Tribunal Criminal Tribunal for the Former Yugoslavia

Page 226

1 Monday, 9 July 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 2.18 p.m.

5 JUDGE MOLOTO: Good afternoon, everybody.

6 May the Registrar please call the case.

7 THE REGISTRAR: Thank you. Good afternoon, Your Honours.

8 This is case number IT-04-83-T, the Prosecutor versus Rasim Delic.

9 JUDGE MOLOTO: Thank you very much, Mr. Registrar.

10 May we have we appearances, please, starting with the Prosecutor.

11 MR. MUNDIS: Good afternoon, Mr. President, Your Honours, and

12 counsel and everyone in and around the courtroom.

13 For the Prosecution, Deputy Prosecutor, David Tolbert; myself,

14 Daryl Mundis, and our case manager, Alma Imamovic.

15 JUDGE MOLOTO: Thank you very much. For the Defence.

16 MS. VIDOVIC: [Interpretation] Good afternoon much, Your Honours.

17 Good afternoon to my colleagues on the Prosecution, everybody in the

18 courtroom. My name is Vasvija Vidovic, together with Mr. Nicholas Robson,

19 and I represent the Defence of Mr. Rasim Delic, together will our case

20 manager, Ms. Lana Deljkic, and our legal assistants, Ms. Lejla Gluhic and

21 Asja Zujo.

22 JUDGE MOLOTO: Thank you very much.

23 Before we start the proceedings of the day, I just wanted to raise

24 one little point, which relates to an earlier decision that the Court

25 made. We're going to render an oral decision in this respect.

Page 227

1 The Trial Chamber now stands to address a matter in relation to

2 the Law Library documents.

3 On the 15th of June, 2007, the Trial Chamber issued a decision

4 admitting into evidence the 48 so-called Law Library documents which had

5 been jointly tendered by the parties. In the decision, the Trial Chamber

6 also ordered the Registrar to assign one exhibit number to this collection

7 of documents on the first day of the presentation of evidence of the

8 Prosecution.

9 The Trial Chamber has been informed by the Registry that due to

10 technical limitations of the e-court system, it is not feasible to keep

11 such a large collection of documents under one exhibit number. The Trial

12 Chamber also notes that an amended index of the documents was provided to

13 the Trial Chamber by the parties, together with the Law Library documents

14 on the 1st of June, 2007.

15 In a letter from the Prosecution to the Trial Chamber attached to

16 this amended index and the documents, the Prosecution stated that two

17 documents have not been assigned ERN numbers and that it will notify the

18 Trial Chamber of ERN numbers once they are assigned. In the letter, the

19 Prosecution also noted that part or parts of the document PT-40-37 have

20 yet to be translated into English. This is also mentioned in the index.

21 The Trial Chamber orders, one, the Registrar to assign individual

22 consecutive exhibit to the 48 documents; two, the parties to provide the

23 missing English translation, unless this has already been done, by the

24 13th of July, 2007; three, the parties to amend the index of the documents

25 in light of the above and to include references to the respective

Page 228

1 documents' exhibit number; four, the index be admitted into evidence as

2 the first exhibit in the consecutive series of exhibit numbers.

3 Thank you very much.

4 After that, Mr. Mundis.

5 MR. MUNDIS: We will certainly, Your Honours, ensure that that is

6 provided no later than the 13th of July, 2007.

7 JUDGE MOLOTO: Thank you very much.

8 Mr. Mundis.

9 MR. MUNDIS: Thank you, Your Honours.

10 The Prosecution is grateful for the pre-trial decisions that were

11 rendered earlier this morning. However, in light of the decision

12 concerning the reconsideration with respect to the amount of time and

13 number of witnesses afforded to the Prosecution, the Prosecution, at this

14 point in time, Your Honours, is not ready to proceed.

15 We would, however, ask for a few days in order to assimilate the

16 decisions that were rendered earlier this morning and perhaps to be

17 afforded an opportunity to further explain to the Trial Chamber why the

18 amount of time that has been made available to us and the number of

19 witnesses which have been afforded the Prosecution needs to be increased.

20 And we would ask for an opportunity to present further arguments on that

21 issue, in light of the decisions which were just rendered this morning,

22 including the decision rejecting the Prosecution motion for a

23 reconsideration.

24 JUDGE MOLOTO: Are you done?

25 JUDGE HARHOFF: How much time are you asking for?

Page 229

1 MS. VIDOVIC: [Interpretation] Your Honour, if I may.

2 JUDGE MOLOTO: Sorry, sorry. Madam Vidovic, Judge Harhoff wanted

3 to ask a question to counsel for the Prosecution.

4 JUDGE HARHOFF: I apologise for taking the floor.

5 I just wanted to clarify from Mr. Mundis. What are you seeking, a

6 couple of extra days, in order to consider these matters, or how am I to

7 understand your application?

