units 3893 During the meeting Enes Hand i 307th Brigade Assistant Commander for Military Security 3894 informed them that two 307th Brigade members had brutalised six prisoners of war at the Furniture Salon and that one of them did not survive the mistreatment of which he was a victim 3895 1752 These words were put down in an inspection report drafted by Edib Zlotrg and signed by Fehim Muratovi the relevant passage of which reads as follows “Hand i said he had a problem with two soldiers who had beaten up six HVO prisoners of whom one died” 3896 The said report was then addressed to the 3rd Corps Command on 18 August 1993 3897 1753 Fehim Muratovi stated that in response to his report he had a verbal discussion over the incident with the Accused Hadžihasanović during which he stated “Q You said yesterday that upon your return to Zenica you sent this report to your superior Is this Mr Dugali just for clarification A When I went to Bugojno with my colleague Mr Dugali happened to be sick and he was at home recuperating I addressed my report to the commander of the 3rd Corps Q And did you ever receive a response from the commander of the 3rd Corps in relation to that incident A I never received a written response but in a conversation that I had with him the commander said that what we did up there was well done that we did a good job … it was a good thing that steps legal steps were taken against the persons who committed what they did against the members of the HVO because those people who entered the furniture salon and beat up those HVO members were punished ”3898 1754 The Chamber notes that the Defence for the Accused Hadžihasanović did not dispute that the Accused Hadžihasanović was informed of the fact that two 307th Brigade soldiers severely physically abused HVO members detained at the Furniture Salon and that one of them died as a result of the abuse 3899 1755 On the basis of that evidence the Chamber finds that it has been proved beyond a reasonable doubt that as of 18 August 1993 the Accused Hadžihasanović knew that the crimes of mistreatment against six prisoners of war and the murder of one of them had been committed by his subordinates at the Furniture Salon 3893 Edib Zlotrg T F pp 14987 and 15000 Fehim Muratovi T F pp 15036-15037 Witness HF T F 17196 DH 1392 3894 P 912 DK 62 Annex A DH 776 3895 Fehim Muratović T F pp 14963-14966 15037-15038 Edib Zlotrg T F p 15015 3896 DH 1392 3897 DH 1392 Fehim Muratovi T F pp 14964 and 15039 Case No IT-01-47-T 511 15 March 2006 165 21623 BIS 1756 The question which now arises is whether on the basis of the information available to him as of 18 August 1993 the Accused Hadžihasanović had reason to know that his subordinates had committed other crimes of mistreatment besides those inflicted on six prisoners of war at the Furniture Salon of which he had knowledge not only at the Furniture Salon but also in other detention locations controlled by the 307th Brigade in Bugojno 1757 The Chamber first finds that the report of 18 August 1993 signed by Fehim Muratovi and addressed to the Accused Hadžihasanović contains no indication that prisoners had been beaten on other occasions at the Furniture Salon or at the other detention centres operating as such in Bugojno 3900 1758 According to the statements of Witness Fehim Muratovi his conversation with the Accused Hadžihasanović in response to his report of 18 August 1993 dealt only with the beatings by two soldiers of six prisoners of war at the Furniture Salon and the measures taken to punish those acts 3901 1759 Finally the Chamber notes that no other evidence was presented which would allow it to find that the Accused Hadžihasanović had alarming information that would have warned him that other similar criminal acts had been committed by 307th Brigade soldiers at the detention centres set up in Bugojno 1760 Consequently the Chamber is not convinced beyond a reasonable doubt that as of 18 August 1993 when the Accused Hadžihasanović learned that his subordinates had committed the crimes of mistreatment at the Furniture Salon against six prisoners of war and the murder of one of them he had reason to know that his subordinates had committed other crimes of mistreatment other than those inflicted upon the six prisoners of war of which he had knowledge not only at the Furniture Salon but also at the other detention locations controlled by the 307th Brigade in Bugojno The Chamber notes that the information available to the Accused Hadžihasanović on 18 August 1993 did not reveal a repeated practice of mistreatment but rather a serious incident which had taken place on one occasion on 5 August 1993 which in itself was not enough for the Accused Hadžihasanović to believe that those serious criminal acts had been preceded or followed by other criminal acts of the same nature 3898 Fehim Muratovi T F p 15039 Hadžihasanović Defence Final Brief para 1042 and footnote 1459 3900 DH 1392 3901 Fehim Muratovi T F p 15039 3899 Case No IT-01-47-T 512 15 March 2006 164 21623 BIS 1761 The Accused Hadžihasanović may not therefore be held responsible for the crimes of mistreatment committed prior to 18 August 1993 namely those committed at the Furniture Salon Convent Secondary School Building Elementary School and Iskra Stadium except for those committed against the six prisoners of war at the Furniture Salon and the crime of the murder of Mladen Havranek of which the examination of the measures taken with respect to those crimes will be dealt with in the next section 3902 1762 Finally the Chamber finds that no evidence was presented which would allow it to find that the Accused Hadžihasanović had knowledge of the poor detention conditions prevailing in the detention centres set up in Bugojno Fehim Muratovi ’s inspection report of 18 August 1993 dealt with the crimes of the physical mistreatment of six detainees at the Furniture Salon but said nothing of the inadequate detention conditions in which the prisoners at the Furniture Salon or the other alleged detention centres were forced to live Consequently the Accused Hadžihasanović may not be held responsible for the detention conditions which prevailed at the Furniture Salon Convent Elementary School Secondary School Building or Iskra Stadium iii Measures Taken3903 1763 The Chamber has found that as of 18 August 1993 the Accused Hadžihasanović knew that the crimes of mistreatment against six prisoners of war and the murder of one of them had been committed by his subordinates at the Furniture Salon Conversely the Chamber considers that the Accused Hadžihasanović did not have reason to know as of 18 August 1993 that his subordinates had committed other crimes of mistreatment besides those of which he had knowledge at the Furniture Salon and in the other detention locations controlled by the 307th Brigade The Chamber has also found that the Accused Hadžihasanović did not have knowledge of the prevailing detention conditions at the Furniture Salon Convent Elementary School Secondary School Building and Iskra Stadium Consequently the Chamber will limit its examination to the punitive measures the Accused Hadžihasanović may have taken in relation to the acts of mistreatment and the murder of Mladen Havranek perpetrated at the Furniture Salon 1764 The Chamber heard testimony from Fehim Muratović and Edib Zlotrg two witnesses for the Defence for the Accused Hadžihasanović about punitive measures effectively taken after the incidents at the Furniture Salon As mentioned above on 16 August 1993 Enes Handžić reported to 3902 The Chamber will examine the Accused Had ihasanovi ’s knowledge of the crimes committed after 18 August 1993 in the next section 3903 As for the examination of general measures taken by the Accused Had ihasanovi regarding the detention of the prisoners the Chamber refers to its conclusions in paragraphs 856-859 and 1161-1167 Case No IT-01-47-T 513 15 March 2006 163 21623 BIS Fehim Muratović and Edib Zlotrg that two 307th Brigade soldiers had come into the Furniture Salon and beaten six prisoners who were HVO members and that one of them died as a result of the beating On that occasion Enes Handžić added that he took measures accordingly and that the perpetrators of the crimes were prosecuted 3904 1765 Fehim Muratovi put this information in his inspection report of 18 August 1993 to the 3rd Corps Command which indicated with regard to the perpetrators of the mistreatment “These soldiers were taken into custody and proceedings were instituted against them ”3905 1766 Witness HF was also informed that the two security agents had instituted legal proceedings 3906 1767 As regards the nature of the punishment of the perpetrators of the mistreatment it should first be pointed out that neither the report of 18 August 1993 nor Witness HF make explicit what kind of disciplinary or criminal action was taken against the perpetrators 1768 Witness Edib Zlotrg seems to indicate that the action taken against the perpetrators was criminal in nature “So the assistant commander of the 307th Brigade informed us that there was an incident in which two members of the army entered certain premises and beat up six members of the HVO one of whom succumbed as a result unfortunately He also informed us that those two persons were arrested and that they were being charged that they had been charged for their actions ”3907 The Chamber notes that Edib Zlotrg did not say whether he spoke with the Accused Hadžihasanović about the incident at the Furniture Salon 1769 Conversely questioned about the measures taken against the two perpetrators of the crimes in question Witness Fehim Muratovi specified that the measures were disciplinary in nature “Q Are you aware that a trial against these two perpetrators was ever conducted A Yes They were brought before the military disciplinary organ in Bugojno and were punished That’s what the report said that we received Q When did you receive that report About approximately 3904 Fehim Muratović T F pp 14963-14964 15037-15041 Edib Zlotrg T F p 14987 DH 1392 3906 Witness HF T F p 17196 3907 Edib Zlotrg T E p 14987 3905 Case No IT-01-47-T 514 15 March 2006 162 21623 BIS A We received an oral report when we were in Bugojno At that time we were told that the legal proceedings were under way and that these persons were in detention in military detention in Bugojno these two persons who beat up the members of the HVO ”3908 1770 As indicated previously 3909 in response to his report of 18 August 1993 Fehim Muratovi spoke with the Accused Hadžihasanović about how two soldiers beat six prisoners of war at the Furniture Salon and on that occasion the Accused Hadžihasanović informed him that he was satisfied with the measures taken against those two 307th Brigade soldiers 3910 1771 All of Fehim Muratovi ’s aforementioned statements indicate that the measures about which the Accused Hadžihasanović expressed his satisfaction during their conversation were the disciplinary measures Fehim Muratovi learned of during his visit to Bugojno on 16 August 1993 1772 The testimony of Sead Zeri Peter Hackshaw and Zrinko Alvir confirms that after the alleged incidents there was no investigation or criminal prosecution of the perpetrators of those crimes 1773 Sead Zeri Travnik District Military Prosecutor from December 1992 to February 1996 stated that he never received a criminal complaint alleging that ABiH soldiers killed or mistreated prisoners of war or civilian detainees in his zone of responsibility which included Bugojno 3911 1774 Prosecution investigator Peter Hackshaw testified that he consulted the registers from the Travnik District Military Prosecutor’s Office In neither the registers of known and unknown suspects did he find the name of a victim named in the Indictment 3912 1775 Zrinko Alvir who was also beaten on the same evening as Mladen Havranek and who identified the two perpetrators in question stated that in November 1994 he made a statement against the two perpetrators of the mistreatment on 5 August 1993 to the police authorities in Bugojno but that he was heard by the judicial authorities based in Vitez and in Travnik as a witness in the criminal proceedings against the two perpetrators only in 2004 3913 1776 On the basis of this evidence the Chamber is convinced beyond a reasonable doubt that following the mistreatment of six prisoners of war at the Furniture Salon and the murder of one of them Mladen Havranek the 3rd Corps initiated no investigation or criminal proceedings against the perpetrators of those acts The Chamber is however convinced beyond a reasonable doubt that the 3908 Fehim Muratovi T E pp 15039-15040 See supra para 1753 3910 Fehim Muratovi T F pp 15039-15040 See supra para 1753 3911 Sead Žerić T F p 5525 3912 Peter Hackshaw T E pp 9692-9693 3913 Zrinko Alvir T F pp 2644-2645 3909 Case No IT-01-47-T 515 15 March 2006 161 21623 BIS 307th Brigade took disciplinary measures against them and that the Accused Hadžihasanović was aware of those measures The Chamber further notes that in its Final Brief the Defence for the Accused Hadžihasanović indicated that the measures taken after the alleged incidents were disciplinary in nature 3914 1777 The Chamber considers that the exercise of disciplinary power to punish the crimes of murder and mistreatment of prisoners of war is not sufficient punishment of the perpetrators of those crimes The Chamber cannot overemphasise that in international law a commander has a duty to take the necessary and reasonable measures to punish those who violate the laws or customs of war Faced with the crimes of murder and mistreatment committed in a detention location controlled by his troops offences falling within the ratione materiae jurisdiction of the Travnik district military court the Accused Hadžihasanović could not consider as acceptable punishment the disciplinary sanction of a period of detention not exceeding 60 days He had the duty to take specific measures to ensure that the perpetrators were prosecuted and to report accordingly to the Travnik District Military Prosecutor Consequently the Chamber is convinced beyond a reasonable doubt that although he knew that his subordinates had committed the crimes of murder and mistreatment against six prisoners of war at the Furniture Salon the Accused Hadžihasanović failed in his duty to take the appropriate and necessary measures to punish the perpetrators 1778 The Chamber further considers that by failing to take the reasonable and appropriate measures to punish the perpetrators of the crimes committed at the Furniture Salon the Accused Hadžihasanović failed in his duty to prevent the acts of mistreatment committed after 18 August 1993 The Chamber firmly recalls that the basis of a commander’s duty to punish is to create and maintain an environment of discipline and respect for the law among those under his command By failing to take the appropriate measures to punish the most serious crimes a commander adopts a pattern of conduct which may in fact encourage his subordinates to commit further acts of mistreatment and as a result may entail his responsibility 1779 In this case by failing to punish appropriately the members of the 307th Brigade who committed the crimes of mistreatment and murder at the Furniture Salon the Accused Hadžihasanović created a situation which encouraged the repeated commission of similar criminal acts not only at the Furniture Salon but also in all of the other detention locations controlled by the members of the 307th Brigade as of 18 August 1993 By failing to take the appropriate measures with respect to the crimes of which he had knowledge the Accused Hadžihasanović had reason to know that there was a real and reasonable risk that those unlawful acts would be repeated in the 3914 Had ihasanovi Defence Final Brief footnote 1459 Case No IT-01-47-T 516 15 March 2006 160 21623 BIS future especially since the detention centres set up in Bugojno were established in geographic proximity to one another and were administered and controlled by the same 307th Brigade leaders 3915 The Chamber considers that the absence or inadequacy of punitive measures against the guards in one detention centre in Bugojno necessarily had an impact on the other guards operating in different detention facilities in Bugojno 1780 Consequently the Chamber is of the opinion that the Accused Hadžihasanović must be held criminally responsible under Article 7 3 of the Statute for the cruel treatment of six prisoners of war committed at the Furniture Salon on 5 August 1993 for the murder of Mladen Havranek on 5 August 1993 and for the mistreatment committed after 18 August 1993 at the Furniture Salon Elementary School Secondary School Building and Iskra Stadium xiii Findings of the Chamber 1781 The Chamber considers that there is insufficient evidence to establish beyond a reasonable doubt that mistreatment was committed at the Bank Accordingly the Chamber acquits the Accused Hadžihasanović of the charge of mistreatment committed at the Bank 1782 The Chamber cannot find beyond a reasonable doubt that the perpetrators of the murder of Mario Zrno and of the mistreatment of the prisoners taken outside the Convent were under the effective control of the Accused Hadžihasanović The Chamber also considers that it has not been established that the 307th Brigade guards present at the scenes of the crime outside of the Convent could have prevented the commission of those crimes Accordingly the Chamber acquits the Accused Hadžihasanović of the murder by beating of Mario Zrno alleged in paragraph 43 d of the Indictment and of the mistreatment of the prisoners taken outside of the Convent Conversely the Chamber finds that the perpetrators of the mistreatment at the Furniture Salon Convent Elementary School Secondary School Building and Iskra Stadium and of the murder of Mladen Havranek were subordinated to and under the effective control of the Accused Hadžihasanović 1783 The Chamber is convinced beyond a reasonable doubt that as of 18 August 1993 the Accused Hadžihasanović knew that the crimes of mistreatment of six prisoners of war and the murder of Mladen Havranek had been committed by his subordinates at the Furniture Salon Nevertheless the Chamber is not convinced beyond a reasonable doubt that as of 18 August 1993 the Accused Hadžihasanović had reason to know that his subordinates had committed crimes of 3915 For example Enes Hand i 307th Brigade Assistant Commander for Military Security was at various detention centres As such several pieces of evidence indicate that Enes Hand i was the security commander in charge of Iskra Stadium DH 1503 Witness ZH T E pp 3759-3760 Ivo Mr o T F pp 2527-2529 Witness Ivo Mr o later saw Enes Hand i at the Bugojno Convent T F pp 2499-2500 Moreover Witness Z4 heard that Enes Hand i was conducting interrogations at the Elementary School P 386 under seal para 22 See also supra paras 133 166 and 193 Case No IT-01-47-T 517 15 March 2006 159 21623 BIS mistreatment other than those of which he had knowledge not only at the Furniture Salon but also at the Convent Elementary School Secondary School Building and Iskra Stadium Likewise the Chamber is not convinced beyond a reasonable doubt that the Accused Hadžihasanović had knowledge of the poor detention conditions at the Furniture Salon Convent Elementary School Secondary School Building and Iskra Stadium meaning that the Accused Hadžihasanović may not be held criminally responsible under Article 7 3 of the Statute with respect to the conditions of detention constituting mistreatment at the Furniture Salon Convent Elementary School Secondary School Building and Iskra Stadium 1784 The Chamber finds that in spite of his knowledge of the mistreatment of six prisoners of war at the Furniture Salon and of the murder of one of them the Accused Hadžihasanović failed to take the necessary and reasonable measures to punish the perpetrators of those crimes Consequently the Accused Hadžihasanović had reason to know that there was a risk that the unlawful acts of which he had knowledge could happen again in the future Accordingly by not punishing the crimes committed he failed in his duty to prevent the acts of mistreatment committed after 18 August 1993 namely those perpetrated at the Furniture Salon Elementary School Secondary School Building and Iskra Stadium 1785 To conclude the Accused Hadžihasanović is found criminally responsible under Article 7 3 of the Statute for the cruel treatment with the exception of the poor conditions of detention committed at the Furniture Salon against six prisoners of war on 5 August 1993 and committed after 18 August 1993 at the Furniture Salon Elementary School Secondary School Building and Iskra Stadium alleged in paragraphs 41 da dc dd de and 42 g of the Indictment and of the murder by beating of Mladen Havranek alleged in paragraph 43 c of the Indictment B Findings and Conclusions regarding Crimes Against Property 1 Count 5 Wanton Destruction of Towns and Villages not Justified by Military Necessity in the Municipalities of Zenica Travnik and Vareš – Violations of the Laws or Customs of War a Dusina 1786 The Chamber recalls that the Prosecution withdrew its charges against the Accused Had‘ihasanović for the crime of wanton destruction of towns and villages in Dusina in January Case No IT-01-47-T 518 15 March 2006 158 21623 BIS 1993 3916 In its Decision on Motions for Acquittal of 27 September 2004 the Chamber noted the Prosecution’s withdrawal of the allegations in that count in relation to Dusina 3917 b Miletići 1787 In its Decision on Motions for Acquittal of 27 September 2004 the Chamber considered that there was no evidence that the wanton destruction of towns and villages not justified by military necessity took place in Miletići in April 1993 within the meaning of Article 3 b of the Statute Accordingly the Chamber found that the Accused should be acquitted as regards Miletići of the crime of wanton destruction referred to in count 5 3918 c Gu a Gora 1788 The Indictment alleges that members of the 7th Brigade 3919 306th Brigade and 17th Brigade committed unlawful and arbitrary destruction not justified by military necessity against dwellings buildings and civilian personal property belonging to Bosnian Croats and Bosnian Serbs in Gu a Gora in June 1993 3920 The Indictment states that the Accused Had‘ihasanović knew or had reason to know that the members of those units placed under his command and effective control were about to commit acts of destruction or had done so and that he failed to take the necessary and reasonable measures to prevent those acts from being committed or from punishing the perpetrators 3921 The Accused Had‘ihasanović is therefore charged with wanton destruction of towns and villages not justified by military necessity a violation of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute 1789 The Chamber notes that although the Indictment mentions the 7th Brigade in relation to the destruction committed in Gu a Gora in June 1993 the Indictment does not allege the responsibility of the Accused Kubura for the destruction committed by his subordinates i Arguments of the Parties 1790 The Prosecution argues that beginning on 9 June 1993 3rd Corps soldiers set fire to houses and barns belonging to Croats and that these fires continued until December 1993 3922 The 3916 Prosecution Pre-Trial Brief para 135 Decision on Motions for Acquittal 27 September 2004 para 111 3918 Ibid para 112 3919 See Indictment paras 18-20 According to the Indictment the 7th Brigade also included the mujahedin since they were allegedly subordinated to and integrated into the 7th Brigade and played a major role in the combat operations conducted by the 7th Brigade 3920 Indictment para 44 3921 Indictment para 45 3922 Prosecution Final Brief para 308 3917 Case No IT-01-47-T 519 15 March 2006 157 21623 BIS Prosecution adds that the Accused Had‘ihasanović had knowledge of the crimes committed in Gu a Gora3923 and that he failed to take any measures to punish the perpetrators of those crimes 3924 1791 The Defence for the Accused Had‘ihasanović does not dispute that houses in Gu a Gora were damaged but points out that the damage in question was not caused gratuitously and that the village was not destroyed without reason The Defence for the Accused Had‘ihasanović adds that while some damage was caused during the fighting most was caused afterwards and notes that the cause of the damage during and after the fighting has not been established The Defence for the Accused Had‘ihasanović further submits that the Prosecution failed to prove that the subordinates of the Accused Had‘ihasanović participated in the criminal activities in question 3925 ii Findings of the Chamber regarding Wanton Destruction in Gu a Gora 1792 On 8 June 1993 the 306th Brigade forces reached the front line connecting the villages of Maline Gu a Gora Mosor and Bukovica 3926 Late in the afternoon of 8 June 1993 the soldiers of the 306th Brigade 2nd Battalion joined the forces of the 306th Brigade 3rd Battalion and occupied positions overlooking Gu a Gora 3927 The combat operations between the HVO and ABiH units continued until 10 June 1993 when the ABiH forces entered the village of Gu a Gora 3928 That same day the 306th Brigade units received the order to move towards the villages of Mosor and Radoj ići 3929 The presence of foreign mujahedin in Gu a Gora was observed around mid-June 1993 3930 On 16 June 1993 the 306th Brigade Military Police tasked with securing Gu a Gora sector 3931 went to the monastery3932 and remained there until August 1993 3933 During the summer of 1993 the 306th Brigade Command moved into the monastery in order to provide it better protection 3934 1793 Contrary to what is asserted by the Prosecution 3935 the Chamber considers that neither the 7th nor the 17th Brigades were in Gu a Gora during the combat operations The evidence demonstrates that the 7th Brigade 1st battalion conducted combat operations in Hajdareve Njive on 8 3923 Ibid para 348 Ibid para 348 3925 Had‘ihasanović Defence Final Brief para 656 3926 DK 22 3927 Salim Tarak ija T F p 11805 3928 Fahir amd‘ić T F p 11713 Esed Sipić T E p 14778 3929 Salim Tarak ija T F p 11805 3930 Vaughan Kent-Payne T F pp 4794-4795 D‘emal Merdan T F pp 13139-13140 DH 71 3931 DH 161 13 3932 Mahir Izet T F pp 16805-16806 3933 Mahir Izet T F p 16804 3934 Munir Karić T F p 11457 Asim Delalić T F p 16404 3935 Indictment para 44 see para 339 Prosecution Final Brief which makes no mention of the 17th Brigade 3924 Case No IT-01-47-T 520 15 March 2006 156 21623 BIS June 19933936 together with the 17th Brigade 3937 while the 7th Brigade 2nd and 3rd Battalions operated in Ovnak sector 3938 On 9 June 1993 the 7th Brigade 1st Battalion and 17th Brigade units were engaged in Sibicara and Okuka 3939 a few kilometres from Travnik 3940 Only the 306th Brigade was involved in the combat operations in Gu a Gora between 8 and 10 June 1993 3941 1794 Following the claims by the HVO that Gu a Gora was burning 3942 Witness Hendrik Morsink together with other ECMM members UNPROFOR representatives and ABiH officers went to the Gu a Gora monastery on 8 June 1993 3943 The witness did not notice any significant damage to the houses near the monastery 3944 ECMM observers noticed only three or four houses burning on 8 June 1993 3945 Witness Dragan Radić was at the Frankopan Brigade headquarters3946 in Nova Bila on 8 June 1993 and stated that late in the afternoon through his binoculars he saw three houses on fire in Gu a Gora 3947 On 8 and 9 June 1993 Witness ZJ was able to see from ifluk that apart from one or two houses that had burned down the rest of the houses had remained intact 3948 On 9 June 1993 as he travelled through Gu a Gora 3949 Witness Tomislav Rajić saw only a cowshed burning but that the houses were intact 3950 Officers from the 306th Brigade who entered the village of Gu a Gora on 10 June 1993 did not notice any damage3951 or damaged buildings 3952 apart from a few cowsheds that had apparently burned down during the fighting 3953 Likewise after returning to Gu a Gora on 13 June 1993 3954 Witness Vaughan Kent-Payne noticed that aside from some collateral damage caused by the fighting the village was intact 3955 3936 Remzija iljak T F pp 10572-10573 Semir Terzić T F p 18256 Safet Junuzović T F pp 18505-18508 Suad Jusović T F pp 18435-18437 DK 18 DK 19 DK 34 P 465 3937 Safet Junuzović T F p 18505 3938 Kasim Alajbegović T F p 18698 Elvedin Omić T F pp 18597-18599 3939 DK 42 Safet Junuzovi T F pp 18505-18506 3940 Safet Junuzović T F p 18506 3941 Fikret uskić T F p 12112 P 465 3942 Vaughan Kent-Payne T F p 4949 Hendrik Morsink T F p 8057 3943 Vaughan Kent-Payne T F pp 4949-4950 Hendrik Morsink T F p 8059 3944 Hendrik Morsink T F p 8059 3945 DH 186 3946 Dragan Radić T F p 3556 3947 Dragan Radić T F pp 3551 3552 3556 and 3557 The witness stated that he saw the houses of Danica Lujanović Niko Neimarević and Nikola Marković burning The witness also stated that the houses burning were about two or two and a half kilometres from his position T F p 3558 According to Witness Dragan Radić it was possible to see the burning houses with the naked eye T F p 3559 3948 Witness ZJ T F pp 4174-4175 3949 Tomislav Rajić T F p 2820 3950 Tomislav Rajić T F p 2822 3951 Fahir amd‘ić T F p 11715 3952 Salim Tarak ija T F p 11807 3953 Fahir amd‘ić T F p 11715 3954 Vaughan Kent-Payne T F p 4940 3955 Vaughan Kent-Payne T F p 4941 DH 71 Case No IT-01-47-T 521 15 March 2006 155 21623 BIS 1795 According to Witness Tomislav Rajić it was only later after the fighting that the village of Gu a Gora burned down 3956 From the positions he occupied in Nova Bila in the days after the fighting Witness Tomislav Rajić could see with the naked eye or with binoculars which houses had been set on fire 3957 He was not able to tell who specifically had set the houses on fire but asserted that they were 306th Brigade members 3958 Two or three days after Gu a Gora fell Witness Dragan Radić stated that from ifluk he could see that the houses had been set alight3959 by Muslim civilians and soldiers 3960 The fires mostly occurred at night 3961 According to Dragan Radić four houses caught fire on 12 and 13 June 1993 3962 He estimated that between 8 and 25 June 1993 15 to 20 houses along with their cowsheds and outbuildings burned down 3963 According to Witness ZJ 200 to 250 houses in Gu a Gora were destroyed over the 15 days after the beginning of the attack3964 by ABiH members 3965 1796 On 26 July 1993 the Civilian Protection in Gu a Gora drafted a report in which it noted that 46 houses were burned or destroyed in Gu a Gora 3966 Witness Dragan Radić estimated that between the day of the attack and 24 December 1993 the day the witness’ house was set on fire 3967 50 houses burned to the ground 3968 In April 2002 Witness ZI went to Gu a Gora to gather information about houses that had been destroyed in June 1993 3969 Following that visit Witness ZI drew sketches of Gu a Gora indicating that 59 houses were destroyed or damaged 3970 1797 In view of the above evidence the Chamber finds that a limited number of houses were destroyed during the fighting and that the destruction was caused by shelling or incendiaries As regards the observations of Witness Dragan Radić the Chamber points out that it has not been established that he was in a position to see houses burning in Gu a Gora from the positions he 3956 Tomislav Rajić T F p 2822 T E p 2821 Tomislav Rajić T F pp 2822-2823 3958 Tomislav Rajić T F p 2825 3959 Dragan Radić T F p 3552 3960 Dragan Radić T F p 3553 Witness Dragan Radić however was not able to tell who set fire to the houses T F p 3579 3961 Dragan Radić T F p 3552 3962 Dragan Radić T F p 3557 3963 Dragan Radić T F p 3553 3964 Witness ZJ T F pp 4202-4203 3965 Witness ZJ believed that the perpetrators of the destruction were ABiH members since after the ABiH seized Gu a Gora no other unit could have been in the village This is however only an inference the witness has drawn since he was unable to make out the people he saw in Gu a Gora T F pp 4177 4197 and 4198 3966 DH 1345 3967 Dragan Radić T F p 3554 3968 Dragan Radić T F p 3553 3969 P 80 under seal 3970 P 86 under seal 3957 Case No IT-01-47-T 522 15 March 2006 154 21623 BIS occupied in Nova Bila 3971 The Chamber finds that between 8 and 13 June 1993 the international observers noticed only very little damage with at most three or four houses destroyed 3972 On 13 June 1993 Witness Vaughan Kent-Payne did not notice any attempts to destroy Croatian houses in Gu a Gora and considered that the damage was collateral and caused by the fighting 3973 The witness pointed out that the weapons used during the fighting in Gu a Gora were not heavy enough to destroy buildings 3974 and that the damage was caused by shrapnel 3975 The Civilian Protection in Gu a Gora pointed out that five houses were destroyed as a result of the combat activities and that two houses had burned to the ground on 8 June and 9 June 1993 3976 Consequently the Chamber finds that the acts of destruction which occurred during the fighting do not constitute large-scale destruction not justified by military necessity 1798 The Chamber finds that destruction also occurred after the fighting but that the identity of the perpetrators of that destruction has not been established Accordingly the report of 26 July 1993 from the Civilian Protection in Gu a Gora notes that houses were destroyed outside any context of combat operations but provides no information about the identity of the perpetrators 3977 The time the destruction took place is indicated for only four houses which were damaged between 10 and 12 July 1993 The Chamber notes however that those estimates include destruction which took place after the time material to the Indictment namely from 1 to 30 June 1993 3978 Regarding the statements of Witness ZI and the sketches and photographs attached to those statements the Chamber recalls its Decision on the Admissibility of Certain Challenged Documents and Documents for Identification of 27 July 2004 in which it found that the statements of Witness ZI were based on hearsay3979 and in which the Chamber decided to use those documents only to corroborate other evidence 3980 The Chamber noted that the sketches and statements of Witness ZI were based on statements of persons who did not appear during the trial 3981 and also that the sketches and photographs reflect the situation which prevailed in 2002 but offer no direct response 3971 See DH 1978 DH 2055 Abid Izmirlić T F p 16733 which demonstrates that there is no visibility between Nova Bila and Gu a Gora because of the 5 850 metres separating the two towns and because the hill obstructs any possible view 3972 Hendrik Morsink T F p 8059 Vaughan Kent-Payne T F p 4941 DH 71 DH 1345 3973 Vaughan Kent-Payne T F p 4941 T E p 4941 3974 Vaughan Kent-Payne T F p 4942 3975 Vaughan Kent-Payne T F p 4941 3976 DH 1345 3977 DH 1345 3978 See Indictment para 44 3979 Decision of 16 July 2004 on the Admissibility of Certain Challenged Documents and Documents for Identification para 94 3980 Ibid para 95 3981 Ibid para 94 Case No IT-01-47-T 523 15 March 2006 153 21623 BIS in relation to the destruction which allegedly took place in June 1993 3982 Accordingly the Chamber considers that the observations of Witness ZI 3983 who mentions many more incidents of destruction than the Civilian Protection in Gu a Gora do not constitute evidence with sufficient probative value iii Conclusions of the Chamber 1799 The Chamber is of the view that the Prosecution failed to prove that the destruction which took place during the fighting in Gu a Gora in June 1993 was carried out on a large scale or that the destruction was not justified by military necessity The Prosecution also failed to demonstrate that the perpetrators of the destruction after the fighting were members of the ABiH 3rd Corps with the understanding that the 7th Brigade and 17th Brigade were not at the site contrary to what is alleged in the Indictment The Accused Had‘ihasanović therefore may not be held responsible for acts of destruction committed in Gu a Gora in June 1993 d Maline 1800 The Indictment alleges that members of the 7th Brigade3984 and 306th Brigade carried out the unlawful and arbitrary destruction not justified by military necessity of dwellings buildings and civilian personal property belonging to Bosnian Croats and Bosnian Serbs in Maline in June 1993 3985 Likewise the Indictment alleges that the Accused knew or had reason to know that the members of those units under their command and effective control were about to commit acts of destruction or had done so and failed to take the necessary and reasonable measures to prevent those acts from being committed or to punish the perpetrators 3986 The Accused Had‘ihasanović and the Accused Kubura are therefore accused of wanton destruction of towns and villages not justified by military necessity a violation of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute 3982 Ibid para 93 P 80 under seal P 86 under seal According to the sketches by Witness ZI dated 8 April 2002 59 houses were destroyed in Gu a Gora 3984 See Indictment paras 18-20 According to the Indictment the 7th Brigade also included the mujahedin since they were allegedly subordinated to and integrated into the 7th Brigade and played a major role in the combat operations conducted by the 7th Brigade 3985 Indictment para 44 3986 Indictment para 45 3983 Case No IT-01-47-T 524 15 March 2006 152 21623 BIS i Arguments of the Parties 1801 The Prosecution argues that the 3rd Corps units were in Maline on 8 June 1993 and that buildings were on fire at the time of the attack 3987 The Prosecution submits that although the 3rd Corps Command had been informed of those acts the Accused Had‘ihasanović nonetheless failed to take measures to punish the perpetrators 3988 1802 The Defence for the Accused Had‘ihasanović submits that it has not been established that the damage reached the necessary threshold and that the destruction was not justified by military necessity The Defence for the Accused Had‘ihasanović further submits that the Prosecution failed to prove that the alleged destruction was caused by members of the ABiH or that the Accused Had‘ihasanović was informed of the destruction 3989 1803 The Defence for the Accused Kubura submits that the Prosecution failed to prove that the Accused Kubura exercised control over the perpetrators of the crimes allegedly committed in Maline in June 1993 3990 The Defence for the Accused Kubura argues that no evidence indicates that members of the 7th Brigade were in Maline and participated in crimes committed there3991 and that the evidence demonstrates that the 7th Brigade units were elsewhere at the material time 3992 ii Findings of the Chamber regarding Wanton Destruction in Maline 1804 On 7 June 1993 the village of Maline was attacked from HVO positions 3993 In the early hours of the morning of 8 June 1993 the HVO and ABiH exchanged fire 3994 Only when the HVO stopped resisting did the ABiH troops composed of the 306th Brigade 1st and 4th Battalions enter Maline 3995 At 1000 hours on 8 June 1993 the 306th Brigade 1st Battalion Military Police arrived in Maline to assist in evacuating the civilian population 3996 Part of the battalion escorted 200 inhabitants towards Mehurići while the rest of the battalion remained in Maline to protect the 3987 Prosecution Final Brief para 309 Ibid para 310 The Prosecution does not mention the Accused Kubura in relation to knowledge of measures taken 3989 Had‘ihasanović Defence Final Brief para 548 3990 Kubura Defence Final Brief para 66 3991 Ibid paras 61 and 99 3992 Ibid para 99 3993 Salim Tarak ija T F p 11803 3994 P 387 under seal para 7 Salim Tarak ija T F pp 11804 11850 and 11851 3995 Salim Tarak ija T F p 11804 3996 Witness HB T F pp 12589-12590 DH 2090 para 6 3988 Case No IT-01-47-T 525 15 March 2006 151 21623 BIS property of the villagers 3997 The column of villagers escorted by the military police was intercepted not far from Poljanice by a group of mujahedin who took some men towards Bikoši 3998 1805 Contrary to the allegations of the Prosecution 3999 the 7th Brigade did not participate in the combat operations in Maline The evidence in fact demonstrates that the 7th Brigade 1st Battalion conducted combat operations in Hajdareve Njive 4000 located about 12 kilometres from Maline 4001 while the 7th Brigade 2nd and 3rd Battalions operated in Ovnak sector at the time of the alleged events 4002 1806 Witness ZK was in Maline when the fighting began on the morning of 8 June 1993 at 0330 hours 4003 The fighting lasted until 0700 hours and the witness saw his cowshed as well as a house and another cowshed catch fire after shots and shells were fired 4004 During the attack on Maline Witness ZL saw the Muslim army burn down many houses 4005 At around 1700 or 1800 hours on 8 June 1993 4006 Witness Z5 saw a cowshed and a house on fire 4007 That same day Witness Z15 saw three cowsheds on fire The witness did not see who set the fires but assumed the perpetrators were soldiers from the ABiH since the village was under that army’s control 4008 According to Witness Salim Tarak ija a number of buildings inhabited by the Croats had burned down and had been damaged on 8 June 1993 in the course of the fighting 4009 Witness HB who was in Maline on 8 June 1993 between 0900 or 1000 hours and 1300 or 1400 hours noticed that smoke was coming from some houses but did not see any soldiers deliberately set fires 4010 After receiving information that the mujahedin had committed the crimes Witness Vaughan Kent-Payne went to Maline on 13 June 1993 4011 The witness stayed in the village of Maline for 35 to 40 minutes and never left the 3997 Witness HB T F p 12592 DH 2090 para 7 Witness ZF T F pp 3604-3605 Witness XB T F pp 1644-1645 Berislav Marjanović T F pp 2700-2701 3998 Ivanka Tavić T F p 1165 Zdravko Pranješ T F pp 1372 and 1380 Witness HB T F pp 12637-12638 Witness XB T F pp 1645-1646 3999 Prosecution Final Brief paras 194-196 4000 Remzija iljak T F pp 10572-10573 Semir Terzić T F p 18256 Safet Junuzović T F pp 18505 1850718508 Suad Jusović T F pp 18435-18437 DK 18 DK 19 DK 34 P 465 4001 Remzija iljak T F pp 10575-10576 4002 Kasim Alajbegović T F p 18698 Elvedin Omić T F pp 18597-18599 4003 P 92 under seal para 8 4004 P 92 under seal para 10 4005 Witness ZL T F pp 4384-4385 Witness ZL saw the house of Mekudić on fire after it had been shelled His own houses and cowsheds caught fire that morning as did the house of his brother and the houses of Kramar Stipo Djaković Tavić Smilja Marko Jurić Drago Jurić and Kate Sarić 4006 P 387 under seal para 9 4007 P 387 under seal para 10 4008 P 397 under seal para 6 4009 Salim Tarak ija T F p 11806 4010 Witness HB T F pp 12596-12597 4011 Vaughan Kent-Payne T F p 4794 Case No IT-01-47-T 526 15 March 2006 150 21623 BIS main roads 4012 During that visit he noticed that three houses had caught fire but that the other houses had not been damaged Nonetheless the witness was not able to establish the date the cause or the perpetrators of the damage 4013 On 28 June 1993 the Civilian Protection in Travnik municipality noted that 29 houses and cowsheds had been partially or totally destroyed 4014 Well after the end of the fighting when Witness Z15 returned to Maline on 10 April 1994 he could see that all the Croatian houses had burned except for five or six houses inhabited by Muslims 4015 In April 2002 Witness ZI went to Maline to gather information about the houses which had been destroyed in June 1993 4016 Following that visit the witness drew sketches of Maline indicating that 49 houses were damaged or destroyed 4017 1807 In view of the above evidence the Chamber finds that certain property was damaged or destroyed during the fighting According to the report from the Civilian Protection in Travnik municipality on 7 June 1993 two cowsheds and four houses were damaged or destroyed from HVO positions 4018 The report also indicates that 12 houses and cowsheds were destroyed or damaged on 8 June 1993 as a result of the fighting between the HVO and the ABiH 4019 The Civilian Protection in Travnik municipality was able to determine in certain cases whether the houses had been destroyed or damaged from the positions held by one army or the other 4020 Nevertheless regarding most of the destruction the Civilian Protection in Travnik municipality was not able to establish the identity of the perpetrators 4021 The Chamber concludes that the destruction may have been caused by the HVO units and those of the ABiH as a result of the combat operations in Maline but that this does not constitute destruction committed on a large scale not justified by military necessity 1808 The Chamber finds that destruction was also caused after the fighting but that the evidence does not establish the identity of the perpetrators The report from the Civilian Protection in Travnik municipality notes that houses were burned down in June 1993 once the combat operations had ceased but does not provide any indication as to the cause or perpetrators of the destruction 4022 The Chamber also notes that while other property was damaged after June 1993 4023 it may not be included in the period set out in the Indictment which runs from 1 to 30 June 1993 Regarding the 4012 Vaughan Kent-Payne T F p 4800 Vaughan Kent-Payne T F pp 4894-4895 4014 DH 1214 4015 P 397 under seal para 11 4016 P 80 under seal 4017 P 87 under seal 4018 DH 1214 4019 DH 1214 4020 DH 1214 4021 DH 1214 4022 DH 1214 4013 Case No IT-01-47-T 527 15 March 2006 149 21623 BIS statements of Witness ZI as well as the sketches and photographs attached to those statements the Chamber recalls its Decision on the Admissibility of Certain Challenged Documents and Documents for Identification of 27 July 2004 in which it found that the statements of Witness ZI were based on hearsay 4024 and in which the Chamber decided to use those documents only to corroborate other evidence 4025 The Chamber noted that the sketches and statements given by Witness ZI were based on the statements of persons who did not appear during the trial 4026 and also that the sketches and photographs reflect the situation which prevailed in 2002 and offer no direct response as to the destruction which allegedly took place in 1993 4027 Accordingly the Chamber considers that the observations of Witness ZI 4028 who mentions many more incidents of destruction than the Civilian Protection in Travnik municipality do not constitute evidence with sufficient probative value iii Conclusions of the Chamber 1809 The Chamber considers that the evidence supports the finding that the 7th Brigade was not in Maline in June 1993 Accordingly the Chamber considers that the perpetrators of the destruction committed in Maline were not under the effective control of the Accused Kubura and that as a result he cannot be held responsible for those crimes 1810 Regarding the Accused Had‘ihasanović the Chamber considers that the Prosecution failed to prove that the acts of destruction which occurred during the fighting in Maline in June 1993 were committed on a large scale or that the acts were not justified by military necessity The Prosecution also failed to demonstrate that the perpetrators of the destruction caused after the fighting were members of the ABiH 3rd Corps 306th Brigade The Chamber concludes that the Accused Had‘ihasanović cannot be held responsible for the acts of destruction committed in Gu a Gora in June 1993 4023 P 397 under seal para 7 Decision of 16 July 2004 on the Admissibility of Certain Challenged Documents and Documents for Identification para 94 4025 Ibid para 95 4026 Ibid para 94 4027 Ibid para 93 4028 P 80 under seal P 87 under seal According to the sketches by Witness ZI dated 8 April 2002 49 houses in Maline were destroyed 4024 Case No IT-01-47-T 528 15 March 2006 148 21623 BIS e ukle 1811 The Indictment alleges that members of the 7th Brigade4029 and 306th Brigade caused unlawful and arbitrary destruction not justified by military necessity of dwellings buildings and civilian personal property belonging to Bosnian Croats and Bosnian Serbs in ukle in June 1993 4030 The Indictment alleges that the Accused Had‘ihasanović knew or had reason to know that the members of those units under his command and effective control were about to commit acts of destruction or had done so and failed to take the necessary and reasonable measures to prevent those acts from being committed or to punish the perpetrators 4031 The Accused Had‘ihasanović is therefore accused of the crime of wanton destruction of towns and villages not justified by military necessity a violation of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute i Arguments of the Parties 1812 The Prosecution argues that on 8 June 1993 during the attack 3rd Corps soldiers set fire to houses in ukle 4032 The Prosecution adds that the Accused Had‘ihasanović and the Accused Kubura knew that property belonging to Croatian civilians had been burned in the sectors of Gu a Gora ušanj and Ovnak and points out that the Accused failed to take the necessary and reasonable measures to stop the crimes committed in ukle or to punish the perpetrators 4033 The Chamber notes however that the Indictment contains no charge against the Accused Kubura for the destruction committed in ukle in June 1993 and that as a result it may not be seized of the question of his responsibility in relation to the destruction committed in ukle in June 1993 1813 The Defence for the Accused Had‘ihasanović does not dispute that houses were damaged but argues that the damage in question was not caused gratuitously and that the village was not destroyed without reason The Defence for the Accused Had‘ihasanović adds that while some damage may have been caused during the fighting most was caused afterwards and notes that the cause of the damage during and after the fighting has not been established The Defence for the 4029 See Indictment paras 18-20 According to the Indictment the 7th Brigade also included the mujahedin since they were allegedly subordinated to and integrated into the 7th Brigade and played a major role in the combat operations conducted by the 7th Brigade 4030 Indictment para 44 4031 Indictment para 45 4032 Prosecution Final Brief para 313 4033 Ibid para 319 Case No IT-01-47-T 529 15 March 2006 147 21623 BIS Accused Had‘ihasanović further submits that the Prosecution failed to prove that the subordinates of the Accused Had‘ihasanović participated in the criminal activities in question 4034 ii Findings of the Chamber regarding Wanton Destruction in ukle 1814 On 5 June 1993 units of the 7th Brigade received the order to launch an attack on the Vrselje-Crni Vrh-Ušice- ukle-Brajkovići axis and to take control of the villages of ukle and Novo Selo 4035 At around 0430 hours on the morning of 8 June 1993 the village of ukle was attacked 4036 During that offensive the HVO front line which was in the village of ukle in the hamlet of Mrkonje Kuće was breached 4037 HVO units then headed in the direction of Ovnak and Grahov ići 4038 The inhabitants of the village of ukle also withdrew towards Ovnak 4039 1815 Contrary to the allegations of the Prosecution 4040 the Chamber finds that it has not been established beyond a reasonable doubt that the 306th Brigade took part in the attack on ukle The evidence in fact demonstrates that on 8 June 1993 the brigade was headed towards the MalineGu a Gora-Mosor-Bukovica axis 4041 The 306th Brigade 1st and 4th Battalions were fighting in Maline 4042 while the unit’s 2nd and 3rd Battalions were in Gu a Gora 4043 1816 When the attack began on 8 June 1993 Witness Jozo Erenda heard many shots fired and saw the Muslim army set fire to houses belonging to Croats 4044 The witness was not however able to see the insignia worn by the people who were firing or able to establish the identity of those who had set fire to the houses 4045 At around 0400 hours on the morning of 8 June 1993 Witness ZM was in Ovnak and noticed that four or five houses were burning in the hamlet of Mrkonje Kuće in ukle 4046 The witness was not however in a position to identify the perpetrators of those fires or to determine what methods the perpetrators used to burn the dwellings 4047 When the Muslims attacked ukle 4048 Witness ZD could see houses burning in the village and on the road to Ovnak4049 4034 Had‘ihasanović Defence Final Brief para 584 P 419 P 420 4036 Jozo Erenda T F p 4265 4037 Witness ZM T F p 4699 4038 Jozo Erenda T F pp 4266 and 4272 4039 Ivo Kolenda T F p 4469 P 384 under seal para 5 4040 See Indictment para 44 Prosecution Final Brief paras 311 and 312 4041 DK 22 4042 Salim Tarak ija T F p 11804 4043 Salim Tarak ija T F p 11805 4044 Jozo Erenda T F p 4266 4045 Jozo Erenda T F pp 4272-4273 4046 Witness ZM T F pp 4699-4700 4047 Witness ZM T F p 4733 4048 Witness ZD T F pp 3385-3386 4049 Witness ZD T F pp 3384-3386 4035 Case No IT-01-47-T 530 15 March 2006 146 21623 BIS and could hear soldiers shouting “Allah-u-akbar” 4050 According to Witness Ivo Kolenda on the day of the attack five houses had already caught fire before dawn 4051 From Pje ara the witness could see through his binoculars one to three houses burning each night until all the houses were destroyed 4052 This continued until 11 or 12 June 1993 4053 He believed that it was soldiers from the 3rd Corps especially the 7th Brigade 4054 but admitted that he was not in a position to see who was setting fire to the houses or to determine how they caught fire 4055 Witness Z2 saw houses burning at 0700 hours on the morning of 8 June 1993 and the following evening but did not see who set them on fire 4056 The day of the attack Witness Z3 saw three houses burning4057 on her way towards Gornje ukle 4058 She did not see the people who started those fires but pointed out that the village was under ABiH control 4059 Then during her detention in the village of Bare from 8 to 12 June 1993 Witness Z3 saw that ABiH soldiers were setting fire to houses which belonged to the Croats in ukle 4060 From the position he occupied in Strmac 4061 Witness Žarko Jandrić noticed in the early morning that the houses in ukle had been burned down 4062 In April 2002 Witness ZI went to ukle to gather information about the houses that had been destroyed in June 1993 4063 Following that visit the witness drew some sketches of ukle indicating that 62 houses in Donje ukle had been destroyed or damaged and that 60 houses had been destroyed in Gornje ukle 4064 1817 The Chamber finds that houses were destroyed in ukle in 1993 Several witnesses saw houses on fire during the attack of 8 June 1993 4065 With regard to Žarko Jandrić’s observations the Chamber considers that it has not been established that he was in a position to see houses burning in ukle 4066 The United Nations Centre for Human Rights in Zagreb noted on 18 June 1993 that 32 4050 Witness ZD T F p 3386 Ivo Kolenda T F p 4469 4052 Ivo Kolenda T F pp 4471 and 4484 4053 Ivo Kolenda T F p 4485 4054 Ivo Kolenda T F p 4472 The witness believed it was the 7th Brigade since that brigade had already attempted to attack HVO forces in Usiće and Grahov ići 4055 Ivo Kolenda T F p 4482 Pje ara was located seven or eight kilometres from ukle and from that distance the witness could only see smoke 4056 P 384 under seal paras 6 and 16 4057 P 385 under seal para 5 4058 P 385 under seal paras 5-6 4059 P 385 under seal para 5 4060 P 385 under seal para 7 4061 Witness Žarko Jandrić T F p 950 4062 Witness Žarko Jandrić T F p 953 4063 P 80 under seal 4064 P 88 under seal P 89 under seal 4065 Jozo Erenda T F p 4266 Witness ZM T F pp 4699-4700 Witness ZD T F pp 3384-3386 Ivo Kolenda T F pp 4484-4485 P 384 under seal paras 6 and 16 P 385 under seal para 5 4066 See DH 1978 Abid Izmirlić T F pp 16725-16727 which demonstrate that Strmac is not visible from Gornje ukle and vice versa C 21 pp 10-11 4051 Case No IT-01-47-T 531 15 March 2006 145 21623 BIS houses had burned to the ground 4067 On 23 July 1993 the staff from the Civilian Protection in Han Bila went to ukle and noted that of 173 houses two had burned 25 had caught on fire and eight had broken windows The remaining houses were in good condition 4068 Neither the report of the United Nations Centre for Human Rights in Zagreb nor that of the Civilian Protection in Han Bila specify the date on which the houses were destroyed Furthermore the Chamber notes that those reports were drafted in late July 1993 and consequently those estimates may include destruction that was caused after the period material to the Indictment which runs from 1 to 30 June 1993 Regarding the statements of Witness ZI as well as the sketches and photographs attached to those statements the Chamber recalls its Decision on the Admissibility of Certain Challenged Documents and Documents for Identification of 27 July 2004 in which it found that the statements of Witness ZI were based on hearsay4069 and in which the Chamber decided to use those documents only to corroborate other evidence 4070 The Chamber noted that the sketches and statements given by Witness ZI were based on the statements of persons who did not appear during the trial4071 and also that the sketches and photographs reflect the situation which prevailed in 2002 and offer no direct response as to the destruction which allegedly took place in June 1993 4072 Accordingly the Chamber considers that the observations of Witness ZI 4073 who mentions many more incidents of destruction than the Civilian Protection in Han Bila do not constitute evidence with sufficient probative value 1818 The Chamber considers that the circumstances under which the destruction was carried out have not been established as witnesses stated that they could not determine how the houses had caught on fire 4074 As regards the perpetrators of the destruction witnesses stated that they were members of the Muslim army4075 of the ABiH 4076 or more specifically of the 3rd Corps 4077 Witnesses however acknowledged that they had not been in a position to identify the perpetrators of the destruction 4078 The reports of the Civilian Protection in Han Bila4079 and the United Nations 4067 P 277 DH 1337 4069 Decision of 16 July 2004 on the Admissibility of Certain Challenged Documents and Documents for Identification para 94 4070 Ibid para 95 4071 Ibid para 94 4072 Ibid para 93 4073 P 80 under seal P 88 under seal P 89 under seal 4074 Witness ZM T F p 4733 Ivo Kolenda T F p 4482 4075 Jozo Erenda T F p 4266 4076 P 385 under seal paras 7-8 4077 Ivo Kolenda T F p 4472 4078 Jozo Erenda T F pp 4272-4273 Witness ZM T F p 4733 Ivo Kolenda T F p 4482 P 384 paras 6 and 16 P 385 under seal para 5 4079 DH 1337 4068 Case No IT-01-47-T 532 15 March 2006 144 21623 BIS Centre for Human Rights in Zagreb4080 provide no further details as to the identity of the perpetrators of the destruction or its cause iii Conclusions of the Chamber 1819 The Chamber considers that the Prosecution has failed to demonstrate that the destruction in June 1993 in ukle was caused by members of the 3rd Corps Consequently the Accused Had‘ihasanović cannot be held responsible for the crimes committed in ukle in June 1993 Moreover in spite of the allegations of the Prosecution in its Final Brief 4081 the Chamber considers that it may not be seized of the question of the responsibility of the Accused Kubura since he is not charged in the Indictment with the destruction committed in ukle in June 1993 f u anj Ovnak Brajkovići Grahovčići 1820 The Indictment alleges that members of the 7th Brigade 306th Brigade and 314th Brigade carried out the unlawful and arbitrary destruction not justified by military necessity of dwellings buildings and civilian personal property belonging to Bosnian Croats and Bosnian Serbs in ušanj Ovnak Brajkovići and Grahov ići in June 1993 4082 The Indictment alleges that the Accused knew or had reason to know that the members of those units under their command and effective control were about to commit acts of destruction or had done so and failed to take the necessary and reasonable measures to prevent those acts from being committed or to punish the perpetrators 4083 The Accused Had‘ihasanović and the Accused Kubura are therefore accused of wanton destruction of towns and villages not justified by military necessity a violation of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute i Arguments of the Parties 1821 The Prosecution alleges that during and immediately after the attacks launched by 3rd Corps units of the 7th Brigade 306th Brigade and 314th Brigade buildings were destroyed some by 7th Brigade soldiers 4084 The Prosecution adds that the Accused were informed of the crimes committed by their subordinates but took no measures The only exception consisted of written 4080 P 277 Prosecution Final Brief para 319 4082 Indictment para 44 4083 Ibid para 45 4084 Prosecution Final Brief para 320 4081 Case No IT-01-47-T 533 15 March 2006 143 21623 BIS orders to prohibit the commission of crimes to prevent crimes or to punish the perpetrators of crimes 4085 1822 The Defence for the Accused Had‘ihasanović does not dispute that property was damaged in ukle but argues that the damage was not significant enough The Defence for the Accused Had‘ihasanović adds that the Prosecution failed to prove that the destruction was not justified by military necessity and also failed to prove when the alleged destruction occurred The Defence for the Accused Had‘ihasanović further submits that the Prosecution failed to demonstrate that the Accused Had‘ihasanović was aware of those acts of destruction and argues that the 3rd Corps took measures to prevent and punish the acts in question throughout 1993 4086 1823 The Defence for the Accused Kubura submits that the damage caused during the attack was the result of legitimate military operations and that the acts of destruction occurred after June 1993 outside of the period material to the Indictment 4087 The Defence for the Accused Kubura points out that limited acts of destruction must be excluded since the first constituent element of the offence referred to in Article 3 b of the Statute requires that acts of destruction be committed on a large scale 4088 The Defence for the Accused Kubura further submits that the Prosecution failed to prove the identity of the perpetrators of the destruction 4089 ii Findings of the Chamber regarding Wanton Destruction in u anj Ovnak Brajkovići Grahovčići 1824 In early June 1993 combat operations spread towards the Bila Valley 4090 The ABiH decided to attack the Ovnak pass which was occupied by the HVO forces given the tactical and operational significance that sector represented 4091 Since the 306th Brigade found itself in a difficult position vis-à-vis the HVO forces a decision was made to use other 3rd Corps units in Ovnak sector to assist the 306th Brigade 4092 A tactical group composed of 7th Brigade4093 and 314th Brigade units was given the mission to take control of Ovnak sector 4094 On 8 June 1993 in the early morning 4085 Prosecution Final Brief para 322 Had‘ihasanović Defence Final Brief para 733 4087 Kubura Defence Final Brief para 179 4088 Ibid para 181 4089 Ibid paras 164 and 180 4090 D‘emal Merdan T F p 13125 4091 D‘emal Merdan T F p 13126 4092 D‘emal Merdan T F pp 13125-13126 P 420 4093 See Indictment paras 18-20 According to the Indictment the 7th Brigade also included the mujahedin since they were allegedly subordinated to and integrated into the 7th Brigade and played a major role in the combat operations conducted by the 7th Brigade 4094 P 420 P 419 Mirsad Ibraković T F pp 14373-14374 4086 Case No IT-01-47-T 534 15 March 2006 142 21623 BIS hours fighting began between the HVO and the ABiH forces 4095 The 7th Brigade4096 2nd and 3rd Battalions intervened in Ovnak on 8 June 19934097 and the fighting lasted until mid-afternoon 4098 The village of Brajkovići was attacked in the late morning 4099 ušanj which was deserted by its inhabitants had not been included in the combat operations 4100 In fact the 7th Brigade units did not enter the villages of Brajkovići Grahov ići and ušanj 4101 After receiving orders to move towards Kakanj 4102 the 7th Brigade units left Ovnak sector on 9 June 1993 4103 1825 Contrary to the allegations of the Prosecution 4104 the evidence demonstrates that the 306th Brigade did not take part in the attack on the villages of ušanj Ovnak Brajkovići and Grahov ići On 8 June 1993 that brigade was positioned along the Maline-Gu a Gora-Mosor-Bukovica axis 4105 The 306th Brigade 1st and 4th Battalions were conducting combat operations in Maline 4106 while the 2nd and 3rd Battalions were in Gu a Gora 4107 1826 After arriving in ušanj on 9 June 1993 Witness Ivo Vuleta could see that Tomo Marković’s house had caught fire during the fighting because of a shell and that the doors of houses in the village were damaged 4108 On 10 June 1993 Witness Mijo Marković went to ušanj for the Civil Defence 4109 He saw several houses burning but did not know how the fires started 4110 When Witness Jozo Marković returned to ušanj in around mid-June 1993 he could see young people aged 16 or 17 breaking windows of the houses 4111 The United Nations Centre for Human Rights in Zagreb noted on 18 June 1993 that two houses and two cowsheds had burned to the ground 4112 In April 2002 Witness ZI went to ušanj to gather information about houses that had been destroyed 4095 Franjo Kri‘anac T F pp 1099-1101 P 400 under seal para 6 Kasim Alajbegović T F p 18698 Elvedin Omić T F pp 18597-18599 4097 Kasim Alajbegović T F p 18699 Elvedin Omić T F pp 18598-18599 Safet Junuzović T F p 18514 4098 Kasim Alajbegović T F p 18700 Safet Junuzović T F p 18517 4099 Franjo Kri‘anac T F p 1101 P 400 para 7 4100 Safet Junuzović T F p 18516 4101 Safet Junuzović T F p 18516 4102 Safet Junuzović T F p 18517 4103 Safet Junuzović T F p 18517 Kasim Alajbegović T F pp 18701-18702 4104 Prosecution Final Brief para 320 4105 DK 22 D‘emal Merdan T F p 13125 4106 Salim Tarak ija T F p 11804 4107 Salim Tarak ija T F p 11805 4108 Ivo Vuleta T F pp 4452-4453 4109 Mijo Marković T F p 2365 4110 Mijo Marković T F p 2372 4111 Jozo Marković T F p 4423 4112 P 277 4096 Case No IT-01-47-T 535 15 March 2006 141 21623 BIS in June 1993 4113 Following that visit the witness drew sketches of ušanj indicating that 28 houses had been destroyed or damaged 4114 1827 During the fighting in Ovnak Witness Kasim Pod‘ić did not see any burning buildings but recalled seeing buildings which had been damaged before the operations began 4115 On the morning of 8 June 1993 Witness Elvedin Omić did not see any damage other than the bullet holes on houses in Ovnak 4116 On 11 June 1993 Witness Franjo Kri‘anac went all around the village of Ovnak and could see that all of the houses had been heavily damaged 4117 He later noticed that the number of burning buildings was increasing 4118 The United Nations Centre for Human Rights in Zagreb noted on 18 June 1993 that two houses had burned to the ground 4119 In April 2002 Witness ZI went to Ovnak to gather information about houses that had been destroyed in June 1993 4120 Following that visit the witness drew sketches of Ovnak which indicated that 41 houses had been destroyed or damaged 4121 1828 Witness Franjo Kri‘anac was in the parish church during the attack on Brajkovići on 8 June 1993 4122 Around noon a shell hit the church tower and later another fell in the cemetery 4123 In the evening of 8 June 1993 Witness Z18 learned that the house of Nikica Josipović was burning 4124 The ECMM observers went to Brajkovići on 10 June 1993 and observed that all of the houses were intact The church in Brajkovići had also sustained no damage 4125 On 14 June 1993 UNPROFOR staff noted that houses in Brajkovići village had been ransacked and those which had burned had been shelled 4126 The United Nations Centre for Human Rights in Zagreb noted on 18 June 1993 that six houses had burned to the ground 4127 Around 10 July 1993 4128 Witness Z18 noticed that some thirty houses in Gornji Brajkovići had been damaged by fires 4129 In April 2002 Witness ZI 4113 P 80 under seal P 82 under seal 4115 Kasim Pod‘ić T F p 18665 4116 Elvedin Omić T F p 18604 4117 Franjo Kri‘anac T F p 1108 4118 Franjo Kri‘anac T F pp 1108-1109 4119 P 277 4120 P 80 under seal 4121 P 81 under seal 4122 Franjo Kri‘anac T F p 1100 4123 Franjo Kri‘anac T F p 1101 4124 P 400 under seal para 9 4125 DH 196 4126 DH 72 para 11 4127 P 277 4128 P 400 under seal para 24 Witness Z18 was imprisoned from 9 or 10 June and was given a pass to go out after one month of imprisonment 4129 P 400 under seal para 25 4114 Case No IT-01-47-T 536 15 March 2006 140 21623 BIS went to Brajkovići to gather information about houses destroyed in June 1993 4130 Following that visit the witness drew sketches of Brajkovići indicating that three houses had been destroyed or damaged 4131 1829 During the evening of 8 June 1993 Witness ZD could see the houses in Grahov ići burning from the cave where she had taken refuge 4132 From the positions he occupied in Strmac 4133 Witness @arko Jandrić was able to watch the fighting in Grahov ići which began at around 1100 hours on the morning of 8 June 1993 and continued until the early evening 4134 He noticed that houses were catching fire as soon as soldiers approached them and that others were burning as a result of incendiary ammunition that was used 4135 While he was not able to tell which insignia the soldiers were wearing Witness @arko Jandrić believed that the fires were started by ABiH soldiers 4136 That witness believed that of 200 houses only 5% remained intact since most had burned down or were completely destroyed during or shortly after the war 4137 On 10 June 1993 however ECMM observers saw the village of Grahov ići which appeared intact 4138 Witness Vaughan Kent-Payne went to Grahov ići on 14 June 1993 in the late afternoon accompanied by a United Nations observer 4139 That witness stayed in the village for 40 or 50 minutes4140 and noticed that some buildings had been damaged as a result of the fighting 4141 That same day the UNPROFOR staff noted that the houses in the village of Grahov ići had been ransacked and that the houses which had burned had been shelled 4142 The United Nations Centre for Human Rights in Zagreb noted on 18 June 1993 that 23 houses had been burned to the ground 4143 On 23 July 1993 the Civilian Protection in Han Bila noted the damage in Grahov ići village 32 houses and 10 cowsheds totally destroyed 30 houses partially destroyed 10 houses partially burned and the remaining houses damaged and uninhabitable with shattered windows and walls with bullet holes and shrapnel marks 4144 In April 2002 Witness ZI went to Grahov ići to gather information about 4130 P 80 under seal P 84 under seal 4132 Witness ZD T F p 3387 4133 @arko Jandrić T F p 950 4134 @arko Jandrić T F pp 950-951 4135 @arko Jandrić T F p 954 4136 @arko Jandrić T F p 955 4137 @arko Jandrić T F p 956 4138 DH 196 ECMM observers did not however visit the village 4139 Vaughan Kent-Payne T F pp 4811-4812 4140 Vaughan Kent-Payne T E p 4814 4141 Vaughan Kent-Payne T F p 4812 4142 DH 72 para 11 4143 P 277 4144 DH 1337 4131 Case No IT-01-47-T 537 15 March 2006 139 21623 BIS houses that had been destroyed in June 1993 4145 Following that visit the witness drew sketches of Grahov ići indicating that 97 houses had been destroyed or damaged 4146 1830 In view of the above evidence the Chamber finds that buildings were damaged or destroyed in the villages of ušanj Ovnak Brajkovići and Grahov ići during combat operations In fact both the report of the Civilian Protection in Han Bila4147 and that of the United Nations Centre for Human Rights in Zagreb4148 mention damage in those villages Moreover the Chamber notes that the international observers stated that the damage was caused by the military operations Witness Vaughan Kent-Payne believed that the damage in Grahov ići was caused by shelling and not by fires set deliberately 4149 According to the UNPROFOR observers the few houses that were burned to the ground were destroyed as a result of shelling 4150 Consequently the Chamber concludes that the acts of destruction which occurred during the fighting do not constitute large-scale destruction not justified by military necessity 1831 The Chamber finds that the destruction was spread out over time and that some destruction also took place after the fighting The Chamber considers however that the evidence neither establishes the identity of the perpetrators of the destruction nor the circumstances in which the destruction took place Accordingly both the report of the Civilian Protection in Han Bila and that of the United Nations Centre for Human Rights in Zagreb fail to provide information regarding the perpetrators of the destruction or the circumstances under which it occurred 4151 The Chamber also notes that the estimates of the Civilian Protection in Han Bila cover a period which extends up to the end of July 1993 and therefore may include some destruction that took place after the period material to the Indictment which runs from 1 to 30 June 1993 Regarding the statements of Witness ZI as well as the sketches and photographs attached to those statements the Chamber recalls its Decision on the Admissibility of Certain Challenged Documents and Documents for Identification of 27 July 2004 in which it found that the statements of Witness ZI were based on hearsay4152 and in which the Chamber decided to use those documents only to corroborate other evidence 4153 The Chamber noted that the sketches and statements given by Witness ZI were based on the statements 4145 P 80 under seal P 85 under seal 4147 DH 1337 4148 P 277 4149 Vaughan Kent-Payne T F p 4916 4150 DH 72 4151 See DH 1337 P 277 4152 Decision of 16 July 2004 on the Admissibility of Certain Challenged Documents and Documents for Identification para 94 4153 Ibid para 95 4146 Case No IT-01-47-T 538 15 March 2006 138 21623 BIS of persons who did not appear during the trial4154 and also that the sketches and photographs reflect the situation which prevailed in 2002 and offer no direct response as to the destruction which allegedly took place in June 1993 4155 Accordingly the Chamber considers that the observations of Witness ZI 4156 who mentions many more incidents of destruction than the Civilian Protection in Han Bila do not constitute evidence with sufficient probative value iii Conclusions of the Chamber 1832 The Chamber considers that the Prosecution has failed to prove that the acts of destruction which occurred during the fighting in June 1993 in the villages of ušanj Ovnak Brajkovići and Grahov ići were committed on a large scale and that the acts were not justified by military necessity The Prosecution has also failed to demonstrate that the perpetrators of the destruction which was caused after the fighting were part of the ABiH 3rd Corps Accordingly the Accused Had‘ihasanović and the Accused Kubura cannot be held responsible for the acts of destruction committed in ušanj Ovnak Brajkovići and Grahov ići in June 1993 g Vareš 1833 The Indictment alleges that members of the 7th Brigade4157 carried out the unlawful and arbitrary destruction not justified by military necessity of dwellings buildings and civilian personal property belonging to Bosnian Croats and Bosnian Serbs in Vareš in November 1993 4158 The Indictment alleges that the Accused Kubura knew or had reason to know that the members of that unit under his command and effective control were about to commit acts of destruction or had done so and failed to take the necessary and reasonable measures to prevent those acts from being committed or to punish the perpetrators 4159 The Accused Kubura is therefore charged with wanton destruction of towns and villages not justified by military necessity a violation of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute 4154 Ibid para 94 Ibid para 93 4156 P 80 under seal P 81 under seal P 82 under seal P 84 under seal P 85 under seal 4157 See Indictment paras 18-20 According to the Indictment the 7th Brigade also included the mujahedin since they were allegedly subordinated to and integrated into the 7th Brigade and played a major role in the combat operations conducted by the 7th Brigade 4158 Indictment para 44 4159 Ibid para 45 4155 Case No IT-01-47-T 539 15 March 2006 137 21623 BIS i Arguments of the Parties 1834 The Prosecution submits that the destruction in Vareš was caused on a large scale by soldiers of the 7th Brigade 4160 The Prosecution further argues that the Accused Kubura failed in his duty to prevent the crimes and to punish the perpetrators 4161 1835 The Defence for the Accused Kubura does not dispute the presence of the 7th Brigade units in Vareš on 4 November 1993 4162 but submits that the evidence fails to demonstrate that destruction was carried out in November 1993 4163 The Defence for the Accused Kubura points out that the cross-fire into buildings by soldiers moving into Vareš for the first time conducted according to the rules of combat 4164 cannot be characterised as acts of devastation of a town committed on a large scale 4165 ii Findings of the Chamber regarding Wanton Destruction in Vareš 1836 The operations in Vareš were conducted jointly by the ABiH 2nd 3rd and 6th Corps 4166 On 3 November 1993 the 7th Brigade received the order to attack and liberate the town of Vareš under the command of the OG Istok 4167 At 0800 hours on the morning of 4 November 1993 the 7th Brigade 2nd and 3rd Battalions entered the town of Vareš which was deserted 4168 and then rejoined the 2nd Corps units 4169 The 7th Brigade 1st Battalion did not go further than Vareš Majdan4170 located outside of Vareš 4171 Since the HVO forces had already withdrawn heavy fighting did not take place 4172 The soldiers did however fire into the air first to uncover any potential ambushes and then as a celebration 4173 The units of the 7th Brigade withdrew from the town that day 4174 4160 Prosecution Final Brief para 329 Ibid para 337 4162 Kubura Defence Final Brief para 187 4163 Ibid para 192 4164 Ibid para 193 4165 Ibid para 194 4166 DH 1513 P 217 4167 P 674 4168 P 468 Safet Junuzović T F p 18529 4169 P 676 P 468 Kasim Pod‘ić T F p 18676 4170 Safet Junuzović T F pp 18531-18534 4171 See DK 38 4172 D‘email Ibranović T F p 18371 Safet Junuzović T F p 18530 DK 62 para 17 4173 Kasim Pod‘ic T F pp 18652-18654 Safet Junuzović T F p 18530 Sir Martin Garrod T F p 5692 Rolf Weckesser T F p 7237 Hakan Birger T F p 5385 4174 DK 50 P 468 DK 62 para 19 DK 44 Kasim Pod‘ic T F p 18656 Safet Junuzović T F pp 18533-18534 Elvir Mušija T F p 18778 4161 Case No IT-01-47-T 540 15 March 2006 136 21623 BIS 1837 When they arrived at the outskirts of the town of Vareš Majdan on 4 November 1993 a few members of the 7th Brigade 1st Battalion Command went into the town of Vareš 4175 Witness D‘email Ibranović the Assistant Commander for Morale and Religious Affairs 4176 walked towards the high ground around the city and saw two recently-built houses on fire 4177 According to his information the HVO had set fire to the houses during their retreat 4178 Moreover Witness Safet Junuzović the 7th Brigade 1st Battalion Commander 4179 noticed when the fog lifted at around 1000 hours the same day that a building was burning but the witness believed that the fire was the result of the combat activities conducted by the ABiH troops 4180 since when they entered Vareš the units did not use any projectiles that could have set the building on fire 4181 1838 Witness Kasim Pod‘ić the 7th Brigade 2nd Battalion Commander 4182 described the prevailing situation in the town as chaotic and noticed as he left the town that a building made of concrete and wood was on fire 4183 The report of the 7th Brigade 2nd Battalion on the combat operations conducted in Vareš between 31 October 1993 and 6 November 1993 notes that buildings were burned and destroyed by the HVO 4184 1839 The reports of the OG Istok describe a chaotic situation in Vareš on 4 November 1993 4185 According to the report of 4 November 1993 7th Brigade soldiers plundered and burned everything as soon as they entered the town The report specifies that members of other brigades also participated in those criminal activities 4186 According to the report of 10 November 1993 on the operations conducted in Vareš the 7th Brigade soldiers in particular shattered store windows and destroyed cars as they entered the town of Vareš That report notes that it was impossible to control the units and to prevent the destruction of property after Vareš was liberated on 4 November 1993 4187 1840 The ECMM report described the prevailing situation in Vareš on 4 November 1993 also as chaotic 4188 When Witness Martin Garrod4189 arrived in the town of Vareš on 4 November 1993 at 4175 D‘email Ibranović T F p 18372 D‘email Ibranović T F p 18359 4177 D‘email Ibranović T F p 18372 4178 D‘email Ibranović T F p 18407 4179 Safet Junuzović T F p 18502 4180 Safet Junuzović T F p 18530 4181 Safet Junuzović T F p 18566 4182 Kasim Pod‘ić T F p 18632 4183 Kasim Pod‘ić T F p 18655 4184 P 468 4185 P 445 P 676 4186 P 676 4187 P 448 4188 P 198 4176 Case No IT-01-47-T 541 15 March 2006 135 21623 BIS around 0930 or 1000 hours 4190 he noticed much damage including shattered windows and brokendown doors but he was not in a position to determine whether the damage was caused by the arrival of the ABiH or the withdrawal of the HVO 4191 Witness Rolf Weckesser4192 saw the smoke coming from shots fired but did not see any destroyed buildings 4193 1841 Members of UNPROFOR who were in Vareš on 4 November 1993 noticed that the soldiers first opened fire to uncover any potential ambushes and continued to fire after being informed that the HVO had withdrawn from Vareš 4194 Witness Ulf Henricsson4195 noted that many windows had been shattered and that the 7th Brigade soldiers were stealing everything they could get their hands on 4196 According to Witness Hakan Birger 4197 7th Brigade soldiers4198 shattered the windows and shopfronts of practically all the shops in order to commit acts of plunder 4199 Witness Ulf Henricsson stated that buildings had been set on fire by Croats in the days preceding 4 November 1993 4200 Witness Hakan Birger did not however notice that houses had been set on fire on 4 November 1993 4201 1842 In view of the above evidence the Chamber considers that buildings were wholly or partially damaged and destroyed in Vareš in early November 1993 1843 First the Chamber finds that buildings were burned by the HVO troops as they withdrew from the town of Vareš In fact the members of the 7th Brigade and UNPROFOR noticed that the fires had been started by the HVO 4202 1844 Second the Chamber finds that the 7th Brigade troops also caused damage when they arrived in Vareš on 4 November 1993 The Chamber first considers that shots fired by 7th Brigade 4189 Witness Martin Garrod joined the ECMM in June 1993 Martin Garrod T F p 5651 Martin Garrod T F p 5693 4191 Martin Garrod T F p 5692 4192 Witness Rolf Weckesser joined the ECMM in May 1993 Rolf Weckesser T F p 7205 4193 Rolf Weckesser T F p 7236 4194 Ulf Henricsson T F pp 7669-7670 Hakan Birger T F pp 5385 and 5388 4195 Witness Ulf Henricsson was commander of the 1st Nordic Battalion between September 1993 and April 1994 Ulf Henricsson T F pp 7660 and 7663 4196 Ulf Henricsson T F p 7670 4197 Witness Hakan Birger was Commander of the 8th Mechanised Company Nordic Battalion Hakan Birger T F pp 5366-5368 4198 Hakan Birger T F pp 5384-5385 4199 Hakan Birger T F pp 5385-5389 4200 Ulf Henricsson T E pp 7669-7670 4201 Hakan Birger T F p 5392 4202 D‘email Ibranović T F pp 18372 and 18407 Safet Junuzović T F pp 18530 and 18566 P 468 Ulf Henricsson T E pp 7669-7670 4190 Case No IT-01-47-T 542 15 March 2006 134 21623 BIS soldiers caused damage to buildings and houses 4203 Additionally the Chamber notes that the UNPROFOR members who were in Vareš on 4 November 1993 noticed that the 7th Brigade soldiers shattered windows and broke down doors 4204 Finally the report of the OG Istok dated 10 November 1993 notes that 7th Brigade soldiers shattered shopfronts and windows in Vareš 4205 1845 The Chamber considers that the acts of destruction were on a large scale The extent of the destruction was noted in particular by Witness Hakan Birger according to whom practically all of the shops had shattered windows 4206 The Chamber therefore considers that the damage caused reached the necessary threshold to be considered acts of destruction committed on a large scale 1846 The Chamber further notes that this destruction was caused deliberately by the 7th Brigade soldiers and was not justified by military necessity First the Chamber finds that the 7th Brigade soldiers continued to shoot outside the framework of any combat operations even though the 7th Brigade units knew the HVO had withdrawn 4207 Second the Chamber notes that the 7th Brigade soldiers destroyed doors and windows with the sole purpose of committing acts of plunder 4208 iii Findings of the Chamber regarding the Responsibility of Amir Kubura a Effective Control of Amir Kubura over the Perpetrators of the Crime 1847 The Chamber has found that the destruction in Vareš in November 1993 was committed in particular by members of the 7th Brigade Since the 7th Brigade was subordinated to the Accused Kubura at the material time it is presumed that he exercised effective control over the members of the 7th Brigade and over the perpetrators who belonged to that brigade 1848 Moreover the evidence demonstrates that the 7th Brigade units followed the orders of the Accused Kubura As such following orders from the OG Istok 4209 on 4 November 1993 the Accused Kubura himself ordered the 7th Brigade units operating in Vareš to withdraw from the town 4210 which they did on the same day 4211 4203 Rolf Weckesser T F p 7236 Ulf Henricsson T F pp 7669-7670 Hakan Birger T F pp 5385 and 5388 Ulf Henricsson T F p 7670 Hakan Birger T F pp 5384 to 5389 4205 P 448 4206 Hakan Birger T F pp 5384-5389 Sir Martin Garrod T F p 5692 Ulf Henricsson T F p 7670 4207 Hakan Birger T F pp 5385 and 5388 Ulf Henricsson T F pp 7669-7670 4208 Ulf Henricsson T F p 7670 Hakan Birger T F pp 5384-5389 4209 P 675 4210 DK 50 See P 478 4211 P 468 DK 62 para 19 Kasim Pod‘ić T F p 18656 Safet Junuzović T F pp 18533-18534 Elvir Mušija T F p 18778 4204 Case No IT-01-47-T 543 15 March 2006 133 21623 BIS 1849 Consequently the Chamber finds that the Accused Kubura exercised effective control over the perpetrators of the plunder and that a superior-subordinate relationship existed within the meaning of Article 7 3 of the Statute b Knowledge of Amir Kubura 1850 First the Chamber finds that the Accused Kubura was in Vareš sector between 3 and 5 November 1993 Witness Elvir Mušija went with the Accused Kubura to Strije‘evo on 3 November 1993 4212 On 4 November 1993 they went together in the direction of Vareš Majdan and remained at the check-point manned by the military police before returning to Strije‘evo 4213 On 5 November 1993 the Accused Kubura went into the town of Vareš for two or three hours to attend a celebration 4214 The Chamber considers that it is not established that the Accused Kubura could see the destruction from the route he took on 5 November 1933 Consequently the Chamber considers that the Accused Kubura’s presence in Vareš is not sufficient in itself to establish his knowledge of the destruction beyond a reasonable doubt 1851 Second the Chamber finds that on 4 November 1993 the 6th Corps OG Istok Command issued an order recalling that all unlawful activity in the town of Vareš must come to a stop and that measures must be taken to prevent property from being removed from Vareš It also points out that the 7th Brigade Commander was responsible for carrying out the order 4215 The Chamber notes however that while the order explicitly refers to activities of plunder and the need to prevent them it does not mention acts of destruction 1852 Third the Chamber notes that the combat report of the 6th Corps OG Istok Command of 4 November 1993 mentions fires started by the 7th Brigade soldiers right after their arrival in Vareš and requests the 3rd Corps to send military police units 4216 The Chamber finds that while the report is addressed among others to the 3rd Corps Command the 7th Brigade is not mentioned as one of the recipients of the report 4217 The Chamber notes however that the 3rd Corps Command sent a report to the OG Istok informing it that following the information received on the prevailing situation in Vareš in the special combat report of 4 November the brigades were ordered to use the military police forces to prevent chaos and the destruction of property 4218 The Chamber notes that 4212 Elvir Mušija T F p 18773 Elvir Mušija T F pp 18774-18775 4214 Elvir Mušija T F pp 18776-18777 4215 P 675 4216 P 676 4217 P 676 4218 P 446 4213 Case No IT-01-47-T 544 15 March 2006 132 21623 BIS this order from the 3rd Corps Command seems to refer to and follow up on the 4 November 1993 order from the OG Istok 4219 particularly by sending military police forces Moreover the Chamber considers that while the 3rd Corps Command order does not specify which brigades were to receive orders to send military police units the 7th Brigade must have received such orders since it was subordinated to the 3rd Corps and present in Vareš The Chamber considers that is also possible that the 3rd Corps Command may have expressed its concerns to the Accused Kubura after it received information that 7th Brigade soldiers were starting fires in the town of Vareš Nevertheless the Chamber is of the opinion that while it is possible that the Accused Kubura may have been informed of the acts of destruction committed by 7th Brigade soldiers those orders do not however establish his knowledge with certainty iv Conclusions of the Chamber 1853 The Chamber considers that the Prosecution failed to prove that the Accused Kubura knew or had reason to know that his subordinates were about to commit or had committed acts of destruction in Vareš in November 1993 The Accused Kubura therefore may not be held criminally responsible for the offence set out in count 5 paragraph 44 of the Indictment 2 Count 6 Plunder of Public or Private Property in Towns and Villages in the Municipalities of Zenica Travnik and Vare a Mileti i 1854 The Indictment alleges that the 7th Brigade4220 and 306th Brigade plundered dwellings buildings and personal property belonging to Bosnian Croats and Bosnian Serbs in Miletići in April 1993 4221 The Indictment mentions that the Accused knew or had reason to know that the members of those units under their command and effective control were about to commit acts of plunder or had done so and failed to take the necessary and reasonable measures to prevent those acts from being committed or to punish the perpetrators 4222 As such it is alleged that the Accused committed the plunder of public or private property a violation of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute 4219 P 676 See Indictment paras 18-20 According to the Indictment the 7th Brigade also included the mujahedin since they were allegedly subordinated to and integrated into the 7th Brigade and played a major role in the combat operations conducted by the 7th Brigade 4221 Indictment para 44 4222 Ibid para 45 4220 Case No IT-01-47-T 545 15 March 2006 131 21623 BIS i Arguments of the Parties 1855 The Prosecution argues that the 3rd Corps soldiers were in Miletići on 24 April 1993 when that village was attacked and that the 306th Brigade was in Miletići until at least late April 1993 It submits that during that period the houses of the inhabitants in Miletići were plundered4223 and that the Accused Had‘ihasanović4224 had knowledge of those crimes but failed to take the appropriate and reasonable measures to punish the perpetrators 4225 1856 The Defence for the Accused Had‘ihasanović submits that the evidence fails to indicate the time when the plunder took place and the extent of that plunder This evidence also does not allow the assertion that the plunder was not justified by military necessity The Defence for the Accused Had‘ihasanović notes that the identity of the perpetrators has not been established Moreover the Defence for the Accused Had‘ihasanović argues that the 3rd Corps took all the necessary and reasonable measures to prevent the plunder of the villages and the potential recurrence of such acts and to punish the perpetrators once their identity had been established 4226 1857 The Defence for the Accused Kubura argues that the Prosecution failed to prove that the Accused Kubura exercised control over the perpetrators of the crimes allegedly committed in Miletići in April 1993 4227 According to the Defence for the Accused Kubura there is no evidence to demonstrate that the 7th Brigade soldiers were in Miletići or participated in the crimes committed there 4228 ii Findings of the Chamber regarding Plunder of Public or Private Property in Mileti i 1858 On 24 April 1993 at around 1700 hours the Suljić brothers came to alert their neighbours that foreign mujahedin were heading towards Miletići 4229 Some villagers then took refuge in the houses of Stipo Pavlović and Ivo Pavlović 4230 while others remained in the centre of the village 4231 When the mujahedin arrived in the village of Miletići they tied the hands of the villagers4232 and 4223 Prosecution Final Brief para 306 Ibid para 307 The Prosecution refers only to the Accused Had‘ihasanović and does not mention the Accused Kubura 4225 Ibid para 307 4226 Had‘ihasanović Defence Final Brief para 461 4227 Kubura Defence Final Brief para 66 4228 Ibid para 61 4229 P 392 under seal para 6 P 396 under seal para 2 Katica Kova ević T F pp 901-903 DH 2092 para 3 4230 P 392 under seal para 7 P 396 under seal para 4 Katica Kova ević T F p 906 4231 P 396 under seal para 4 P 393 under seal para 5 4232 P 392 under seal para 14 P 393 under seal para 8 P 396 under seal para 9 Katica Kova ević T F p 910 DH 2092 para 6 4224 Case No IT-01-47-T 546 15 March 2006 130 21623 BIS took them to Mehurići 4233 The 306th Brigade 1st Battalion Commander was informed of those events and went to Mehurići to start negotiations with the mujahedin 4234 The villagers were finally released at around 2230 hours and were transported by bus to Luka where they remained for two days 4235 1859 Contrary to what is asserted by the Prosecution 4236 the ABiH soldiers did not participate in the attack on the village of Miletići The evidence particularly witness testimony demonstrates that neither the 306th Brigade4237 nor the 7th Brigade4238 were in Miletići on 24 April 1993 and that they did not participate in that day’s events 4239 Only after the events in Miletići of 24 April 1993 did members of the 306th Brigade go on-site to investigate the events which had transpired and to protect the Croatian inhabitants of Miletići 4240 1860 Upon their return to Miletići on 26 April 1993 4241 villagers noticed that property had been stolen from them When Witness Z10 arrived in Miletići at around 0700 hours 4242 she found the livestock roaming free the house doors open and houses turned upside down 4243 Witnesses Z114244 and Z144245 noticed that the livestock belonging to them and other villagers had been stolen Witness Z14 stated however that no property inside his house had been plundered 4246 Other villagers however were robbed of their valuables 4247 and according to Witness Katica Kovačević several houses in Miletići had been broken into 4248 4233 P 392 under seal para 16 P 393 under seal para 9 Katica Kova ević T F p 1273 DH 2092 para 7 Sulejman Ribo T F p 11053 Derviš Suljić T F p 11312 4235 P 393 under seal para 10 P 396 under seal para 13 P 392 under seal para 19 Katica Kovačević T F p 1278 Sulejman Ribo T F pp 11055-11057 Derviš Suljić T F p 11313 4236 Indictment para 44 Prosecution Final Brief para 187 4237 Esed Sipić T F pp 14790-14791 Sulejman Ribo T F pp 11049-11050 4238 Esed Sipić T F p 14810 Derviš Suljić T F p 11330 Sulejman Ribo T F pp 11060-11061 Suad Jusović T F p 18429 D‘emal Merdan T F p 11399 DK 61 para 13 4239 See supra para 1100 4240 D‘emal Merdan T F pp 13120 13198 and 13199 P 396 under seal para 17 P 392 under seal para 26 4241 P 393 under seal paras 10-12 P 396 under seal para 15 P 392 under seal paras 6 and 25 Katica Kovačević T F p 1288 4242 P 392 under seal paras 18-25 4243 P 392 under seal para 25 4244 P 393 under seal para 13 4245 P 396 under seal para 18 4246 P 396 under seal