8 MR. MUNDIS: Thank you, Your Honour.

9 I would suggest it depends in part on whether these further

10 submissions would be done in writing or orally. I would believe that we

11 would be in a position perhaps in three days' time to orally address the

12 Trial Chamber on all of these issues, including, if it would be helpful, a

13 more detailed explanation as to why the Prosecution submits that we would

14 require approximately 70 witnesses and slightly more than 100 hours of

15 direct examination time in order to prove our case.

16 If the Trial Chamber would be inclined to have those submissions

17 in writing, that might take a few additional days in order to prepare

18 written submissions on that point. We would certainly be in a position to

19 do that by one week from today, if it were to be in writing, or perhaps

20 Thursday of this week if it were to be done orally.

21 [Trial Chamber confers]

22 JUDGE MOLOTO: Madam Vidovic.

23 MS. VIDOVIC: [Interpretation] Your Honour, our position is as

24 follows: We are ready to proceed to trial, and we leave the Prosecution

25 motion to the Trial Chamber for its ultimate decision.

Page 230

1 JUDGE MOLOTO: Thank you very much.

2 I have a question to you then, Mr. Mundis, now that the Defence

3 leaves it to the Chamber.

4 What you do you need to tell the Chamber in three days or so? Are

5 you not able to tell the Chamber now?

6 MR. MUNDIS: Thank you, Your Honours.

7 The Prosecutor's position, we believe, has been made clear both in

8 our written submission of Friday of last week, as well as the submissions

9 that were made during the Rule 11 bis referral hearing on Friday

10 afternoon.

11 Our position, in a nutshell, is it's not possible --

12 JUDGE MOLOTO: May I interrupt you? You are aware that this

13 Chamber is not seized of the Referral, the 11 bis motion?

14 MR. MUNDIS: I am certainly aware of that, Your Honours. But in

15 the event that any or all of the Chamber had read the transcripts of that,

16 that's why I made reference to that.

17 JUDGE MOLOTO: I didn't.

18 MR. MUNDIS: Okay. If not, we can certainly, in a nutshell,

19 indicate, once again, our position is that it is simply not -- we are not

20 in a position to be able to prove our case with 55 witnesses and a

21 cumulative total of 170 hours, to include cross-examination, redirect,

22 questions from the Bench, and procedural matters, in addition to direct

23 examination.

24 JUDGE MOLOTO: But, Mr. Mundis, I guess you have read this

25 afternoon's decision by the Chamber, and you'll also be aware of the

Page 231

1 provisions of Rule 73 bis (F). Are you not inclined to make use of that,

2 which you can do now, immediately at the start of the trial?

3 MR. MUNDIS: Your Honour, our position is that we need to have a

4 higher degree of certainty with respect to the amount of time and number

5 of witnesses available to us, and I don't mean to be flippant or curt.

6 But our position is if we are required to start the trial under these

7 conditions, the likely outcome would be an acquittal.

8 We cannot risk the possibility that the Trial Chamber, whether

9 it's five minutes after I open or five days after I open or five weeks

10 after I open, we cannot run the risk that the Trial Chamber would deny

11 that motion for additional time or additional witnesses. And to start a

12 trial -- I need to be very clear. To start a trial, when this office

13 believes there is insufficient time or witnesses to prove the charges, is

14 irresponsible.

15 JUDGE MOLOTO: Mr. Mundis, I -- excuse me, I'm trying to follow

16 the logic of your argument.

17 You feel you cannot come back to this Chamber by way of a Rule 73

18 bis (F) motion because you cannot risk a denial. You, in the same breath,

19 want a postponement for three days to allow you to come back to say

20 exactly what I'm asking you to say in the 73 bis motion, and you have the

21 belief that you can persuade us when you come back in three days' time.

22 Why can't you just put that argument, Mr. Mundis, in terms of the

23 Rules of this Tribunal on a 73 bis (F) motion, and we can reconsider your

24 motion? What is just so difficult? And then we can start the trial in

25 the meantime.

Page 232

1 JUDGE HARHOFF: Mr. Mundis, can I just add, on behalf of the

2 Chamber and just in continuation of what the President has just told you,

3 that, of course, the Chamber is in no way seeking to interfere or make the

4 life of the Prosecution more difficult than necessary. The decision that

5 we took to cut down the number of witnesses and the number of hours for

6 the Prosecution to present its case was based on all the material that we

7 had seen and, genuinely, what we thought would be sufficient for you to

8 prove the case. And we also had in mind that since there are, in effect,

9 only basically two counts to prove, we thought, genuinely and honestly,

10 that 55 witnesses and 170 hours would be sufficient.