para 18 4247 P 396 under seal para 18 4248 Katica Kovačević T F pp 1288-1289 4234 Case No IT-01-47-T 547 15 March 2006 129 21623 BIS 1861 In view of the above evidence the Chamber finds that plunder was committed in Miletići in April 1993 The Chamber notes that witnesses stated that they had been robbed of their livestock and had been victims of burglary 4249 1862 The Chamber finds that the 3rd Corps soldiers specifically the 7th Brigade and 306th Brigade members were not in Miletići on 24 April 1993 and therefore did not participate in the plunder which occurred in there On the contrary the evidence demonstrates that mujahedin were in Miletići on 24 April 1993 and that they carried out an attack against the villagers 4250 Witnesses described the mujahedin’s arrival in Miletići as well as the route they took towards Mehurići 4251 The Chamber further notes that upon his return to Miletići Witness Z14 learned that his personal property had been stolen by Muslim neighbours 4252 Noting that civilians may have been responsible for the acts of plunder the Chamber is therefore not in a position to establish beyond a reasonable doubt on the basis of the evidence the identity of the perpetrators of the plunder and as a result the participation of the 7th Brigade and 306th Brigade in the alleged acts iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi 1863 The Chamber has found that neither the 306th Brigade nor the 7th Brigade were in Miletići at the time of the alleged events and that as a result they did not participate in the plunder committed in Miletići 4253 Furthermore the Chamber has found that the mujahedin were not part of the 7th Brigade and were not subordinated to the 3rd Corps at the time of the alleged events 4254 The Chamber therefore concludes that the Accused Had‘ihasanović did not exercise effective control over the perpetrators of the plunder committed in Miletići in April 1993 iv Findings of the Chamber regarding the Responsibility of Amir Kubura 1864 The Chamber has found that the 7th Brigade was not in Miletići at the time of the alleged events and that as a result it did participate in the plunder committed in Miletići 4255 Furthermore the Chamber has found that the mujahedin were not part of the 7th Brigade and were not subordinated to it at the time of the alleged events The Chamber therefore concludes that the 4249 P 392 under seal para 25 P 393 under seal para 13 P 396 under seal para 18 Katica Kovačević T F pp 1288-1289 4250 P 148 DH 915 P 289 P 416 DH 923 4251 P 392 under seal paras 9 10 11 and 16 P 393 under seal para 5 P 396 under seal paras 5 and 9 Katica Kovačević T F p 906 4252 P 396 under seal para 21 4253 See supra para 1859 4254 See supra para 805 4255 See supra para 1859 Case No IT-01-47-T 548 15 March 2006 128 21623 BIS Accused Kubura did not exercise effective control over the perpetrators of the plunder committed in Miletići in April 1993 v Conclusions of the Chamber 1865 The Chamber first concluded that the identity of the perpetrators of the plunder committed in Miletići in April 1993 has not been established Furthermore it has found that neither the 7th Brigade nor the 306th Brigade were in Miletići at the material time Finally the Chamber has determined that the mujahedin were not under the effective control of the 7th Brigade in April 1993 Consequently the Chamber concludes that neither the Accused Had‘ihasanović nor the Accused Kubura can be held responsible for the plunder committed in Miletići in April 1993 b Gu a Gora 1866 The Indictment alleges that the 7th Brigade 4256 306th Brigade and 17th Brigade plundered dwellings buildings and personal property belonging to Bosnian Croats and Bosnian Serbs in Gu a Gora in June 1993 4257 The Indictment alleges that the Accused Had‘ihasanović knew or had reason to know that the members of those units under his command and effective control were about to commit acts of plunder or had done so and that he failed to take the necessary and reasonable measures to prevent those acts from being committed or to punish the perpetrators 4258 The Accused Had‘ihasanović is therefore accused of the plunder of public or private property a violation of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute 1867 The Chamber notes that while the Indictment mentions the 7th Brigade in relation to the plunder committed in Gu a Gora in June 1993 the Prosecution does not allege that the Accused Kubura incurred responsibility for the plunder committed by his subordinates i Arguments of the Parties 1868 The Prosecution submits that as of 9 June 1993 the 3rd Corps soldiers4259 plundered houses belonging to Croats in Gu a Gora and took away their war booty 4260 The Prosecution argues that 4256 See Indictment paras 18-20 According to the Indictment the 7th Brigade also included the mujahedin since they were allegedly subordinated to and integrated into the 7th Brigade and played a major role in the combat operations conducted by the 7th Brigade 4257 Indictment para 44 4258 Indictment para 45 4259 See Prosecution Final Brief para 308 The Prosecution does not specify which brigades are alleged to have participated in the plunder in Gu a Gora in June 1993 4260 Prosecution Final Brief paras 308 and 340 Case No IT-01-47-T 549 15 March 2006 127 21623 BIS the Accused Had‘ihasanović knew that crimes had been committed4261 and failed to take measures to punish the perpetrators of those crimes 4262 1869 The Defence for the Accused Had‘ihasanović submits that the evidence does not make it possible to know whether the activities observed constituted plunder and to affirm that the personal property that was plundered was of sufficient value that being deprived of it would have grave consequences for its owners The Defence for the Accused Had‘ihasanović adds that the identity of the perpetrators of the alleged plunder was not established Moreover the Defence for the Accused Had‘ihasanović submits that General Had‘ihasanović took measures to prevent and put an end to the plunder and to ensure that his subordinates who allegedly committed plunder would be handled in accordance with the laws in force 4263 ii Findings of the Chamber regarding the Plunder of Public or Private Property in Gu a Gora 1870 On 8 June 1993 the 306th Brigade forces reached the front line connecting the villages of Maline Gu a Gora Mosor and Bukovica 4264 Late in the afternoon of 8 June 1993 the 306th Brigade 2nd Battalion soldiers joined the 306th Brigade 3rd Battalion forces and occupied positions overlooking Gu a Gora 4265 The combat operations between the HVO and ABiH units continued until 10 June 1993 when the ABiH forces entered the village of Gu a Gora 4266 The same day the 306th Brigade units received the order to move towards the villages of Mosor and Radoj ići 4267 1871 The presence of foreign mujahedin in Gu a Gora was noticed in around mid-June 1993 4268 On 16 June 1993 the 306th Brigade and 3rd Corps Military Police tasked with securing Gu a Gora sector4269 went to the monastery and remained there until August 4270 Over the summer the 306th Brigade Command moved into the monastery in order to provide it better protection 4271 1872 Contrary to what is asserted by the Prosecution 4272 neither the 7th Brigade nor the 17th Brigade were in Gu a Gora during the combat operations The evidence demonstrates that the 7th 4261 Prosecution Final Brief para 348 Prosecution Final Brief para 349 4263 Had‘ihasanović Defence Final Brief para 657 4264 DK 22 4265 Salim Tarak ija T F p 11805 4266 Fahir amd‘ić T F p 11713 Esed Sipić T E p 14778 4267 Salim Tarak ija T F p 11805 4268 Vaughan Kent-Payne T F pp 4794-4795 D‘emal Merdan T F pp 13139-13140 DH 71 4269 DH 161 13 4270 Mahir Izet T F p 16804 4271 Munir Karić T F p 11457 Asim Delalić T F p 16404 4272 Prosecution Final Brief para 339 4262 Case No IT-01-47-T 550 15 March 2006 126 21623 BIS Brigade 1st Battalion conducted combat operations in Hajdareve Njive on 8 June 19934273 together with the 17th Brigade 4274 while the 7th Brigade 2nd and 3rd Battalions were operating in Ovnak sector 4275 On 9 June 1993 the 7th Brigade 1st Battalion and 17th Brigade units were engaged in Sibicara and Obuka 4276 which are located a few kilometres from Travnik 4277 The 306th Brigade was the only brigade involved in combat operations in Gu a Gora between 8 and 10 June 1993 4278 1873 From the positions he occupied in ifluk Witness ZJ noted that from 8 to 18 June 1993 4279 civilian trucks were moving around in Gu a Gora 4280 Witness ZJ assumed that the persons engaging in the plunder were ABiH members 4281 On 9 June 1993 when Witness Tomislav Rajić went to Gu a Gora 4282 he could see that the houses had not been plundered 4283 Only later during the conflict4284 was this witness’ house burned and plundered His Muslim neighbours alerted him that his clothes and household appliances had been stolen before his house was set on fire 4285 On 12 June 1993 while he was in ifluk Witness Dragan Radić watched4286 through his binoculars as cars and tractors4287 entered Gu a Gora loaded the property that was inside the houses and then left in the direction of Maline and Krepeljići 4288 Those who packed up the large objects refrigerators and furniture4289 into their trucks and trailers were men in military uniforms4290 and Muslim women in baggy trousers 4291 Since the village of Gu a Gora had been deserted Witness Dragan Radić believed that the soldiers who were in the village on 12 and 13 June 1993 must have belonged to the ABiH 4292 Witness Dragan Radić stated that he was in contact with Rasid Dautović one of his 4273 Remzija iljak T F pp 10572-10573 Semir Terzić T F p 18256 Safet Junuzović T F pp 18505-18508 Suad Jusović T F pp 18435-18437 DK 18 DK 19 DK 34 P 465 4274 Safet Junuzović T F p 18505 4275 Kasim Alajbegović T F p 18698 Elvedin Omić T F pp 18597-18599 4276 DK 42 4277 Safet Junuzović T F p 18506 4278 Fikret uskić T F p 12112 P 465 4279 Witness ZJ T F pp 4175-4176 The witness saw trucks moving around Gu a Gora in the ten days following 8 June 1993 4280 Witness ZJ T F pp 4175-4176 4281 Witness ZJ T F pp 4197-4198 4282 Tomislav Rajić T F p 2820 4283 Tomislav Rajić T F p 2822 4284 Tomislav Rajić T F p 2822 The exact date when the witness’ house was plundered and then burned is not specified but the witness stated that it was not 8 or 9 June 1993 4285 Tomislav Rajić T F p 2822 4286 Dragan Radić T F p 3557 4287 See DH 1978 and DH 2055 which demonstrate that it is possible to distinguish between different types of cars from a distance of 2550 metres the distance between ifluk and Gu a Gora 4288 Dragan Radić T F pp 3545-3546 4289 Dragan Radić T F pp 3546 and 3547 See DH 1978 and DH 2055 which demonstrate that it is possible to identify objects being loaded onto a truck from a distance of 2550 metres the distance between ifluk and Gu a Gora 4290 Dragan Radić T F pp 3546 to 3548 4291 Dragan Radić T F p 3546 4292 Dragan Radić T F p 3548 Case No IT-01-47-T 551 15 March 2006 125 21623 BIS friends who was an ABiH member and worked as the head of communications within the unit stationed at the time at the Gu a Gora monastery 4293 Rasid Dautović told Witness Dragan Radić that he went into Dragan Radić’s room and took rings gold chains and a jogging suit which belonged to Witness Dragan Radić 4294 In June 1993 4295 after the ABiH attack on Gu a Gora Witness Mark Bower went through Gu a Gora to go to Maline 4296 He saw that houses had been searched and that furniture was sitting outside 4297 He also saw people in military uniforms carrying household appliances 4298 According to Witness ZA right after the village of Gu a Gora fell 4299 the 7th Brigade Military Police brought in trucks requisitioned from civilians4300 and seized technical equipment household appliances building materials and food 4301 According to Witness ZA the 7th Brigade was followed by a military police unit from the 314th Brigade which also committed acts of plunder 4302 1874 In view of the above evidence the Chamber finds that plunder was committed repeatedly and extensively in Gu a Gora in June 1993 The Chamber notes that household appliances furniture and clothing were stolen from the houses belonging to the inhabitants of Gu a Gora 4303 Contrary to the allegations of the Defence for the Accused Had‘ihasanović 4304 the Chamber considers that the value of the plundered property and the repeated acts of plunder make it possible to conclude that the offence was serious 1875 The Chamber finds that property such as household appliances furniture and clothing was stolen 4305 Although the rules on war booty authorised the ABiH to seize private property that could be used directly for military purposes 4306 the Chamber considers that household appliances furniture and clothing do not fall into the category of property having direct military use Additionally contrary to the rules on war booty established by the ABiH Supreme Command the evidence does not demonstrate that receipts were given in exchange for the confiscation of this 4293 Dragan Radić T F pp 3548-3549 Dragan Radić T F pp 3548-3549 4295 Mark Bower T F p 5142 Vaughan Kent Payne T F p 5794 on 13 June Witness Vaughan Kent-Payne went to Gu a Gora with Witness Mark Bower 4296 Mark Bower T F p 5142 4297 Mark Bower T F pp 5145 and 5233 4298 Mark Bower T F pp 5233-5234 4299 Witness ZA T F p 2331 4300 Witness ZA T F p 2332 4301 Witness ZA T F pp 2330-2332 4302 Witness ZA T F p 2332 4303 Tomislav Rajić T F p 2822 Dragan Radić T F pp 3546-3547 Mark Bower T F pp 5233 and 5235 4304 See Had‘ihasanović Defence Final Brief para 657 “It cannot be established that the alleged plunder was of sufficient value to involve grave consequences ” 4305 Tomislav Rajić T F p 2822 Dragan Radić T F pp 3546 and 3547 Mark Bower T F pp 5233 and 5235 4306 See DH 1469 4294 Case No IT-01-47-T 552 15 March 2006 124 21623 BIS property 4307 The Chamber therefore concludes that the property in question was unlawfully and deliberately appropriated and that such appropriation went beyond the scope of war booty 1876 With regard to the perpetrators of the plunder the Chamber finds that the property and houses were plundered by civilians and ABiH soldiers The Chamber notes that witnesses stated that they had seen soldiers and civilians transporting property that was inside the houses in Gu a Gora Witness Dragan Radić who was in ifluk on 12 June 1993 4308 and Witness Mark Bower who was in Gu a Gora on 13 June 1993 4309 were able to identify men in military uniforms With regard to the participation of the ABiH in the alleged acts the Chamber concludes that plunder was committed by soldiers of the 306th Brigade which was the only brigade in Gu a Gora during the events in June 1993 4310 The Chamber also takes note of the statements of Witness ZA4311 and considers that it is not impossible that the 7th Brigade and 314th Brigade Military Police participated in the plunder in Gu a Gora The Chamber notes however that those statements were not corroborated by other testimony and that as a result it cannot conclude beyond a reasonable doubt that members of the 7th Brigade and 314th Brigade Military Police committed acts of plunder iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi a Effective Control of Enver Had ihasanovi over the Perpetrators of the Crime 1877 The Chamber finds that the plunder committed in Gu a Gora in June 1993 was the work in particular of the members of the 306th Brigade Given that the 306th Brigade was de jure subordinated to the 3rd Corps at the material time it is assumed that the Accused Had‘ihasanović exercised effective control over the members of the 306th Brigade and over the perpetrators of the plunder belonging to the 306th Brigade 1878 Furthermore the evidence shows that the 306th Brigade carried out the orders of the Accused Had‘ihasanović On 16 January 1993 the Accused Had‘ihasanović ordered the 306th Brigade Command to use part of its military police unit to secure Gu a Gora sector in order to 4307 DH 1469 The ABiH rules governing war booty provide that a certificate be given in exchange for the confiscation of certain private property 4308 Dragan Radić T F pp 3546-3548 See DH 1978 and DH 2055 which demonstrate that it is possible to see with binoculars civilians and soldiers from a distance of 2550 metres the distance between ifluk and Gu a Gora 4309 Mark Bower T F pp 5233-5234 4310 Fikret uskić T F p 12112 P 465 The 306th Brigade was the only brigade in Gu a Gora at the time of the alleged events 4311 Witness ZA T F pp 2330-2332 Case No IT-01-47-T 553 15 March 2006 123 21623 BIS prevent plunder and burning 4312 Following that order the 306th Brigade Commander ordered the military police to take measures to prevent the plunder and burning 4313 These documents prove that the orders of the Accused Had‘ihasanović reached the end of the chain of command 1879 Furthermore the Defence for the Accused Had‘ihasanović does not dispute the fact that the 306th Brigade was subordinated to the Accused Had‘ihasanović 1880 Consequently the Chamber concludes that the Accused Had ihasanovi exercised effective control over the perpetrators of the plunder and that there was a superior-subordinate relationship within the meaning of Article 7 3 of the Statute b Knowledge of Enver Had ihasanovi 1881 The Prosecution alleges that the Accused Had‘ihasanović had been informed of the crimes committed in Gu a Gora by officers under his command The Prosecution further argues that the orders prohibiting plunder given by the Accused Had‘ihasanović demonstrate that he was aware of the serious crimes that had been committed against property 4314 The Defence for the Accused Had‘ihasanović does not deny the fact that the Accused Had‘ihasanović was informed that soldiers were returning from Gu a Gora with bags full of plundered property 4315 1882 The Chamber considers that the Accused Had‘ihasanović had knowledge of the plunder committed in Gu a Gora A combat report of 11 June 1993 from the 3rd Corps Command signed by the duty officer and addressed to the Supreme Command notes that plunder had been committed in the village of Gu a Gora 4316 On 16 June 1993 General Had‘ihasanović gave an order to the 306th Brigade Command in which he pointed out that the plunder of property belonging to the Croatian population had been committed on a large scale in Gu a Gora sector during and after the fighting The order notes that this plunder committed by soldiers preoccupied with war booty might give rise to misinterpretations of the armed struggle conducted by the ABiH General Had‘ihasanović further insisted on the need to punish the perpetrators of such actions 4317 The Chamber further notes that during a meeting with Witness ZP on 20 June 1993 the Accused Had‘ihasanović 4312 P 158 P 204 4314 Prosecution Final Brief para 348 4315 Had‘ihasanović Final Brief para 632 4316 P 422 4317 P 158 4313 Case No IT-01-47-T 554 15 March 2006 122 21623 BIS acknowledged that he knew that soldiers were returning to Zenica with bags filled with property plundered in Gu a Gora 4318 c Measures Taken 1883 The Prosecution alleges that punitive measures4319 were not taken against the perpetrators of the plunder the perpetrators were not punished or prosecuted 4320 Conversely the Defence for the Accused Had‘ihasanović alleges that the Accused Had‘ihasanović took both preventive and punitive measures 4321 and refers to an order dated 16 June 1993 in which the 3rd Corps Command ordered military police units to take control of the region of Gu a Gora in order to prevent the plunder 4322 1884 With regard to preventive measures the Chamber notes that the Accused Had‘ihasanović issued orders on 104323 and 19 June 1993 4324 generally prohibiting acts of the plunder of property regardless of who owned the property or whether that property was in houses that had been abandoned The Accused Had‘ihasanović also took specific measures to prevent crimes in Gu a Gora by ordering on 16 June 1993 the 306th Brigade military police in concert with part of the military police units of the 312th Brigade and 3rd Corps to secure Gu a Gora sector and to prevent plunder from being committed 4325 Those orders were followed by measures taken by the subordinates of the Accused Had‘ihasanović On 18 June 1993 the 306th Command demanded that the military police take certain measures such as establishing check-points on the road into and out of Gu a Gora imposing a curfew from 2200 to 0500 hours and setting up daily patrols all in order to avoid the plunder of property by civilians and ABiH members 4326 1885 The Chamber considers that measures intended to punish the perpetrators of the plunder were also taken In the context of the measures of a general nature intended to prevent the plunder the Accused Had‘ihasanović ordered on 10 and 19 June 1993 that severe punishment be meted out to the perpetrators of such acts which could include the officer being dismissed detained or 4318 Witness ZP T F p 8863 P 589 Prosecution Final Brief para 348 The Prosecution mentions the absence of punitive measures and does not raise the issue of preventive measures 4320 Prosecution Final Brief para 348 4321 Had‘ihasanović Defence Final Brief para 657 4322 Ibid para 631 4323 P 186 4324 DH 65 4325 P 158 4326 P 204 4319 Case No IT-01-47-T 555 15 March 2006 121 21623 BIS brought before military courts 4327 On 16 June 1993 the Accused Had‘ihasanović ordered that commissions or persons within the brigades be appointed to investigate acts of plunder to identify and prosecute the perpetrators of the crimes and to return the plundered property With regard to the measures dealing more specifically with the crimes committed in Gu a Gora the order of 16 June 1993 specifies that the perpetrators of the plunder in Gu a Gora sector must be punished 4328 Some of the other measures taken by the Accused Hadžihasanović are discussed later in this Judgement 4329 iv Conclusions of the Chamber 1886 The Chamber considers that the Accused Had‘ihasanović knew that plunder had been committed in Gu a Gora in June 1993 by members of the 306th Brigade The Chamber finds that the Accused Had‘ihasanović took preventive measures to prevent acts of plunder and measures intended to punish the perpetrators Consequently the Accused Had‘ihasanović cannot be held responsible for the plunder committed in Gu a Gora in June 1993 c Maline 1887 The Indictment alleges that members of the 7th Brigade4330 and 306th Brigade plundered dwellings buildings and personal property belonging to Bosnian Croats and Bosnian Serbs in Maline in June 1993 4331 The Indictment indicates that the Accused knew or had reason to know that the members of those units under their command and effective control were about to commit acts of plunder or had done so and failed to take the necessary and reasonable measures to prevent those acts from being committed or to punish the perpetrators 4332 The Accused Had‘ihasanović and the Accused Kubura are accused of plunder of public or private property a violation of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute i Arguments of the Parties 1888 The Prosecution alleges that 3rd Corps units were in Maline on 8 June 1993 and that 3rd Corps soldiers committed acts of plunder 4333 The Prosecution submits that the Accused 4327 P 186 DH 65 P 158 4329 Para 2018 ff 4330 See Indictment paras 18-20 According to the Indictment the 7th Brigade also included the mujahedin since they were allegedly subordinated to and integrated into the 7th Brigade and played a major role in the combat operations conducted by the 7th Brigade 4331 Ibid para 44 4332 Ibid para 45 4333 Prosecution Final Brief para 309 4328 Case No IT-01-47-T 556 15 March 2006 120 21623 BIS Had‘ihasanović had been informed of those crimes and that he failed to take measures to punish the perpetrators 4334 1889 The Defence for the Accused Had‘ihasanović alleges that based on the evidence it is not possible to know if plunder was committed or to know the value of the allegedly plundered property The evidence also does not demonstrate whether the plunder was unlawful and not justified by military necessity The Defence for the Accused Had‘ihasanović adds that the identity of the perpetrators of the alleged plunder has not been established Furthermore it submits that the 3rd Corps took all the necessary and reasonable measures to prevent the plunder to avoid the repetition of the plunder and to punish the perpetrators once their identity had been established 4335 1890 The Defence for the Accused Kubura submits that the Prosecution failed to prove that the Accused Kubura exercised control over the perpetrators of the crimes allegedly committed in Maline in June 1993 4336 According to the Defence for the Accused Kubura there is no proof that the members of the 7th Brigade were present in Maline or had participated in crimes committed there 4337 and the evidence demonstrates that the 7th Brigade units were elsewhere at the material time 4338 ii Findings of the Chamber regarding Plunder of Public or Private Property in Maline 1891 On 7 June 1993 the village of Maline was attacked from HVO positions 4339 In the early hours of the morning of 8 June 1993 the HVO and the ABiH exchanged fire 4340 Only when the HVO stopped resisting did the ABiH troops composed of the 306th Brigade 1st and 4th Battalions enter Maline 4341 At 1000 hours on 8 June 1993 the 306th Brigade 1st Battalion Military Police arrived in Maline in order to assist in the evacuation of the civilian population 4342 Part of the battalion escorted 200 inhabitants towards Mehurići while the rest of the battalion remained in Maline to protect the villagers’ property 4343 The column of villagers escorted by the military 4334 Ibid para 310 Had‘ihasanović Defence Final Brief para 549 4336 Kubura Defence Final Brief para 66 4337 Ibid paras 61 and 91 4338 Ibid para 91 4339 Salim Tarak ija T F p 11803 4340 P 387 under seal par 7 Salim Tarak ija T F pp 11804 11850 and 11851 4341 Salim Tarak ija T F p 11804 4342 Witness HB T F pp 12589-12590 DH 2090 para 6 4343 Witness HB T F p 12592 DH 2090 para 7 Witness ZF T F pp 3604 and 3605 Witness XB T F pp 16441645 Berislav Marjanović T F pp 2700 and 2701 4335 Case No IT-01-47-T 557 15 March 2006 119 21623 BIS police was intercepted not far from Poljanice by a group of mujahedin who took some villagers in the direction of Bikoši 4344 1892 Contrary to the allegations of the Prosecution 4345 the 7th Brigade did not participate in the combat operations in Maline In fact the evidence shows that the 7th Brigade 1st Battalion conducted combat operations in Hajdareve Njive 4346 located about 12 kilometres from Maline 4347 while at the time of the alleged events the 7th Brigade 2nd and 3rd Battalions were operating in Ovnak sector 4348 1893 On 8 June 1993 at around 0900 or 1000 hours Witness HB went to Maline in order to help in the evacuation of the civilian population4349 and to prevent the plunder 4350 The witness went back in the direction of Mehurići at around 1430 or 1500 hours 4351 accompanied by a column of 200 villagers 4352 Witness ZK who was in the column of villagers did not see any plundering in Maline before his departure in the direction of Mehurići 4353 Before being transferred to Mehurići on 8 June 1993 4354 Witness Ivanka Tavić went through the village of Maline and saw soldiers entering and exiting houses When she returned home in 1996 Witness Ivanka Tavić saw that even the door to her house had disappeared 4355 According to Witness ZF soldiers plundered her house and carried away objects belonging to her in their truck 4356 Witness ZL who was captured by the Muslim army 4357 had the opportunity to return home before being taken in the direction of Mehurići 4358 Muslim soldiers were in the process of searching the witness’ house and took his bicycle and some tobacco coffee and flour 4359 On the road on his way towards Mehurići Witness Z15 saw his Muslim neighbours plundering household appliances from Croatian homes and saw ABiH soldiers stealing cars tractors and trucks 4360 Witness Zdravko Pranješ saw ABiH soldiers4361 4344 Ivanka Tavić T F p 1165 Zdravko Pranješ T F pp 1372 and 1380 Witness HB T F pp 12637-12638 Witness XB T F pp 1645-1646 4345 Prosecution Final Brief paras 194-196 4346 Remzija iljak T F pp 10572-10573 Semir Terzić T F p 18256 Safet Junuzović T F pp 18507-18508 Suad Jusović T F pp 18435-18437 DK 18 DK 19 DK 34 P 465 4347 Remzija iljak T F p 10575 4348 Kasim Alajbegović T F p 18698 Elvedin Omić T F pp 18597-18599 4349 Witness HB T F p 12589 4350 Witness HB T F p 12596 4351 Witness HB T F p 12592 4352 Witness HB T F p 12593 4353 P 92 para 18 4354 Ivanka Tavić T F pp 1161-1163 4355 Ivanka Tavić T F pp 1166-1167 4356 Witness ZF T F pp 3594 and 3595 See Had‘ihasanović Defence Final Brief para 538 the Defence for the Accused Had‘ihasanović questions the credibility of Witness ZF because of her memory lapses during her testimony 4357 Witness ZL T F p 4384 4358 Witness ZL T F p 4385 4359 Witness ZL T F pp 4385 and 4386 4360 P 397 under seal para 9 Case No IT-01-47-T 558 15 March 2006 118 21623 BIS take motorised vehicles that were in the village 4362 In the late afternoon of 8 June 1993 4363 ABiH soldiers stole two lambs which belonged to Witness Z5 4364 The next day in the morning Witness Z5 watched civilian Muslims mainly his Muslim neighbours from Donje Maline plunder the Croatian houses in Maline According to the witness they also plundered his house and took household appliances and food away with them The witness did not remember seeing ABiH soldiers take part in the plunder but pointed out that the army did nothing to put a stop to it 4365 When he went to Gornje Maline 20 to 25 days after the attack of 8 June 1993 Witness Salim Tarak ija noticed that the houses belonging to Croats had been plundered 4366 Likewise the ECMM observers noted on 3 August 1993 that the village of Maline had been plundered 4367 1894 In view of the above evidence the Chamber finds that plunder was committed extensively and repeatedly in Maline on 8 and 9 June 1993 The Chamber notes that the witnesses who lived in Maline noticed on 8 June 1993 that houses and property belonging to Croatian inhabitants had been plundered 4368 This plunder continued during the day of 9 June 1993 4369 and household appliances 4370 cars 4371 food 4372 and livestock4373 were plundered The Chamber considers that the value of the plundered property and the repeated acts of plunder make it possible to conclude that the offence was serious 1895 The Chamber finds that property such as household appliances 4374 cars 4375 food4376 and livestock4377 was stolen Although the rules on war booty authorised the ABiH to seize private property that could be used directly for military purposes 4378 the Chamber considers that household appliances food and livestock do not fall within the category of property having direct military 4361 Zdravko Pranješ T F p 1368 Zdravko Pranješ T F p 1369 4363 P 387 under seal para 9 4364 P 387 under seal para 11 4365 P 387 under seal para 15 4366 Salim Tarak ija T F p 11860 4367 P 164 4368 Witness ZF T F pp 3594-3595 Witness ZL T F pp 4385-4386 P 397 under seal para 9 Zdravko Pranješ T F p 1369 P 387 under seal paras 11 and 15 4369 P 387 under seal para 15 4370 P 397 under seal para 9 P 387 under seal para 15 4371 P 397 under seal para 9 Zdravko Pranješ T F p 1369 4372 Witness ZL T F pp 4385 and 4386 P 387 para 15 4373 P 387 under seal para 11 4374 P 397 under seal para 9 P 387 under seal para 15 4375 P 397 under seal para 9 Zdravko Pranješ T F p 1369 4376 Witness ZL T F pp 4385-4386 P 387 under seal para 15 4377 P 387 under seal para 11 4378 See DH 1469 4362 Case No IT-01-47-T 559 15 March 2006 117 21623 BIS use Additionally contrary to the rules on war booty established by the ABiH Supreme Command the evidence does not demonstrate that receipts were given in exchange for the confiscation of this property 4379 The Chamber therefore concludes that the property in question was unlawfully and deliberately appropriated and that such appropriation went beyond the scope of war booty 1896 With regard to the perpetrators the Chamber finds that the property was plundered by civilians and by ABiH soldiers The Chamber notes that witnesses stated that they saw Muslim soldiers and civilians entering and exiting houses taking with them property belonging to the Croatian inhabitants of Maline 4380 Contrary to what the Prosecution alleges 4381 the Chamber considers that with regard to the participation of the ABiH plunder was committed by 306th Brigade members and not by 7th Brigade units which were not in Maline at the material time 4382 iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi a Effective Control of Enver Had ihasanovi over the Perpetrators of the Crimes 1897 The Chamber finds that the plunder in Maline in June 1993 was committed in particular by members of the OG Bosanska Krajina 306th Brigade 4383 Since the OG Bosanska Krajina 306th Brigade was de jure subordinated to the 3rd Corps at the material time it is presumed that the Accused Had‘ihasanović exercised effective control over the members of the 306th Brigade and over the perpetrators of the plunder who belonged to the 306th Brigade 1898 Furthermore the evidence shows that the 306th Brigade carried out the orders of the Accused Hadžihasanović through the OG Bosanska Krajina For example following a request from the Accused Hadžihasanović on 17 October 19934384 for information about the events which occurred in Maline the 306th Brigade sent a report to the 3rd Corps Command on 19 October 1993 which provided information about the execution of 25 persons of Croatian nationality 4385 4379 DH 1469 The ABiH rules governing war booty provide that a certificate be given in exchange for the confiscation of certain private property 4380 Ivanka Tavić T E p 1166 Witness ZF T F pp 3594-3595 Witness ZL T F pp 4385-4386 P 397 under seal para 9 Zdravko Pranješ T F p 1368 P 387 under seal para 15 4381 See Indictment para 44 4382 Remzija iljak T F pp 10572-10573 Semir Terzić T F p 18256 Safet Junuzović T F pp 18507-18508 Suad Jusović T F pp 18435-18437 DK 18 DK 19 DK 34 P 465 Kasim Alajbegović T F p 18698 Elvedin Omić T F pp 18597-18599 4383 See P 710 DH 1322 the 306th Brigade was subordinated to the OG Bosanska Krajina 4384 P 111 4385 DH 1498 Case No IT-01-47-T 560 15 March 2006 116 21623 BIS 1899 Furthermore the Defence for the Accused Had‘ihasanović does not dispute that the 306th Brigade was subordinated to the Accused Had‘ihasanović 1900 Consequently the Chamber concludes that the Accused Had‘ihasanović exercised effective control over the perpetrators of the plunder and that a superior-subordinate relationship existed within the meaning of Article 7 3 of the Statute b Knowledge of Enver Had ihasanovi 1901 The Chamber finds that as of 10 June the Accused Had‘ihasanović issued several orders to all the units subordinated to him in which he explicitly mentioned the plunder that was committed following the combat operations and in which he recalled that the perpetrators of those acts must be punished 4386 The Chamber first notes that the Accused Had‘ihasanović repeatedly raised the issue of the plunder throughout the month of June 1993 The Chamber also notes that while those orders do not expressly make reference to the village of Maline they do mention acts of plunder committed in sectors where fighting or combat activities between the HVO and ABiH took place Accordingly the Chamber considers that the Accused Had‘ihasanović had knowledge of the problems associated with the plunder in all the zones in which his troops were engaged including the village of Maline Moreover the Chamber considers that the presence of D‘emal Merdan in Maline alongside ECMM observers on 3 August 1993 and their observations that the village of Maline had been plundered4387make it possible to establish beyond a shadow of a doubt that the Accused Had‘ihasanović had knowledge of the plunder committed in Maline in June 1993 c Measures Taken 1902 The Chamber considers that the Accused Had‘ihasanović took measures of a general nature prohibiting the plunder and also issued orders intended to prevent the plunder and punish the perpetrators As the issue of the measures taken by the Accused Had‘ihasanović is developed in the part “Findings of the Chamber on Measures Taken by the Accused Hadžihasanović regarding Destruction and Plunder” the Chamber refers to the relevant paragraphs of the Judgement 4388 4386 P 186 P 189 DH 65 P 164 4388 See infra paras 2018-2063 4387 Case No IT-01-47-T 561 15 March 2006 115 21623 BIS iv Findings of the Chamber regarding the Responsibility of Amir Kubura 1903 The Chamber found that the 7th Brigade units did not participate in the plunder committed in Maline but that the crimes were committed by members of the 306th Brigade and by civilians Since the units from the 306th Brigade were not subordinated to the Accused Kubura the Chamber finds that he did not exercise effective control over the perpetrators of the crimes committed in Maline in June 1993 v Conclusions of the Chamber 1904 The Chamber considers that the Accused Had‘ihasanović knew that plunder had been committed in Maline in June 1993 by members of the 306th Brigade Nevertheless the Chamber finds that the Accused Had‘ihasanović took both preventive measures to prevent acts of plunder and measures intended to punish the perpetrators Consequently the Accused Had‘ihasanović cannot be held responsible for the plunder committed in Maline in June 1993 1905 The Chamber further finds that the 7th Brigade units were not in Maline in June 1993 Accordingly the Chamber considers that the perpetrators of the plunder committed in Maline were not under the effective control of the Accused Kubura and that he cannot be held responsible for the crimes committed d ukle 1906 The Indictment alleges that 7th Brigade soldiers4389 and 306th Brigade soldiers plundered dwellings buildings and personal property belonging to Bosnian Croats and Bosnian Serbs in ukle in June 1993 4390 The Indictment alleges that the Accused Had‘ihasanović knew or had reason to know that the members of those units under his command and effective control were about to commit acts of plunder or had done so and that he failed to take the necessary and reasonable measures to prevent those acts from being committed or to punish the perpetrators 4391 The Accused Had‘ihasanović is charged with plunder of public or private property a violation of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute 1907 Although the Indictment mentions the 7th Brigade in relation to the plunder committed in ukle in June 1993 the Chamber notes that it does not allege the responsibility of the Accused Kubura for the plunder committed by his subordinates 4389 See Indictment paras 18-20 According to the Indictment the 7th Brigade also included the mujahedin since they were allegedly subordinated to and integrated into the 7th Brigade and played a major role in the combat operations conducted by the 7th Brigade Case No IT-01-47-T 562 15 March 2006 114 21623 BIS i Arguments of the Parties 1908 The Prosecution alleges that on the day of and the day following the attack the 3rd Corps soldiers plundered the property of the Croatian inhabitants of ukle 4392 Moreover the Prosecution asserts that the Accused Had‘ihasanović and the Accused Kubura knew that property belonging to civilian Croats had been plundered in the sectors of Gu a Gora ušanj and Ovnak and points out that the Accused failed to take measures to stop the crimes committed in ukle and to punish the perpetrators 4393 The Chamber notes however that the Indictment contains no charge against the Accused Kubura for the plunder committed in ukle in June 1993 and that as a result it may not be seized of the question of his responsibility as regards the plunder committed in ukle in June 1993 Accordingly the Chamber will not elaborate upon the Prosecution’s arguments dealing with the knowledge of and the measures taken by the Accused Kubura as regards the plunder committed in ukle in June 1993 1909 The Defence for the Accused Had‘ihasanović does not dispute that plunder was committed on the day of the fighting but argues that most of the plunder was committed after the fighting was over The Defence for the Accused Had‘ihasanović adds that it has not been established that the plundered property was of sufficient value that being deprived of it involved grave consequences With regard to the perpetrators of the plunder the Defence for the Accused Had‘ihasanović argues that while soldiers may have been involved in individual acts of plunder most of the plunder was the work of civilians Furthermore the Defence for the Accused Had‘ihasanović submits that General Had‘ihasanović took measures to prevent the plunder to stop the plunder and to ensure that the subordinates who committed plunder would be dealt with in accordance with the laws in force 4394 ii Findings of the Chamber regarding Plunder of Public or Private Property in ukle 1910 On 5 June 1993 the units of the 7th Brigade received the order to launch an attack on the Vrselje-Crni Vrh-Ušice- ukle-Brajkovići axis and to take control of the villages of ukle and Novo Selo 4395 At around 0430 hours on the morning of 8 June 1993 the village of ukle was attacked 4396 During that offensive the HVO front line located at the village of ukle in the hamlet 4390 Indictment para 44 Indictment para 45 4392 Prosecution Final Brief para 313 4393 Ibid para 319 4394 Had‘ihasanović Defence Final Brief para 585 4395 P 419 P 420 4396 Jozo Erenda T F p 4265 4391 Case No IT-01-47-T 563 15 March 2006 113 21623 BIS of Mrkonje Kuće was breached 4397 The HVO units thus left in the direction of Ovnak and Grahov ići 4398 The inhabitants of the village also withdrew towards Ovnak 4399 1911 Contrary to the allegations of the Prosecution 4400 the 306th Brigade did not take part in the attack on ukle The evidence in fact shows that on 8 June 1993 that brigade was moving towards the Maline-Gu a Gora-Mosor-Bukovica axis 4401 In fact the 306th Brigade 1st and 4th Battalions were fighting in Maline4402 while the 2nd and 3rd Battalions were in Gu a Gora 4403 1912 When the attack on ukle began on 8 June 1993 Witness ZD fled towards the forest 4404 and from there he could see the Muslim troops4405 plundering property and seizing objects such as tractors 4406 Right before he left the village of ukle at around noon on 8 June 1993 in the direction of Grahov ići 4407 Witness Ivo Kolenda noticed that soldiers were taking out all of his animals his horse and his livestock 4408 The witness believed that those who committed that plunder were members of the 7th Brigade 4409 On the afternoon of 8 June 1993 Witness Z2 saw a soldier and Muslim civilians plundering a store in Donje ukle and transporting the plundered property with a tractor 4410 This plunder continued on 9 June 1993 and the witness assumed that the plunderers were Muslim soldiers 4411 Witness Z3 was detained between 8 and 12 June 1993 in the village of Bare which is on a hill one kilometre from ukle 4412 From where he was the witness could see ABiH soldiers in green camouflage uniforms loading furniture household appliances and livestock into civilian trucks and then take the plundered property towards Zenica 4413 About two weeks after the attack on 8 June 1993 4414 for the purposes of the Civil Defence 4415 Witness ZA went to Ovnak zone4416 and saw soldiers plunder houses in ukle 4417 According to Witness ZA immediately after 4397 Witness ZM T F p 4699 Jozo Erenda T F pp 4266 and 4272 4399 Ivo Kolenda T F p 4469 P 384 under seal para 5 4400 See Indictment para 44 Prosecution Final Brief paras 311-312 4401 P 579 4402 Salim Tarak ija T F p 11804 4403 Salim Tarak ija T F p 11805 4404 Witness ZD T F pp 3384-3385 4405 Witness ZD T F p 3387 4406 Witness ZD T F p 3386 4407 Ivo Kolenda T F p 4470 4408 Ivo Kolenda T F p 4471 4409 Ivo Kolenda T F p 4472 The witness believed that it was the 7th Brigade since that brigade had attempted on several occasions to attack HVO forces in U iće and Grahov ići 4410 P 384 under seal para 12 4411 P 384 under seal para 15 4412 P 385 under seal para 8 4413 P 385 under seal para 8 4414 Witness ZA T F p 2330 4415 Witness ZA T F p 2330 4416 Witness ZA T F pp 2327-2328 4398 Case No IT-01-47-T 564 15 March 2006 112 21623 BIS the villages in the Ovnak region fell the 7th Brigade Military Police brought in trucks requisitioned from civilians4418 and seized technical equipment household appliances building materials and food 4419 The 7th Brigade was followed by a police unit of the 314th Brigade which also committed acts of plunder 4420 1913 In view of the above evidence the Chamber finds that plunder was committed repeatedly and extensively in ukle in June 1993 The Chamber notes that many houses and outbuildings in ukle were plundered Livestock furniture and household appliances were stolen from these places 4421 Contrary to the allegations of the Defence for the Accused Had‘ihasanović 4422 the Chamber considers that the value of the plundered property and the repeated acts of plunder make it possible to conclude that the offence was serious 1914 The Chamber finds that livestock furniture and household appliances were stolen 4423 Although the ABiH rules on war booty authorised the army to seize private property that could be used directly for military purposes 4424 the Chamber considers that household appliances furniture and livestock do not fall into the category of property having direct military use Additionally contrary to the rules on war booty established by the ABiH Supreme Command the evidence does not demonstrate that receipts were given in exchange for the confiscation of this property 4425 The Chamber therefore concludes that the property in question was unlawfully and deliberately appropriated and that such appropriation went beyond the scope of war booty 1915 As regards the perpetrators the Chamber considers that the plunder was in large part committed by the 7th Brigade Military Police The Chamber finds that following the fall of ukle the members of the 7th Brigade Military Police had at their disposal trucks requisitioned from civilians and took with them property that was inside the houses in ukle 4426 4417 Witness ZA T F pp 2330-2331 Witness ZA T F p 2332 4419 Witness ZA T F pp 2330-2332 4420 Witness ZA T F p 2332 4421 Ivo Kolenda T F p 4471 P 385 under seal para 8 Witness ZA T F pp 2330-2332 4422 Had‘ihasanović Defence Final Brief para 585 “It cannot be established that the initial looting was of sufficient value to involve grave consequences ” 4423 Ivo Kolenda T F p 4471 P 385 under seal para 8 Witness ZA T F pp 2330-2332 4424 See DH 1469 4425 DH 1469 The ABiH rules governing war booty provide that a certificate be given in exchange for the confiscation of certain private property 4426 Witness ZA T F pp 2330-2332 4418 Case No IT-01-47-T 565 15 March 2006 111 21623 BIS iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi a Effective Control of Enver Had ihasanovi over the Perpetrators of the Crime 1916 The Chamber finds that the plunder alleged in paragraph 44 of the Indictment was committed by the members of the military police subordinated to the 7th Brigade 4427 Since the 7th Brigade was de jure subordinated to the 3rd Corps at the material time it is presumed that the Accused Had‘ihasanović exercised effective control over the 7th Brigade and over the perpetrators of the plunder 1917 Moreover the evidence shows that the tactical group composed in particular of 7th Brigade units followed the orders of the 3rd Corps Command and reported to it on the progress of the combat operations in Ovnak sector The combat report from the Zenica Op O of 11 June 1993 addressed to the 3rd Corps Command indicates that the tactical group made an assessment of the situation in Ovnak sector and that combat reports were prepared which were approved by the 3rd Corps Command 4428 Moreover following the order of 16 June 1993 from the 3rd Corps Command demanding information on the allegations of plunder committed by soldiers after combat operations 4429 the 7th Brigade Command sent a report to the 3rd Corps Command specifying that measures had been taken to prevent the acts of plunder and denying that such acts had been committed by 7th Brigade units in Ovnak sector 4430 1918 Likewise the Defence for the Accused Hadžihasanović does not dispute that the 7th Brigade was subordinated to the Accused Hadžihasanović and presented no evidence to refute such a presumption 1919 Consequently the Chamber concludes that the Accused Had‘ihasanović exercised effective control over the perpetrators of the plunder and that a superior-subordinate relationship existed within the meaning of Article 7 3 of the Statute 4427 See supra para 346 P 423 4429 P 189 4430 P 426 4428 Case No IT-01-47-T 566 15 March 2006 110 21623 BIS b Knowledge of Enver Had ihasanovi 1920 The Prosecution alleges that both Accused were informed of the plundering in the sectors of Gu a Gora ušanj and Ovnak 4431 The Prosecution points to the meeting between the Accused Had‘ihasanović and Witness ZP during which the witness mentioned that the soldiers were returning with bags filled with plundered property 4432 Furthermore the Prosecution considers that the order given by the Accused Kubura on 20 June 1993 prohibiting the plunder of the abandoned houses suggests that he was informed by the Accused Had‘ihasanović of the acts of plunder that had been committed 4433 The Defence for the Accused Had‘ihasanović does not raise the issue of knowledge 1921 The Chamber finds that as of 10 June 1993 the Accused Had‘ihasanović issued several orders to all the units under his command in which he explicitly mentioned the plunder that was committed following the combat operations and in which he reiterated that the perpetrators of those acts must be punished 4434 The Chamber notes that the Accused Had‘ihasanović repeatedly raised the issue of the plunder throughout the month of June 1993 The Chamber also notes that while those orders do not expressly make reference to the village of ukle they do mention acts of plunder committed in sectors where fighting or combat activities between the HVO and ABiH took place Accordingly the Chamber considers that the Accused Had‘ihasanović had knowledge of the problems associated with the plunder in all the zones in which his troops were engaged including in the village of ukle The Chamber further notes that during a meeting with Witness ZP on 20 June 1993 the Accused Had‘ihasanović acknowledged that he knew that soldiers under his command were involved in acts of plunder 4435 Furthermore the Chamber recalls that it need not consider the question of whether the Accused Kubura had knowledge of the plunder committed in ukle in June 1993 c Measures Taken 1922 The Prosecution alleges that neither the Accused Had‘ihasanović nor the Accused Kubura took the necessary and reasonable measures to stop those crimes or to punish the perpetrators 4436 The Prosecution adds that the order given on 20 June 1993 by the Accused Kubura prohibiting plunder does not constitute a sufficient measure to consider that a commander has fulfilled his 4431 Prosecution Final Brief para 319 Ibid para 317 4433 Ibid para 318 4434 P 186 P 189 DH 65 P 188 4435 Witness ZP T F p 8863 P 589 4436 Prosecution Final Brief para 319 4432 Case No IT-01-47-T 567 15 March 2006 109 21623 BIS obligations According to the Prosecution the Accused Kubura had the duty to open an investigation so that the perpetrators of crimes would be prosecuted 4437 1923 The Defence for the Accused Had‘ihasanović alleges that the Accused Had‘ihasanović took preventive measures both to prevent and stop the plunder and measures to ensure that his subordinates who allegedly committed acts of plunder would be dealt with in accordance with the laws in force 4438 1924 The Chamber considers that since the Accused Kubura was not mentioned in the Indictment in relation to the plunder committed in ukle in June 1993 the question of measures taken by him need not be raised 1925 The Chamber considers that the Accused Had‘ihasanović took measures of a general nature prohibiting plunder and also issued orders intended to prevent plunder and punish the perpetrators As the issue of the measures taken by the Accused Had‘ihasanović is developed in the part “Findings of the Chamber on Measures Taken by the Accused Hadžihasanović regarding Destruction and Plunder” the Chamber refers to the relevant paragraphs of the Judgement 4439 iv Conclusions of the Chamber 1926 The Chamber considers that the Accused Had‘ihasanović knew that plunder had been committed in ukle in June 1993 by members of the 7th Brigade Military Police Nevertheless the Chamber finds that the Accused Had‘ihasanović took preventive measures to prevent acts of plunder and measures intended to punish the perpetrators Consequently the Accused Had‘ihasanović cannot be held responsible for the plunder committed in ukle in June 1993 Furthermore despite the allegations by the Prosecution in its Final Brief 4440 the Chamber considers that it may not be seized of the question of the responsibility of the Accused Kubura since the Indictment does not charge him with the plunder committed in ukle in June 1993 e u anj Ovnak Brajkovići Grahovčići 1927 The Indictment alleges that the 7th Brigade 4441 the 306th Brigade and the 314th Brigade plundered dwellings buildings and personal property belonging to Bosnian Croats and Bosnian 4437 Prosecution Final Brief para 318 Had‘ihasanović Defence Final Brief para 585 4439 See supra paras 2018-2063 4440 Prosecution Final Brief para 319 4441 See Indictment paras 18-20 According to the Indictment the 7th Brigade also included the mujahedin since they were allegedly subordinated to and integrated into the 7th Brigade and played a major role in the combat operations conducted by the 7th Brigade 4438 Case No IT-01-47-T 568 15 March 2006 108 21623 BIS Serbs in ušanj Ovnak Brajkovići and Grahov ići in June 1993 4442 The Indictment sets out that the Accused knew or had reason to know that the members of these units who were under their command and effective control were about to commit acts of plunder or had done so and failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrators 4443 The Accused are charged with the plunder of public and private property a violation of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute i Arguments of the Parties 1928 The Prosecution alleges that soldiers belonging to the 7th Brigade 314th Brigade and 306th Brigade attacked the villages of u anj Ovnak Brajkovići Grahovčići During and immediately after the attacks buildings were plundered some by the 7th Brigade 4444 The Prosecution holds that both of the Accused had been informed about the plunder committed in these villages4445 and that with the exception of written orders prohibiting the commission of crimes the Accused failed to take any measures to prevent these crimes or punish the perpetrators 4446 1929 The Defence for the Accused Had‘ihasanović alleges that based on the evidence it is not possible to know what had been plundered the extent of the plunder or the value of the plundered property Furthermore the evidence does not make it possible to know if the plunder was unlawful and not justified by military necessity or whether it amounted to war booty The Defence for the Accused Had‘ihasanović posits that the identity of the plunderers has not been established and that the 3rd Corps took all the necessary and reasonable measures to prevent the plunder to avoid the repetition of plunder and to punish the perpetrators once their identity had been established 4447 1930 The Defence for the Accused Had ihasanovi does not dispute the presence of 7th Brigade units in Ovnak on 8 June 19934448 but claims that the perpetrators of the plunder were not identified as belonging to the 7th Brigade 4449 The Defence for the Accused Kubura claims that it was not possible for 7th Brigade soldiers to commit acts of plunder4450 since they had left the zone of the Ovnak pass on 8 June 1993 and headed towards Kakanj 4451 The Defence for the Accused Kubura 4442 Indictment para 44 Ibid para 45 4444 Prosecution Final Brief para 320 4445 Ibid paras 321 and 322 4446 Ibid para 322 4447 Had‘ihasanović Defence Final Brief para 734 4448 Kubura Defence Final Brief para 168 4449 Ibid paras 164 and 182 4450 Ibid para 175 4451 Ibid paras 173-174 4443 Case No IT-01-47-T 569 15 March 2006 107 21623 BIS added that different brigades and units were also in the Ovnak sector at the time material to the alleged facts 4452 ii Findings of the Chamber regarding the Plunder of Public or Private Property in u anj Ovnak Brajkovići Grahovčići 1931 In early June 1993 combat operations were conducted in the direction of the Bila Valley 4453 The ABiH decided to attack the pass at Ovnak that was occupied by HVO forces because of the tactical and operational interest of the sector 4454 As the 306th Brigade was in a difficult position facing the HVO forces it was decided to use other 3rd Corps units in the Ovnak sector in order to assist the 306th Brigade 4455 Consequently a tactical group under the command of the Accused Kubura consisting of 7th Brigade and 314th Brigade units was formed in order to take control of the Ovnak sector 4456 On 8 June 1993 in the early hours of the morning combat began between HVO and ABiH forces 4457 The 7th Brigade 2nd and 3rd Battalions4458 intervened in Ovnak on 8 June 19934459 and the fighting continued until the middle of the afternoon 4460 The village of Brajkovići was attacked in late morning4461 and ušanj which had already been deserted by its inhabitants was not included in the combat operations 4462 The 7th Brigade units did not enter the villages of Brajkovići Grahov ići and ušanj 4463 After receiving the order to head in the direction of Kakanj 4464 the 7th Brigade units left the Ovnak sector on 9 June 1993 4465 1932 After the fall of the villages of ušanj Ovnak Brajkovići and Grahov ići the military police arrived4466 and members of the 3rd Corps Military Police Battalion were stationed at the check-point set up in Ovnak 4467 The 7th Brigade and 314th Brigade military police also went to 4452 Ibid para 182 D‘emal Merdan T F p 13125 4454 D‘emal Merdan T F p 13126 4455 D‘emal Merdan T F pp 13125-13126 P 420 4456 P 420 P 419 Mirsad Ibraković T F pp 14373-14374 4457 Franjo Kri‘anac T F pp 1100-1101 P 400 under seal para 6 4458 Kasim Alajbegović T F p 18698 Elvedin Omić T F pp 18597-18599 4459 Kasim Alajbegović T F p 18699 Elvedin Omić T F pp 18598-18599 Safet Junuzović T F p 18514 4460 Kasim Alajbegović T F p 18700 Safet Junuzović T F p 18517 4461 Franjo Kri‘anac T F p 1101 P 400 under seal para 7 4462 Safet Junuzović T F p 18516 4463 Safet Junuzović T F p 18516 4464 Safet Junuzović T F p 18517 See DK 23 and DK 24 4465 Safet Junuzović T F p 18578 Kasim Alajbegović T F pp 18701-18702 P 426 4466 Elvedin Omić T F p 18618 P 898 P 424 Safet Junuzović T F pp 18576 and 1578 4467 P 898 4453 Case No IT-01-47-T 570 15 March 2006 106 21623 BIS these villages to prevent plunder and arson and to recover the war booty 4468 Furthermore Nesib Talić head of the 7th Brigade Security Service was in the Ovnak sector on 8 June 1993 4469 1933 Contrary to the allegations of the Prosecution 4470 the evidence shows that the 306th Brigade did not take part in the attacks on the villages of ušanj Ovnak Brajkovići and Grahov ići On 8 June 1993 it was positioned on the Maline-Gu a Gora-Mosor-Bukovica axis 4471 The 306th Brigade 1st and 4th Battalions conducted combat operations in Maline 4472 while the 2nd and 3rd Battalions were in Gu a Gora at the time material to the alleged facts 4473 1934 On 8 June 1993 during the operation in Ovnak 7th Brigade soldiers entered houses to make sure there were no soldiers inside 4474 Witness Elvedin Omić stated that he did not see any member of the 7th Brigade removing property from these houses 4475 Witness Kasim Pod‘ić took an active part in combat in the Ovnak sector and did not see any member of the 7th Brigade 2nd Battalion entering houses intending to plunder them 4476 According to Witness Safet Junuzović 7th Brigade members were wrongfully accused of plunder in Ovnak since these acts were the work of thieves who had stolen 7th Brigade uniforms and insignia 4477 From his position on Strmac on 8 June 1993 4478 Witness @arko Jandrić could see the villages of Ovnak and Brajkovići and stated that he saw ABiH soldiers taking materiel and technical equipment in the direction of Zenica 4479 and Muslim civilians loading cattle into trucks 4480 Nevertheless the Chamber notes that from the positions Witness @arko Jandri held on Strmac even using binoculars it would have been impossible for him to distinguish a soldier from a civilian in Brajkovići or identify specific objects plundered in Ovnak and Brajkovići 4481 1935 Witness BA who was part of the 7th Brigade 2nd Battalion in 1992 and 1993 4482 was in Ovnak on 9 June 1993 4483 He claimed that 7th Brigade members were collecting property belonging 4468 Witness ZA T F pp 2330-2332 Franjo Kri‘anac T F pp 1100-1106 On 8 June 1993 Witness Franjo Kri‘anac left Brajkovići for Zenica On the way he met Nesib Talić in Pojske See DK 62 DH 776 an order of 12 March 1993 of the Supreme Command designating Nesib Talić the 7th Brigade head of security 4470 Prosecution Final Brief para 320 4471 P 579 4472 Salim Tarak ija T F p 11804 4473 Salim Tarak ija T F p 11805 4474 Elvedin Omić T F p 18602 4475 Elvedin Omić T F p 18603 4476 Kasim Pod‘ić T F p 18645 4477 Safet Junuzović T F p 18548 4478 @arko Jandrić T F p 950 4479 @arko Jandrić T F p 952 4480 @arko Jandrić T F p 973 4481 DH 1978 DH 2055 4482 Witness BA T F pp 660 665 807 and 808 4469 Case No IT-01-47-T 571 15 March 2006 105 21623 BIS to civilians and taking it to the collection point in the church in Brajkovići 4484 When he went to the church in Brajkovići Witness BA saw many household appliances inside the church and cars parked in front of it 4485 This property was then transported to 7th Brigade headquarters in Bilimište where the 7th Brigade 2nd and 3rd Battalions were accommodated 4486 and then taken to a depot 4487 The witness used a sketch to identify where the property was stored 4488 On 9 June 1993 4489 Witness Z18 saw soldiers plunder the presbytery of Brajkovići and load the property into a truck 4490 When Witness Ivo Vuleta returned to ušanj on the morning of 9 June 1993 4491 he found his house ransacked and saw that his radio and VCR were missing 4492 He also noted a tractor loaded with household appliances in front of Mario Vuleta’s house 4493 On the evening of 9 June 1993 Witness Z2 left ukle and headed for ušanj He hid in the forest around ušanj for five or six days and saw Muslim civilians plunder property such as televisions and household appliances from houses belonging to Croats 4494 1936 The Zenica Op O Municipal Defence Staff Security and Information Service inspected the Ovnak sector on 10 June 1993 and noted cases of illegal appropriation of property and plunder by inhabitants of the nearby villages 4495 On 10 or 11 June 1993 4496 Witness Franjo Kri‘anac went all around the village of Ovnak and saw that all the houses had been plundered 4497 Witness Mijo Marković went to u anj on 10 June 19934498 and noted that houses had been plundered property had been thrown outside and 3rd Corps solders were transporting furniture 4499 Around 1330 hours on 10 June 1993 a 3rd Corps military police patrol arrived in ušanj to compile a report on persons of Croatian origin who had died during combat Members of this patrol noted that many houses had 4483 Witness BA T F pp 791-794 Witness BA was present in Ovnak with other members of the 7th Brigade the day after the attack 4484 Witness BA T F pp 794-795 4485 Witness BA T F pp 795-796 4486 Witness BA T F p 801 P 14 4487 Witness BA T F pp 796-797 4488 P 14 4489 P 400 under seal para 10 4490 P 400 under seal para 17 4491 Ivo Vuleta T F pp 4442-4449 Witness Ivo Vuleta spent the night of 8 June 1993 in the school in Pojske and went to ušanj the next day 4492 Ivo Vuleta T F p 4450 4493 Ivo Vuleta T F p 4450 4494 P 384 under seal para 17 4495 P 424 4496 Franjo Kri‘anac T F pp 1100 1103 and 1108 Witness Franjo Kri‘anac arrived in Zenica on 8 June 1993 and left for Ovnak the third day after he arrived in Zenica 4497 Franjo Kri‘anac T F p 1108 4498 Mijo Marković T F p 2365 4499 Mijo Marković T F p 2366 Case No IT-01-47-T 572 15 March 2006 104 21623 BIS been plundered and that property of any value had been stolen 4500 On 10 June 1993 ECMM observers visited the village of Brajkovići and inspected a house to see if acts of plunder had been committed The observers noted that the contents of drawers in this house had been emptied out onto the floor but the fixtures and fittings were intact They also noted that the church in Brajkovići had not been plundered 4501 1937 When Witness Jozo Marković went back to ušanj around mid-June 1993 4502 the village had already been plundered and he saw neighbours taking household appliances out of houses aided by the police 4503 On 14 June 1993 the wife of Witness Z18 found that their house had been vandalised and various objects such as the television photographs and washing machine had been stolen 4504 Two weeks after the offensive Witness ZA went to the Ovnak region and saw soldiers plunder houses4505 in Ovnak ušanj and Grahov ići 4506 He stated that right after these villages fell the 7th Brigade military police brought in trucks requisitioned from civilians4507 and took possession of technical equipment household appliances building material and food 4508 The 7th Brigade was followed by a military police unit from the 314th Brigade that also committed acts of plunder 4509 1938 On 3 August 1993 ECMM observers noted that the village of Grahov ići had been plundered 4510 In the autumn of 1993 Witness ZQ saw soldiers from the 314th Brigade taking furniture from houses near the church in Brajkovići and from the parish office4511 and then they took it away in trucks 4512 Witness ZQ asked the soldiers why they were doing it and they replied that it was war booty 4513 1939 The Chamber notes that an official procedure to collect and register war booty had been put in place pursuant to the rules established by the Supreme Command in this regard 4514 An order 4500 DH 258 DH 196 4502 Jozo Marković T F pp 4422-4423 Witness Jozo Marković went to Zenica on 9 June 1993 and stayed there for five or six days before going to ušanj 4503 Jozo Marković T F pp 4423-4424 Witness Jozo Marković did not state whether it was the civilian or military police 4504 P 400 under seal para 27 The witness and his wife were imprisoned on 9 June 1993 and his wife was given a pass to leave five days after her imprisonment 4505 Witness ZA T F p 2330 4506 Witness ZA T F p 2331 4507 Witness ZA T F p 2332 4508 Witness ZA T F pp 2330-2332 4509 Witness ZA T F p 2332 4510 P 164 4511 Parish office 4512 Witness ZQ T F pp 1018-1019 4513 Witness ZQ T F p 1018 4514 See DH 1469 4501 Case No IT-01-47-T 573 15 March 2006 103 21623 BIS dated 5 June 1993 issued by the Accused Kubura set up collection points and called for the creation of two commissions one in the combat zone and another based in Bilimište both in charge of organising the collection of war booty “Collection points are to be set up and all war booty collected in the area of combat operations is to be directed there and a collection point shall also be set up on the premises of the Bilimište barracks These collection points are to be adequately secured The PK for logistics of the 7th Mbbr is to order the establishment of two commissions as follows a Commission for the collection and inventory of war booty which will operate in the zone of combat operations and a Commission for the collection of war booty which will organise the collection of war booty in the Bilimište barracks ”4515 Furthermore in a report dated 20 June 1993 on the plunder and destruction of private property following combat operations the 7th Brigade Commander informed the 3rd Corps Command that measures had been taken to implement the rules on war booty 4516 1940 The Chamber notes however that the official procedure for war booty requiring that seized property be registered4517 was not followed Members of the Zenica Op O Security and Information Service inspected Ovnak on 10 June 1993 While they supposed that the seized property would be registered in facilities controlled by the 7th Brigade they noted that no records were kept of the vehicles transporting war booty in the Ovnak region 4518 Similarly in a report dated 20 June 1993 the Zenica Op O informed the 3rd Corps Command that the Ovnak sector was being controlled by 3rd Corps Military Police from the 7th Brigade and 314th Brigade but that property seized in that sector was not being registered and controls at check-points were insufficient 4519 1941 Furthermore the Chamber notes that the ABiH rules on property likely to be considered war booty4520 were not obeyed and that property found in houses such as technical equipment household appliances and food 4521 was seized collected in Brajkovići and then stored in Bilimište 4522 The Chamber considers that although the army had the right to seize private property that could be used directly for military purposes 4523 pursuant to the rules on war booty established by the ABiH Supreme Command the property seized in the Ovnak sector did not fit into the category of property having direct military use The Chamber thus finds that the property in 4515 P 420 P 426 4517 See DH 1469 4518 P 424 4519 P 898 4520 See DH 1469 4521 See Witness ZA T F pp 2330-2332 Witness BA T F pp 795-796 P 898 4522 Witness BA T F pp 795-796 4523 See DH 1469 4516 Case No IT-01-47-T 574 15 March 2006 102 21623 BIS question was appropriated in an unlawful and deliberate manner and went beyond the scope of legitimate war booty 1942 The Chamber notes that plunder in the villages of ušanj Ovnak Brajkovići and Grahov ići was committed extensively and repeatedly as of 9 June 4524 Many houses were plundered and property of value such as household appliances was stolen 4525 Contrary to the allegations of the Defence for the Accused Had‘ihasanović 4526 the Chamber considers that the value of the plundered property and the repeated acts of plunder make it possible to conclude that the offence was serious 1943 With regard to the perpetrators of the plunder the Chamber first finds that they were civilians Witnesses stated that they saw Muslim civilians 4527 and neighbours4528 plunder in the village of u anj Furthermore the report of the Zenica Op O dated 11 June 1993 notes the appropriation of property in the Ovnak sector by civilians from the neighbouring villages 4529 Second the Chamber considers that plunder was also committed by members of the military police belonging to the 3rd Corps Military Police Battalion and military police units of the 7th and 314th Brigades Indeed the Zenica Op O report recounts plunder by members of the 3rd Corps Military Police Battalion and the 7th and 314th Brigades 4530 Witnesses ZA and BA both testified that after the villages fell members of the 7th Brigade and the 314th Brigade and in particular the military police of these brigades requisitioned property belonging to civilians 4531 The Chamber finds that the evidence allows the identification of the perpetrators of the plunder committed in June 1993 in the villages of ušanj Ovnak Brajkovići and Grahov ići as civilians and members of the 3rd Corps Military Police Battalion and military police units of the 7th Brigade and 314th Brigade 4524 See supra Witness @arko Jandrić is the only witness who stated that he saw the plunder in Ovnak and Brajkovoći as of 8 June The Chamber recalls that Witness @arko Jandrić was unable to make out the different objects that were plundered or to differentiate between soldiers and civilians from his position on Strmac 4525 See Witness BA T F pp 794-795 P 400 under seal paras 17 and 27 Ivo Vuleta T F p 4450 P 384 under seal para 17 P 424 Franjo Kri‘anac T F p 1108 Mijo Marković T F p 2366 DH 258 Jozo Marković T F pp 4423-4424 Witness ZA T F pp 2330-2332 P 164 4526 Had‘ihasanović Defence Final Brief para 734 The Defence for the Accused Had‘ihasanović alleges that the evidence does not indicate the extent of the alleged plunder and does not make it possible to know the value of the property allegedly plundered 4527 P 384 under seal para 17 4528 Jozo Marković T F pp 4423-4424 Witness Jozo Marković did not state whether it was the civilian or military police 4529 P 424 4530 P 898 4531 Witness ZA T F p 2332 Witness BA T F pp 795-796 Case No IT-01-47-T 575 15 March 2006 101 21623 BIS iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi a Effective Control of Enver Had ihasanovi over the Perpetrators of the Crime 1944 The Chamber finds that the plunder in the villages of ušanj Ovnak Brajkovići and Grahov ići in June 1993 was committed in particular by members of the military police subordinated to the 7th Brigade and the 314th Brigade Given that the 7th Brigade and the 314th Brigade were de jure subordinated to the 3rd Corps at the material time the Accused Had‘ihasanović is presumed to have exercised effective control over the members of these brigades and the perpetrators of the plunder belonging to them 1945 Furthermore the evidence shows that a tactical group composed of units from the 314th Brigade and the 7th Brigade followed the orders of the 3rd Corps Command and reported to it on the course of combat operations in the Ovnak sector Thus the Zenica Op O combat report dated 11 June 1993 sent to the 3rd Corps Command states that the tactical group had proceeded to assess the situation in the Ovnak sector and drafted combat reports in accordance with the 3rd Corps Command decision 4532 Furthermore following the 3rd Corps Command order dated 16 June 1993 demanding information on the allegations of plunder by soldiers after combat operations 4533 the 7th Brigade Command sent a report to the 3rd Corps Command explaining that measures had been taken to prevent plunder and denying that such acts had been committed by 7th Brigade units in the Ovnak sector 4534 1946 The Defence for the Accused Had ihasanovi also did not contest the fact that the 7th Brigade and the 314th Brigade were subordinated to the Accused Had ihasanovi and presented no evidence to refute this assumption 1947 Consequently the Chamber finds that the Accused Had ihasanovi exercised effective control over the perpetrators of the mistreatment and that there was a superior-subordinate relationship within the meaning of Article 7 3 of the Statute 4532 P 423 P 189 4534 P 426 4533 Case No IT-01-47-T 576 15 March 2006 100 21623 BIS b Knowledge of Enver Had ihasanovi 1948 The Prosecution alleges that the Accused Had‘ihasanović had been informed of the crimes of plunder committed in the villages of ušanj Ovnak Brajkovići and Grahov ići and on 18 September 1993 issued an order in which he acknowledged that plunder had indeed been committed during combat operations 4535 The Defence for the Accused Had‘ihasanović admits that it was possible that the Accused Had‘ihasanović knew that soldiers had taken part in the plunder 4536 1949 The Chamber notes first that as of 10 June 1993 the Accused Had‘ihasanović issued several orders addressed to all the units subordinated to him in which he explicitly mentioned plunder committed after combat operations and reiterated that the perpetrators of these acts must be punished 4537 The Chamber notes that the Accused Had‘ihasanović repeatedly raised the question of plunder all through the month of June 1993 and that although his orders do not make express reference to the villages of ušanj Ovnak Brajkovići and Grahov ići they note acts of plunder committed in sectors where conflicts or combat activities had taken place between the HVO and the ABiH Consequently the Chamber considers that the Accused Had‘ihasanović had knowledge of the problem of plunder in all the zones where his troops were engaged including the villages of ušanj Ovnak Brajkovići and Grahov ići Second the Chamber notes that on 20 June 1993 the Zenica OpŠO sent a report to the 3rd Corps mentioning acts of plunder committed by members of the 3rd Corps Military Police in the Ovnak sector 4538 Also on 20 June 1993 the Accused Had‘ihasanović had a conversation with Witness ZP during which he acknowledged that he knew that soldiers were returning to Zenica with sacks full of plundered property from ušanj and Ovnak among other places 4539 Finally the Chamber considers that the presence of D‘emal Merdan in Grahov ići on 3 August 1993 along with the ECMM observers who noted that the village of Grahov ići had been plundered4540 also makes it possible to establish the Accused Had‘ihasanović’s knowledge of the plunder committed in June 1993 c Measures Taken 1950 The Prosecution alleges that with the exception of written orders prohibiting the commission of crimes the Accused Had‘ihasanović failed to take measures to prevent these crimes and punish 4535 Prosecution Final Brief para 321 Had‘ihasanović Defence Final Brief para 729 4537 P 186 P 189 DH 65 4538 P 898 4539 Witness ZF T F p 8863 P 589 4540 P 164 4536 Case No IT-01-47-T 577 15 March 2006 99 21623 BIS the perpetrators 4541 The Defence for the Accused Had‘ihasanović maintains that the 3rd Corps took all necessary and reasonable measures to prevent the plunder circumvent its repetition and punish the perpetrators once their identity had been established 4542 1951 The Chamber considers that the Accused Had‘ihasanović undertook measures of a general nature prohibiting plunder and also issued orders intended to prevent plunder and punish the perpetrators As the issue of the measures taken by the Accused Had‘ihasanović is developed in the part “Findings of the Chamber on Measures Taken by the Accused Hadžihasanović regarding Destruction and Plunder” the Chamber refers to the relevant paragraphs of the Judgement 4543 iv Findings of the Chamber regarding the Responsibility of Amir Kubura a Effective Control of Amir Kubura over the Perpetrators of the Crimes 1952 The Chamber finds that the plunder in the villages of ušanj Ovnak Brajkovići and Grahov ići in June 1993 was committed in particular by members of the military police subordinated to the 7th Brigade Given that the 7th Brigade was subordinated to the Accused Kubura at the material time it is assumed that he exercised effective control over the members of the 7th Brigade and over the perpetrators of the plunder belonging to it 1953 Furthermore the evidence shows that 7th Brigade units carried out the orders of the Accused Kubura 4544 Thus following an order to attack dated 5 June 1993 4545 7th Brigade units conducted operations to take control of the Ovnak sector 4546 In addition following the Accused Kubura’s order to his troops to move in the direction of Kakanj at the end of combat operations in the Ovnak sector 4547 the 7th Brigade units left the Ovnak sector on 9 June 1993 4548 1954 Consequently the Chamber finds that the Accused Kubura exercised effective control over the perpetrators of the plunder and that a superior-subordinate relationship existed within the meaning of Article 7 3 of the Statute 4541 Prosecution Final Brief para 322 Had‘ihasanović Defence Final Brief para 734 4543 See infra paras 2018-2063 4544 Safet Junuzović T F p 18516 4545 P 420 4546 Franjo Kri‘anac T F pp 1100-101 P 400 under seal para 6 4547 Safet Junuzović T F p 18517 See DK 23 and DK 24 4548 Safet Junuzović T F p 18518 Kasim Alajbegović T F pp 18701-18702 P 426 4542 Case No IT-01-47-T 578 15 March 2006 98 21623 BIS b Knowledge of Amir Kubura 1955 The Prosecution alleges that the Accused Kubura had been informed about the plunder committed in the villages of ušanj Ovnak Brajkovići and Grahov ići 4549 and cites an order he gave on 20 June 1993 acknowledging that civilian property had been plundered after combat between the ABiH and the HVO 4550 The Defence for the Accused Kubura does not raise the question of his knowledge regarding plunder in the villages of ušanj Ovnak Brajkovići and Grahov ići 1956 The Chamber notes that part of the plundered property was taken to 7th Brigade headquarters in Bilimište 4551 where the Accused Kubura exercised his regular command The Chamber therefore considers it should not be ruled out that the Accused Kubura was present in the 7th Brigade headquarters at the time of the alleged facts and that he was able to see the plundered property being transported to Bilimište and stored in a warehouse 4552 Nevertheless the Chamber considers that his presence cannot be established beyond a reasonable doubt 1957 The Chamber notes that the plundered property was distributed among the members of the 7th Brigade 4553 Such a distribution however required a decision from the command a decision that assumed the Accused Kubura had knowledge of the existence of the plundered property or had given his previous consent to such distribution in the event the property was plundered The Chamber thus finds that the Accused Kubura had knowledge of the plunder committed by members of the 7th Brigade in the villages of ušanj Ovnak Brajkovići and Grahov ići c Measures Taken 1958 The Prosecution alleges that apart from written orders prohibiting the commission of crimes the Accused Kubura failed to take any measures to prevent these crimes or punish the perpetrators 4554 The Defence for the Accused Kubura did not directly address the matter of measures taken by the Accused but noted nonetheless that the military police were stationed in Pojske to check whether soldiers were transporting property 4555 4549 Prosecution Final Brief paras 321-322 Ibid para 321 4551 Witness BA T F pp 796-797 4552 See Witness BA T F pp 796-797 P 14 4553 Witness BA T F p 809 4554 Prosecution Final Brief para 322 4555 Kubura Defence Final Brief para 177 4550 Case No IT-01-47-T 579 15 March 2006 97 21623 BIS 1959 With regard to the preventive measures the Chamber notes that following an order from the 3rd Corps Command dated 19 June 1993 the 7th Brigade Commander issued an order dated 20 June 1993 noting the plunder after combat and prohibiting the plunder of houses and abandoned buildings 4556 Nevertheless the same day the Accused Kubura sent a report to the 3rd Corps Command denying that members of the 7th Brigade had taken part in acts of plunder 4557 The order of 20 June was followed on 22 June 1993 by a similar order issued by the Commander of the 7th Brigade 2nd Battalion 4558 1960 With regard to punitive measures the Chamber notes that on 20 June 1993 the Accused Kubura ordered his subordinates to take measures against anyone committing acts of plunder ranging from detention to initiating judicial proceedings 4559 The Chamber also notes however that the plundered property was distributed among members of the 7th Brigade 4560 Within the framework of an organised army having a standardised procedure for war booty the Chamber finds that such a distribution of plundered property required a decision or at least the consent of the Brigade Commander the Accused Kubura This either tacit or explicit decision authorising the distribution of unlawfully appropriated property among members of the 7th Brigade which could be taken as some form of compensation is incompatible with taking punitive measures against the same persons The Chamber thus concludes that by dividing the property among the members of the 7th Brigade and not ordering an investigation into the matter the Accused Kubura failed in his duty to punish the perpetrators of the plunder v Conclusions of the Chamber 1961 The Chamber considers that the Accused Had‘ihasanović knew that plunder had been committed in the villages of ušanj Ovnak Brajkovići and Grahov ići in June 1993 by members of the 7th Brigade and 314th Brigade Nevertheless the Chamber notes that the Accused Had‘ihasanović took preventive measures to thwart acts of plunder and measures intended to punish the perpetrators Consequently the Accused Had‘ihasanović cannot be held responsible for the plunder committed in the villages of ušanj Ovnak Brajkovići and Grahov ići in June 1993 1962 The Chamber considers that the Accused Kubura had knowledge of the plunder committed by members of the 7th Brigade in the villages of ušanj Ovnak Brajkovići and Grahov ići in June 1993 The Chamber notes that even if the Accused Kubura took preventive measures to prohibit 4556 P 427 P 426 4558 P 467 The order was signed by erif Patković who was Commander of the 7th Brigade 2nd Battalion from 11 December 1992 until 21 July 1993 P 498 4559 P 427 4557 Case No IT-01-47-T 580 15 March 2006 96 21623 BIS acts of plunder he nevertheless failed his duty to punish the perpetrators of these crimes Consequently the Chamber declares the responsibility of the Accused Kubura is incurred pursuant to Article 7 3 of the Statue for acts of plunder committed in ušanj Ovnak Brajkovići and Grahov ići during June 1993 f Vare 1963 The Indictment alleges that the 7th Brigade4561 plundered dwellings buildings and personal property belonging to Bosnian Croats and Bosnian Serbs in Vare in November 1993 4562 The Indictment sets out that the Accused Kubura knew or had reason to know that the members of this unit under his command and effective control were about to commit acts of plunder or had done so and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators 4563 The Accused Kubura is accused of the plunder of public or private property a violation of the laws or customs of war punishable under Articles 3 and 7 3 of the Statute i Arguments of the Parties 1964 The Prosecution alleges that when the ABiH took control of Vareš in November 1993 4564 7th Brigade soldiers committed acts of plunder4565 and asserts that the Accused Kubura failed in his obligation to prevent the crimes and punish the perpetrators 4566 The Prosecution submits that the Accused Kubura did not take all the measures ordered by his superiors to prevent the soldiers from further plunder4567 and instead of initiating investigations he granted leave to all the soldiers who took part in the Vareš operations and issued an order authorising the distribution of war booty 4568 1965 The Defence for the Accused Kubura does not dispute the presence of 7th Brigade units in Vareš on 4 November 19934569 but submits that the evidence does not allow the assertion that the plunder was committed by members of the 7th Brigade 4570 The Defence for the Accused 4560 Witness BA T F p 809 See Indictment paras 18-20 According to the Indictment the 7th Brigade also included the mujahedin since they were allegedly subordinated to and integrated into the 7th Brigade and played a major role in the combat operations conducted by the 7th Brigade 4562 Indictment para 44 4563 Indictment para 45 4564 Prosecution Final Brief para 329 4565 Ibid para 330 4566 Ibid para 337 4567 Ibid paras 330 331 and 334 4568 Ibid paras 336 and 337 4569 Kubura Defence Final Brief para 187 4570 Ibid paras 195 200 and 201 4561 Case No IT-01-47-T 581 15 March 2006 95 21623 BIS Had‘ihasanović asserts that the fact that soldiers took bread and chocolate4571 constitutes minor acts that could not be considered a serious violation of international humanitarian law 4572 The Defence for the Accused Kubura adds that brigades other than the 7th Brigade were present in Vareš in November 19934573 and that there was plunder after the departure of the 7th Brigade on 4 November 1993 4574 Furthermore the Defence for the Accused Kubura notes that the military police had been assigned to a check-point at Vareš Majdan to monitor whether any soldiers were leaving with stolen property 4575 ii Findings of the Chamber regarding the Plunder of Public or Private Property in Vare 1966 The operations in Vareš were conducted jointly by the ABiH 2nd 3rd and 6th Corps 4576 On 3 November 1993 the 7th Brigade received the order to attack and liberate Vareš under the command of the OG Istok 4577 At 0800 hours on the morning of 4 November 1993 the 7th Brigade 2nd and 3rd Battalions entered the deserted town of Vareš4578 and then joined the units of the 2nd Corps 4579 The 7th Brigade 1st Battalion went no further than Vareš Majdan4580 outside of Vareš 4581 The HVO forces had already withdrawn and there was no intense combat activity 4582 The 7th Brigade’s units withdrew from the town the same day4583 towards 1500 hours leaving the military and civilian police behind them 4584 1967 Witness Safet Junuzović stayed in Vareš Majdan with the 7th Brigade 1st Battalion reconnaissance platoon until late in the afternoon of 4 November 1993 4585 The members of the reconnaissance platoon did not notice any plunder by soldiers of the 7th Brigade 1st Battalion 4586 although Witness Safet Junuzović the battalion commander saw civilians transporting sacks of 4571 Ibid para 197 Kubura Defence Final Brief para 198 4573 Ibid paras 201-202 4574 Ibid paras 207-208 4575 Ibid para 209 4576 DH 1513 P 217 4577 P 674 4578 P 468 Safet Junuzović T F p 18529 4579 P 676 P 468 Kasim Pod‘ić T F p 18676 4580 Safet Junuzović T F pp 18531-18534 D‘email Ibranović T F pp 18371-18373 According to Witness D‘email Ibranović the 7th Brigade 1st Battalion stayed in Vareš Majdan and only several members of the 1st Battalion including the witness entered the town of Vareš 4581 See DK 38 4582 D‘email Ibranović T F p 18371 Safet Junuzović T F p 18530 DK 62 para 17 4583 DK 50 P 468 DK 62 para 19 DK 44 Kasim Pod‘ić T F p 18656 Safet Junuzović T F pp 18533-18534 Elvir Mušija T F p 18778 4584 P 448 4585 Safet Junuzović T F p 18531 4586 Safet Junuzović T F p 18502 4572 Case No IT-01-47-T 582 15 March 2006 94 21623 BIS flour 4587 and one of his soldiers who had dropped his rifle had taken a sack of flour and headed in the direction of Breza 4588 The witness did not know whether other soldiers had taken food in their pockets or with their gear but admits that this might have happened 4589 Witness D‘email Ibranović Assistant Commander for Morale and Religious Affairs in the 1st Battalion did not deny the possibility that 7th Brigade soldiers helped themselves to food explaining that the town of Vareš was full of food and the soldiers were hungry 4590 With regard to the 7th Brigade 2nd Battalion Witness Kasim Pod‘ić stated that its members took part in the liberation of Vareš but did nothing that could be characterised as plunder 4591 Halil Brzina 7th Brigade Deputy Commander 4592 was at the check-point set up at on the way out of Ovnak on 4 November 1993 and did not see the soldiers carrying anything but their military equipment 4593 1968 Nevertheless reports from the OG Istok Commander for November 1993 on operations in Vareš stress the extent of the plunder by the units in Vareš on 4 November 1993 4594 According to these reports the 7th Brigade soldiers stole and plundered everything they found 4595 broke shopfronts and wrecked cars 4596 In addition these reports note the chaotic situation in the town on 4 November 1993 4597 There was unrestrained plunder 4598 the units could not be controlled after the town was liberated 4599 and plunder by the soldiers and civilians made it impossible to register all the war booty 4600 1969 As part of the NordBat Nordic Battalion mission Witnesses Hakan Birger and Ulf Henricsson went to Vareš on 4 November 19934601 and noted the chaos 4602 Soldiers were firing their guns at will4603 and breaking shopfronts 4604 According to Witness Hakan Birger every shop had at least a broken display window 4605 The soldiers plundered everything they 4587 Safet Junuzović T F p 18532 Safet Junuzović T F p 18562 4589 Safet Junuzović T F p 18562 4590 D‘email Ibranović T F pp 18373-18374 4591 Kasim Pod‘ić T F p 18658 4592 DK 62 under seal para 4 4593 DK 62 under seal para 20 4594 P 445 P 448 P 676 4595 P 445 P 448 4596 P 448 4597 P 445 4598 P 448 4599 P 445 P 448 4600 P 448 4601 Hakan Birger T F p 5384 Ulf Henricsson T F p 7669 4602 Ulf Henricsson T F p 7670 4603 Hakan Birger T F pp 5385 5388 and 5420 Ulf Henricsson T F p 7670 4604 Ulf Henricsson T F p 7670 Hakan Birger T F pp 5385 5388 5389 4605 Hakan Birger T F p 5389 4588 Case No IT-01-47-T 583 15 March 2006 93 21623 BIS found 4606 automobiles 4607 bread chocolate 4608 pens and paper 4609 furniture and household appliances 4610 The theft of foodstuffs was part of the strategy of the troops plundering in Vareš 4611 Whenever they entered a zone they took what food they found with them 4612 The shops on the main street were the primary target of the plunder but so were private houses 4613 1970 NordBat patrols tried in vain to end the plunder Witness Hakan Birger placed several patrols on different streets in Vareš to put a stop to it 4614 but when he realised this was impossible he decided to concentrate the troops around the church and in the UNHCR food stores 4615 A French battalion from Sarajevo under the command of Ulf Henricsson arrived in Vareš on 4 November 1993 to help put a stop to the plunder 4616 Witness Ulf Henricsson tried in vain to persuade the commander of the 7th Brigade unit in Vareš to respect international humanitarian law4617 and also contacted the operations group in Dabravine so that it would take control of the situation and send in military police units 4618 The plunder did not stop until the ABiH military police arrived 4619 1971 Witness Hakan Birger met Kasim Pod‘ić 7th Brigade 2nd Battalion Commander4620 in Vareš on 4 November 1993 He spoke to the commander of the unit there to inform him that the armed forces had left Vareš and that consequently the soldiers should stop firing 4621 During this conversation one of the soldiers broke the display window of a shop right next to Witness Hakan Birger in order to steal a pair of shoes 4622 Later just before lunch the commander of this 7th Brigade unit told Witness Hakan Birger to let the 7th Brigade soldiers take food since for them it was a matter of logistics 4623 The Chamber considers that the commander with whom Witness Hakan Birger had these discussions4624 was Kasim Pod‘ić 7th Brigade 2nd Battalion Commander It notes that Witness Kasim Pod‘ić also stated that he had a conversation with an UNPROFOR officer 4606 Ulf Henricsson T F p 7670 Hakan Birger T F p 5424 Ulf Henricsson T F p 7670 4608 Hakan Birger T F p 5385 4609 Hakan Birger T F p 5424 4610 Hakan Birger T F pp 5392 and 5424 4611 Hakan Birger T F p 5424 4612 Hakan Birger T F p 5389 4613 Hakan Birger T F p 5425 4614 Hakan Birger T F p 5388 4615 Hakan Birger T F pp 5388 5389 and 5423 4616 Hakan Birger T F p 5391 4617 Ulf Henricsson T F pp 7669-7670 Witness Ulf Henricsson did not say which unit it was 4618 Ulf Henricsson T F pp 7670-7671 See P 676 4619 Hakan Birger T F pp 5390-5391 Ulf Henricsson T F pp 7670-7671 4620 Kasim Pod‘ić T F p 18632 4621 Hakan Birger T F pp 5385-5387 4622 Hakan Birger T F pp 5385-5386 4623 Hakan Birger T F p 5389 4624 Hakan Birger T F pp 5385-5387 4607 Case No IT-01-47-T 584 15 March 2006 92 21623 BIS during which he learned that the HVO forces had left Vare and there was thus no need to continue firing 4625 Witnesses Hakan Birger and Kasim Pod‘ić both described the arrival of the 7th Brigade troops in Vareš and the unusual way they were firing The soldiers were marching in two columns and firing into the air from left to right and back again in order to foil any ambushes 4626 Owing to the similarity of the descriptions by Witnesses Hakan Birger and Kasim Pod‘ić the Chamber has no doubts that the commander of the unit in question was the head of the 7th Brigade 2nd Battalion 1972 Witness Hakan Birger did not remember seeing insignia on the soldiers who were plundering but thought that they were members of the 7th Brigade because they were carrying green flags and shouting “Allah-u-akbar ”4627 Furthermore on 4 November 1993 just before going to Vareš Witness Hakan Birger was informed by foreign journalists from the BBC and CNN that members of the 7th Brigade had stolen their food and clothing in Vareš 4628 Witness Ulf Henricsson stated that he had not seen any units in Vareš on 4 November 1993 other than those belonging to the 7th Brigade 4629 1973 Witnesses Martin Garrod and Rolf Weckesser arrived in Vareš around 1000 hours on 4 November 1993 as part of the ECMM4630 and found the 7th Brigade soldiers4631 drunk4632 and firing in all directions 4633 The ECMM international observers noted that the shopfronts had been broken and that there had been plunder