11 We see that the major challenge in this trial is the fact that the

12 accused is among the highest-ranking persons, and that, as you said also

13 in your interventions during the 11 bis hearing, that was something that

14 makes this case more difficult than it, otherwise, would have been if it

15 had just been a 7.1 bis case. But we took that into account as well.

16 In fact, the only argument that we've heard so far for you to

17 explain to us why you think that it is impossible for you to make your

18 case with the 55 witnesses and the 170 hours is the fact that it is a 73

19 case. Well, when we look at the list of witnesses which you had proposed,

20 it seemed to us that most of the witnesses that you intended to bring and

21 testify before us were witnesses who could testify to the crimes on the

22 ground, and we saw not many witnesses who would be able to bring important

23 and relevant evidence about the link that would link the events on the

24 ground up to the level of the accused. And this is why we thought that,

25 as much as it is important to hear the testimonies of the victims, we also

Page 233

1 have to put the right dimensions to this case, and, again, that is why we

2 reached the number.

3 Then, when you made these very violent and vociferous operations,

4 we then thought, well, we're open to discussion. We're are ready to hear

5 you out. But so far, I must say, that the Chamber has heard nothing that

6 can substantiate why you think it is impossible for you to make your case

7 with this limited number. And if you have additional reasons or arguments

8 that we have not heard yet or which were one of the other reasons you

9 can't bring to us in public session, then let's move to another forum, but

10 at least explain to us what the problem is.

11 Thank you.

12 MR. MUNDIS: Thank you, Judge Harhoff.

13 Let me just be as brief as I can, under the situation.

14 First of all, the Prosecution does not necessarily agree that the

15 majority of the witnesses go to the crime base in this case. In fact, I

16 believe fewer than -- or approximately, fewer than one-third of the actual

17 total of witnesses actually are what might be considered crime-based

18 witnesses. And, certainly, with respect to the Maline incident, there's

19 only a very small number of witnesses, perhaps five or six, that are

20 considered to be crime-based witnesses.

21 The bulk of the witnesses are security-type people, inside-type

22 witnesses, witnesses who will testify as to issues concerning command and

23 control, issues concerning the presence of the Mujahedin or foreign

24 fighters in units of the ARBiH, and we would not agree that a large number

25 of witnesses in this case are crime-based witnesses. And if our 65 ter

Page 234

1 summaries gave that impression, then perhaps we need to relook at that

2 issue.

3 What I am suggesting, and perhaps a Rule 65 ter hearing might be

4 more appropriate or a status conference might be a more appropriate forum

5 for this, is the Prosecution is prepared to go down the entire list of

6 witnesses and briefly explain to the Trial Chamber the purpose of their

7 testimony and to distinguish that testimony from other witnesses for whom

8 the Trial Chamber might think that evidence is cumulative. And to

9 undertake that exercise, in light of the Chamber's earlier rulings this

10 morning concerning Rule 94(B) and concerning adjudicated facts, we would

11 be in a position to clearly articulate why we need approximately 70

12 witnesses in order to prove our case.

13 And what I'm simply saying, to answer the Presiding Judge's

14 question, is that that is not something that we are in a position to do

15 today, but I believe we would be in a position to do orally three days

16 from now or in detailed written pleadings one week from today.

17 To briefly answer the Presiding Judge's other question about Rule

18 73 bis (F), I would simply submit that that provision is one which is

19 designed primarily for those situations where, having invoked Rule 73 bis

20 (C), sometime much later in the proceedings, the Prosecution would come

21 back and say, it's now clear, it's now clear, six or seven or eight weeks

22 or six or seven or eight months into the trial, that we need more time or

23 more witnesses.

24 I'm not asking for relief under Rule 73 bis (F) at this stage

25 because the trial has not commenced. So what we're asking the Trial

Page 235

1 Chamber to do is to exercise its inherent discretion to reconsider its

2 decisions or any decision that the Trial Chamber has the inherent

3 discretion to reconsider. And we're asking for that reconsideration

4 before the trial so that both the Prosecution and perhaps even more

5 importantly the Defence knows exactly which witnesses will be called at

6 trial. And it's that issue which is why we have brought this matter to

7 the attention of the Trial Chamber before the case starts.

8 So I clearly understand that Rule 73 bis (F) can be invoked by the

9 parties after the case. We're not asking for that, because our position

10 is we need to know before the case starts so that we can plan in the most

11 expeditious way to move this case forward. And, again, I would assert

12 that it's for the benefit of the Defence as well, so that they don't

13 operate under the assumption that we're going to be calling 55 witnesses,

14 where I know full well that I will be forced to make that 73 bis (F)

15 motion very shortly into the trial in order to be in a position to prove

16 my case.