without however being able to determine if this had been done by the ABiH more specifically the 7th Brigade or by the HVO 4634 1974 Witness Rolf Weckesser returned to Vareš on 8 November 19934635 and noted that the streets were full of plunderers He saw soldiers and people taking the plundered property towards the south in the direction of Breza 4636 He did not recognise the military units to which the soldiers belonged and thought that the 7th Brigade was no longer in Vareš on 8 November 4625 Kasim Pod‘ić T F p 18653 Hakan Birger T F p 5385 Kasim Pod‘ić T F pp 18652-18653 4627 Hakan Birger T F pp 5386 and 5422 4628 Hakan Birger T F pp 5384-5385 4629 Ulf Henricsson T F p 7670 4630 Sir Martin Garrod T F p 5694 Rolf Weckesser T F pp 7214-7215 4631 Sir Martin Garrod T F pp 5692-5693 Rolf Weckesser T F pp 7214-7216 4632 Sir Martin Garrod T F p 5692 4633 Sir Martin Garrod T F p 5692 Rolf Weckesser T F p 7214 4634 P 198 P 221 Sir Martin Garrod T F pp 5692-5693 4635 Rolf Weckesser T F pp 7216-7217 4636 Rolf Weckesser T F p 7218 4626 Case No IT-01-47-T 585 15 March 2006 91 21623 BIS 1993 4637According to a report by the ABiH Supreme Command individual acts of theft and plunder started after a 300-strong unit from the 2nd Corps reached Vareš on 16 November 1993 4638 1975 In view of the evidence presented above the Chamber considers that plunder took place repeatedly and extensively in Vareš during the month of November 1993 The Chamber notes that reports from the OG Istok referred to uncontrolled plunder and specified that the day the 7th Brigade soldiers arrived in Vareš they plundered and stole everything they found disobeying the orders they had been given 4639 Furthermore the international observers in Vareš on 4 November 1993 and then again on 8 November 1993 also noted large-scale plunder with soldiers breaking shopfronts and removing what was inside 4640 The Chamber considers that the extensive and repeated nature of the plunder allows the finding that the offence was serious 1976 The Chamber considers that the stolen property was appropriated illegally and went beyond the scope of war booty Although the ABiH rules regulating war booty authorised the Army to take private property that could be used directly for military purposes 4641 the Chamber considers that the property in question did not fall within the category of property having direct military use The Chamber also notes that contrary to the war booty procedure set up by the ABiH Supreme Command the evidence does not report that receipts or certificates were given in exchange for the confiscation of this property Furthermore contrary to the rules put in place by the ABiH Supreme Command whereby seized property could not be appropriated by individuals 4642 on 7 November 1993 the Accused Kubura gave the order to distribute the war booty 4643 1977 The Chamber notes that an official and organised procedure existed to collect certain property particularly food which the 7th Brigade considered to be part of the war booty In a report dated 11 November 1993 to the commands of the 3rd Corps and the 7th Brigade on operations conducted in Vareš the 7th Brigade 2nd Battalion mentions that the collection of war booty consisting primarily of food was being carried out in an organised fashion by the battalion 4644 The Chamber notes in addition that during the conversation between Witness Hakan Birger and Witness Kasim Pod‘ic the latter stated that it was a question of logistics for the soldiers to seize food when 4637 Rolf Weckesser T F p 7231 P 450 4639 P 676 P 445 P 793 4640 Ulf Henricsson T F p 7670 Hakan Birger T F pp 5385 and 5424 P 198 Rolf Weckesser T F p 7218 4641 See DH 1469 4642 DH 1469 4643 P 447 4644 P 468 4638 Case No IT-01-47-T 586 15 March 2006 90 21623 BIS they entered a combat zone 4645 The Chamber considers that these elements show the systematic nature of this type of plunder 1978 With regard to the perpetrators of the plunder the Chamber notes that witnesses who were members of the 7th Brigade and stated that their units did not take part in the plunder are contradicted by both ABiH reports and the testimony of the international observers present in Vareš on 4 November 1993 Reports from both the OG Istok4646 and the 3rd Corps Command 4647 as well as from the international observers 4648 mention that the soldiers who were part of the units in Vareš in the particular members of the 7th Brigade were responsible for these actions In addition a report from the 7th Brigade 2nd Battalion dated 11 November 1993 mentions this battalion’s collection of war booty consisting primarily of food 4649 The Chamber notes in particular that contrary to Witness Kasim Pod‘ić’s assertions he was not only aware of the plunder committed by the members of his unit 4650 but also justified the appropriation of food by the fact that it was a question of logistics 4651 Furthermore the Chamber notes that the 7th Brigade units withdrew on 4 November 19934652 and that plunder was committed subsequently by other units that did not belong to the 7th Brigade 4653 The Chamber thus finds that plunder was committed by several units of the ABiH and particularly by soldiers of the 7th Brigade 2nd and 3rd Battalions iii Findings of the Chamber regarding the Responsibility of Amir Kubura a Effective Control of Amir Kubura over the Perpetrators of the Crime 1979 The Chamber finds that the plunder in Vareš in November 1993 was committed in particular by members of the 7th Brigade Given that the 7th Brigade was subordinated to the Accused Kubura at the material time it is presumed that he exercised effective control over its members and over the perpetrators of the plunder 4654 4645 Hakan Birger T F p 5389 P 445 P 676 4647 P 449 4648 Hakan Birger T F pp 5386 and 5422 Ulf Henricsson T F p 7670 4649 P 468 4650 Hakan Birger T F pp 5385-5386 During a conversation between Witness Hakan Birger and Witness Kasim Pod‘ić a member of the 7th Brigade 2nd Battalion broke a shop display window in order to steal a pair of shoes 4651 Hakan Birger T F p 5389 On 4 November 1993 Witness Kasim Pod‘ić told Witness Hakan Birger that taking food was a logistical matter for members of the 7th Brigade 4652 DK 50 P 468 DK 62 para 19 DK 44 Kasim Pod‘ić T F p 18656 Safet Junuzović T F pp 18533-18534 Elvir Mušija T F p 18778 4653 P 450 4654 See supra para 348 4646 Case No IT-01-47-T 587 15 March 2006 89 21623 BIS 1980 Furthermore the evidence shows that the 7th Brigade’s units carried out the orders of the Accused Kubura Following an order from the OG Istok 4655 on 4 November 1993 the Accused Kubura in turn ordered the 7th Brigade units operating in Vareš to withdraw from the town 4656 which the troops did the same day 4657 1981 The Chamber consequently finds that the Accused Kubura exercised effective control over the perpetrators of the plunder and that there was a superior-subordinate relationship within the meaning of Article 7 3 of the Statute b Knowledge of Amir Kubura 1982 The Chamber would first recall that the Accused Kubura knew that his subordinates had already committed acts of plunder before November 1993 It considers that the evidence has proved that members of the 7th Brigade plundered in the Ovnak sector in June 1993 and that the Accused Kubura had knowledge of these crimes as of that time 4658 In addition the Chamber finds that the Accused Kubura failed to take punitive measures against the perpetrators of these acts4659 and the absence of such measures against the plunder committed in June 1993 encouraged the subsequent commission of such acts The Chamber therefore considers that the Accused Kubura owing to his knowledge of the plunder committed by his subordinates in June 1993 and his failure to take punitive measures could not know that the members of the 7th Brigade were likely to repeat such acts 4660 1983 Second the Chamber notes that the Accused Kubura was in the Vare sector from 3 to 5 November 1993 Witness Elvir Mušija accompanied the Accused Kubura to Strije‘evo on 3 November 1993 4661 On 4 November 1993 they went in the direction of Vareš Majdan and stayed at the check-point manned by the military police and then went back to Strije‘evo 4662 On 5 November 1993 the Accused Kubura went to the town of Vareš for two or three hours to attend a celebration 4663 The Chamber considers that it has not been established that the route the Accused Kubura took on 5 November 1933 allowed him to see the plunder Consequently the Chamber 4655 P 675 DK 50 See P 478 4657 P 468 DK 62 para 19 Kasim Pod‘ić T F p 18656 Safet Junuzović T F pp 18533-18534 Elvir Mušija T F p 18778 4658 See supra para 1957 4659 See supra para 1960 4660 See supra para 133 4661 Elvir Mušija T F p 18773 4662 Elvir Mušija T F pp 18774-18775 4663 Elvir Mušija T F pp 18776-18777 4656 Case No IT-01-47-T 588 15 March 2006 88 21623 BIS believes that the presence of the Accused Kubura in Vareš is not sufficient in itself to establish his knowledge beyond a reasonable doubt 1984 The Chamber considers however that the presence of the Accused Kubura in Vareš is not in itself sufficient to establish his knowledge beyond a reasonable doubt 1985 The Chamber notes that the combat report from the 6th Corps OG Istok Command dated 4 November 1993 mentions plunder committed by 7th Brigade units right after their arrival in Vareš 4664 Furthermore it notes that although the report is addressed inter alia to the 3rd Corps Command the 7th Corps is not on the list of addressees 4665 Consequently the Chamber concludes that the combat report does not make it possible to establish directly the Accused Kubura’s knowledge about the plunder in Vareš 1986 The Chamber finds however that on 4 November 1993 the 6th Corps OG Istok Command issued an order recalling that all unlawful activity in Vare was to stop and that measures to halt the removal of property from the town were to be undertaken The order noted specifically that the 7th Brigade Commander was responsible for the execution of the order 4666 That same day 4 November 1993 the 3rd Corps Command informed the OG Istok that orders had been sent to the brigades for them to use the military police to prevent property from being plundered 4667 Since the 7th Brigade was the only brigade subordinated to the 3rd Corps that was present in Vareš on 4 November 1993 the Chamber considers that the 3rd Corps orders mentioned above must have been sent to the 7th Brigade Furthermore the 7th Brigade 2nd Battalion informed the 7th Brigade Command on 11 November 1993 that the collection of war booty consisting primarily of food had been carried out in an organised manner 4668 The Chamber thus finds that the orders issued by the OG Istok and by the 3rd Corps Command as well as the 7th Brigade 2nd Battalion report establish the Accused Kubura’s knowledge about the plunder committed by his subordinates in Vareš c Measures Taken 1987 The Prosecution alleges that the Accused Kubura failed in his duty to prevent the plunder 4669 It claims that the Accused Kubura did not fully respect the order from his superior and should have sent his police forces into Vare in order to prevent 7th Brigade soldiers from causing 4664 P 676 P 676 4666 P 675 4667 P 446 4668 P 468 4669 Prosecution Final Brief para 337 4665 Case No IT-01-47-T 589 15 March 2006 87 21623 BIS more destruction 4670 The Prosecution further alleges that the Accused Kubura failed to take punitive measures to punish the perpetrators of the plunder in Vareš 4671 According to the Prosecution the real reason for the check-point two kilometres from Vareš4672 was to secure the town from possible HVO attacks and not to stop the plunderers because no case of plunder in Vare ever reached the Zenica District Military Court which had jurisdiction over the town 4673 The Prosecution maintains that instead of launching an investigation into the plunder in Vareš the Accused Kubura rewarded the soldiers who had taken part in the Vare campaign by granting them leave and gave the order to distribute the war booty 4674 1988 The Defence for the Accused Kubura alleges that a check-point manned by the military police had been set up on 4 November 1993 in Vareš Majdan in order to verify that soldiers were not leaving with stolen goods 4675 1989 With regard to preventive measures the Chamber notes that the Accused Kubura took certain measures to end the plunder in Vareš on 4 November 1993 Indeed following the order of 4 November 1993 from the OG Istok Command 4676 the Accused Kubura withdrew his troops from Vareš the very same day 4677 On 5 November 1993 the Accused Kubura forbade the members of the 7th Brigade from entering or staying in Vareš and stated that any soldier contravening this order would be arrested and put in detention 4678 The Chamber considers however that even though the Accused Kubura put a stop to the plunder once it had started so it would not be repeated he nonetheless did not take sufficient measures to prevent the initial plunder from taking place 1990 The Chamber notes however that 7th Brigade soldiers had previously plundered in the sectors of ušanj Ovnak Grahov ići and Brajkovići in June 1993 and that the Accused Kubura had failed in his duty to punish the perpetrators of these crimes The Chamber considers that when a commander punishes his subordinates for having committed crimes this is also a measure to prevent the crimes from being repeated 1991 Consequently the Chamber considers that the Accused Kubura failed to take the necessary and reasonable measures to prevent the crimes committed in Vareš in November 1993 Even if the 4670 Ibid para 334 Ibid para 337 4672 Ibid para 334 4673 Ibid para 335 4674 Ibid para 336 4675 Kubura Defence Final Brief para 209 4676 P 675 4677 DK 50 4678 P 478 4671 Case No IT-01-47-T 590 15 March 2006 86 21623 BIS Accused Kubura took measures a posteriori to put an end to the plunder in Vareš by withdrawing his troops from the town the Chamber considers that by not taking punitive measures against those plundering in June 1993 the Accused Kubura failed in his duty to prevent such acts in Vareš in November 1993 1992 With regard to the punitive measures the Chamber notes that witnesses who were part of the 7th Brigade at the material time stated that a check-point had been set up on 4 November 1993 in Vareš Majdan4679 at the entry to and exit from the town4680 in order to ensure that soldiers were not taking any stolen or plundered property out of Vareš 4681 Witnesses Halil Brzina and Kasim Pod‘ić stated that the soldiers passing by the check-point had nothing with them other than military equipment 4682 The Chamber notes however that Witness Rolf Weckesser did not remember having been stopped at a check-point4683 when he went to Vare with Witness Martin Garrod at around 1000 hours on 4 November 1993 4684 The Chamber considers that even if a check-point had been set up on 4 November 1993 it did not prevent the 7th Brigade soldiers from plundering property without being punished Witnesses Kasim Pod‘ić and Osman Hasanagić do not remember any proceedings against members of the 7th Brigade or any arrests for plunder in Vareš in November 1993 4685 1993 Furthermore the Chamber notes that the Accused Kubura issued an order dated 7 November 1993 in which he granted leave to the soldiers who took part in the operations in Vareš and ordered that the seized property be distributed 4686 This decision explicitly authorised the distribution of illegally appropriated property among the members of the 7th Brigade and can be compared to a form of reward which is incompatible with taking punitive measures against these same persons The Chamber considers that the leave granted to the 7th Brigade soldiers and the distribution of seized property allows the finding that the Accused Kubura did not take punitive measures against the perpetrators of the plunder in Vareš in November 1993 iv Conclusions of the Chamber 2 The Chamber finds beyond a reasonable doubt that the Accused Kubura had knowledge of the plunder by the members of the 7th Brigade in Vareš in November 1993 The Chamber finds that 4679 Elvir Mušija T F p 18775 DK 62 para 20 Kasim Pod‘ić T F pp 18653 18656 and 18657 D‘email Ibranović T F pp 18373-18374 4681 DK 62 para 20 D‘email Ibranović T F p 18374 4682 Kasim Pod‘ic T F p 18657 Halil Brzina DK 62 para 20 4683 Rolf Weckesser T F p 7236 4684 Rolf Weckesser T F pp 7214-7215 Sir Martin Garrod T F p 2694 4685 Kasim Pod‘ić T F p 18663 Osman Hasanagić T F p 18900 4686 P 447 4680 Case No IT-01-47-T 591 15 March 2006 85 21623 BIS the Accused Kubura failed in his duty to take both preventive measures to avert the plunder and punitive measures to punish the perpetrators of these crimes Consequently the Chamber finds the Accused Kubura responsible pursuant to Article 7 3 of the Statute for the acts of plunder committed in Vareš in November 1993 3 Count 7 Destruction or Wilful Damage of Institutions Dedicated to Religion in the Municipality of Travnik a Gu a Gora the Monastery 1994 The Indictment alleges that the 7th Brigade 4687 the 306th Brigade and the 17th Brigade destroyed or wilfully damaged Bosnian Croat religious institutions in Gu a Gora in June 1993 4688 The Indictment states that the Accused Had‘ihasanović knew or had reason to know that the units under his command and effective control were about to plan prepare or execute such acts or had done so and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators The Accused Had‘ihasanović is therefore accused of the destruction or wilful damage of institutions dedicated to religion a violation of the laws or customs of war punishable under Articles 3 d and 7 3 of the Statute 4689 1995 The Chamber notes that although the Indictment mentions the 7th Brigade in relation to the destruction or damage committed in Gu a Gora in June 1993 the Prosecution does not claim that the Accused Kubura is guilty for the destruction or damage caused by his subordinates i Arguments of the Parties 1996 The Prosecution asserts that the mujahedin occupied the monastery in June 1993 and damaged it with the approval of the ABiH 4690 It maintains that the Accused Had‘ihasanović knew that serious crimes had been committed in the monastery4691 and failed to take the necessary measures to investigate those crimes4692 or punish the perpetrators of these crimes 4693 1997 The Defence for the Accused Had‘ihasanović does not deny that the Gu a Gora monastery was damaged in June 1993 but claims that it was damaged by mujahedin who were not under the 4687 See Indictment paras 18-20 According to the Indictment the 7th Brigade included the mujahedin since they were allegedly subordinated to and integrated into the 7th Brigade and were allegedly heavily involved in the combat operations conducted by the 7th Brigade 4688 Indictment para 46 4689 Ibid para 46 4690 Prosecution Final Brief paras 345 346 and 349 4691 Ibid para 348 4692 Ibid para 350 4693 Ibid paras 348-350 Case No IT-01-47-T 592 15 March 2006 84 21623 BIS effective control of the 3rd Corps The Defence for the Accused Had‘ihasanović notes that general measures had been taken to prevent the destruction or damage of religious institutions and that with regard to the monastery in Gu a Gora measures were taken to restore the monastery and repair all the damage immediately and to investigate the acts and punish the perpetrators 4694 ii Findings of the Chamber regarding the Destruction or Damage of Institutions Dedicated to Religion in Gu a Gora 1998 On 8 June 1993 the forces of the 306th Brigade reached the front line connecting the villages of Maline Gu a Gora Mosor and Bukovica 4695 Late in the afternoon of 8 June 1993 the soldiers from the 306th Brigade 2nd Battalion joined the forces of the 306th Brigade 3rd Battalion and took up positions overlooking Gu a Gora 4696 The combat operations between HVO and ABiH units continued until 10 June 1993 at which time the 306th 2nd Battalion entered the village of Gu a Gora4697 and received the order to head towards the villages of Mosor and Radoj ići the same day 4698 1999 On 16 June 1993 the 306th Brigade Military Police received the order to secure the Gu a Gora sector 4699 Following this order the 306th Brigade Military Police and part of the 3rd Corps Military Police Battalion went to the monastery the same day and noted it had been damaged 4700 During the summer the 306th Brigade Command moved into the monastery in order to provide it better protection4701 and stayed until it was given back in 1994 4702 2000 Contrary to what is asserted by the Prosecution 4703 neither the 7th Brigade nor the 17th Brigade were present in Gu a Gora during combat operations The evidence shows that the 7th Brigade 1st Battalion was engaged in combat in Hajdareve Njive on 8 June 19934704 together with the 17th Brigade 4705 while the 7th Brigade 2nd and 3rd Battalions were operating in the Ovnak sector 4706 On 9 June 1993 the 7th Brigade 1st Battalion and 17th Brigade units were engaged in 4694 Had‘ihasanović Defence Final Brief para 658 DK 22 4696 Salim Tarak ija T F p 11805 4697 Fahir amd‘ić T F p 11713 Esed Sipić T E p 14778 4698 Salim Tarak ija T F p 11805 4699 DH 161 13 4700 Izet Mahir T F pp 16832 16833 16805 and 16806 Asim Delalić T F pp 13368 and 13371 Zaim Mujezinović T F pp 17422-17423 4701 Munir Karić T F p 11457 Asim Delalić T F p 16404 4702 Franjo Kri‘anac T F pp 1114-1115 4703 Prosecution Final Brief para 339 4704 Remzija iljak T F pp 10572-10573 Semir Terzić T F p 18256 Safet Junuzović T F pp 18505-18508 Suad Jusović T F pp 18435-18437 DK 18 DK 19 DK 34 P 465 4705 Safet Junuzović T F p 18505 4706 Kasim Alajbegović T F p 18698 Elvedin Omić T F pp 18597-18599 4695 Case No IT-01-47-T 593 15 March 2006 83 21623 BIS Sibicara and Obuka4707 several kilometres from Travnik 4708 The 306th Brigade was the only one involved in the combat operations in Gu a Gora from 8 to 10 June 1993 4709 2001 Following the allegations that Gu a Gora was in flames and that civilians had been massacred 4710 UNPROFOR members and ECMM representatives went to Gu a Gora on 8 June 1993 4711 Witness Vaughan Kent-Payne spent about half an hour inside the monastery and noted that it had not been damaged 4712 2002 A few days after 9 June 1993 4713 around 11 or 12 June 1993 4714 Witness D‘emal Merdan went to Gu a Gora to verify the allegations that there were foreign nationals at the monastery who intended to demolish it There he saw 10 to 15 foreign mujahedin4715 in the courtyard of the monastery 4716 After six hours of talks Witness D‘emal Merdan managed to persuade them not to demolish the church 4717 When he returned from Gu a Gora Witness D‘emal Merdan immediately informed the 3rd Corps Commander that there were foreign mujahedin in the monastery of Gu a Gora Witness D‘emal Merdan and General Had‘ihasanović decided that they needed to increase the protection of the monastery and to involve the military police 4718 On 12 June 1993 Witness Remzija iljak learned that the foreign mujahedin had entered the monastery and damaged it 4719 At around 0900 hours on 13 June 1993 Witness Vaughan Kent-Payne left Vitez and went in the direction of Maline He arrived in Gu a Gora at around 1000 hours4720 and saw that there were 20 to 30 foreign mujahedin outside the monastery 4721 2003 On 16 June 1993 Witness Izet Mahir and 14 other members of the 3rd Corps Military Police went to the monastery of Gu a Gora4722 to join the 306th Brigade Military Police unit 4723 When 4707 DK 42 Safet Junuzović T F p 18506 4709 Fikret uskić T F p 12112 P 465 4710 Hendrik Morsink T F p 8057 4711 Vaughan Kent-Payne T F p 4949 Hendrik Morsink T F pp 8056-8059 4712 Vaughan Kent-Payne T F p 4793 4713 D‘emal Merdan T F pp 13139-13140 Witness D‘emal Merdan does not remember the exact day he arrived in Gu a Gora 4714 D‘emal Merdan T F p 13363 4715 D‘emal Merdan T F pp 13140 13341 and 13356 4716 D‘emal Merdan T F pp 13140 and 13362 4717 D‘emal Merdan T F pp 13140-13141 4718 D‘emal Merdan T F p 13142 4719 Remzija iljak T F p 10556 4720 Vaughan Kent-Payne T F p 4794 4721 Vaughan Kent-Payne T F p 4795 DH 71 4722 Izet Mahir T E p 16833 4723 Izet Mahir T F p 16832 4708 Case No IT-01-47-T 594 15 March 2006 82 21623 BIS Witness Izet Mahir got there he found 20 to 25 Arabic-speaking foreigners4724 inside the church and in the monastery courtyard 4725 When he managed to get inside the monastery he noted that it had been damaged Books had been thrown on the floor there were inscriptions written in Arabic and part of the organ was broken 4726 That same day 16 June 1993 when Witness Vaughan Kent-Payne arrived at the monastery he was able to assess the level of the damage and desecration 4727 The wooden confessional and a number of steles had been destroyed and everything else was covered in excrement There were inscriptions on the walls and an attempt had been made to obliterate and hack away the frescoes 4728 Towards mid-June 1993 Witnesses Jasenko Eminović and Samir Sefer went to Gu a Gora to verify the allegations that the monastery had been damaged 4729 Inside the monastery they saw objects scattered everywhere 4730 there were bullet holes on the walls4731 and inscriptions in Arabic 4732 and they learned that this damage had been the work of the mujahedin 4733 2004 Witness Franjo Kri‘anac visited the monastery of Gu a Gora several times between June 1993 and July 1994 4734 He stated that during his first visit he noted that it had been completely devastated 4735 Numerous objects had disappeared several paintings had been damaged benches had been smashed and inscriptions and indecent photographs covered the walls and doors 4736 During a subsequent visit to the monastery Witness Franjo Kri‘anac noted that the organ was missing 4737 On 13 August 1993 Witness ZQ went to the monastery of Gu a Gora4738 and saw graffiti in several languages and noted that the frescoes the organ and the statue of St Francis of Assisi in the monastery courtyard had all been damaged 4739 2005 In view of the above evidence the Chamber finds that the monastery of Gu a Gora was damaged in June 1993 4740 Several witnesses stated that as of 16 June 1993 inscriptions in Arabic 4724 Izet Mahir T F pp 16833-16834 Izet Mahir T F p 16833 4726 Izet Mahir T F p 16805 4727 Vaughan Kent-Payne T F p 4813 4728 Vaughan Kent-Payne T F p 4814 4729 Jasenko Eminović T F pp 5736-5737 Samir Sefer T F p 11975 4730 Samir Sefer T F p 11975 4731 Samir Sefer T F p 11975 4732 Jasenko Eminović T F p 5737 Samir Sefer T F p 11975 4733 Jasenko Eminović T F p 5753 Samir Sefer T F p 11976 4734 Franjo Kri‘anac T F p 1111 4735 Franjo Kri‘anac T F p 1111 Witness Franjo Kri‘anac did not state the date of this visit 4736 Franjo Kri‘anac T F pp 1112-1113 4737 Franjo Kri‘anac T F p 1113 Witness Franjo Kri‘anac did not state the date of this visit 4738 Witness ZQ T F p 1016 4739 Witness ZQ T F p 1017 4740 See P 482 4725 Case No IT-01-47-T 595 15 March 2006 81 21623 BIS appeared on the walls 4741 steles had been destroyed 4742 and paintings frescoes4743 and the organ4744 had been damaged The Chamber considers that the damage to the objects and the inscriptions on the walls constitute acts of desecration 2006 Regarding the perpetrators of the damage to the monastery of Gu a Gora the Chamber notes that the evidence refers to the presence of foreign mujahedin in the monastery in June 1993 Between 11 or 12 and 16 June 1993 witnesses stated that they saw foreign mujahedin inside and outside the monastery 4745 The Chamber also notes that no damage to the monastery was observed until after it was occupied by foreign mujahedin and their departure on 16 June 1993 4746 Consequently the Chamber considers that the evidence allows the finding that foreign mujahedin were the perpetrators of the damage to the monastery of Gu a Gora in June 1993 iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi 2007 The Chamber finds that the damage to the monastery of Gu a Gora in June 1993 was the work of foreign mujahedin Furthermore the Chamber finds that the foreign mujahedin were not under the effective control of the Accused Hadžihasanović at the time of the alleged facts 4747 iv Conclusions of the Chamber 2008 The Chamber considers that the damage to the monastery of Gu a Gora in June 1993 was the work of foreign mujahedin who were not subordinated to the 3rd Corps Since the Accused Had‘ihasanović did not exercise effective control over the foreign mujahedin the Chamber concludes that he cannot be held responsible for the damage to the monastery of Gu a Gora in June 1993 b Travnik the Church and the Town of Travnik 2009 The Indictment alleges that the mujahedin subordinated to the ABiH 3rd Corps and or the 17th Brigade destroyed or damaged Bosnian Croat religious institutions in Travnik in June 1993 4748 It states that the Accused Had‘ihasanović knew or had reason to know that units under his 4741 Izet Mahir T F p 16805 Vaughan Kent-Payne T F p 4814 Jasenko Eminović T F p 5737 Samir Sefer T F p 11975 Franjo Kri‘anac T F p 1112 Witness ZQ T F p 1017 4742 Vaughan Kent-Payne T F p 4814 4743 Vaughan Kent-Payne T F p 4814 Franjo Kri‘anac T F pp 1112-1113 Witness ZQ T F p 1017 4744 Izet Mahir T F p 16805 Witness ZQ T F p 1017 4745 D‘emal Merdan T F pp 13140 13341 13356 13362 and 13363 Vaughan Kent-Payne T F pp 4794-4795 DH 71 Mahir Izet T F pp 16833-16834 4746 Mahir Izet T F p 16805 Vaughan Kent-Payne T F pp 4813-4814 Jasenko Eminović T F pp 5736-5737 Samir Sefer T F pp 11975-11976 4747 See supra para 805 Case No IT-01-47-T 596 15 March 2006 80 21623 BIS command and effective control were about to plan prepare or execute such acts or had done so and failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrators The Accused Had‘ihasanović is therefore charged with the destruction or wilful damage to institutions dedicated to religion a violation of the laws or customs of war punishable under Articles 3 d and 7 3 of the Statute 4749 i Arguments of the Parties 2010 The Indictment alleges that mujahedin entered the church of St John the Baptist in Travnik on 8 June 1993 and damaged it 4750 adding that the Accused Had‘ihasanović had been informed of these events but that the ABiH did not seriously investigate them 4751 2011 The Defence for the Accused Had‘ihasanović does not deny that the Catholic church in Travnik was damaged on 8 June 1993 but states that the church in Travnik was damaged by mujahedin not under the effective control of the 3rd Corps The Defence for the Accused Had‘ihasanović also maintains that the soldiers who were there were unable to stop the mujahedin With regard to the measures taken the Defence for the Accused Had‘ihasanović alleges that measures were taken to prevent the destruction and damage to religious institutions to put an immediate stop to the damage to the church in Travnik and to find and punish the perpetrators of these acts 4752 ii Findings of the Chamber regarding the Destruction and Wilful Damage of Religious Institutions in Travnik 2012 Around 0700 or 0800 hours on 8 June 1993 4753 eight to ten mujahedin entered the church in Travnik and started to smash objects inside it 4754 Witness Mirko Ivkić4755 was wakened by the sound of banging objects4756 and saw a mujahedin in front of the church 4757 He reacted immediately and called the civilian and military authorities including the ABiH barracks in Travnik 4758 and also notified4759 the two ABiH soldiers in charge of watching over and securing 4748 Indictment para 46 Indictment para 46 4750 Prosecution Final Brief para 352 4751 Ibid para 355 4752 Had‘ihasanović Defence Final Brief para 770 4753 Mirko Ivkić T F p 4593 DH 67 4754 DH 67 4755 Mirko Ivkić T F pp 4558-4559 Witness Mirko Ivkić was a Catholic priest in the Travnik parish 4756 Mirko Ivkić T F pp 4591 and 4594 4757 Mirko Ivkić T F p 4634 4758 Mirko Ivkić T F pp 4591-4592 4749 Case No IT-01-47-T 597 15 March 2006 79 21623 BIS Witness Mirko Ivkić and the parish office on a permanent basis 4760 Fearing the mujahedin the soldiers did not intervene and locked themselves inside the house 4761 When the mujahedin left Witness Mirko Ivkić noted the extent of the damage 4762 Representatives of the Public Security Station and the MUP arrived and prepared a report of what had happened in the church 4763 Fikret Cuskić Commander of the 17th Brigade also went to the church on 8 June 1993 4764 2013 When Witness Mirko Ivkić was able to enter the church he noted that the interior had been demolished 4765 The organ and windows were damaged and the sculptures and paintings smashed and destroyed 4766 The investigation report compiled on 8 June 1993 by the Security Service Centre notes the mujahedin’s destruction of the loudspeakers the organ paintings and windows 4767 When Witness Torbjorn Junhov went to Travnik in June 1993 as part of the ECMM he saw that many of the objects inside the church in Travnik had been destroyed and statutes decapitated The person serving as Witness Tobjorn Junhov’s guide told him that mujahedin were the perpetrators of this damage 4768 On 12 March 1994 Witness Z6 took photographs of several objects inside the church in Travnik showing the damage to several statues and the organ 4769 2014 In view of the above evidence the Chamber finds that the Catholic church in Travnik was damaged on 8 June 1993 Both Witness Mirko Ivkić4770 and the investigation report of 8 June 19934771 refer to the destruction of objects inside the church The Chamber considers the damage to the Catholic church in Travnik on 8 June 1993 to be an act of desecration 2015 With regard to the perpetrators of the damage to the church in Travnik the Chamber notes that those who were present at the scene on 8 June 1993 stated that they saw mujahedin enter the church After being wakened by banging objects 4772 Witness Mirko Ivkić saw a mujahedin in front of the church4773 and immediately called both civilian and military authorities 4774 Furthermore one 4759 Mirko Ivkić T F p 4593 Mirko Ivkić T F pp 4632-4633 4761 Mirko Ivkić T F pp 4593-4594 4762 Mirko Ivkić T F pp 4595-4598 4763 Mirko Ivkić T F p 4635 DH 66 DH 67 4764 Fikret Cuskić T F p 12082 Mirko Ivkić T F p 4599 4765 Mirko Ivkić T F p 4595 4766 Mirko Ivkić T F pp 4597-4598 4767 DH 67 4768 Torbjorn Junhov T F pp 8383-8384 4769 P 388 under seal para 7 4770 Mirko Ivkić T F p 4596 4771 DH 67 4772 Mirko Ivkić T F pp 4591 and 4594 4773 Mirko Ivkić T F p 4634 4760 Case No IT-01-47-T 598 15 March 2006 78 21623 BIS of the soldiers charged with securing the church told him that after a mujahedin had hit him he had locked himself in for protection 4775 Witness Fikret Cuskić also concluded that the damage was the work of mujahedin 4776 The investigation report of 8 June 1993 notes the statements by persons providing security for the church according to whom the damage was caused by eight or ten mujahedin 4777 Consequently the Chamber considers that the evidence allows the finding beyond a reasonable doubt that the perpetrators of the damage to the church in Travnik on 8 June 1993 were mujahedin The Chamber also finds that none of the evidence suffices to identify members of the 17th Brigade as the perpetrators of this damage iii Findings of the Chamber regarding the Responsibility of Enver Had ihasanovi 2016 The Chamber concludes that the damage caused to the church in Travnik on 8 June 1993 was the work of mujahedin Furthermore the Chamber notes that the mujahedin were not part of the 17th Brigade and were not under the effective control of the Accused Hadžihasanović at the time of the alleged facts 4778 iv Conclusions of the Chamber 2017 The Chamber considers that the damage caused to the church in Travnik in June 1993 was the work of mujahedin who were not part of the 17th Brigade and were not subordinated to the 3rd Corps Because the Accused Had ihasanovi did not exercise effective control over the mujahedin the Chamber concludes that the Accused Had‘ihasanović cannot be held responsible for the damage to the church in Travnik on June 1993 C Findings of the Chamber on Measures Taken by the Accused Had ihasanovi regarding Destruction and Plunder 1 Introduction 2018 In analysing all the measures taken by the ABiH during the material time the context in which the measures were taken should first be explained The Chamber notes that the Accused have 4774 Mirko Ivkić T F pp 4591 4592 and 4634 Mirko Ivkić T F pp 4593 4594 and 4634 4776 Fikret Cuskić T F p 12082 Mirko Ivkić T F p 4599 4777 DH 67 4778 See supra para 805 4775 Case No IT-01-47-T 599 15 March 2006 77 21623 BIS been acquitted of the two counts in the Indictment dealing with the destruction and plunder in the village of Dusina and the destruction in the village of Mileti i 4779 2019 In view of the evidence the Chamber finds that destruction and plunder systematically followed the combat operations mentioned in the Indictment This phenomenon began well before June 1993 appearing in “waves” as of late January 1993 2020 The first wave appeared in late January 1993 4780 The Chamber would recall however that the Prosecution did not tender any evidence regarding the destruction and plunder alleged to have taken place in Dusina 2021 As of 17 April 1993 following the combat in Zenica and its surroundings there was a second wave of destruction and plunder 4781 With regard to this period the Chamber recalls that it was not seized of the issue except for the plunder that allegedly took place in Mileti i 4782 2022 The third wave of destruction and plunder began in early June 1993 According to the evidence these incidents of destruction and plunder clearly began before 8 June 1993 and continued after 30 June 1993 Likewise it extended over a territory that went beyond the municipalities covered in the Indictment in particular the municipality of Kakanj and places in the municipality of Travnik not mentioned in the Indictment For the sake of clarity and also motivated by the interests of fairness to better understand the Accused Had ihasanovi ’s efforts to curb such actions the Chamber will analyse all these incidents without limiting itself to the temporal and geographical framework set out in the Indictment 2 Documentary Proof from the 3rd Corps 2023 The measures taken will first be analysed using the documents tendered into evidence For the period of June 1993 the Chamber admitted 65 documents from either the ABiH or civilian authorities in the region 4783 They will be analysed according to the following categories 4779 See Decision on Motions for Acquittal Disposition P 137 P138 DH 704 DH 263 DH 710 DH 711 DH 732 4781 See for example the following documents DH 874 DH 265 P 877 DH 111 DH 161 2 P 146 DH 109 DH 264 DH 110 DH 161 3 DH 884 P 878 P 895 P 820 4782 Decision on Motions for Acquittal Disposition 4783 In chronological order DH 1101 P 464 P 465 P 287 DH 1132 DH 1135 DH 1137 DH 162 2 DH 161 9 DH 1139 DH 1141 P 185 P 186 DH 161 10 DH 1155 P 187 P 422 P 423 P 424 DH 1164 DH 1162 P 188 P 466 P 895 DH 1186 P 890 P 585 P 189 DH 161 12 P 158 DH 161 13 P 864 DH 1197 DH 1196 P 159 P 470 DH 161 14 DH 1207 P 900 DH 162 3 DH 234 P 204 DH 1213 DH 1906 P 160 P 798 DH 65 DH 161 16 DH 1215 P 426 P 427 P 808 P 893 P 590 P 898 DH 1225 P 428 DH 1235 P 467 P 475 P 429 P 591 DH 1246 P 201 P 592 P 431 P 544 DH 161 19 DH 1916 P 894 DH 2071 DH 160 5 DH 1920 P 864 DH 1265 DH 1272 DH 1278 4780 Case No IT-01-47-T 600 15 March 2006 76 21623 BIS a General Prohibition against Destruction and Plunder 2024 The Chamber first notes that the Accused Had ihasanovi issued orders to remind his subordinates that destruction and plunder were prohibited The first was dated 9 June 19934784 and made reference to his two previous orders dated 18 April 1993 4785 On 10 June 1993 the Accused Had ihasanovi again prohibited his troops from committing destruction and plunder in a new order 4786 Then on 17 June4787 and 19 June4788 1993 the Accused Had ihasanovi issued two new orders repeating the prohibition Other orders regarding the same prohibition can be cited 4789 b General Preventive and Punitive Measures 2025 The Chamber notes from the documents tendered into evidence that the Accused Had ihasanovi issued another type of order intended to prevent destruction and plunder and punish the perpetrators In the first order of this type dated 10 June 1993 4790 the Accused warned that all those guilty of such acts would be punished by being immediately relieved of their duties or would be criminally prosecuted before “courts-martial” or “special courts” The order says he must be informed promptly in writing of any failure to obey the order and of any measure taken in this regard In response to a report dated 11 June 1993 from Mehmed Alagi 4791 Commander of the OG Bosanska Krajina on 12 June 1993 the Accused Had ihasanovi ordered all those caught plundering or burning property4792 to be detained at once 4793 2026 Then on 16 June 1993 the Accused Had ihasanovi issued an order covering seven points intended to verify the allegations that soldiers had plundered and burned civilian property following combat 4794 Of these seven points the Chamber will focus on a few in particular the order to verify the allegations of plunder and burning of property by members of the ABiH to appoint persons or commissions to establish whether such events occurred and to indicate the names of the perpetrators by 20 June 1993 to submit criminal reports if such events had occurred and to take measures if possible to find and return the plundered goods to detain the perpetrators of such acts and to initiate criminal proceedings against them The order announces the creation of a special commission of the 4784 DH 1139 P 146 P 877 4786 P 186 DH 161 10 4787 P 159 4788 DH 65 DH 161 16 DH 1215 4789 P 159 seeming to respond to an order of the same day P 470 coming from both the Minister of the Interior and the Commander of the Supreme Command Main Staff 4790 P 186 DH 161 10 4791 P 187 4792 Movable and immovable property 4793 P 188 4785 Case No IT-01-47-T 601 15 March 2006 75 21623 BIS 3rd Corps Command to verify the information obtained regarding the plunder any arson and the credibility of the reports submitted 2027 Other documents attest to the fact that the Accused Had ihasanovi took measures of a general nature to protect civilian property for example the order dated 18 June 19934795 further to an order from the Supreme Command dated 16 June 1993 4796 and his order dated 19 June 1993 4797 Two other orders dated 25 June 19934798 and 27 June 19934799 should also be mentioned c Organisation and Mobilisation of the Military Police 2028 Several orders issued by the Accused Had ihasanovi dealt with the organisation and use of the military police and cooperation between the military and civilian police On 12 June 1993 the Accused Had ihasanovi ordered Mehmed Alagi to use “his own police” and the MUP forces to arrest the arsonists and looters 4800 Then on 16 June 1993 he ordered the Commander of the 306th Brigade to use his military police unit to secure the Gu a Gora sector in order to prevent plunder and arson and to do this in conjunction with the 3rd Corps Military Police Battalion and part of the 312th Brigade Military Police unit 4801 A similar order was also issued three days later for the municipality of Kakanj 4802 Finally an order was issued on 28 June 1993 to form a military police unit within the OG Bosanska Krajina 4803 d Reports Submitted to the Supreme Command 2029 In two reports to the Supreme Command in June 1993 the Accused Had ihasanovi informed his superiors of the nature and extent of the problem and the measures taken to stop it 4804 4794 P 199 DH 161 12 P 900 DH 162 3 DH 234 4796 P 864 4797 DH 65 DH 161 16 DH 1215 4798 This order was not tendered into evidence but its existence is established by the reference made to it in the order DH 1265 that includes “Directives” dated 27 June 1993 and signed by Mesud Smaji Assistant Commander for Security in the 312th Brigade 4799 P 864 4800 P 188 4801 P 158 DH 161 13 For the execution of the order see P 204 4802 P 160 4803 DH 1920 4804 P 422 P 160 4795 Case No IT-01-47-T 602 15 March 2006 74 21623 BIS e Personal Initiatives Taken by the Accused Had ihasanovi in Respect of Specific Cases 2030 On 17 June 1993 the Accused Had ihasanovi asked the Commander of the 7th Brigade for information regarding the rumours that members of the 7th Brigade had stolen property while guarding the Franciscan convent of Kraljeva Sutjeska 4805 Then on 25 June 1993 he followed up on a request from the Deputy Commander of the Supreme Command dated 20 June 1993 4806 In his response the Accused Had ihasanovi reported that an investigation was being conducted into 7th Brigade members Nesib Tali and Aser Bekta in order to verify the allegations that they had taken part in the plunder 4807 2031 Another personal initiative by the Accused Had ihasanovi intending to prevent and punish destruction and particularly plunder in Kakanj in June 1993 should also be noted On 20 June 1993 the Accused Had ihasanovi went to Kakanj in person to try to put an end to the problem of plunder 4808 In addition on 25 June 1993 he informed the Deputy Commander of the Supreme Command that officers in the 7th Brigade had been relieved of their duties for failing to execute an order intended to prevent plunder 4809 f Interaction Between the 3rd Corps Command and Subordinate Units 2032 Thirteen reports submitted between 8 and 25 June 1993 by units subordinated to the 3rd Corps informed the Accused Had ihasanovi of destruction and plunder in their zone of responsibility and either asked for assistance in solving the problem or proposed solutions 4810 2033 Eight documents can be cited that attest to measures taken in June 1993 by units subordinated to the 3rd Corps carrying out orders by the Accused Had ihasanovi 4811 g Autonomous Initiatives by the Commanders of 3rd Corps Units 2034 Eight documents from June 1993 attest to autonomous initiatives taken by subordinates 4812 All these initiatives were taken by Mehmed Alagi Commander of the OG Bosanska Krajina The Chamber notes in particular the order of 8 June 1993 that set up a special military court 4813 4805 DH 161 14 P 431 See also the testimony of ZP T F pp 8865-8867 4807 P 544 DH 161 19 Nesib Tali was the 7th Brigade Assistant Commander for Security at the time P 498 4808 P 590 P 808 4809 P 544 DH 161 19 See also P 475 4810 In chronological order P 465 DH 1137 P 187 P 895 P 423 DH 1906 P 798 P 898 P 426 P 428 P 429 P 592 DH 1916 4811 In chronological order DH 1187 P 158 P 204 P 898 P 426 P 427 P 467 DH 1265 4812 In chronological order DH 1101 P 464 P 287 DH 1132 DH 1155 P 890 P 893 P 894 DH 2071 DH 1278 4806 Case No IT-01-47-T 603 15 March 2006 73 21623 BIS 3 Investigations and Criminal Proceedings 2035 During the trial the Defence for Had ihasanovi tendered into evidence numerous documents concerning investigations and criminal proceedings against members of the 3rd Corps Some dealt with the prosecution of ABiH members accused of plundering houses abandoned by Croats which depending on the circumstances might or might not be considered a war crime 2036 According to the documents tendered into evidence the Chamber knows of 32 proceedings initiated against individual soldiers or groups of soldiers members of the ABiH for acts of plunder sometimes accompanied by destruction Twenty of these cases were submitted to military judicial authorities in Travnik4814 and twelve were sent to the military judicial authorities in Zenica 4815 In the cases that the Chamber knows were tried suspended sentences of two to six months in prison were handed down 4816 Nevertheless in a case involving several accused for five different offences committed over a period of several months the non-suspended sentences were from one to three years in prison 4817 It should be noted that none of these cases was prosecuted pursuant to Article 142 Chapter 16 of the SFRY Criminal Code 4818 2037 Among the twenty cases submitted to the District Military Court in Travnik 11 were for offences committed in June 1993 and nine for crimes committed in July and August 1993 As regards the locations when the unlawful acts were committed three of the twenty cases submitted took place in locations indicated in the Indictment while 17 involved primarily cases of crimes committed in areas around Travnik If these cases are examined with regard to the material time and places indicated in the Indictment the Chamber notes that not a single one concerns the relevant time or places 2038 Of the 12 cases submitted to the District Military Court in Zenica three deal with crimes committed during the period material to the Indictment four concern previous months and five after 4813 P 287 DH 1132 By date the crimes were committed the following documents case no 1 DH 1144 case no 2 DH 122 1 DH 1145 case no 3 DH 121 DH 1328 case no 4 DH 1562 case no 5 DH 1200 case no 6 DH 1201 case no 7 DH 1202 case no 8 DH 1204 case no 9 DH 1190 DH 1935 case no 10 DH 1202 case no 11 DH 121 5 DH 1295 case no 12 DH 1379 DH 2000 DH 2001 case no 13 DH 1997 DH 1998 DH 1999 case no 14 DH 1586 case no 15 DH 1581 case no 16 DH 121 4 case no 17 DH 121 3 DH 1342 case no 18 DH 2002-DH 2006 case no 19 DH 1451 case no 20 DH 1483 4815 By date the crimes were committed they are the following documents case no 1 DH 2030 case no 2 DH 982 case no 3 DH 283 DH 1069 case no 4 DH 303 DH 1366 DH 1975 case no 5 DH 1578 case no 6 DH 972 case no 7 DH 319 case no 8 DH 316 case no 9 DH 320 case no 10 DH 285 DH 297 DH 323 case no 11 DH 325 case no 12 DH 1471 4816 For Travnik cases no 12 14 and 20 and for Zenica cases no 8 9 10 11 4817 Case no 5 Zenica 4818 See supra paras 958-969 4814 Case No IT-01-47-T 604 15 March 2006 72 21623 BIS that time With regard to the location of the crimes the Chamber notes that six of the 12 cases concern crimes committed in the municipality of Kakanj and six in other municipalities None of the 12 cases took place in locations referred to in the Indictment 2039 An initial observation is that the plunder of abandoned Croatian houses did not go unpunished as the Chamber knows of 32 criminal proceedings covering such actions initiated in 1993 from June to August 1993 for Travnik and from April to October 1993 for Zenica This leads to the inference that the military police and military courts were operating In spite of this assertion however an analysis as to why the number of cases was so small is essential 2040 Accordingly the Chamber will examine the reasons why so few cases of plunder were submitted to it It will also attempt to provide an explanation for the fact that no case dealing with the time and places material to the Indictment was reported by the Parties To this end it will start from a first unverified postulate that these cases were the only ones to be conducted by the district military courts during or close to the material time The Chamber will proceed to analyse the circumstances in which the plunder took place and the difficulties the Accused Had ihasanovi faced in preventing and investigating such incidents a Extent of the Plunder Difficulties in Stopping and Identifying the Perpetrators 2041 In view of the documents tendered into evidence and the testimony of witnesses heard by the Chamber it appears that plunder was a widespread occurrence in all the sectors of Central Bosnia where combat took place 2042 In early June 1993 plunder occurred in the Travnik area 4819 Then towards 8 June 1993 it spread to all the combat zones in the Bila Valley and to other locations referred to in the Indictment 4820 Towards 17 June 1993 it reached the Kakanj sector 4821 2043 In order to understand the extent of the plunder it should be noted that entire villages had been deserted by the Croatian population Witness HE for example mentioned the departure of 17 000 inhabitants of the Travnik area and the Bila Valley which left thousands of dwellings empty 4822 2044 A second element which is very important within the context of the plunder was the high number of Muslim refugees who had fled the combat in other parts of Bosnia and Herzegovina and 4819 P 464 P 465 P 287 DH 1132 DH 1135 DH 1137 See for example P 422 P 423 P 188 P 585 P 189 DH 161 12 P 158 DH 161 13 P 204 4821 See for example DH 161 14 P 160 P 590 P 808 P 428 P 429 4822 HE T F p 16977 See also Fikret uski T F p 12098 4820 Case No IT-01-47-T 605 15 March 2006 71 21623 BIS had arrived in Central Bosnia seeking refuge 4823 Witness Fikret uski stated that there were approximately 20 000 refugees in the Travnik area alone 4824 The town of Zenica accommodated as many as 50 000 persons during this period 4825 2045 A third element often reported by witnesses and also visible in the documentary evidence was the prevailing shortage of goods in the area during this period that was seriously aggravated by the massive influx of refugees 4826 2046 A final element that deserves special mention is the lifting of the blockade of the roads after the combat on 8 June 1993 that allowed the re-establishment of communication networks between Travnik and Zenica and ended the Bila Valley’s isolation Opening the roads gave thousands of refugees and other persons both military and civilian access to the Bila Valley where they could enter dwellings abandoned by their Croatian owners and steal basic commodities for their immediate needs and all property of value 4827 2047 Thus in order to determine whether and how the Accused Had ihasanovi took measures against the widespread occurrence of plunder all the consequences such a problem could cause the context in which the plunder appeared and the means available to the 3rd Corps to end it must also be recalled 2048 As explained above the plunder was widespread and covered a very large territory abandoned by its inhabitants who were not present to stop it or identify the perpetrators b Means Put into Effect by the 3rd Corps and Their Limitations 2049 The 3rd Corps first focused on the need to end the plunder Working together with the civilian authorities it imposed a curfew in certain areas to limit the movement of people 4828 It also dispatched military and civilian police patrols4829 and established check-points to prevent acts of plunder committed by both civilians and 3rd Corps members and to punish them 4830 Finally in late June 1993 a new police unit was created within the OG Bosanska Krajina as a response to the 4823 See supra paras 400 and 401 Fikret uski T F p 12083 4825 DH 1593 Semir Sarić T F p 17315 Martin Garrod T F p 8285 Ramiz D aferovi T F p 14210 See supra para 400 4826 See for example Osman Menkovi T F p 14880 and DH 1009 4827 Asim Delali T F p 16372 and Remzija iljak T F p 10557 4828 See for example P 158 Fikret uski T F p 12094 4829 See for example DH 1186 P 204 Osman Menkovi T F p 14686 4830 See for example P 422 P 204 Asim Delalić T F p 16373 HF T F pp 16979 17022-17023 Osman Menković T F pp 14674 14685-14686 4824 Case No IT-01-47-T 606 15 March 2006 70 21623 BIS problems encountered by the brigade military police units in particular their reduced number and limited territorial jurisdiction 4831 2050 Nevertheless given the size of the territory and the extent of the incidents the limited number of military police in the brigades meant that check-points could be set up only in a few places for a specific period of time The military police did not have the authority to check members of the ABiH only and units tended to follow their brigades towards the shifting front line 2051 Some witnesses also mentioned that after combat was over and the military police units had left for other front lines it was primarily the civilian police who were in charge of checking individuals to prevent the plunder and they did not always have the means to arrest the armed looters from the ABiH Thus whenever possible the military police went on patrols with the civilian police 4832 2052 According to some witness testimony another element deserving special attention is the fact that plunder very often took place at night and the looters had no trouble bypassing the checkpoints 4833 2053 It seems that the means put in place to stop the plunder were often undermined by the fact that the military police of some brigades such as the 7th Brigade and the 314th Brigade took part in these activities 4834 2054 Finally owing to the fact that the villagers had left they were not present to identify the looters and lodge complaints with the relevant authorities 2055 The Chamber finds that the efforts of both the relevant military and civilian authorities were in line with the principal desire to put an end to the plunder in order to prevent any repetition The means put in place as we have just seen were limited c Disciplinary Measures 2056 Some witnesses asserted that the perpetrators of the plunder were to be liable for criminal prosecution 4835 After the two main orders issued by the Accused Had ihasanovi in respect of punishment for plundering it seems that criminal sanctions were intended as a response to such 4831 DH 1920 HE T F p 16978 Osman Menković T F pp 14674 14695 Osman Menković T F p 14725 It should be noted that the civilian police were also involved in combat and could thus abandon territory and leave it open to the looters 4833 Asim Delalić T F p 16398 Samin Konjalić T F p 12808 Osman Menković T F p 14685 4834 See supra paras 1943 and 1978 4835 Fikret Čuskić T F p 12099 HE p T F 17075 Osman Menković T F p 14705 4832 Case No IT-01-47-T 607 15 March 2006 69 21623 BIS actions They do not suggest that disciplinary measures were the appropriate response to punish such acts 4836 2057 Nevertheless Witness Asim Delali stated that disciplinary measures were taken within the 306th Brigade to punish plunder due to the lack of criminal proceedings and explained that such measures were taken because at the time it was difficult to go to Travnik and because the District Military Court there was not very effective Finally he suggested that the 306th Brigade made systematic use of disciplinary measures to punish looters The punishment imposed by the 306th Brigade Commander was 30 to 60 days in prison 4837 2058 The length of the sentences imposed as disciplinary measures do not differ from that handed down by the district military courts They condemned looters to suspended sentences of two to six months in prison Thus they can be considered “reasonable” punishment within the meaning of Article 7 3 of the Statute 4 General Conclusions 2059 In June 1993 the Accused Had ihasanovi was faced with a serious problem of destruction and plunder whose size and extent he assessed In order to deal with it he took a set of general measures intended to prohibit and prevent such actions and punish the perpetrators He also took specific measures to respond to individual situations 2060 His subordinates regularly informed him of the unlawful acts of destruction and plunder A great number of documents attest to the execution of Had ihasanovi ’s orders by his units 2061 All these documents suggest that the Accused Had ihasanovi was concerned about the problem he faced in June 1993 and showed a proven desire to effectively solve this matter using the means at his disposal In this regard the Chamber considers that the Accused Had ihasanovi established a proper framework to stop such incidents prevent their repetition and punish the perpetrators 2062 Starting from the assumption that the 32 cases showing that investigations were undertaken promptly represent all of the proceedings initiated to punish acts of destruction and plunder the Chamber notes that this limited number can be based only on certain factors such as the extent of the incidents the inadequate means to deal with them and the objective circumstances in which they took place 4836 4837 P 186 DH 161 10 10 June 1993 P 189 DH 161 12 16 June 1993 Asim Delali T F pp 16374-16375 16399-16400 the sentence was served in the monastery of Gu a Gora Case No IT-01-47-T 608 15 March 2006 68 21623 BIS 2063 Furthermore the Chamber recalls that as explained elsewhere in the Judgement the Prosecution did not meet its obligation to prove that no measures were taken in respect of these counts 4838 4838 See supra paras 995-1000 Case No IT-01-47-T 609 15 March 2006 67 21623 BIS VIII SENTENCING A Submissions of the Parties 2064 The Prosecution argued that justice would be done by sentencing the Accused Hadžihasanović to a term of 20 years in prison and the Accused Kubura to 10 years 4839 It argued that sentences must reflect as best as possible the seriousness of the Accused’s conduct in the specific context of the case and the form and degree of their participation in the alleged offences 4840 The Prosecution submitted that a by failing to prevent or punish the crimes in question the Accused Hadžihasanović and the Accused Kubura allowed the commission of more than 30 unsolved murders allowing the perpetrators of those crimes and crimes committed in the detention centres to escape responsibility and allowed a number of people to burn and plunder houses belonging to Bosnians and Croats with impunity 4841 b the Chamber must consider the background education and intelligence of each of the Accused as aggravating circumstances 4842 c the fact the Accused Hadžihasanović and Kubura are career military officers constitutes an aggravating circumstance 4843 especially in the case of Hadžihasanović 4844 d given the gravity of the crimes with which they are charged the Chamber must not attach undue weight to the Accused’s “good character prior to the commission of these offences” 4845 and e there are no mitigating circumstances 4846 2065 The Defence for the Accused Hadžihasanović also argued for an acquittal on all counts Without explicitly mentioning mitigating circumstances several paragraphs of Hadžihasanović’s Pre-Trial Brief describe the particular context of this case 4847 arguing that Hadžihasanović’s actions were purely defensive in nature 4848 that when he assumed command of the 3rd Corps in Central Bosnia he faced an “unprecedented situation from a military perspective” 4849 that when he took up his duties he was faced with “a massive influx of refugees in his area of responsibility as well as with the lack of basic necessities for the population to survive and to fight the war on two fronts ”4850 and that he was even confronted with “the problem of foreign holy warriors or 4839 Prosecution Closing Arguments T F p 19112 Prosecution Closing Arguments T F p 19110 4841 Prosecution Closing Arguments T F pp 19110-19111 4842 Prosecution Final Brief para 360 4843 Prosecution Final Brief para 360 4844 Prosecution Closing Arguments T F p 19111 4845 Prosecution Final Brief para 362 4846 Prosecution Final Brief para 361 Prosecution Closing Arguments T F p 19111 4847 Hadžihasanović Defence Pre-Trial Brief paras 17-24 4848 Hadžihasanović Defence Pre-Trial Brief para 17 4849 Hadžihasanović Defence Pre-Trial Brief para 21 4850 Hadžihasanović Defence Pre-Trial Brief para 22 4840 Case No IT-01-47-T 610 15 March 2006 66 21623 BIS Mujaheddins” 4851 In its Final Brief the Defence for Hadžihasanović again pointed to “the particular circumstances in which General Hadžihasanović was required to exercise his command” 4852 His Defence further noted that Hadžihasanović’s service record rated as “exceptional” 4853 and that when he assumed command of the 3rd Corps he had not yet attended the necessary course for promotion to General taken part in the required strategic command exercises for promotion to that rank or had command experience at a level higher than brigade 4854 The Defence for Had ihasanovi also called a number of witnesses who all attested to Hadžihasanović’s ability to command the 3rd Corps in the most difficult of circumstances 4855 2066 The Defence for the Accused Kubura also argued for an acquittal on all counts It argued that Kubura strove at all times to act as a responsible commander and ensure that the laws of war were respected 4856 and that as a virtuous and law-abiding man he set an example for his troops 4857 In its Closing Arguments the Defence for Kubura requested the Chamber to consider as mitigating circumstances the fact that a Kubura did not participate in a massive attack in which 200 civilians lost their lives in a very short time4858 and b there was no discriminatory basis for the depredations for which Kubura is accused 4859 B Legal Framework for Sentencing 1 Legal Provisions and Principles for Determining Sentences 2067 The relevant parts of Article 24 of the Statue and Rules 87 C and 101 of the Rules read as follows Article 24 of the Statute 1 The penalty imposed by the Trial Chamber shall be limited to imprisonment In determining the terms of imprisonment the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia 4851 Hadžihasanović Defence Pre-Trial Brief para 22 Hadžihasanović Defence Final Brief paras 75-87 4853 Hadžihasanović Defence Final Brief para 26 4854 Hadžihasanović Defence Final Brief para 30 4855 Hadžihasanović Defence Final Brief paras 31-32 and 73-74 4856 Kubura Defence Pre-trial Brief para 13 4857 Kubura Defence Pre-trial Brief para 16 4858 Kubura Defence Closing Arguments T F p 19265 Reference is made here to the attacks described and alleged in paragraph 27 of the Indictment The attacks were allegedly launched by ABiH 3rd Corps units in April 1993 and early summer 1993 against the HVO particularly but not exclusively in the municipalities of Bugojno Busovača Kakanj Maglaj Novi Travnik Travnik Vareš Vitez Zavidovići Zenica and Žepče During the attacks predominately Bosnian Croat but also Bosnian Serb civilians including women children the elderly and the infirm were allegedly subjected to wilful killings and serious injury Two hundred Bosnian Croat and Bosnian Serb civilians were allegedly killed 4859 Kubura Defence Closing Arguments T F pp 19265-19266 4852 Case No IT-01-47-T 611 15 March 2006 65 21623 BIS 2 In imposing the sentences the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person ₣…ğ Rule 87 of the Rules C If the Trial Chamber finds the accused guilty on one or more of the charges contained in the indictment it shall impose a sentence in respect of each finding of guilt and indicate whether such sentences shall be served consecutively or concurrently unless it decides to exercise its power to impose a single sentence reflecting the totality of the criminal conduct of the accused Rule 101 of the Rules A A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life B In determining the sentence the Trial Chamber shall take into account the factors mentioned in Article 24 paragraph 2 of the Statute as well as such factors as i any aggravating circumstances ii any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction iii the general practice regarding prison sentences in the courts of the former Yugoslavia ₣…ğ C Credit shall be given to the convicted person for the period if any during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal 2068 While the Statute and Rules provide the Trial Chambers general guidelines for determining sentences by requiring that they take into account aggravating and mitigating factors the material and personal circumstances of the Accused the gravity of the offence and the general practice regarding prison sentences in the former Yugoslavia they do not exhaustively define the points of fact and law which the Trial Chambers may consider when determining sentences Chambers therefore have broad discretionary power in determining such matters 4860 2069 When reviewing the personal situation of an Accused in order to determine a sentence appropriate to that individual Trial Chambers must take into account aggravating and mitigating circumstances A Chamber may take into account only aggravating circumstances directly related to the crime or crimes in question and to the perpetrators thereof 4861 which the Prosecution will have included in its Indictment4862 and established beyond a reasonable doubt 4863 Even when all such conditions are met the Trial Chamber preserves its discretionary power to attach only limited 4860 Čelebići Appeal Judgement paras 716-717 780 Kunarac Trial Judgement para 850 4862 Kunarac Trial Judgement para 850 4863 Strugar Trial Judgement para 466 4861 Case No IT-01-47-T 612 15 March 2006 64 21623 BIS weight to such circumstances 4864 As to mitigating circumstances the Trial Chamber shall consider only those established by the Accused on the balance of probabilities 4865 whether or not they have a direct nexus with the crimes in question 4866 because even when he presents evidence of mitigating circumstances the Accused is never automatically entitled to a reduction in his sentence 4867 2070 In its determination of the most appropriate sentence the Trial Chamber must take into account the purpose of punishment 2071 Retribution is a particularly important factor As the Trial Chamber in Aleksovski held “This is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes This factor has been widely recognised by Trial Chambers of this International Tribunal …”4868 The Chamber subscribes to that position 2072 It is established case law that deterrence should be the most important factor taken into account in determining sentences 4869 Nevertheless Trial Chambers have always taken care not to accord undue prominence to deterrence in their final determinations 4870 Such moderation should be applied as a general deterrent 4871 in order to deter similarly situated individuals from committing similar crimes but also as a special deterrent to ensure the Accused never contemplates taking part in such crimes again 4872 The Chamber agrees with the position of the Kunarac Trial Chamber4873 that only very limited weight should be attached to special deterrence 2073 In its determination of the sentence the Chamber also bears in mind that its purpose is to protect society by incapacitating persons considered dangerous while also reflecting public disapproval and making it possible for the convicted person to return to society at a later date The 4864 Čelebići Appeal Judgement para 777 Blagojević Judgement para 840 Bla kić Appeal Judgement para 697 Čelebići Appeal Judgement para 590 Kunarac Trial Judgement para 847 4866 Babić Appeal Judgement para 43 Stakić Trial Judgement para 920 4867 Babić Appeal Judgement para 44 4868 Aleksovski Appeal Judgement para 185 See also Erdemović Trial Judgement para 64 elebići Trial Judgement para 1234 Furund ija Trial Judgement para 288 4869 elebići Trial Judgement para 1234 4870 Tadić Sentencing Appeals Judgement para 48 Čelebići Appeal Judgement paras 800-801 4871 Aleksovski Appeal Judgement para 185 4872 Čelebići Trial Judgement para 1234 4873 Kunarac Trial Judgement para 840 “The main reason is that the likelihood of persons convicted here ever again being faced with an opportunity to commit war crimes crimes against humanity genocide or grave breaches is so remote as to render its consideration in this way unreasonable and unfair ” 4865 Case No IT-01-47-T 613 15 March 2006 63 21623 BIS Chamber considers however that in accordance with Tribunal case law the importance of those three functions in determining sentence is relative 4874 2074 The Chamber must also take into account the general practice regarding prison sentences in the courts of the former Yugoslavia Any references to those practices are purely indicative and are in no way binding 4875 The relevant provisions for determining sentences are set out in Chapter 16 Articles 33 38 41 and 48 of the SFRY Criminal Code 4876 2 Single Basis of Responsibility of the Accused Their Position as Superiors at the Time of the Events 2075 The Chamber would note that this Judgement is the first in the history of the Tribunal to convict Accused persons solely on the basis of Article 7 3 of the Statute4877 and recalls that command responsibility must be conceived as a type of personal responsibility for failure to act The Accused will not be convicted for crimes committed by his subordinates but for failing in his obligation to prevent the crimes or punish the perpetrators 4878 2076 When a person is found responsible solely on the basis of Article 7 1 of the Statute or cumulatively in conjunction with Article 7 3 the gravity of the offence is evaluated in view of two elements the inherent gravity of the acts committed and the form and degree of the Accused’s participation in the crimes in question 4879 The concept of command responsibility in this regard is exceptional in law in that it allows for a superior to be found guilty of a crime even if he had no part whatsoever in its commission absence of an actus reus and even if he never intended to commit the crime absence of mens rea Accordingly the Chamber finds that the sui generis nature of command responsibility under Article 7 3 of the Statute may justify the fact that the sentencing scale applied to those Accused convicted solely on the basis of Article 7 1 of the Statute or cumulatively under Articles 7 1 and 7 3 is not applied to those convicted solely under Article 7 3 in cases where nothing would allow that responsibility to be assimilated or linked to individual responsibility under Article 7 1 4874 Regarding the protective function of sentencing see Kunarac Trial Judgement para 843 regarding the retributory function see Erdemović Trial Judgement para 65 and for the rehabilitative function see Čelebići Appeal Judgement para 806 and Kunarac Trial Judgement para 844 4875 See Kupre kić Trial Judgement para 840 Bla kić Trial Judgement para 759 Čelebići Appeal Judgement paras 813 and 820 Jokić Appeal Judgement para 37 Strugar Judgement para 473 4876 Entered into force on 1 July 1977 4877 In its assessment of the overall composition of this case taking into account its points of fact and law and determining which material and personal circumstances might have a bearing on the sentence the Chamber has been careful not to consider any element of an offence defined in Article 7 3 of the Statute as an aggravating or mitigating circumstance 4878 See supra paras 74 and 75 4879 Kupre kić Trial Judgement para 852 Case No IT-01-47-T 614 15 March 2006 62 21623 BIS C Determination of Sentence 1 Enver Hadžihasanović 2077 The Judges of the Chamber have unanimously determined the sentence a Mitigating Circumstances Accepted by the Chamber i Personal Mitigating Circumstances 2078 To best tailor the sentence to the personal situation of the Accused Hadžihasanović even though his Defence did not explicitly raise the issue the Chamber has considered a few mitigating circumstances with regard to that Accused Considering that the purpose of sentencing could be achieved through a reduced sentence the Chamber pursuant to Tribunal case law in this area 4880 credits the Accused Hadžihasanović for his voluntary surrender to the Tribunal 4881 for always complying with the conditions of his provisional release and for his good conduct at the United Nations Detention Unit4882 and during the hearings 2079 The Chamber finds the family situation of the Accused Hadžihasanović in particular the fact that he is married and is the father of two children to be a mitigating circumstance 4883 2080 The Chamber also finds that the Accused Hadžihasanović has a character which can be rehabilitated and that he thus merits a reduced sentence To arrive at that conclusion the Chamber has taken into account not only his lack of a prior criminal record4884 but also his prior good reputation 4885 The Chamber is also sensitive to the testimony attesting to his professionalism conscientiousness efficiency ability intelligence and good manners 4886 The Chamber has borne in mind the fact that the Accused Hadžihasanović was not guided by any feeling of belonging to a 4880 For voluntary surrender to the Tribunal as a mitigating circumstance see Bla kić Trial Judgement para 776 Kunarac Trial Judgement para 868 For good conduct at the detention centre and during the hearings as a mitigating circumstance see Simić Trial Judgement para 1114 Banović Trial Judgement para 63 Plavsić Trial Judgement para 109 For compliance with the conditions of provisional release as a mitigating circumstance see Plavsić Trial Judgement para 109 4881 The Accused Hadžihasanović voluntarily surrendered to the International Tribunal on 4 August 2001 4882 See in this regard the report from the Commander of the United Nations Detention Unit to the Registrar of the Tribunal dated 11 July 2005 “Whilst in detention his behaviour has at all times been exemplary He has shown respect for the staff and management alike He has at all times observed the rules of detention He interacts very well with other inmates irrespective of their ethnic origin and is at all times pleasant and positive in his interaction with others His pleasant attitude has on occasions helped to diffuse minor tensions ” 4883 For family responsibility as a mitigating circumstance see Bla kić Trial Judgement para 779 Vasiljević Trial Judgement para 300 4884 For the absence of prior criminal convictions as a mitigating circumstance see Bla kić Trial Judgement para 780 4885 For good prior character as a mitigating circumstance see Blaškić Judgement para 780 Obrenović Sentencing Judgement para 134 Krstić Appeal Judgement para 273 A contrario see Čelebići Trial Judgement para 1256 4886 See for example Džemal Merdan T F p 12959 Witness HE T F p 17098 Sir Martin Garrod T F p 5670 Guy Chambers T F p 6033 Alistair Duncan T F pp 7279-7280 Bryan Watters T F p 7508 Case No IT-01-47-T 615 15 March 2006 61 21623 BIS religious or ethnic group4887 and that he worked to enforce the rules of international humanitarian law to protect Croatian people and property be it through his calls to respect the law 4888 or through the training sessions on the principles of international humanitarian law that he organised for 3rd Corps soldiers and officers 4889 The value of these considerations has been assessed in view of the fact that when he assumed command of the 3rd Corps he had not yet completed the theoretical and practical training required to hold such a post 4890 ii Factual Mitigating Circumstances 2081 The case law of this Tribunal has on several occasions considered that the overall context in which the incriminating acts took place may be taken into account in determining which sentence to impose 4891 In this case the Chamber notes that when he became commander of the 3rd Corps the Accused Hadžihasanović was faced with a generally difficult situation Hadžihasanović assumed command of the ABiH 3rd Corps on 18 November 1992 4892 only nine days after the Corps had been set up on 9 November 1993 4893 Furthermore he assumed command of the 3rd Corps at the very time the ABiH was forced to engage in an unforeseen battle with the armed forces of the HVO 4894 Lastly the difficulties Hadžihasanović had in exercising command were compounded by the mass arrival of refugees into Central Bosnia4895 and by the problem of the foreign combatants Although it does not justify the causes or consequences that particular context casts the Accused Hadžihasanović’s failures in a light which leads the Chamber to show leniency b Aggravating Circumstances Accepted by the Chamber 2082 The time span over which the criminal acts took place may be considered as an aggravating circumstance in that it is indicative of the scope of the crimes committed 4896 In this case the Chamber notes that the cruel treatment at the Zenica Music School took place over approximately a seven-month period and that the cruel treatment in the other detention centres created in Bugojno was inflicted over a period of about three and a half months In the view of the Chamber the prolonged period over which these crimes were committed warrants a more severe sentence 4887 See for example Witness HE T F p 17098 See for example P 293 P 288 P 323 P 316 P 284 P 161 P 197 Edib Zlotrg T F p 14982 Witness HF T F pp 17200-17201 See supra paras 1161-1167 and 2024 4889 See for example P 255 P 324 P 335 See supra paras 856-859 4890 See for example DH 2088 paras 320-321 4891 See in this regard Čelebići Trial Judgement para 1248 4892 P 245 4893 P 123 4894 Mark Bower T F pp 5207-5208 4895 Witness ZJ T F p 4184 Rudy Gerritsen T F p 7182 4896 See in this regard Blaškić Trial Judgement para 784 Kunarac Trial Judgement para 865 4888 Case No IT-01-47-T 616 15 March 2006 60 21623 BIS 2083 Moreover the fact that there are large numbers of victims has on several occasions been considered an aggravating circumstance 4897 In this case the Chamber notes that there were some one hundred detainees at the Zenica Music School while at the five detention centres in Bugojno the detainees numbered several hundred 2084 Lastly and consonant with the case law in this area 4898 the Chamber considers that the particularly heinous nature of Dragan Popović’s murder by beheading on 21 October 1993 must also be considered as an aggravating factor for the sentence of the Accused Hadžihasanović c Single Sentence 2085 After ensuring that the Accused Hadžihasanović would not be punished more than once for the same conduct the Chamber has decided on the basis of the allegations of cruel treatment and murders set out in paragraphs 42 a 42 e 42 g 43 c and 43 e of the Indictment for which the Chamber has found him guilty to impose a single sentence of 5 years’ imprisonment on the Accused Hadžihasanović d Credit for Time Served 2086 Under Rule 101 C of the Rules all persons found guilty have the right to credit for the “period during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal” Accordingly in calculating the duration of the sentence the Accused Hadžihasanović must serve one must consider that from 4 August 2001 the day he was first taken into custody until the day of this Judgement and after subtracting the periods of provisional release granted to him he has already been in detention 828 days 2 Amir Kubura 2087 The Judges of the Chamber have unanimously determined the sentence a Mitigating Circumstances Accepted by the Chamber i Personal Mitigating Circumstances 2088 As it did for the Accused Hadžihasanović in determining the sentence for the Accused Kubura the Chamber first took into account his personal situation Accordingly the Chamber 4897 See in this regard Blaškić Trial Judgement para 784 Kunarac Trial Judgement para 866 See in this regard Blaškić Trial Judgement para 783 Simić Sentencing Judgement para 63 Nikolić Sentencing Judgement para 213 4898 Case No IT-01-47-T 617 15 March 2006 59 21623 BIS considered his voluntary surrender to the Tribunal 4899 his good conduct during the hearings and his compliance with the conditions of his provisional release The Chamber also considered that the sentence must be pronounced in view of the fact that the Accused Kubura is married that he is the father of three children and that his spouse’s health is not good 4900 2089 The Accused Kubura’s lack of a prior criminal record and his reputation as a conscientious soldier dedicated to respect for the law and discipline4901 have been considered by the Chamber The Chamber has also noted that the Accused Kubura does not seem to have harboured any animosity against his opponents other than the animosity a commander has for an enemy army 4902 ii Factual Mitigating Circumstances 2090 While the Chamber has found that the Accused Kubura failed in his duty to take measures to punish those of his subordinates who plundered and destroyed public and private property in Vareš it does note that he acted swiftly to comply with the order given to him on 4 November 1993 by the OG Istok commander to put a stop to the depredations in the town of Vareš and to withdraw his troops from there 4903 As of 5 November 1993 the Accused Kubura in fact prohibited the members of the 7th Brigade from entering or remaining in the town of Vareš in order to protect the property of the people living there In the view of the Chamber this is a mitigating circumstance 4904 b Aggravating Circumstances Accepted by the Chamber 2091 The Chamber is of the view that the systematic manner in which an offence is committed must be considered an aggravating circumstance In this case the Chamber considers that the systematic nature of the plunder in Vareš and Susanj was a product of the procedure organised and set up to collect what the 7th Brigade referred to as “war booty” Regarding the plunder committed in the region of Susanj Ovnak Brajkovići Grahovčići the Chamber bases its opinion on two 20 June 1993 reports 4905 as well as an order issued by the Accused Kubura on 5 June 1993 which provided not only for the establishment of collection points but also for the creation of two commissions one operating in the combat zone and the other based in Bilmište both tasked with organising collections of war booty 4906 Regarding the plunder in Vareš on 4 November 1993 the Chamber 4899 The Accused Kubura voluntarily surrendered to the Tribunal on 2 August 2001 See in this regard Decision on Motions by Enver Hadžihasanovi and Amir Kubura for Provisional Release Case No IT-01-47-T 19 July 2005 p 5 4901 Elvir Mušija T F pp 18780-18781 4902 Elvir Mušija T F pp 18781-18782 4903 P 675 See supra para 1989 4904 P 478 See supra para 1989 4905 P 898 P 426 4906 P 420 4900 Case No IT-01-47-T 618 15 March 2006 58 21623 BIS relies on the reports of the OG Istok4907 and on corroborating testimony4908 which highlight the repetitive and extensive nature of the plunder 4909 The Chamber finds that the organised scheme for the systematic appropriation and distribution among 7th Brigade members of property plundered in the Susanj Ovnak Brajkovići Grahovčići region and in Vareš could not have been implemented without the prior approval of the Accused Kubura Accordingly the Chamber finds that the systematic nature of the plunder in those areas constitutes an aggravating circumstance for the sentence against the Accused Kubura 2092 Furthermore the Chamber considers that by accepting and organising the plunder and appropriation of public and private property the Accused Kubura shared a wilfulness with the direct perpetrators of the acts scarcely different from that required to trigger responsibility under Article 7 1 of the Statute The Chamber finds that the Accused Kubura was deeply involved in the commission of the offence and that even though that circumstance cannot in and of itself entail his responsibility under Article 7 1 of the Statute it nevertheless justifies an aggravation of the sentence imposed on him on the basis of Article 7 3 of the Statute c Single Sentence 2093 After ensuring that the Accused Kubura would not be punished more than once for the same conduct the Chamber has decided on the basis of the allegations of plunder set out in paragraph 44 of the Indictment for which the Chamber has found him guilty to impose a single sentence of 30 months’ imprisonment on the Accused Kubura d Credit for Time Served 2094 Under Rule 101 C of the Rules all persons found guilty have the right to credit for the “period during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal” Accordingly in calculating the duration of the sentence the Accused Kubura must serve one must consider that from 4 August 2001 the day he was first taken into custody until the day of this Judgement and after subtracting the periods of provisional release granted to him he has already been in detention 828 days 4907 P445 P 448 Hakan Birger T F pp 5384-5390 5420 and 5422-5425 Ulf Henricsson T F pp 7669-7670 Sir Martin Garrod T F pp 5692-5694 Rolf Weckesser T F pp 7214-7218 4909 See supra para 1975 4908 Case No IT-01-47-T 619 15 March 2006 57 21623 BIS IX DISPOSITION FOR THE FOREGOING REASONS THE CHAMBER ruling unanimously PURSUANT TO Articles 23 and 24 of the Statute and Rules 98 ter 101 102 and 103 of the Rules of Procedure and Evidence SITTING in open session FINDS the Accused Had ihasanovi as a superior pursuant to Articles 3 and 7 3 of the Statute COUNT 1 • COUNT 1 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the murder of Niko Kegelj Stipo Kegelj Vinko Kegelj Pero Ljubi i Augustin Rado Vojislav Stani i and Zvonko Raji in Dusina on 26 January 1993 • Count 1 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the murder of Franjo Pavlovi Tihomir Pavlovi Vlado Pavlovi and Anto Petrovi in Mileti i on 24 April 1993 • Count 1 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the murder of Anto Balta Ivo Balta Jozo Balta Luka Balta Nikica Balta Bojan Barać Davor Barać Goran Bobaš Niko Bobaš Slavko Bobaš Srećo Bobaš Pero Bobaš-Pupić Dalibor Janković Stipo Janković Slavko Kramar Anto Matić Tihomir Peša Ana Pranješ Ljubomir Pušelja Predrag Pušelja Jakov Tavić Mijo Tavić Stipo Tavić and Ivo Volić in Maline on 8 June 1993 COUNT 2 RECALLS that the Chamber in its Decision on Motions for Acquittal rendered on 27 September 2004 found the Accused Had ihasanovi • Count 2 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the cruel treatment of Niko Kegelj Stipo Kegelj Vinko Kegelj Pero Ljubi i Augustin Rado Vojislav Stani i and Zvonko Raji in Dusina on 26 January 1993 Case No IT-01-47-T 620 15 March 2006 56 21623 BIS • Count 2 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the cruel treatment of Franjo Pavlovi Tihomir Pavlovi Vlado Pavlovi and Anto Petrovi in Mileti i on 24 April 1993 • Count 2 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the cruel treatment of Anto Balta Ivo Balta Jozo Balta Luka Balta Nikica Balta Bojan Barać Davor Barać Goran Bobaš Niko Bobaš Slavko Bobaš Srećo Bobaš Pero Bobaš-Pupić Dalibor Janković Stipo Janković Slavko Kramar Anto Matić Tihomir Peša Ana Pranješ Ljubomir Pušelja Predrag Pušelja Jakov Tavić Mijo Tavić Stipo Tavić Ivo Volić Berislav Marjanovi Zdravko Pranje Darko Pu elja and @elko Pu elja in Maline on 8 June 1993 COUNT 3 RECALLS that the Chamber in its Decision on Motions for Acquittal rendered on 27 September 2004 found the Accused Had ihasanovi • Count 3 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the murder of a Croatian detainee in the former JNA Barracks in Travnik in May 1993 • Count 3 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the murder of Jozo Mara i at the Zenica Music School on 18 June 1993 Now finds the Accused Had ihasanovi • Count 3 NOT GUILTY of failing to take the necessary and reasonable measures to prevent the murder of Mladen Havranek at the Slavonija Furniture Salon in Bugojno on 5 August 1993 • Count 3 GUILTY of failing to take the necessary and reasonable measures to punish the murder of Mladen Havranek at the Slavonija Furniture Salon in Bugojno on 5 August 1993 • Count 3 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the murder of Mario Zrno at the Bugojno Convent in early August 1993 • Count 3 GUILTY of failing to take the necessary and reasonable measures to prevent the murder of Dragan Popovi by ritual beheading at the Ora ac Camp on 21 October 1993 Case No IT-01-47-T 621 15 March 2006 55 21623 BIS • Count 3 NOT GUILTY of failing to take the necessary and reasonable measures to punish the murder of Dragan Popovi by ritual beheading at the Ora ac Camp on 21 October 1993 COUNT 4 • Count 4 GUILTY of failing to take the necessary and reasonable measures to prevent or punish cruel treatment at the Zenica Music School from around 26 January 1993 to 31 October 1993 • Count 4 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish cruel treatment at the former JNA Barracks in Travnik from around May 1993 to 31 October 1993 • Count 4 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish cruel treatment at the Mehuri i Elementary School from around 6 June 1993 until at least 24 June 1993 • Count 4 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish cruel treatment at the Mehuri i Blacksmith Shop from around 6 June 1993 until at least 13 July 1993 • Count 4 GUILTY of failing to take the necessary and reasonable measures to prevent cruel treatment at the Ora ac Camp from 15 October to 31 October 1993 • Count 4 NOT GUILTY of failing to take the necessary and reasonable measures to punish cruel treatment at the Ora ac Camp from around 15 October 1993 to 31 October 1993 • Count 4 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish cruel treatment at the Motel Sretno from around 15 May 1993 until at least 21 June 1993 • Count 4 GUILTY of failing to take the necessary and reasonable measures to prevent or punish cruel treatment at the Gimnazija School Building in Bugojno from around 18 July 1993 until at least 13 October 1993 Case No IT-01-47-T 622 15 March 2006 54 21623 BIS • Count 4 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish cruel treatment at the Bugojno Convent from around 24 July 1993 until at least early August 1993 • Count 4 GUILTY of failing to take the necessary and reasonable measures to prevent or punish cruel treatment at the Slavonija Furniture Salon in Bugojno from around 24 July 1993 until at least 18 August 1993 • Count 4 GUILTY of failing to take the necessary and reasonable measures to prevent or punish cruel treatment at the Iskra FC Stadium in Bugojno from around 30 July 1993 to 31 October 1993 • Count 4 GUILTY of failing to take the necessary and reasonable measures to prevent or punish cruel treatment at the Vojin Paleksi Elementary School from around 31 July 1993 until at least September 1993 • Count 4 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish cruel treatment at BH Banka in Bugojno from around September 1993 until 31 October 1993 COUNT 5 RECALLS that the Chamber in its Decision on Motions for Acquittal rendered on 27 September 2004 took note of the Prosecution’s withdrawal of • Count 5 in respect of the responsibility of the Accused Had ihasanovi for failing to take the necessary and reasonable measures to prevent or punish the wanton destruction of towns and villages not justified by military necessity in Dusina in January 1993 AND FOUND on that occasion the Accused Had ihasanovi • Count 5 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the wanton destruction of towns and villages not justified by military necessity in Mileti i in April 1993 Case No IT-01-47-T 623 15 March 2006 53 21623 BIS NOW FINDS the Accused Had ihasanovi • Count 5 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the wanton destruction of towns and villages not justified by military necessity in Gu a Gora in June 1993 • Count 5 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the wanton destruction of towns and villages not justified by military necessity in Maline in June 1993 • Count 5 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the wanton destruction of towns and villages not justified by military necessity in ukle in June 1993 • Count 5 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the wanton destruction of towns and villages not justified by military necessity in the villages of u anj Ovnak Brajkovi i Grahov i i in June 1993 COUNT 6 RECALLS that the Chamber in its Decision on Motions for Acquittal rendered on 27 September 2004 took note of the Prosecution’s withdrawal of • Count 6 in respect of the responsibility of the Accused Had ihasanovi for failing to take the necessary and reasonable measures to prevent or punish plundering in Dusina in January 1993 NOW FINDS the Accused Had ihasanovi • Count 6 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish plundering in Mileti i in April 1993 • Count 6 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish plundering in Gu a Gora in June 1993 • Count 6 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish plundering in Maline in June 1993 • Count 6 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish plundering in ukle in June 1993 Case No IT-01-47-T 624 15 March 2006 52 21623 BIS • Count 6 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish plundering in the villages of u anj Ovnak Brajkovi i Grahov i i in June 1993 COUNT 7 • Count 7 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the destruction of or wilful damage to institutions dedicated to religion in Gu a Gora and Travnik in June 1993 SENTENCES the Accused Had ihasanovi to a term of imprisonment of 5 years to run as of this day subject to credit that shall be given pursuant to Rule 101 C of the Rules for the 828 days in total that the Accused Had ihasanovi has already spent in detention FINDS the Accused Kubura as a superior pursuant to Articles 3 and 7 3 of the Statute COUNT 1 • Count 1 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the murder of Franjo Pavlovi Tihomir Pavlovi Vlado Pavlovi and Anto Petrovi in Mileti i on 24 April 1993 • Count 1 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the murder of Anto Balta Ivo Balta Jozo Balta Luka Balta Nikica Balta Bojan Barać Davor Barać Goran Bobaš Niko Bobaš Slavko Bobaš Srećo Bobaš Pero Bobaš-Pupić Dalibor Janković Stipo Janković Slavko Kramar Anto Matić Tihomir Peša Ana Pranješ Ljubomir Pušelja Predrag Pušelja Jakov Tavić Mijo Tavić Stipo Tavić and Ivo Volić in Maline on 8 June 1993 COUNT 2 RECALLS that the Chamber in its Decision on Motions for Acquittal rendered on 27 September 2004 found the Accused Kubura • Count 2 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the cruel treatment of Franjo Pavlovi Tihomir Pavlovi Vlado Pavlovi and Anto Petrovi in Mileti i on 24 April 1993 Case No IT-01-47-T 625 15 March 2006 51 21623 BIS • Count 2 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the cruel treatment of Anto Balta Ivo Balta Jozo Balta Luka Balta Nikica Balta Bojan Barać Davor Barać Goran Bobaš Niko Bobaš Slavko Bobaš Srećo Bobaš Pero Bobaš-Pupić Dalibor Janković Stipo Janković Slavko Kramar Anto Matić Tihomir Peša Ana Pranješ Ljubomir Pušelja Predrag Pušelja Jakov Tavić Mijo Tavić Stipo Tavić and Ivo Volić Berislav Marjanovi Zdravko Pranje Darko Pu elja and @elko Pu elja in Maline on 8 June 1993 COUNT 3 RECALLS that the Chamber in its 27 September 2004 Decision on Motions for Acquittal found the Accused Kubura • Count 3 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the murder of Jozo Mara i at the Zenica Music School on 18 June 1993 COUNT 4 NOW FINDS the Accused Kubura • Count 4 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish cruel treatment at the Zenica Music School from 1 April 1993 until at least January 1994 • Count 4 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish cruel treatment at the Motel Sretno from around 15 May 1993 until at least 21 June 1993 COUNT 5 RECALLS that the Chamber in its Decision on Motions for Acquittal rendered on 27 September 2004 found the Accused Kubura • Count 5 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the wanton destruction of towns and villages not justified by military necessity in Mileti i in April 1993 Case No IT-01-47-T 626 15 March 2006 50 21623 BIS NOW FINDS the Accused Kubura • Count 5 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the wanton destruction of towns and villages not justified by military necessity in Maline in June 1993 • Count 5 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the wanton destruction of towns and villages not justified by military necessity in the villages of u anj Ovnak Brajkovi i Grahov i i in June 1993 • Count 5 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish the wanton destruction of towns and villages not justified by military necessity in Vare in November 1993 COUNT 6 NOW FINDS the Accused Kubura • Count 6 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish plundering in Mileti i in April 1993 • Count 6 NOT GUILTY of failing to take the necessary and reasonable measures to prevent or punish plundering in Maline in June 1993 • Count 6 NOT GUILTY of failing to take the necessary and reasonable measures to prevent plundering in the villages of u anj Ovnak Brajkovi i Grahov i i in June 1993 • Count 6 GUILTY of failing to take the necessary and reasonable measures to punish plundering in the villages of u anj Ovnak Brajkovi i Grahov i i in June 1993 • Count 6 GUILTY of failing to take the necessary and reasonable measures to prevent or punish plundering in the village of Vare in November 1993 AND SENTENCES the Accused Kubura to a term of imprisonment of 2 and a half years to run as of this day subject to credit that shall be given pursuant to Rule 101 C of the Rules for the 828 days in total that the Accused Kubura has already spent in detention Case No IT-01-47-T 627 15 March 2006 49 21623 BIS Pursuant to Rule 103 of the Rules pending an agreement for the transfer of the convicted persons to a State where they will serve their sentence the convicted persons shall remain in the custody of the Tribunal Done in French and in English the French version being authoritative The President of the Trial Chamber signed Jean-Claude Antonetti signed signed Vonimbolana Rasoazanany Bert Swart Done this fifteenth day of March 2006 At The Hague The Netherlands Seal of the Tribunal Case No IT-01-47-T 628 15 March 2006 48 21623 BIS X ANNEX I HISTORICAL BACKGROUND Dissolution of the Former Yugoslavia and Escalation of the Conflicts On 25 June 1991 the Republic of Croatia proclaimed its independence The European Community recognised Croatia on 15 January 1992 and the country was admitted as a Member State of the United Nations on 22 May 1992 The Republic of Bosnia and Herzegovina “RBiH” was recognised by the European Community on 6 April 1992 and by Croatia on 7 April 1992 It was admitted as a Member State of the United Nations on 22 May 1992 On 18 November 1991 the Croatian Community of Herceg-Bosna “HZ H-B” proclaimed its independence The community would never gain international recognition On 9 January 1992 the Bosnian Serb Assembly proclaimed the Serbian Republic of Bosnia and Herzegovina In March 1992 the Bosnian Serb Army “VRS” launched an attack on Mostar and Sarajevo On 8 April 1992 with the establishment of the Republic of Bosnia and Herzegovina the General Staff of the Territorial Defence “TO” of the RBiH was created and the former General Staff of the SFRY TO was dissolved The Presidency of the RBiH announced the state of impending threat of war The same day the Presidency of the HZ H-B decided to establish the Croatian Defence Council “HVO” officially as the “supreme defence body of the Croatian people” in HZ H-B On 27 April 1992 the Federal Republic of Yugoslavia which included the Republics of Serbia and Montenegro was proclaimed On 12 August 1992 the Serbian Republic of Bosnia and Herzegovina became the “Republika Srpska” On 23 June 1992 by decision of the Presidency of the RBiH the RBiH Army “ABiH” was created to protect the Republic of Bosnia and Herzegovina in the ongoing conflict in its territory On 25 October 1992 the HVO attacked the ABiH forces in Prozor expelling all Bosnian Muslims from the town Case No IT-01-47-T 629 15 March 2006 47 21623 BIS On 29 October 1992 the Bosnian Serb Army VRS occupied Jajce displacing 25 000 Bosnian Muslims and Bosnian Croats to Travnik On 2 January 1993 the Vance-Owen Plan was presented at the International Conference for the Former Yugoslavia in Geneva That peace plan proposed inter alia a decentralised BosniaHerzegovina organised into ten provinces each one substantially autonomous Accepted by the Bosnian Croats the plan was rejected by the Bosnian Serbs and Muslims In January 1993 fighting between the HVO and ABiH escalated and the two armed forces engaged in combat in Zenica municipality and in the Lašva Valley On 15 April 1993 @ivko Totić Commander of the HVO Jure Francetić Brigade was abducted by foreign mujahedin in Zenica In April 1993 fighting again broke out between the HVO and ABiH in Ahmići and Zenica In June 1993 fighting between the HVO and ABiH spread to the Bila Valley In July 1993 fighting between the HVO and ABiH broke out in Bugojno ABiH 3rd Corps By presidential decision of 18 August 1992 the territory of the Republic of Bosnia and Herzegovina was to be divided into five different military areas of responsibility known as Corps answerable to the ABiH Supreme Command Main Staff On 18 August 1992 headquarters for the 3rd Corps were set up in Zenica On 29 September 1992 the ABiH Supreme Command Main Staff ordered that the District TO Staff OkŠO be resubordinated to the Corps and the Municipal TO Staff “OpŠO” be subordinated to ABiH units in their respective zone of responsibility On 9 November 1992 the Chief of the Supreme Command Main Staff Sefer Halilovi ordered the creation of specific units within the 3rd Corps In mid-November 1992 Enver Had‘ihasanović was appointed 3rd Corps Commander by Sefer Halilović On 11 December 1992 Amir Kubura was appointed 7th Brigade Assistant Chief of Staff for Operations and Training On 1 January 1993 Amir Kubura was appointed 7th Brigade Chief of Staff Case No IT-01-47-T 630 15 March 2006 46 21623 BIS In February 1993 Enver Hadžihasanović proposed the creation of operations groups “OG” to ensure a more efficient chain of command between base units and the 3rd Corps Command On 8 March 1993 operational groups were set up to include OG Bosanska Krajina headquartered in Travnik OG Lašva headquartered in Kakanj OG Bosna headquartered in Žepče and Zavidovići and OG Zapad headquartered in Bugojno On 12 March 1993 Amir Kubura was appointed Deputy Commander of the 7th Brigade On 6 August 1993 Amir Kubura was officially appointed Commander of the 7th Brigade On 12 August 1993 the 3rd Corps proposed to the ABiH Supreme Command Main Staff the creation of a detachment of foreign volunteers to be called the El Mujahedin in the 3rd Corps’ zone of responsibility On 13 August 1993 the Supreme Command Staff of the ABiH created the El Mujahedin detachment ordering the 3rd Corps to set it up Joint Command On 25 April 1993 Presidents Alija Izetbegović and Mate Boban signed a joint statement ordering a cease-fire between the ABiH and the HVO units and setting up a Joint Command Following the statement Enver Had‘ihasanović was appointed as a member of the Joint Command for Central Bosnia On 2 May 1993 Enver Had‘ihasanović ordered the establishment of the Joint Command for Central Bosnia to be headquartered in Travnik Washington Accords On 18 March 1994 the Presidents of Bosnia and Herzegovina and Croatia signed the Washington Accords which put an end to the armed conflict between the army of Bosnia and Herzegovina and the Croatian troops Case No IT-01-47-T 631 15 March 2006 45 21623 BIS XI ANNEX II GLOSSARY A Frequently Used Terms and Abbreviations ABiH Army of the Republic of Bosnia and Herzegovina Accused Enver Had ihasanovi and Amir Kubura Accused Had ihasanovi Enver Had ihasanovi Accused Had ihasanovi ’s Opening Statement Opening Statement by the Accused Had ihasanovi 18 October 2004 T F p 10178 ff Accused Kubura Amir Kubura Amir Kubura’s Motion for Acquittal Defence Motion on Behalf of Amir Kubura for judgement of acquittal pursuant to Rule 98 bis of the Rules of Procedure and Evidence 11 August 2004 Accused Kubura’s Opening Statement Opening statement by the Accused Kubura 11 April 2005 T F p 18181 ff Bank BH Banka in Bugojno Barracks Barracks of the former JNA in Travnik BRITBAT British Battalion Protection Force Convent Bugojno Convent Building CSB Security Services Centre Defence Defence for the Accused Had ihasanovi and Defence for the Accused Kubura Defence for the Accused Had ihasanovi Defence Counsel for the Accused Had ihasanovi Defence for the Accused Kubura Defence Counsel for the Accused Kubura District Military Prosecutors Zenica District Military Prosecutor and Travnik District Military Prosecutor ECMM European Community Monitoring Mission Enver Hadžihasanović's Motion for Acquittal The Prosecutor v Enver Hadžihasanović and Amir Kubura Case No IT-01-47-T Enver Hadžihasanović’s Motion for Acquittal 11 Case No IT-01-47-T 632 of the United Nations 15 March 2006 44 21623 BIS August 2004 Foreign Mujahedin Foreign Muslim fighters who arrived in Central Bosnia in 1992 and 1993 Former JNA Barracks Barracks of the former JNA in Travnik Furniture Salon Slavonija Furniture Salon in Bugojno Gimnazija School Building Building of the Secondary School in Bugojno G VK Main Staff of the Supreme Command Had ihasanovi Defence Closing Arguments Closing Arguments of the Had ihasanovi Defence 13-15 July 2005 Had ihasanovi Defence Final Brief The Prosecutor v Enver Had ihasanovi and Amir Kubura Case No IT-01-47-T Final Trial Brief on behalf of Enver Had ihasanovi 6 July 2005 Had ihasanovi Defence Pre-Trial Brief The Prosecutor v Enver Had ihasanovi and Amir Kubura Case No IT-01-47-T Pre-Trial Brief of Enver Had ihasanovi pursuant to Rule 65 ter F 3 November 2003 HV Army of the Republic of Croatia HVO Croatian Defence Council Bosnian Croat Army ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States Between 1 January 1994 and 31 December 1994 IKM Forward Command Post ILC International Law Commission Indictment Prosecutor v Enver Had ihasanovi and Amir Kubura Case No IT-01-47-PT Third Amended Indictment 26 September 2003 Iskra Stadium Iskra Football Club FC Stadium in Bugojno Case No IT-01-47-T 633 15 March 2006 43 21623 BIS JNA Yugoslav People’s Army Army of the Socialist Federal Republic of Yugoslavia Joint Statement on the Agreement of Facts The Prosecutor v Enver Had ihasanovi and Amir Kubura Case No IT-01-47-T Joint Prosecution-Defence Statement Agreement of Facts 3 December 2003 Judge Judge before the Tribunal Judgement The Prosecutor v Enver Had ihasanovi and Amir Kubura Case No IT-01-47-T Judgement delivered on 15 March 2006 KP Dom in Zenica Zenica Penal and Correctional Facility prison Kubura Defence Closing Arguments Closing Arguments of the Kubura Defence 15 July 2005 Kubura Defence Final Brief The Prosecutor v Enver Had ihasanovi and Amir Kubura Case No IT-01-47-T Final Trial Brief on behalf of Amir Kubura 6 July 2005 Kubura Defence Pre-Trial Brief The Prosecutor v Enver Hadžihasanović and Amir Kubura Case No IT-01-47-T Defence Pre-Trial Brief of Amir Kubura Pursuant to Rule 65 ter F 3 November 2003 Mehuri i School Mehuri i Elementary School milinfosum Military Information Summary Military District courts Zenica Military District Court and Travnik Military District Court Ministry of Defence Ministry of Defence of the RBiH Mujahed Member of the group of foreign and local Muslim fighters located in Mehuri i Poljanice among other places Mujahedin Members of the group of foreign and local Muslim fighters located in Mehuri i Poljanice among other places MUP Ministry of the Interior Music School Music School in Zenica Muslims RBiH Muslims Ok O District TO Case No IT-01-47-T 634 15 March 2006 42 21623 BIS Op O Municipal TO p pp page pages para paras paragraph paragraphs Parties The Prosecution and Defence in the trial of The Prosecutor v Enver Had ihasanovi and Amir Kubura Case No IT-01-47-T Prosecution Office of the Prosecutor of the Tribunal Prosecution Closing Arguments Prosecution Closing Arguments 12 and 13 July 2005 Prosecution Final Brief The Prosecutor v Enver Had ihasanovi and Amir Kubura Case No IT-01-47-T Prosecution Final Brief 6 July 2005 Prosecution Opening Statement Prosecution Opening Statement 2 December 2003 T F p 348 ff Prosecution Pre-Trial Brief The Prosecutor v Enver Had ihasanovi and Amir Kubura Case No IT-01-47-T Submission of the Prosecution’s Pre-Trial Brief pursuant to Rule 65 ter E 10 October 2003 Prosecution Response to Motions for Acquittal The Prosecutor v Enver Hadžihasanović and Amir Kubura Case No IT-01-47-T Prosecution Response to Defence Motions for Acquittal Pursuant to Rule 98 bis 1 September 2004 RBiH Republic of Bosnia and Herzegovina Reply of Amir Kubura to the Prosecution’s Response to Motions for Acquittal The Prosecutor v Enver Hadžihasanović and Amir Kubura Case No IT-01-47-T Confidential Reply of the Defence for Amir Kubura to the Prosecution’s Response to the Motions for Acquittal pursuant to Rule 98 bis of the Rules 6 September 2004 Reply of Enver Had ihasanovi to the Prosecution’s Response to Motions for Acquittal The Prosecutor v Enver Hadžihasanović and Amir Kubura Case No IT-01-47-T Reply of Enver Had ihasanovi to Prosecution's Response to Defence Motions for Acquittal pursuant to Rule 98 bis of the Rules 6 September 2004 Case No IT-01-47-T 635 15 March 2006 41 21623 BIS School Zenica Music School in the chapter on the Music School in Zenica Vojin Paleksi Elementary School in Bugojno in the chapter on the Vojin Paleksi Elementary School in Bugojno Mehuri i Elementary School in the chapter on the Elementary School in Mehuri i SDB State Security Service SFRY Socialist Federal Republic of Yugoslavia SJB Public Security Station Supreme Commander Supreme Commander of the ABiH SVB Military Security Service T E English transcript of proceedings T F French transcript of proceedings TO Territorial Defence Tribunal International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 UB Security Administration UNHCR United Nations Refugees UNPROFOR United Nations Protection Force VRS Army of Republika Srpska High Commissioner for B ABiH Brigades Military Police Battalion 3rd Corps Military Police Battalion 7th Brigade ABiH 7th Muslim Mountain Brigade 17th Krajina Brigade ABiH 17th Krajina Mountain Brigade Case No IT-01-47-T 636 15 March 2006 40 21623 BIS 301st Brigade ABiH 301st Mechanised Brigade 303rd Brigade ABiH 303rd Mountain Brigade 306th Brigade ABiH 306th Mountain Brigade 307th Brigade ABiH 307th Motorised Brigade 308th Brigade ABiH 308th Motorised Brigade 309th Brigade ABiH 309th Mountain Brigade 312th Brigade ABiH 312th Motorised Brigade 314th Brigade ABiH 314th Motorised Brigade 317th Brigade ABiH 317th Mountain Brigade 3rd Corps ABiH 3rd Corps OG Operations Group El Mujahedin detachment ABiH El Mujahedin detachment C International Instruments and Authorities Official Records Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts Geneva 1974-1977 common Article 3 Article 3 common to the Geneva Conventions of 1949 Tokyo Charter Tokyo Charter of the International Military Tribunal for the Far East Tokyo 19 January 1946 ILC Commentary Commentary of the International Law Commission on the Draft Code of Crimes Against the Peace and Security of Mankind 1996 Report of the International Law Commission on the work of its forty-eighth session Official Records of the General Assembly Fifty-first session A 51 10 Commentary on Additional Protocol I Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 Yves Sandoz Christophe Swinarski and Bruno Zimmermann eds ICRC Martinus Nijhoff Publishers Geneva 1986 Case No IT-01-47-T 637 15 March 2006 39 21623 BIS Commentary on Additional Protocol II Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 Yves Sandoz Christophe Swinarski and Bruno Zimmermann eds ICRC Martinus Nijhoff Publishers Geneva 1986 Commentary on Additional Protocols Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 Yves Sandoz Christophe Swinarski and Bruno Zimmermann eds ICRC Martinus Nijhoff Publishers Geneva 1986 Commentary on the Third Geneva Convention Commentary on Geneva Convention III relative to the Treatment of Prisoners of War Geneva 12 August 1949 Jean S Pictet ed ICRC Geneva 1958 Commentary on the Fourth Geneva Convention Commentary on Geneva Convention IV relative to the Protection of Civilian Persons in Time of War Geneva 12 August 1949 Jean S Pictet ed ICRC Geneva 1956 American Convention on Human Rights American Convention on Human Rights OAS Treaty Series no 36 1144 UNTS 123 entered into force July 18 1978 Geneva Conventions Geneva Conventions I to IV of 12 August 1949 Third Geneva Convention Convention III relative to the Treatment of Prisoners of War Geneva 12 August 1949 Fourth Geneva Convention Convention IV relative to the Protection of Civilian Persons in Time of War Geneva 12 August 1949 The Hague Convention of 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict The Hague 14 May 1954 Vienna Convention of 1969 Vienna Convention on the Law of Treaties signed at Vienna 23 May 1969 Customary International Humanitarian Law Henckaerts J-M Doswald-Beck L eds Customary International Humanitarian Law ICRC Cambridge University Press Cambridge 2005 Principles of International Law Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal adopted by the International Law Commission of the United Nations Official Document Fifth Session Supp no 12 U N Doc A 1316 1950 Case No IT-01-47-T 638 15 March 2006 38 21623 BIS ILC Draft Code Draft Code of Crimes Against the Peace and Security of Mankind 1996 Report of the International Law Commission on the Work of its Forty-eighth session A 48 10 Also published by ILC Y B 1996 vol II 2 Additional Protocol I Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts Protocol I 8 June 1977 Additional Protocol II Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts Protocol II 8 June 1977 Report of the United Nations Commission of Experts Final Report of the United Nations Commission of Experts Established pursuant to Security Council resolution 780 1992 S 1994 674 Secretary-General’s Report Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 1993 UNSC UN Doc S 25704 3 May 1993 Law Reports Law Reports of Trials of War Criminals Selected and Prepared by the United Nations War Crimes Commission London 1949 reprinted in Buffalo New York 1997 Rules Rules of Procedure and Evidence of the Tribunal The Hague Regulations Convention IV respecting the Laws and Customs of War on Land and its annex Regulations concerning the Laws and Customs of War on Land The Hague 18 October 1907 Rules of Detention Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal Statute Statute of the International Criminal Tribunal for the Former Yugoslavia adopted by Security Council resolution 827 1993 later amended by resolution 1481 Bassiouni C M Manikas P The Law of the International Criminal Tribunal for the Former Yugoslavia Transnational Publishers 1996 Hendin Stuart E Command Responsibility and Superior Orders in the Twentieth Century – A Century of Evolution Murdoch University Electronic Journal of Law 10 2003 Kalshoven F Zegveld L Constraints on the Waging of War International Committee of the Red Cross 2001 Case No IT-01-47-T 639 15 March 2006 37 21623 BIS D Case Law 1 ICTY - Prosecutor v Enver Hadžihasanović and Amir Kubura Case No IT-01-47-T Decision on Joint Challenge to Jurisdiction The Prosecutor v Enver Hadžihasanović Mehmed Alagić and Amir Kubura Case No IT01-47-PT Decision on Joint Challenge to Jurisdiction 12 November 2002 Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility The Prosecutor v Enver Hadžihasanović Mehmed Alagić and Amir Kubura Case No IT01-47-AR72 Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility 16 July 2003 Final Decision on Judicial Notice of Adjudicated Facts The Prosecutor v Enver Hadžihasanović Mehmed Alagić and Amir Kubura Case No IT01-47-PT Final Decision on Judicial Notice of Adjudicated Facts 20 April 2004 Decision of 16 July 2004 on Admissibility of Documents The Prosecutor v Enver Hadžihasanović Mehmed Alagić and Amir Kubura Case No IT01-47-PT Decision on the Admissibility of Certain Challenged Documents and Documents for Identification 16 July 2004 confidential This decision was made public on 2 August 2004 See Decision to Unseal Confidential Decision on the Admissibility of Certain Challenged Documents and Documents for Identification 2 August 2004 Decision on Motions for Acquittal The Prosecutor v Enver Hadžihasanović and Amir Kubura Case No IT-01-47-T Decision on Motions for Acquittal Pursuant to Rule 98 bis of the Rules of Procedure and Evidence 27 September 2004 Decision on Defence Motion regarding Cross-examination of Witnesses by the Prosecution The Prosecutor v Enver Hadžihasanović Mehmed Alagić and Amir Kubura Case No IT01-47-PT Decision on Defence Motion regarding Cross-examination of Witnesses by the Prosecution 9 December 2004 2 ICTY- Other Cases Aleksovski Trial Judgement The Prosecutor v Zlatko Aleksovski Case No IT-95-14 1-T Judgement 25 June 1999 Aleksovski Appeal Judgement The Prosecutor v Zlatko Aleksovski Case No IT95-14 1-A Judgement 24 March 2000 Case No IT-01-47-T 640 15 March 2006 36 21623 BIS Babi Appeal Judgement The Prosecutor v Milan Babi Case No IT-03-72-A Judgement on Sentencing Appeal 18 July 2005 Banovi Sentencing Judgement The Prosecutor v Predrag Banovi Case No IT-02-65 1-S Sentencing Judgement 28 October 2003 Blaškić Trial Judgement The Prosecutor v Tihomir Blaškić Case No IT-95-14-T Judgement 3 March 2000 Blaškić Appeal Judgement The Prosecutor v Tihomir Blaškić Case No IT-95-14-A Judgement 29 July 2004 Blaškić Decision The Prosecutor v Tihomir Blaškić Case No IT-95-14-PT Decision on the Defence Motion to Strike Portions of the Amended Indictment Alleging Failure to Punish Liability 4 April 1997 Blagojević Trial Judgement The Prosecutor v Vidoje Blagojević and Dragan Jokić Case No IT-02-60-T Judgement 17 January 2005 Brđanin Trial Judgement The Prosecutor v Radoslav Brđanin Case No IT-99-36-T Judgement 1 September 2004 Čelebići Trial Judgement The Prosecutor v Zejnil Delalić Zdravko Mucić aka “Pavo” Hazim Delić and Esad Landžo aka “Zenga” Case No IT-96-21-T Judgement 16 November 1998 Čelebići Appeal Judgement The Prosecutor v Zejnil Delalić Zdravko Mucić aka “Pavo” Hazim Delić and Esad Landžo aka “Zenga” Case No IT-96-21-A Judgement 20 February 2001 Erdemovi Trial Judgement The Prosecutor v Dra en Erdemovi Case No IT-96-22-T Judgement 29 November 1996 Furundžija Trial Judgement The Prosecutor v Anto Furundžija Case No IT-95-17 1-T Judgement 10 December 1998 Galić Trial Judgement The Prosecutor v Stanislav Galić Case No IT-98-29-T Judgement and Opinion 5 December 2003 Joki Appeal Judgement The Prosecutor v Miodrag Joki Case No IT-01-42 1-A Judgement on Sentencing Appeal 30 August 2005 Kordić and Čerkez Trial Judgement The Prosecutor v Dario Kordić and Mario Čerkez Case No IT-95-14 2-T Judgement 26 February 2001 Case No IT-01-47-T 641 15 March 2006 35 21623 BIS Kordić and Čerkez Appeal Judgement The Prosecutor v Dario Kordić and Mario Čerkez Case No IT-95-14 2-A Judgement 17 December 2004 Kordić and Čerkez Decision The Prosecutor v Dario Kordić and Mario Čerkez Case No IT-95-14 2-T Decision on the Joint Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 and 3 2 March 1999 Kordić and Čerkez Decision on Failure to Punish The Prosecutor v Dario Kordić and Mario Čerkez Case No IT-95-14 2-T Decision on the Joint Defence Motion to Dismiss for Lack of Jurisdiction of the Amended Indictment Alleging “Failure to Punish” Liability 2 March 1999 Krnojelac Trial Judgement The Prosecutor v Milorad Krnojelac Case No IT-97-25-T Judgement 15 March 2002 Krnojelac Appeal Judgement The Prosecutor v Milorad Krnojelac Case No IT-97-25-T Judgement 17 September 2003 Krstić Trial Judgement The Prosecutor v Radislav Krstić Case No IT-98-33-T Judgement 2 August 2001 Krsti Appeal Judgement The Prosecutor v Radislav Krsti Case No IT-98-33-A Judgement 19 April 2004 Kunarac Trial Judgement The Prosecutor v Dragoljub Kunarac Radomir Kovač and Zoran Vuković Case No IT-96-23 and IT-96-23 1-T Judgement 22 February 2001 Kunarac Appeal Judgement The Prosecutor v Dragoljub Kunarac Radomir Kovač and Zoran Vuković Case No IT-96-23 and IT-96-23 1-A Judgement 12 June 2002 Kupre ki Judgement The Prosecutor v Zoran Kupre kić Mirjan Kupre kić Vlatko Kupre kić Drago Josipović Dragan Papić Vladimir antić also known as “Vlado” Case No IT-95-16-T Judgement 14 January 2000 Kupre ki Appeal Judgement The Prosecutor v Zoran Kupre ki Mirjan Kupre ki Vlatko Kupre ki Drago Josipovi and Vladimir anti Case No IT-95-16-A Judgement 23 October 2001 Kvočka Trial Judgement The Prosecutor v Miroslav Kvočka Milojica Kos Mlađo Radić Zoran Žigić and Dragoljub Prcać Case No IT-98-30 1-T Judgement 2 November 2001 Case No IT-01-47-T 642 15 March 2006 34 21623 BIS Kvočka Appeal Judgement The Prosecutor v Miroslav Kvočka Milojica Kos Mlađo Radić Zoran Žigić and Dragoljub Prcać Case No IT-98-30 1-A Judgement 28 February 2005 Naletilić Judgement The Prosecutor v Mladen Naletilić aka “Tuta” and Vinko Martinović aka “Stela” Case No IT-98-34-T Judgement 31 March 2003 Nikoli Sentencing Judgement The Prosecutor v Dragan Nikoli Case No IT-94-2-S Sentencing Judgement 18 December 2003 Obrenović Sentencing Judgement The Prosecutor v Dragan Obrenović Case No IT-02-60 2-S Sentencing Judgement 10 December 2003 Plav i Sentencing Judgement The Prosecutor v Biljana Plav i Case No IT-00-39 40 1-S Sentencing Judgement 27 February 2003 Simi Sentencing Judgement The Prosecutor v Milan Simi Case No IT-95-9 2-S Sentencing Judgement 17 October 2002 Simi Trial Judgement The Prosecutor v Milan Simi Miroslav Tadi Simo Zari Case No IT-95-9-T Judgement 17 October 2003 Stakić Trial Judgement The Prosecutor v Milomir Stakić Case No IT-97-24-T Judgement 31 July 2003 Strugar Trial Judgement The Prosecutor v Pavle Strugar Case No IT-01-42-T Judgement 31 January 2005 Tadi Jurisdiction Decision The Prosecutor v Duško Tadić aka “Dule Case No IT-94-1-AR72 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 2 October 1995 Tadić Trial Judgement The Prosecutor v Duško Tadić Case No IT-94-1-T Judgement 7 May 1997 Tadić Sentencing Appeal Judgement Prosecutor v Dusko Tadić aka Dule Case No IT-94-1-A and IT-94-1-A bis Judgement in Sentencing Appeals 26 January 2000 Vasiljevi Trial Judgement The Prosecutor v Mitar Vasiljevi Case No IT-98-32-T Judgement 29 November 2002 Vasiljević Appeal Judgement The Prosecutor v Mitar Vasiljević Case No IT-98-32-A Judgement 25 February 2004 Case No IT-01-47-T 643 15 March 2006 33 21623 BIS 3 ICTR Bagilishema Trial Judgement The Prosecutor v Ignace Bagilishema Case No ICTR-95-1A-T Judgement 7 June 2001 Bagilishema Appeal Judgement The Prosecutor v Ignace Bagilishema Case No ICTR-95-1A-A Judgement 3 July 2002 Kajelijeli Trial Judgement The Prosecutor v Juvénal Kajelijeli Case No ICTR98-44-A-T Judgement 1 December 2003 Kayishema and Ruzindana Trial Judgement The Prosecutor v Clément Kayishema and Obed Ruzindana Case No ICTR-95-1-T Judgement 21 May 1999 Musema Trial Judgement The Prosecutor v Alfred Musema Case No ICTR96-13-T Judgement 27 January 2000 Ntakirutimana Appeal Judgement The Prosecutor v Elizaphan Ntakirutimana and Gérard Ntakirutimana Case No ICTR-96-10-A and ICTR-96-17-A Judgement 13 December 2004 Rutaganda Appeal Judgement The Prosecutor v Georges Anderson Nderubunwe Rutaganda Case No ICTR-96-3-A Judgement 26 May 2003 Semanza Trial Judgement The Prosecutor v Laurent Semanza Case No ICTR97-20-T Judgement 15 May 2003 Semanza Appeal Judgement The Prosecutor v Laurent Semanza Case No ICTR97-20-A Judgement 20 May 2005 4 Decisions of Other Courts High Command Case United States v Wilhem von Leeb et al Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law no 10 Vol XI Hostage Case United States v Wilhem List et al Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law no 10 Vol XI Nicaragua Case Nicaragua v United States – Case Concerning Military and Paramilitary Activities in and against Nicaragua Nicaragua v United States of America Merits Judgement I C J Reports 1986 Soering Case Soering v United Kingdom Judgement of 7 July 1989 Eur Ct H R Series A no 161 Toyoda Case United States v Soemu Toyoda Official Transcript of the Record of Trial Case No IT-01-47-T 644 15 March 2006 32 21623 BIS Tokyo Judgement International Military Tribunal for the Far East Prosecution v Akaki Sadao et al 4 November 1948 in The Tokyo Judgement The Complete Transcripts of the Proceedings in the International Military Tribunal for the Far East reprinted in R John Pritchard and S Magbauna Zaide eds The Tokyo War Crimes Trial New York - London 1981 Yamashita Case United States Military Commission Manila 7 December 1945 Law Reports of Trials of War Criminals selected and prepared by the United Nations War Crimes Commission London 1949 reprinted in Buffalo New York 1997 Vol IV In Re Yamashita In Re Yamashita 327 US 1 1946 Case No IT-01-47-T 645 15 March 2006 31 21623 BIS XII ANNEX III PROCEDURAL BACKGROUND A Pre-trial Proceedings 1 Indictment Transfer and Initial Appearance 2095 The initial Joint Indictment of 5 July 2001 against Enver Hadžihasanović Amir Kubura and Mehmed Alagić was confirmed by Judge Fouad Riad on 13 July 2001 The Indictment alleges that the three Accused incurred command responsibility under Article 7 3 of the Statute for failing to prevent or punish certain acts by their subordinates committed in the territory of Central Bosnia between 1 January 1993 and 31 January 1994 which constituted violations of the laws or customs of war and grave breaches of the Geneva Conventions pursuant to Articles 2 and 3 of the Statute The initial Indictment was amended on 11 July 2002 15 August 2003 and 26 September 2003 further to motions for defects in its form Following the death of the Accused Mehmed Alagić on 7 March 2003 the Trial Chamber ordered the proceedings against him closed on 21 March 2003 2096 The trial proceeded on the basis of the charges contained in the definitive version of the Indictment “Indictment” of 26 September 2003 against the Accused Had ihasanovi and the Accused Kubura The Indictment alleges that the Accused incurred command responsibility under Article 7 3 of the Statute for failing to prevent or punish certain acts committed by their subordinates which constitute violations of the laws or customs of war under Article 3 of the Statute 2097 The Accused surrendered to the Tribunal voluntarily Amir Kubura on 2 August 2001 and Enver Hadžihasanović on 4 August 2001 At their initial appearance of 9 August 2001 both pleaded not guilty to all counts in the initial Indictment The Accused Kubura again pleaded not guilty on 28 November 2003 after new counts had been added to the Indictment 2 Counsel for the Defence Pre-Trial Judge and Composition of the Trial Chamber 2098 Pursuant to a Decision of 26 November 2001 by the Deputy Registrar Ms Edina Rešidović was appointed Lead Counsel and Mr Stéphane Bourgon Co-Counsel for the Accused Hadžihasanović and Mr Fahrudin Ibrišimović was appointed Lead Counsel and Mr Rodney Dixon Co-Counsel for the Accused Kubura 2099 In an order dated 7 August 2001 4910 the President of the Tribunal assigned case No IT-0147-I to Trial Chamber II composed of Judges David Hunt presiding Florence Mumba and 4910 Order of the President Assigning a Case to a Trial Chamber 7 August 2001 Case No IT-01-47-T 646 15 March 2006 30 21623 BIS Patricia Wald Pursuant to an order by Judge Liu Daqun Duty Judge Judge David Hunt was appointed Pre-Trial Judge on 16 August 2001 4911 On 3 September 2001 Judge David Hunt Presiding Judge of Trial Chamber II appointed Judge Florence Mumba Pre-Trial Judge 4912 In an order dated 23 November 2001 4913 the President of the International Tribunal assigned the case to Trial Chamber II composed of Judges Wolfgang Schomburg presiding Florence Mumba and Carmel A Agius On 8 October 2003 Judge Jean-Claude Antonetti was assigned to the Trial Chamber to replace Judge Wolfgang Schomburg 4914 Pursuant to a Trial Chamber II order dated 17 October 2003 Judge Jean-Claude Antonetti was appointed Pre-Trial Judge 2100 In an order dated 18 November 2003 the President of the Tribunal appointed Judges JeanClaude Antonetti Bert Swart and Vonimbolana Rasoazanany to hear the case 3 Preliminary Motions on Defects in the Form of the Indictment Brought Under Rule 72 A ii of the Rules a Indictment of 13 July 2001 2101 In the initial Indictment of 13 July 2001 4915 the Accused had to answer to charges of violations of the laws or customs of war and grave breaches of the Geneva Conventions pursuant to Articles 2 and 3 of the Statute of the International Tribunal for the Former Yugoslavia 2102 On 8 October 2001 the Defence4916 filed a joint preliminary motion4917 arguing that the initial Indictment was defective because 1 it alleged that the Accused were responsible as superiors under Article 7 3 of the Statute4918 but failed to clearly and adequately plead the existence of a subordinate link between the Accused and the perpetrators of the crimes i e the “foreign fighters or Mujahedin” and failed to adequately characterise the conduct of the Accused 2 it pleaded command responsibility for crimes committed in an internal armed conflict 4919 3 it alleged a “partial occupation ”4920 4 it inappropriately brought cumulative charges under Articles 2 and 3 of the Statute on the basis of the same conduct 4921 and 5 it was generally vague 4922 On 22 October 2001 the Prosecution filed its response to the Defence’s preliminary motions 4923 4911 Order Designating a Pre-trial Judge 16 August 2001 Order Designating a Pre-trial Judge 3 September 2001 4913 Order of the President on the Composition of a Trial Chamber for a Case 23 November 2001 4914 Order Assigning a Judge to a Case before a Trial Chamber 8 October 2003 4915 Order on Review of the Indictment pursuant to Article 19 of the Statute and Order for Non-disclosure 13 July 2001 4916 The Defence for Mehmed Alagi also filed this motion 4917 Joint Preliminary Motion Alleging Defects in the Form of the Indictment 8 October 2001 4918 Ibid paras 3-30 4919 Ibid paras 31-42 and more specifically para 32 4920 Ibid para 43 4921 Ibid paras 51-53 4912 Case No IT-01-47-T 647 15 March 2006 29 21623 BIS 2103 In its Decision on the Form of the Indictment dated 7 December 2001 4924 the Chamber partially granted the preliminary motion of 8 October 2001 The Trial Chamber dealt with the objections over the alleged command responsibility4925 by finding that the alleged subordinate link between the Accused and the “mujahedin” was not adequately explained in the initial Indictment 4926 Accordingly the Trial Chamber ordered the Prosecution to amend the initial Indictment in order to better establish the existence of a link between subordination and effective control 2104 Regarding objections on the nature of the armed conflict and partial occupation the Chamber ruled inter alia and in line with the Defence argument 4927 that by alleging in the Initial Indictment of 13 July 2001 that at all relevant times “a state of international armed conflict and partial occupation existed in Bosnia and Herzegovina” the Prosecution made it impossible to determine which States were involved in the international armed conflict4928 and that the Defence was not clearly informed of the nature and cause of the charges against the Accused4929 in that pleading 4930 Consequently the Judges ordered the Office of the Prosecutor to clearly state which States were involved4931 and either specify or strike out entirely any references to the partial occupation the identity of occupying forces the area or areas occupied and the date or dates when that occupation is alleged to have existed 4932 b Indictment of 11 January 2002 2105 In addition to the amendments ordered by the Chamber in its Decision of 7 December 2001 all the counts based on Article 2 of the Statute which required proof of the existence of an international armed conflict were struck from the Amended Indictment of 11 January 2002 Three counts based on Article 3 of the Statute were also withdrawn which left a total of seven counts for violations of the laws or customs of war On 21 February 2002 the Defence filed a joint response 4922 Ibid paras 54-74 Prosecutor’s Response to the Joint Preliminary Motion Alleging Defects in the Form of the Indictment 22 October 2001 4924 Decision on Form of Indictment 7 December 2001 4925 Ibid paras 13-25 4926 Ibid paras 14-15 4927 Ibid paras 26-27 4928 Ibid para 29 4929 Mehmed Alagi like the other Accused was concerned by the provisions of that Decision 4930 Decision on Form of Indictment 7 December 2001 para 31 4931 Ibid para 29 4932 Ibid paras 33-34 Conversely the Trial Chamber did not grant the Defence’s request to strike paragraph 58 of the initial Indictment which according to the Defence confused the difference between occupation and “areas listed under the ABiH 3rd Corps area of responsibility” para 40 the Trial Chamber dismissed the Defence objections on cumulative charging para 40 Finally with regard to the objections over the alleged vagueness of the initial 4923 Case No IT-01-47-T 648 15 March 2006 28 21623 BIS on the form of the Amended Indictment 4933 On 8 March 2002 the Prosecution made its observations 4934 which were followed by the Defence’s reply of 20 March 2002 4935 2106 On 12 December 2002 4936 the Chamber ordered the Prosecution to respond to the three Defence objections raised in its joint challenge to jurisdiction of 21 February 2002 The Prosecution responded on 27 December 2002 and on 25 March 2003 filed its Motion to Amend the Amended Indictment of 11 January 20024937 seeking leave to 1 withdraw from the Indictment charges against Mehmed Alagić who had since died 2 allege in the alternative the existence of an international armed conflict 3 allege that the Accused Kubura was responsible under Article 7 3 of the Statute for the crimes committed in Miletići which charges had already been brought against Enver Hadžihasanović and 4 replace a charge of “violence to life and person” with a charge of “cruel treatment” in count 2 On 25 April 2003 in its Response to the Motion for Leave to Amend the Amended Indictment 4938 the Defence requested a stay of proceedings alleging that the Prosecution’s conduct violated the rights of the Defence and was an abuse of process 4939 2107 After the Parties had filed their submissions 4940 the Chamber issued its Decision on amending the Indictment on 18 June 2003 4941 in which it recalled that in the Decision on Joint Challenge to Jurisdiction of 12 November 2002 the Chamber held that “the doctrine of command responsibility already in – and since – 1991 was applicable in the context of an internal armed conflict under customary international law ” The Chamber also recalls that the Defence appealed that Decision and that since “the interlocutory appeal on the present issue is still pending before the Appeals Chamber it would be highly inappropriate for this Trial Chamber to take a decision on this matter now unless the Appeals Chamber would order the Trial Chamber to do so ”4942 The Trial Chamber decided inter alia to postpone ruling on matters related to the form of the Indictment which dealt with a request to rely on an international armed conflict in the alternative pending the Indictment the Trial Chamber granted some parts of the Defence motions paras 45 47 54 58 60 62 65 and 68 pp 22-29 and denied others paras 43 47 49 51 56 67 and 69 pp 21-29 4933 Joint Response on the Form of the Amended Indictment 21 February 2002 4934 Prosecution’s Response to the Joint Response on the Form of the Amended Indictment 8 March 2002 4935 Joint Reply to the Prosecution Response to the Joint Response on the Form of the Amended Indictment 20 March 2002 4936 Order to File Response 12 December 2002 4937 Motion for Leave to Amend the Amended Indictment 25 March 2003 4938 Defence Response to Prosecution Motion for Leave to Amend the Amended Indictment and Request for Stay of Proceedings 25 April 2003 4939 Ibid paras 2-6 4940 See Prosecution Response and Reply to Defence Response to Amend the Amended Indictment and Requested Stay of Proceedings and Reply to Response of Amir Kubura to Prosecution Motion for Leave to Amend the Amended Indictment 12 May 2003 Defence Motion Seeking Leave to Reply and Reply to Prosecution Response and Reply to Defence Response to Amend the Amended Indictment and Requested Stay of Proceedings 14 May 2003 4941 Decision on Motion for Leave to Amend the Amended Indictment 18 June 2003 4942 Ibid p 5 Case No IT-01-47-T 649 15 March 2006 27 21623 BIS Appeals Chamber’s decision on jurisdiction 4943 The Trial Chamber further decided that there was no reason to postpone the hearings and dismissed the Defence motion in that regard 2108 On 5 August 2003 following the Appeals Chamber’s Decision on Jurisdiction of 16 July 2003 Judge Schomburg the Pre-Trial Judge ordered the Prosecution to file a new Amended Indictment 4944 c Indictment of 15 August 2003 2109 On 15 August 2003 the Prosecution filed a new motion seeking leave to amend the Amended Indictment 4945 It suggested adding to the Second Amended Indictment all the proposed amendments of 25 March 20034946 in addition to those ordered by the Appeals Chamber on 16 July 2003 The Defence filed a response to the proposal for a new version of the Second Amended Indictment on 1 September 2003 and the Prosecution’s reply was filed on 8 September 2003 In its Decision of 17 September 2003 4947 the Trial Chamber ordered the Prosecution to make certain amendments to the Second Amended Indictment of 15 August 2003 The Prosecution was ordered to provide if possible further details relating to the specific units allegedly involved in the crimes set out in paragraphs 44 and 46 4948 and to clarify the role and position of the mujahedin within the 3rd Corps 4949 Considering that the Accused Kubura would not be prejudiced if given the opportunity to adequately prepare his defence against the amended case the Chamber authorised the Prosecution to include in the amended version of the Second Amended Indictment new charges against him under Article 7 3 of the Statute concerning alleged events in Miletići 4950 “as long as it provides sufficient new supporting material” 4951 The Judges also accepted the Prosecution’s proposal to amend the alleged offence charged in count 2 by replacing the terms “violence to life and person” with “cruel treatment” which according to the Chamber “does nothing but to limit the scope of the crime with which the Accused is charged” 4952 4943 Ibid para 3 Oral order 4945 Motion for Leave to Amend the Amended Indictment 15 August 2003 4946 Except for the proposed amendments to paragraph 8 4947 Decision on Form of Indictment 17 September 2003 4948 Ibid para 14 Counts 5 6 and 7 of the Second Amended Indictment describe these crimes namely the destruction and plunder of nine towns and villages by ABiH 3rd Corps units not justified by military necessity 4949 Ibid paras 16 and 17 p 9 In particular the clarifications clear up the confusion created by the use of contradictory terms such as “subordinated” and “integrated and subordinated” found in paragraphs 18 and 20 of the Second Amended Indictment of 15 August 2003 to describe the position of the “mujahedin” unit within the 3rd Corps 4950 Ibid para 31 specifically four murders and the wanton destruction and plunder of a village in April 1993 Decision on Form of Indictment 17 September 2003 para 31 4951 Ibid para 35 4952 Ibid para 40 4944 Case No IT-01-47-T 650 15 March 2006 26 21623 BIS 2110 The Trial Chamber denied the Defence application for certification to appeal the Decision of 17 September 2003 4953 considering that the Accused Kubura would not suffer unfair prejudice by having to answer charges that he was responsible under Article 7 3 of the Statute for crimes allegedly committed in Miletići 4954 d Indictment of 26 September 2003 2111 On 26 September 2003 the Third Amended Indictment was filed taking into account the disposition of the Decision of 17 September 2003 On 7 November 2003 the Defence for the Accused Kubura filed a motion requesting amendments to the Third Amended Indictment principally arguing that the new charges against the Accused lacked precision in respect of the identity of the perpetrators of the four murders and the destruction caused in Miletići 4955 The Trial Chamber denied the motion on 18 November 2003 4956 The charges brought definitively against the Accused and on the basis of which the trial proceeded are those contained in the Third Amended Indictment as amended on 26 September 2003 “Indictment” 4 Motion on Jurisdiction Command Responsibility in an Armed Internal Conflict under Rule 72 A i 2112 In its Joint Preliminary Motion Alleging Defects in the Form of the Initial Indictment filed on 8 October 2001 the Defence challenged the Tribunal’s jurisdiction to impose command responsibility for crimes based on Article 3 of the Statute committed in a non-international armed conflict 2113 In support of their motion the Defence argued that in 1993 the period when the Prosecution alleges that the offences were committed international humanitarian law did not recognise command responsibility in internal armed conflicts 4957 According to the Defence therefore any application of such responsibility would betray the principle of legality The Defence requested a ruling whereby the Chamber would make it absolutely impossible for charges brought under Article 3 of the Statute based on common Article 3 of the Geneva Conventions to stand in conjunction 4953 Decision on the Application of Amir Kubura for Certification of the Trial Chamber’s Decision on Form of Indictment rendered by the Trial Chamber on 30 September 2003 4954 Decision on the Application of Amir Kubura for Certification of the Trial Chamber’s Decision on Form of Indictment rendered by the Trial Chamber on 30 September 2003 4955 Defence Motion of Amir Kubura on Form of Indictment in Respect of New Charges Concerning Miletići 7 November 2003 p 3 4956 Decision on Form of Indictment 18 November 2003 4957 Joint Preliminary Motion Alleging Defects in the Form of the Indictment 8 October 2001 paras 32-34 Case No IT-01-47-T 651 15 March 2006 25 21623 BIS with charges brought under Article 7 3 of the Statute which applies only to international armed conflict 4958 2114 In the Prosecution’s Response of 22 October 20014959 regarding Defence assertions that the principle of nullum crimen sine lege had been violated it argued that the Tribunal’s case law4960 makes Article 3 of the Statute applicable to crimes committed in both international and noninternational armed conflicts 2115 On 7 December 2001 the Chamber rendered its Decision on Challenge to Jurisdiction regarding command responsibility in internal conflicts 4961 In that Decision the Chamber partially denied the Defence preliminary motion deferred its Decision until the trial on the merits and ordered the Parties to address the following question in their pre-trial briefs “Did international law at the time relevant to the initial indictment provide for the criminal responsibility of superiors who knew or had reason to know that their subordinates were about to commit violations of international humanitarian law or had done so and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof in the context of noninternational conflicts ” 4962 2116 After the Prosecution withdrew all charges based on Article 2 of the Statute and some counts based on Article 3 from the Amended Indictment of 11 January 2002 the Defence filed a new joint motion on 21 February 2002 challenging jurisdiction4963 which contained three objections 1 during the period covered by the Indictment international law did not provide for criminal responsibility of superiors in the context of a non-international armed conflict 2 Article 7 3 of the Statute does not provide for responsibility of a superior for crimes committed by his subordinates before the existence of a superior-subordinate relationship between them and 3 Article 7 3 does not provide for responsibility of superiors for failure to prevent or punish the planning and preparation of crimes 2117 On 27 February 2002 the Prosecution filed its Response4964 and acknowledged that those issues needed to be settled before the trial 4958 Ibid para 40 Prosecution’s Response to Joint Preliminary Motion Alleging Defects in the Form of the Indictment 22 October 2001 4960 See in particular Tadi Jurisdiction Decision para 137 The Prosecutor v Mom ilo Krajišnik Decision on Motion Challenging Jurisdiction – With Reasons Case No IT-00-39-PT 22 December 2000 Krajišnik Jurisdiction Decision para 24 4961 Decision on Challenge to Jurisdiction 7 December 2001 4962 Ibid para 10 4963 Joint Challenge to Jurisdiction Arising from the Amended Indictment 21 February 2002 4964 Prosecution's Response to Joint Challenge to Jurisdiction Arising from the Amended Indictment 27 February 2002 4959 Case No IT-01-47-T 652 15 March 2006 24 21623 BIS 2118 The Chamber addressed the Defence objections in a detailed Decision dated 12 November 2002 4965 As to whether command responsibility could be entailed in a non-international armed conflict 4966 the Chamber found that “the crimes listed in Article 3 violations of the laws or customs of war and Article 5 crimes against humanity are applicable in either internal or international armed conflicts”4967 and that “the doctrine of command responsibility already in – and since – 1991 was applicable in the context of an internal armed conflict under customary international law Article 7 3 constitutes a declaration of existing law under customary international law and does not constitute new law ”4968 2119 As to the second Defence objection 4969 the Chamber took a broad approach to its reading of Article 7 3 of the Statute finding that “a commander can be liable under the doctrine of command responsibility for crimes committed prior to the moment that the commander assumed command”4970 provided however that the elements of command responsibility are met after the said commander took up his duties Considering that the last condition was a factual issue to be addressed at trial the Chamber denied that specific part of the Defence motion 4971 2120 On those grounds and others not warranting particular attention at that stage the Chamber denied the preliminary motion of 21 February 2002 in its entirety 4972 2121 On 27 November 2002 the Accused4973 filed a joint interlocutory appeal before the Appeals Chamber against the Decision of 12 November 2002 4974 first on the ground that command responsibility could not be applied in a non-international armed conflict and second that the said responsibility could not apply to acts committed prior to the existence of a superior-subordinate relationship between the commander and the direct perpetrator The Prosecution filed its Response on 9 December 2002 4975 2122 On 16 July 2003 the Appeals Chamber rendered its Decision on the Challenge to Jurisdiction in which it dismissed the Defence appeal 4976 Regarding the first ground of appeal the Appeals Chamber agreed with the Trial Chamber and dismissed it considering that command 4965 Decision on Joint Challenge to Jurisdiction 12 November 2002 Ibid paras 9-179 4967 Ibid para 120 4968 Ibid para 179 4969 Ibid paras 180-202 4970 Ibid para 202 4971 Ibid para 202 4972 Ibid p 92 4973 The late Mehmed Alagi also filed an interlocutory appeal 4974 Interlocutory Appeal on Decision on Joint Challenge to Jurisdiction 27 November 2002 4975 Prosecution’s Response to Defence Interlocutory Appeal on Jurisdiction 9 December 2002 On 20 December 2002 the Prosecution filed an addendum to its Response The Appellants filed a joint reply on 13 December 2002 4976 Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility 16 July 2003 4966 Case No IT-01-47-T 653 15 March 2006 23 21623 BIS responsibility for crimes committed by subordinates in a non-international armed conflict was an integral part of customary international law at the time material to the Indictment 4977 Regarding the second ground of appeal lodged by the Appellants the Appeals Chamber held that “an accused cannot be charged under 7 3 of the Statute for crimes committed by a subordinate before the said accused assumed command over that subordinate ”4978 5 Detention and Provisional Release Pending Trial 2123 The Chamber granted the initial requests from the Accused for provisional release first in an oral decision on 13 December 2001 then in writing on 19 December 2001 4979 Pursuant to the Decision of 19 December 2001 provisional release was granted until 27 November 2003 4980 6 Status Conferences 2124 Between 29 November 2001 and 28 November 2003 the Pre-Trial Judge held eight status conferences eight meetings were held with the Senior Legal Officer pursuant to Rule 65 ter D of the Rules The Parties filed their Pre-Trial Briefs on 3 November 2003 B Trial 1 General Comments 2125 The trial commenced on 2 December 2003 and closed on 15 July 2005 In all 2 949 exhibits were tendered into evidence 172 witnesses testified before the Chamber and 33 written statements under Rule 92 bis as well as 3 stipulations were admitted 2 Tendering of Exhibits into Evidence 2126 This question is addressed in the part of this Judgement dealing with evidentiary matters 4981 3 Provisional Release During the Trial and Deliberations 2127 On 17 January 2004 the Defence for the Accused Had ihasanovi filed a motion for his provisional release in order to attend the funeral of his brother who had died the day before 4982 In 4977 Ibid paras 30-31 Ibid para 51 See also para 45 4979 Decision Granting Provisional Release to Enver Had ihasanovi 19 December 2001 Decision Granting Provisional Release to Amir Kubura 19 December 2001 Decision Granting Provisional Release to Mehmed Alagić 19 December 2001 4980 Decision on Joint Defence Motion for Extension of Provisional Release and Scheduling Order 31 October 2003 4981 See infra paras 280-295 4982 Defence Motion for Provisional Release to Attend Funeral 17 January 2004 4978 Case No IT-01-47-T 654 15 March 2006 22 21623 BIS its Decision of 18 January 2004 the Chamber granted the Defence motion and allowed Enver Hadžihasanović to travel to Zvornik from 18 to 20 January 2004 for his brother’s funeral 4983 2128 On 13 July 2005 the Defence for Hadžihasanović and the Defence for Kubura each filed a new motion for provisional release to which the Prosecution objected in its Response 4984 On 19 July 2005 the Chamber partially allowed the Defence motion granting the Accused provisional release for a period of 12 days 4985 warranted by the “family-related humanitarian considerations which are fully justified and convincing”4986 which they refer to in support of their motion On 28 July 2005 the Appeals Chamber denied the Prosecution’s application of 25 July 2005 to appeal the Decision of 19 July 2005 4987 2129 On 10 October 2005 the Defence for the Accused Enver Hadžihasanović filed another motion requesting provisional release for the 15-day period preceding pronouncement of the Judgement On 12 October 2005 the Defence for the Accused Kubura filed a similar request seeking his provisional release while awaiting the Judgement In its Decision of 1 November 2005 the Chamber granted those motions pending the issuance of an order amending the Decision By Order of 23 February 2006 and for the purposes of delivering the Judgement the Chamber ordered the Accused to return to the Detention Unit on 8 March 2006 4988 To date each Accused has spent 828 days in detention 4 Decision on Motions for Acquittal Pursuant to Rule 98 bis of the Rules 2130 In its Decision on Motions for Acquittal Pursuant to Rule 98 bis of the Rules the Chamber found that during its case-in-chief the Prosecution had adduced prima facie evidence for a conviction on all charges in the Indictment excepting a few which at that stage warranted pronouncement of an acquittal 4989 The Defence filed a joint appeal on the ground inter alia that the 4983 Decision Granting Provisional Release to Enver Hadžihasanović from 18-20 January 2004 18 January 2004 Prosecution’s Response to Defence Motions for Provisional Release 20 July 2004 4985 Initially therefore from 11 August to 22 August 2005 for the Accused Hadžihasanović and from 25 August to 5 September 2005 for the Accused Kubura Hadžihasanović’s period of provisional release was later amended and pushed back to the period running from 1 September to 12 September 2005 See Order Amending the Dates of Enver Hadžihasanović’s Provisional Release 22 August 2005 4986 Decision on Motions by Enver Hadžihasanović and Amir Kubura for Provisional Release 19 July 2005 p 8 4987 Decision on Application for Leave to Appeal 28 July 2005 4988 Order Amending the Decision on the Provisional Release of Enver Hadžihasanović and Amir Kubura in View of the Pronouncement of the Judgement 23 February 2006 4989 The Chamber acquitted the Accused Had ihasanovi of the charges in count 2 regarding cruel treatment in Dusina on 26 January 1993 and of those in count 3 with respect to the murder of a Croatian detainee in the former JNA Barracks in Travnik in May 1993 it acquitted both Accused of the charges in count 2 regarding cruel treatment in Mileti i and Maline it acquitted both Accused of the charges in count 3 regarding the murder of Jozo Mara i at the Zenica Music School and it acquitted both Accused of the charges in count 5 regarding the wanton destruction of towns and villages not justified by military necessity in Mileti i in April 1993 In that Decision the Chamber noted the Prosecution’s withdrawal of the charge in count 5 regarding the wanton destruction of towns and villages not justified 4984 Case No IT-01-47-T 655 15 March 2006 21 21623 BIS Chamber did not have jurisdiction over three of the counts The Chamber partially granted the request for certification to appeal the Decision on Motions for Acquittal The Appeals Chamber dismissed the appeal on 11 March 2005 5 Decision on the Prosecution’s Application to Reopen its Case 2131 This question is addressed in the section of this Judgement dealing with evidentiary matters 4990 6 Site Visit 2132 On 24 March 2005 the Chamber was seized of a motion from the Prosecution requesting an on-site visit pursuant to Rule 4 of the Rules for the purpose of affording the Chamber an opportunity to observe firsthand the geography topography and roads in the areas in Central Bosnia referred to in the evidence and described in the Indictment The Defence for Had ihasanovi opposed the motion arguing inter alia that if such a visit were to take place the Accused Had ihasanovi had a right to be present under Article 21 4 a and b of the Statute The Defence for Kubura submitted that it was for the Chamber to determine whether such a visit would be useful in its deliberations and serve the interests of justice 2133 The Trial Chamber granted the Prosecution motion considering that it was in the interests of justice for it to have a firsthand look at the geography and topography of the areas in Central Bosnia material to the case and noting that inter alia the Accused had informed the Chamber that they had waived their request to be present during the visit The visit took place from 13 to 17 June 2005 and the transcripts of comments made by the Parties and recorded by the Registry were tendered into evidence 4991 by military necessity in Dusina and of the charge in count 6 regarding plunder in Dusina in January 1993 See the disposition in the Decision on Motions for Acquittal 4990 Supra para 292 4991 C 21 C 21b C 22 C 22 b C 22 1 C 23 C 23b C 23 1 Case No IT-01-47-T 656 15 March 2006 20 21623 BIS XIII ANNEX IV INDICTMENT THIRD AMENDED INDICTMENT THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA CASE NO IT-01-47-PT THE PROSECUTOR OF THE TRIBUNAL AGAINST ENVER HADŽIHASANOVIĆ AMIR KUBURA The Prosecutor of the International Criminal Tribunal for the former Yugoslavia pursuant to her authority under Article 18 of the Statute of the International Criminal Tribunal for the Former Yugoslavia hereafter Statute of the Tribunal charges ENVER HADŽIHASANOVI and AMIR KUBURA with VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR as set forth below THE ACCUSED 1 Enver HADŽIHASANOVIĆ son of Besim and Refija née SARAJLIĆ was born on 7 July 1950 in Zvornik municipality of Zvornik Republic of Bosnia and Herzegovina hereafter Bosnia and Herzegovina 2 Enver HADŽIHASANOVIĆ is a former professional military officer of the Yugoslav People's Army hereafter JNA He graduated from the Belgrade Land Forces Military Academy in 1973 and was thereafter assigned to JNA posts in Tuzla and Sarajevo With the rank of Captain First Class he attended the Staff Officer's College in Belgrade After completion he was promoted to the rank of Major and was assigned as the Commander of a Military Police battalion within the Military Police of the 7th Army In 1988 Enver HAD@IHASANOVI was transferred to the post of Chief of Staff of the 49th Motorised Brigade Subsequently this brigade was transformed into a mechanised brigade and in late 1989 he was appointed as its commander Whilst in this position Enver Case No IT-01-47-T 657 15 March 2006 19 21623 BIS HADŽIHASANOVI achieved the rank of Lieutenant Colonel 3 In early April 1992 the JNA placed Enver HADŽIHASANOVIC under house arrest in Sarajevo On 8 April 1992 he managed to escape and subsequently deserted from the JNA Immediately after leaving the JNA Enver HAD@IHASANOVI joined the Territorial Defence hereafter TO of Bosnia and Herzegovina On 14 November 1992 Enver HADŽIHASANOVI was made the Commander of the 3rd Corps of the Army of Bosnia and Herzegovina hereafter ABiH He retained this position until 1 November 1993 when he was promoted to Chief of the Supreme Command Staff of the ABiH In December 1993 Enver HADŽIHASANOVIĆ was further promoted to the rank of Brigadier General As such he became a member of the Joint Command of the Army of the Federation of Bosnia and Herzegovina In May 1997 Enver HADŽIHASANOVI achieved the rank of Division General He was subsequently promoted to the rank of Major General Enver HADŽIHASANOVIĆ retired in April 2000 4 Amir KUBURA son of Nazif was born on 4 March 1964 in Kakanj municipality of Kakanj Bosnia and Herzegovina 5 Amir KUBURA is a former professional military officer of the JNA After completion of training at the Academy for Ground Forces he served for five years as an active military officer of the JNA in Đakovica In 1992 Amir KUBURA left the JNA with the rank of Captain 6 In 1992 Amir KUBURA joined the ABiH whilst it was being formed as the Deputy Commander of a detachment in Kakanj Later on he was assigned as the commander of an ABiH Mountain Battalion in the same area On 11 December 1992 Amir KUBURA was posted as Assistant Chief of Staff for Operations and Instruction Matters of the ABiH 3rd Corps 7th Muslim Mountain Brigade He became the ABiH 3rd Corps 7 th Muslim Mountain Brigade Chief of Staff on 1 January 1993 From 1 April 1993 to 20 July 1993 Amir KUBURA acted as the substitute for Asim KORIČIĆ the then assigned ABiH 3rd Corps 7th Muslim Mountain Brigade Commander who was absent during this period On 21 July 1993 he was appointed Commander of the ABiH 3rd Corps 7th Muslim Mountain Brigade On 16 March 1994 holding the rank of Colonel Amir KUBURA was made ABiH 1st Corps 1st Muslim Mountain Brigade Commander He was named as the ABiH 4th Corps 443rd Brigade Commander on 16 December 1995 In June 1999 Amir KUBURA served in the Command of the ABiH 1st Corps GENERAL ALLEGATIONS 7 All acts and omissions alleged in this indictment occurred between January 1993 and 16 March 1994 in the territory of Bosnia and Herzegovina 8 At all times relevant to this indictment an armed conflict existed in the territory of Bosnia and Herzegovina Case No IT-01-47-T 658 15 March 2006 18 21623 BIS 9 At all times relevant to this indictment Enver HADŽIHASANOVIĆ and Amir KUBURA were required to abide by the laws and customs governing the conduct of armed conflicts including the Geneva Conventions of 1949 and the Additional Protocols thereto Furthermore Enver HADŽIHASANOVIĆ and Amir KUBURA were responsible for ensuring that military units under their command and effective control respected and applied these rules of international law Moreover Enver HADŽIHASANOVIĆ and Amir KUBURA were obliged by superior order to initiate proceedings for legal sanctions against individuals under their command and effective control who had violated the international law of war 10 Enver HADŽIHASANOVIĆ and Amir KUBURA while holding the positions set out in the preceding paragraphs are criminally responsible for the acts of their subordinates pursuant to Article7 3 of the Statute of the Tribunal A superior is responsible for the acts of his subordinate s if he knew or had reason to know that his subordinate s were about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof BACKGROUND 11 On 23 August 1992 the Presidency of Bosnia and Herzegovina issued an order on the adoption of the Rules of the International Laws of War by the Armed Forces of Bosnia and Herzegovina This order came into force on 5 September 1992 The order stipulated the following a All unit commanders and individual members of the Armed Forces were responsible for putting the rules into practice b Senior officers were to take steps prescribed in the rules against anyone who breached the laws c All members of the Armed Forces were to undergo training in order to familiarise themselves with the rules d The planning and preparation of military actions by the Armed Forces were to comply with the rules and laws 12 On 1 August 1992 a law on service in the ABiH was introduced via Presidential Decree Under the law non-Bosnian citizens were allowed to join the ABiH and be promoted during times of war On 14 April 1993 again by Presidential Decree amendments were made to the law on Service in the ABiH allowing non-Bosnian citizens to be promoted to Superior Officer ranks during times of war 13 On 18 August 1992 the President of the Presidency of Bosnia and Herzegovina made a Decision on the Establishment of the ABiH Corps The document outlines the division of Bosnia and Herzegovina into five military areas of responsibility known as Corps and Case No IT-01-47-T 659 15 March 2006 17 21623 BIS defines the municipalities which fall within each Corps Based on this decision the ABiH 3rd Corps with its Headquarters was established in Banja Luka - however Zenica was listed and used as temporary ABiH 3rd Corps Headquarters 14 The following municipalities were listed under the ABiH 3rd Corps area of responsibility Banja Luka Bosanska Dubica Bosanska Gradiška Bugojno Busovača Čelinac Donji Vakuf Gornji Vakuf Jajce Kakanj Kotor Varoš Kupres Laktaši Mrkonjić Grad NoviTravnik Prnjavor Skender Vakuf Srbac Šipovo Travnik Vitez Zavidovići Zenica and Žepče 15 On 9 November 1992 the ABiH Chief of the General Staff issued an order for the creation of specific types of units within ABiH 3rd Corps allowing for the various TO units and headquarters to merge 16 On 19 November 1992 the 7th Muslim Mountain Brigade was formed with its Brigade Headquarters located in Zenica The 7th Muslim Mountain Brigade was created and used as an infantry manoeuvre unit consisting of three battalions which were located in Travnik 1st Battalion Zenica 2nd Battalion and Kakanj 3rd Battalion 17 The ABiH 3rd Corps 7th Muslim Mountain Brigade was an all-Muslim unit Soldiers within this unit were required to strictly adhere to Islamic beliefs Recruits had to swear an oath which included that they would follow the example of a proper Muslim soldier as set out in the booklet titled Instructions to the Muslim Fighter The Instructions to the Muslim Fighter was initially published in 1993 and subsequently 20 000 copies were distributed within the ABiH 3 rd Corps' area of responsibility Further publications of the booklet were made in 1994 The booklet contains the following headings and commentary a Subordination A Muslim fighter primarily takes orders from the supreme commander and only then from his superior officer b War Booty it is clear that a fifth of war booty shall fall to the State treasury and the other four-fifths belong to the soldiers However in situations where the soldiers receive pay and in which the State has assumed the obligation to care for the soldiers and their families all war booty shall be placed at the disposal of the State Because of this the most proper way for the State to dispose of war booty is through its army officers c Prisoners of war the killing of women children and priests who do not participate at all in the war and who do not directly or indirectly assist the enemy is forbidden Islam likewise forbids the torture and brutalisation of prisoners of war and the mutilation of enemy wounded and dead These are general rules which are binding for our soldiers However if the commanding officer assesses that the situation and the general interest demand a different course of action then the soldiers are duty-bound to obey their commanding officer For instance if their officer or a higher commander assesses that in the interests of defence the protection of his own Case No IT-01-47-T 660 15 March 2006 16 21623 BIS people or higher goals it is best to set fire to certain buildings crops or woods then this is permitted It is also left to the military command's discretion to decide whether it is more useful or in the general interest to free exchange or liquidate enemy prisoners of war 18 Foreign Muslim fighters who referred to themselves as Mujahedin or Holy Warriors began arriving in Bosnia and Herzegovina sometime during the middle of 1992 The Mujahedin who were principally from Islamic countries were prepared to conduct a Jihad or Holy War in Bosnia and Herzegovina against the enemies of the Bosnian Muslims 19 After its formation on 19 November 1992 the 7th Muslim Mountain Brigade incorporated and subordinated Mujahedin within its structure 20 The Mujahedin were heavily involved in the 7th Muslim Mountain Brigade's combat activities and frequently spearheaded its operations 21 On 13 August 1993 the Commander of the ABiH Supreme Command Staff ordered the establishment within the ABiH 3 rd Corps area of responsibility of the El Mujahed unit comprised of foreign volunteers with immediate effect but not later than 31 August 1993 This unit was subordinated to Enver HADŽIHASANOVIĆ who ordered its subordination to units under his command for specific combat operations 22 By order of Enver HADŽIHASANOVIĆ on 8 March 1993 the following four OGs were created within ABiH 3 rd Corps OG Lasva with its Headquarters in Kakanj OG Zapad with its Headquarters in Bugojno OG Bosna with its Headquarters in Zavidovi i and OG Bosanska Krajina with its Headquarters in Travnik 23 With its formation Mehmed ALAGIĆ was appointed as the commander of the OG Bosanska Krajina 24 On 8 March 1993 the 7th Muslim Mountain Brigade the 17 th Krajina Mountain Brigade the 305th Mountain Brigade Jajce the 27th Motorised Brigade and the Municipal Defence Headquarter Jajce with its units were placed under the command of the OG Bosanska Krajina On or around 16 April 1993 the 306th Mountain Brigade the 308th Mountain Brigade and the 312th Mountain Brigade were also attached to the OG Bosanska Krajina On or about 12 July 1993 the 7th Muslim Mountain Brigade was resubordinated under immediate command of the ABiH 3rd Corps as it was prior to 8 March 1993 25 At all times relevant to this indictment the 301st Mountain Brigade Zenica the 303rd Brigade Zenica the 314th Mountain Brigade Zenica the Municipal Defence Headquarters Zenica with its units and all staff units of the Corps were under the direct subordination of the ABiH 3rd Corps Case No IT-01-47-T 661 15 March 2006 15 21623 BIS CHARGES 26 In 1993 and until 18 March 1994 the ABiH participated in an armed conflict with the Croatian Defence Council hereafter HVO and the Army of the Republic of Croatia hereafter HV In particular in April 1993 and in early summer 1993 ABiH 3rd Corps units launched a series of heavy attacks against the HVO including but not limited to the municipalities of Bugojno Busovača Kakanj Maglaj Novi Travnik Travnik Vareš Vitez Zavidovići Zenica and Žepče The ABiH operations culminated in a massive attack between 7 and 13 June 1993 within inter alia the municipalities of Kakanj Travnik and Zenica 27 Within the municipalities listed in paragraph 26 ABiH 3rd Corps units attacked towns and villages mainly inhabited by Bosnian Croats Predominately Bosnian Croat but also Bosnian Serb civilians including women children the elderly and the infirm were subjected to wilful killings and serious injury In the course of or after the attacks at least 200 Bosnian Croat and Bosnian Serb civilians were killed and many more were wounded or harmed while attempting to hide or escape In several instances ABiH forces killed HVO troops after their surrender 28 Mainly Bosnian Croats but also Bosnian Serbs were unlawfully imprisoned and otherwise detained in ABiH detention facilities Imprisoned and otherwise detained Bosnian Croats and Bosnian Serbs were killed and beaten subjected to physical and or psychological abuse intimidation and inhuman treatment including being confined in overcrowded and unsanitary conditions and suffered inhumane deprivations of basic necessities such as adequate food water and clothing They were provided little or no medical attention 29 ABiH forces plundered and destroyed Bosnian Croat and Bosnian Serb property with no military justification Mainly Bosnian Croat but also Bosnian Serb dwellings and buildings as well as civilian personal property and livestock were destroyed or severely damaged In addition Bosnian Croat buildings sites and institutions dedicated to religion were targeted for destruction or otherwise damaged or violated 30 The allegations contained in paragraphs 1 through 10 as well as the allegations in paragraphs 26 through 29 are re-alleged and incorporated in each charge INDIVIDUAL CRIMINAL RESPONSIBILITY Enver HADŽIHASANOVIĆ 31 At the time Enver HADŽIHASANOVIĆ took over the command of the ABiH 3rd Corps he was experienced in exercising command and effective control over military units Furthermore Enver HADŽIHASANOVIĆ was specifically trained in military disciplinary procedures 32 In following the common practice of the ABiH to use a variety of regulations and Case No IT-01-47-T 662 15 March 2006 14 21623 BIS instructions of the former JNA Enver HADŽIHASANOVIĆ by virtue of his authority and duties as a commander was inter alia responsible for the preparation of the corps for armed combat in the field including the planning of the operations and other forms of combat actions transmitting the decision to subordinated commands and controlling its implementation 33 At all times relevant to the charges in this indictment Enver HADŽIHASANOVIĆ by virtue of his position and authority as Corps commander directly or through his Chief of Staff his assistants heads of branches and other officers commanded all units of the ABiH 3rd Corps and units that were operating within his command and effective control These units include the units described in paragraphs 15 to 25 Enver HADŽIHASANOVIĆ demonstrated or exercised both formal de jure and de facto power by his command and effective control in military matters in a manner consistent with the exercise of superior authority in a variety of ways such as issuing orders instructions and directives to the units subordinated to ABiH 3rd Corps ensuring the implementation of these orders instructions and directives and bearing full responsibility for their completion deploying troops artillery and other units under his command and effective control and planning the preparation and implementation of military operations performed by these units Furthermore Enver HADŽIHASANOVIĆ ensured that he had permanent and current information on all matters that happened on the ground including minor incidents communicating with the ABiH Supreme Command Staff on an almost daily basis He was responsible for implementing the orders of the ABiH Supreme Command with respect to the organisational structures of the ABiH 3rd Corps This included the formation of OGs the subordination of units under OGs and the appointment and relief of military commanders He exercised command and effective control over all military units subordinated to the ABiH 3 rd Corps including those operating detention facilities 34 Enver HADŽIHASANOVIĆ also exercised his power as a Corps commander by negotiating the exchange of prisoners of war and cease-fire agreements with the HVO appointing ABiH 3rd Corps officers for the ABiH HVO Joint Command and negotiating with UNPROFOR and ECMM officials 35 At all times relevant to this indictment Enver HADŽIHASANOVIĆ exercised effective control over all his subordinates alleged to have committed crimes Amir KUBURA 36 In following the common practice of the ABiH to use a variety of regulations and instructions of the former JNA Amir KUBURA by virtue of his authority and duties as a commander was inter alia responsible for the preparation of the units subordinated to his command for armed combat in the field including the planning of the operations and other forms of combat actions transmitting decisions to subordinated commands and controlling their implementation Case No IT-01-47-T 663 15 March 2006 13 21623 BIS 37 At all times relevant to the charges in this indictment Amir KUBURA by virtue of his position and authority described above commanded all units of the ABiH 3rd Corps 7th Muslim Mountain Brigade Amir KUBURA demonstrated and exercised both formal de jure and de facto power by his control in military matters in a manner consistent with the exercise of superior authority in a variety of ways including issuing orders instructions and directives to units subordinated to the ABiH 3rd Corps 7th Muslim Mountain Brigade deploying troops under his command planning the preparation and implementation of military operations performed by units under his command and effective control He exercised command and effective control over all military units subordinated to the ABiH 3rd Corps 7th Muslim Mountain Brigade including those operating detention facilities 38 At all times relevant to this indictment Amir KUBURA exercised effective control over all his subordinates alleged to have committed crimes COUNTS 1-2 MURDER CRUEL TREATMENT 39 Several times during the course of their combat activities with the HVO and the HV in central Bosnia in 1993 ABiH 3rd Corps forces killed and seriously wounded surrendered HVO soldiers and or Bosnian Croat and Bosnian Serb civilians These killings by ABiH 3rd Corps forces after attacks on towns and villages include but are not limited to executions and massacres in the following villages a Dusina aa The execution on 26 January 1993 of the Bosnian Serb civilian Vojislav STANI I and the following five surrendered HVO soldiers after troops of the 7th Muslim Mountain Brigade the 303rd Mountain Brigade and the 17th Krajina Mountain Brigade had launched the attack on Dusina – Zenica Municipality Niko KEGELJ Stipo KEGELJ Vinko KEGELJ Pero LJUBI I and Augustin RADO ab The killing of the surrendered HVO soldier Zvonko RAJI by erif PATKOVI the then commander of the 2nd Battalion of the 7th Muslim Mountain Brigade after the attack on Dusina – Zenica Municipality b Miletići The killing on 24 April 1993 of the following four surrendered HVO soldiers after troops of both the 7th Muslim Mountain Brigade and the 306th Mountain Brigade had launched the attack on Miletići - Travnik Municipality Franjo PAVLOVIĆ Tihomir PAVLOVIĆ Vlado PAVLOVIĆ and Anto PETROVIĆ Case No IT-01-47-T 664 15 March 2006 12 21623 BIS c Maline Bikoši The massacre on 8 June 1993 in Bikoši - Travnik Municipality of around 30 Bosnian Croat civilians and surrendered HVO soldiers after troops of both the 7th Muslim Mountain Brigade and the 306th Mountain Brigade had launched the attack on Maline - Travnik Municipality Among the killed were the following persons Anto BALTA Ivo BALTA Jozo BALTA Luka BALTA Nikica BALTA Bojan BARAĆ Davor BARAĆ Goran BOBAŠ Niko BOBAŠ Slavko BOBAŠ Srećo BOBAŠ Pero BOBAŠ-PUPIĆ Dalibor JANKOVIĆ Stipo JANKOVIĆ Slavko KRAMAR Anto MATIĆ Tihomir PEŠA Ana PRANJEŠ Ljubomir PUŠELJA Predrag PUŠELJA Jakov TAVIĆ Mijo TAVIĆ Stipo TAVIĆ and Ivo VOLIĆ Seriously wounded were Berislav MARJANOVIĆ Zdravko PRANJEŠ Darko PUŠELJA and Željko PUŠELJA 40 Enver HADŽIHASANOVIĆ from about January 1993 to 31 October 1993 and Amir KUBURA from 1 April 1993 to March 1994 knew or had reason to know that ABiH forces under their command and effective control were about to commit such acts or had done so in the following villages on or about the dates indicated and they failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof Enver HADŽIHASANOVIĆ Dusina Zenica Municipality Miletići Travnik Municipality Maline Bikoši Travnik Municipality 26 January 1993 24 April 1993 8 June 1993 Amir KUBURA Miletići Travnik Municipality Maline Bikoši Travnik Municipality 24 April 1993 8 June 1993 By these omissions Enver HADŽIHASANOVIĆ and Amir KUBURA committed Count 1 MURDER a VIOLATION OF THE LAWS OR CUSTOMS OF WAR punishable under Articles 3 and 7 3 of the Statute of the Tribunal and recognised by Article 3 1 a of the Geneva Conventions Count 2 CRUEL TREATMENT a VIOLATION OF THE LAWS OR CUSTOMS OF WAR punishable under Articles 3 and 7 3 of the Statute of the Tribunal and recognised by Article 3 l a of the Geneva Conventions COUNTS 3-4 MURDER CRUEL TREATMENT 41 Enver HADŽIHASANOVIĆ from about January 1993 to 31 October 1993 and Amir KUBURA from 1 April 1993 to March 1994 knew or had reason to know that the following ABiH forces under their command and effective control were about to plan prepare or Case No IT-01-47-T 665 15 March 2006 11 21623 BIS execute the imprisonment killing and cruel treatment of Bosnian Croats and Bosnian Serbs at the following locations in the territory of Bosnia and Herzegovina or had done so and they failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof Enver HADŽIHASANOVIĆ a Zenica Municipality Zenica Music School in the town of Zenica staffed and operated by the ABiH 3rd Corps 7th Muslim Mountain Brigade from about 26 January 1993 to 31 October 1993 b Travnik Municipality ba Town of Travnik Former JNA barracks staffed and operated by the ABiH 3rd Corps OG Bosanska Krajina 17th Krajina Mountain Brigade from about May 1993 to 31 October 1993 bb Village of Mehurići - Mehurići Elementary School staffed and operated by the ABiH 3rd Corps OG Bosanska Krajina 306thMountain Brigade from about 6 June 1993 to at least 24 June 1993 - Blacksmith Shop staffed and operated by the ABiH 3 rd Corps OG Bosanska Krajina 306 th Mountain Brigade from about 6 June 1993 to at least 13 July1993 bc Village of Orašac Orašac Camp staffed and operated by Mujahedin within the ABiH 3 rd Corps OG Bosanska Krajina from about 15 October 1993 to 31 October 1993 c Kakanj Municipality Motel Sretno staffed and operated by the ABiH 3rd Corps 7th Muslim Mountain Brigade 3rd Battalion from about 15 May 1993 to at least 21 June 1993 d Bugojno Municipality da Gimnazija School Building from about 18 July 1993 to at least 13 October 1993 db Convent Building from about 24 July 1993 to at least the beginning of August 1993 Case No IT-01-47-T 666 15 March 2006 10 21623 BIS dc Slavonija Furniture Salon from about 24 July 1993 to at least 18 August 1993 dd FC Iskra Stadium from about 30 July 1993 to 31 October 1993 de Vojin Paleksi Elementary School from about 31 July 1993 to at least September 1993 df Bank of Bosnia and Herzegovina Building from about September 1993 to 31 October 1993 The ABiH 3rd Corps camps and detention facilities in Bugojno were all staffed and operated by the ABiH 3rd Corps OG “Zapad” Military Police and soldiers of the ABiH 3rd Corps OG “Zapad” 307th Brigade Amir KUBURA a Zenica Municipality Zenica Music School in the town of Zenica staffed and operated by the ABiH 3rd Corps 7th Muslim Mountain Brigade from 1 April 1993 to at least January 1994 b Kakanj Municipality Motel Sretno staffed and operated by the ABiH 3rd Corps 7th Muslim Mountain Brigade 3rd Battalion from about 15 May 1993 to at least 21 June 1993 42 Imprisoned and otherwise detained Bosnian Croats and Bosnian Serbs were subjected to regular physical and or psychological abuse The physical abuse included beatings inflicted by a wide variety of weaponry such as rifle butts metal hooks wooden sticks and handles batons truncheons knuckle-dusters wooden staves boots and telephone cables resulting in a wide variety of bodily injuries Several detainees got their ribs noses and limbs broken In some instances prisoners were beaten to death Detainees were subjected to inhuman treatment including being confined in overcrowded and unsanitary conditions and suffered from inhumane deprivations of basic necessities such as adequate food water and clothing They were provided little or no medical attention The psychological abuse included threats of bodily injury and death such as prisoners being forced to dig their own graves and the threat of amputation of limbs while detained a In the Zenica Music School soldiers of the ABiH 3rd Corps 7th Muslim Mountain Brigade who were predominately both members of the Military Police and Mujahedin subordinated to the ABiH 3rd Corps 7th Muslim Mountain Brigade abused prisoners by beating them with a wide variety of weaponry such as rifle butts wooden sticks and handles truncheons knuckle-dusters staves boots and telephone cables resulting in a wide variety of bodily injury Members of the ABiH 3rd Corps 7th Muslim Mountain Brigade Military Police and Mujahedin subordinated to the ABiH 3rd Corps 7th Muslim Mountain Brigade forced prisoners to dig their own graves In general food hygiene and living conditions were poor Case No IT-01-47-T 667 15 March 2006 9 21623 BIS b In the former JNA Barracks in Travnik soldiers of the ABiH 3rd Corps OG Bosanska Krajina 17th Krajina Brigade beat detainees on a regular basis c In the Mehuri i Elementary School members of the ABiH 3rdCorps 306th Mountain Brigade kicked prisoners while detained During interrogation prisoners were beaten and threatened by members of the ABiH 3rd Corps 306th Mountain Brigade The general food hygiene and living conditions were poor d In the Blacksmith Shop Mehuri i soldiers of the ABiH 3 rd Corps 306th Mountain Brigade crammed prisoners in a small room around 3x3 metres in size They took prisoners out for interrogation threatened kicked and beat them The food hygiene and living conditions were poor e In the Orašac Camp Mujahedin subordinated to the ABiH 3rdCorps OG Bosanska Krajina severely beat detainees with rifle butts The Mujahedin broke the nose of one of the detainees and several ribs of another They regularly subjected detainees to threats of bodily injury and death f In the Motel Sretno ABiH 3 rd Corps 7 th Muslim Mountain Brigade 3rd Battalion soldiers physically abused detainees by beating them with batons sticks rifle butts metal hooks wooden staves and boots They also forced them to beat each other In addition detainees were ordered to bang their heads against walls Furthermore ABiH 3rd Corps 7th Muslim Mountain Brigade 3rd Battalion soldiers threatened detainees with the amputation of their legs whilst detained at the facility g In the detention facilities in Bugojno members of the ABiH 3rdCorps OG Zapad Military Police and soldiers of the ABiH 3rdCorps OG Zapad 307th Brigade abused prisoners by beating them with a variety of weapons namely truncheons police batons rifle butts billiard sticks wooden staves plastic cables and boots They forced detainees to hit their heads against metal bars The physical assaults resulted in prisoners losing consciousness and receiving broken legs In a few instances detainees got their teeth knocked out On several occasions detainees were forced to give blood On a regular basis ABiH 3rd Corps OG Zapad Military Police threatened to kill detainees In addition they subjected prisoners to overcrowded cells and highly unsanitary living conditions The food conditions were very poor 43 The killings of imprisoned and otherwise detained Bosnian Croats and Bosnian Serbs include but are not limited to a The killing by beating to death of a Bosnian Croat detainee by Military Police Officers from the ABiH 3rd Corps OG Bosanska Krajina 17th Krajina Brigade in May 1993 in the former JNA Barracks in Travnik - Travnik Municipality b The killing by beating to death of the imprisoned HVO soldier Jozo MARAČIĆ by soldiers of the ABiH 3rd Corps 7th Muslim Mountain Brigade on 18 June 1993 in the Zenica Music School- Zenica Municipality Case No IT-01-47-T 668 15 March 2006 8 21623 BIS c The killing by beating to death of the imprisoned HVO soldier Mladen HAVRANEK by members of the ABiH 3rd Corps OG Zapad Military Police on 5 August 1993 in the Slavonija Furniture Salon - Bugojno Municipality d The killing by beating to death of the imprisoned HVO soldier Mario ZRNO by members of the ABiH 3rd Corps OG Zapad Military Police in the beginning of August 1993 whilst taken out for forced labour from the Convent Building in Bugojno -Bugojno Municipality e The killing by ritual beheading of the Bosnian Serb detainee Dragan POPOVIĆ a civilian by Mujahedin subordinated to the ABiH 3 rd Corps OG Bosanska Krajina on 20 October1993 in the Orašac Camp - Travnik Municipality By these omissions Enver HADŽIHASANOVIĆ and Amir KUBURA committed Count 3 MURDER a VIOLATION OF THE LAWS OR CUSTOMS OF WAR punishable under Articles 3 and 7 3 of the Statute of the Tribunal and recognised by Article 3 1 a of the Geneva Conventions Count 4 CRUEL TREATMENT a VIOLATION OF THE LAWS OR CUSTOMS OF WAR punishable under Articles 3 and 7 3 of the Statute of the Tribunal and recognised by Article 3 l a of the Geneva Conventions COUNTS 5-6 WANTON DESTRUCTION OF CITIES TOWNS OR VILLAGES NOT JUSTIFIED BY MILITARY NECESSITY PLUNDER OF PUBLIC OR PRIVATE PROPERTY 44 In the course of their combat activities with the HVO and the HV in central Bosnia in 1993 ABiH 3rd Corps forces either plundered or plundered and unlawfully destroyed Bosnian Croat and Bosnian Serb dwellings buildings and civilian personal property These incidents of plunder and unlawful and wanton destruction not justified by military necessity were committed by the units as detailed below and include but are not limited to the following towns and villages on or about the dates indicated Dusina Zenica Municipality - 7th Muslim Mountain Brigade - 303rd Mountain Brigade - 17th Krajina Mountain Brigade January 1993 Mileti i Travnik Municipality - 7th Muslim Mountain Brigade - 306th Mountain Brigade April 1993 Case No IT-01-47-T 669 15 March 2006 7 21623 BIS Guča Gora Travnik Municipality - 7th Muslim Mountain Brigade - 306th Mountain Brigade - 17th Krajina Mountain Brigade June 1993 Maline Travnik Municipality - 7th Muslim Mountain Brigade - 306th Mountain Brigade June 1993 Čukle Travnik Municipality - 7th Muslim Mountain Brigade - 306th Mountain Brigade June 1993 Sušanj Ovnak Brajkovići Grahovčići Zenica Municipality - 7th Muslim Mountain Brigade - 306th Mountain Brigade - 314th Mountain Brigade Vareš Vareš Municipality - 7th Muslim Mountain Brigade 45 June 1993 November 1993 Enver HADŽIHASANOVIĆ from about January 1993 to 31 October 1993 and Amir KUBURA from 1 April 1993 to March 1994 knew or had reason to know that ABiH forces under their command and effective control were about to commit such acts or had done so in the following villages on or about the dates indicated and they failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof Enver HADŽIHASANOVIĆ Dusina Zenica Municipality Mileti i Travnik Municipality Guča Gora Travnik Municipality Maline Travnik Municipality Čukle Travnik Municipality Sušanj Ovnak Brajkovići Grahovčići Zenica Municipality January 1993 April 1993 June 1993 June 1993 June 1993 June 1993 Amir KUBURA Mileti i Travnik Municipality Maline Travnik Municipality Sušanj Ovnak Brajkovići Grahovčići Zenica Municipality Vareš Vareš Municipality Case No IT-01-47-T 670 April 1993 June 1993 June 1993 November 1993 15 March 2006 6 21623 BIS By these omissions Enver HADŽIHASANOVIĆ and Amir KUBURA committed Count 5 WANTON DESTRUCTION OF CITIES TOWNS OR VILLAGES NOT JUSTIFIED BY MILITARY NECESSITY a VIOLATION OF THE LAWS OR CUSTOMS OF WAR punishable under Articles 3 b and 7 3 of the Statute of the Tribunal Count 6 PLUNDER OF PUBLIC OR PRIVATE PROPERTY a VIOLATION OF THE LAWS OR CUSTOMS OF WAR punishable under Articles 3 e and 7 3 of the Statute of the Tribunal COUNT 7 DESTRUCTION OR WILFUL DAMAGE OF INSTITUTIONS DEDICATED TO RELIGION 46 Enver HADŽIHASANOVIĆ from about June 1993 to 31 October 1993 knew or had reason to know that ABiH forces under his command and effective control as detailed below were about to plan prepare or execute the destruction or wilful damage of Bosnian Croat institutions dedicated to religion in the following towns and villages on or about the dates indicated or had done so and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof Guča Gora Travnik Municipality - 7th Muslim Mountain Brigade - 306th Mountain Brigade - 17th Krajina Mountain Brigade June 1993 Travnik Travnik Municipality June 1993 - Mujahedin subordinated to ABiH 3rd Corps and or 17th Krajina Mountain Brigade By these omissions Enver HADŽIHASANOVIĆ committed Count 7 DESTRUCTION OR WILFUL DAMAGE DONE TO INSTITUTIONS DEDICATED TO RELIGION a VIOLATION OF THE LAWS OR CUSTOMS OF WAR punishable under Articles 3 d and 7 3 of the Statute of the Tribunal signed and stamped Carla Del Ponte Prosecutor Dated this 26th day of September 2003 At The Hague The Netherlands Case No IT-01-47-T 671 15 March 2006 5 21623 BIS 672 Case No 1 IT-01-47-T 15 March 2006 4 21623 BIS XIV ANNEX V MAPS 673 Case No 1 IT-01-47-T 15 March 2006 Case N0 IT-01-47-T 15 March 2006 674 Idlr Lv l Imhm - 7r - tail-40 m1 #74 - - 03 sh 1 k Air's-fr Qis aaif it - 1 a-a- A DH 82 extract 3 21623 BIS 2 21623 BIS DH 84 extract B - rum-Ind - 1 900E '41-'9le SI goo'ooz 1 3 235 mumps 00m SBJEA dew 3599 u io- Ll sunanx 1-3 53mm mum 5 gun m vex was v- 93$ Hm mum - Kn new fur '33 675 15 March 2006 Case N0 IT-01-47-T 1 21623 BIS C DH 97 extract kiv a 3 r g nsh 4x m5 elm-f 'r BUGOJNO HADZIHASANDVIC 8 KUBURA lT-Dl-4 Base map Jajce 473-4-4 TKZS original scale 1 25 000 HEW 1 5 March 2mm 676 Case N0 IT-01-47-T 15 March 2006