17 And, again, as I indicated at the beginning, it would be

18 irresponsible for me to commence a trial knowing that if that decision

19 cannot altered, the accused will be acquitted. That would not be the best

20 use of the resources of this institution, with all due respect.

21 JUDGE MOLOTO: Mr. Mundis, while you say that -- you tell us the

22 purpose of Rule 73 bis (F), I don't see that purpose in the reading of the

23 Rule. The reading of the Rule says once the trial has commenced, you can

24 use that Rule to apply to increase. That's the first point, and let me

25 just carry on a little bit.

Page 236

1 Now, this Trial Chamber made a decision on the 2nd of July setting

2 the number of witnesses that the Prosecution may call and the number of

3 hours that may be used by the Prosecution. The Prosecution asked for a

4 reconsideration. Now, again, a decision has been given on that motion for

5 reconsideration, and the reason for the decision that is given is that the

6 motion for reconsideration is not motivated. And I'm sure if you re-read

7 that motion, you will see that it is not motivated.

8 You are asking us to reconsider and use our inherent discretion to

9 reconsider a motion when we don't have arguments before us for

10 reconsideration.

11 Now, I'm saying, or at least the Chamber is trying to say to you,

12 we are prepared to give the Prosecution an opportunity to give a reasoned

13 argument for reconsideration, be it 73 bis (F), be it whatever manner you

14 want to do it, by all means. And this Trial Chamber will look favorably

15 to any reasoned presentation and well-motivated presentation. But we

16 cannot afford to delay the start of the trial because of all manner of

17 reasons that you can imagine; the fairness to the accused, the need to be

18 as expeditious as we possibly can be with the running of trials.

19 And there is nothing, I can see absolutely nothing, stopping the

20 Prosecution from beginning now with the trial; and either, in three days'

21 time, come with an oral motion to motivate or, in a week's time, come with

22 a written application or written motion for reconsideration, a

23 well-motivated motion.

24 We agree with you. The only problem is we need to start. And I

25 don't see why -- I can't see the reason for the Prosecution not wanting to

Page 237

1 start simply because of what you are saying, because once you have put

2 your case before the Chamber and we have reconsidered that, the Chamber

3 will give a decision according to how it sees the facts, and the list of

4 witnesses may be changed.

5 It's early in the trial now for that to be prejudicial to the

6 Defence, I would imagine. They know the number of witnesses that the

7 Prosecution is about to call in the next week or so, and this motion can

8 be dealt with in a week's time, Mr. Mundis, if you just begin with the

9 trial.

10 MR. MUNDIS: Well, Your Honours, it is precisely for the reason

11 that we would like to have the opportunity of a few days' time to put

12 together these very arguments that it would seem the Trial Chamber is

13 eager to hear. Our position, however, partially because Your Honour just

14 stressed, that the Trial Chamber may, may, give us the relief we're

15 seeking, that's the problem, in the sense that I cannot start -- I cannot

16 risk starting the trial without the certainty of knowing which witnesses

17 I'm going to be allowed to call.

18 JUDGE MOLOTO: So I hear you now. I understand what you're

19 saying. You're putting a gun to the head of the Chamber. You're saying,

20 "You've got to guarantee me that you're going to grant my motion;

21 otherwise, I'm not starting." Is that how I understand you, because it is

22 always "may," Mr. Mundis, it always depends on the arguments put forward.

23 If you make a case, you get a positive answer. If you don't make a case,

24 you don't get a positive answer.

25 You can't expect this Trial Chamber, at this stage, to guarantee

Page 238

1 you that it shall. It can only say it may.

2 MR. MUNDIS: And, Your Honour, with all due respect, that is the

3 very decision that the Office of the Prosecutor needs to have, not whether

4 it will be given the more time, but we need to know, having been afforded

5 the opportunity to fully brief the Chamber on the issue and to fully

6 explain it, if our arguments at that point are unpersuasive, then we will

7 take whatever steps the Office of the Prosecutor feels need to be taken.

8 If I could just finish, if the decision of the Trial Chamber, as

9 it stands now, remains the same a week from now, after we make those

10 further submissions, then this Office will take the position that it feels

11 needs to be taken under the circumstances.

12 JUDGE MOLOTO: That's fine.

13 MR. MUNDIS: And so the point is, simply, if we can be given the

14 opportunity to be heard on this point before the trial starts, so that we

15 know absolutely certainly, having made full submissions, that the

16 Chamber's position remains the same, that we have 55 witnesses and 170

17 hours total, then we will take the steps necessary. But we would

18 certainly, at this point, simply ask for the delay of a few days, which in

19 our respectful submission is not extremely prejudicial to the Defence.

20 It's simply so that the Chamber has all the information it needs in order

21 to possibly reconsider its decision. And if we're unsuccessful, then we

22 will take the steps needed at that point in time.

23 JUDGE MOLOTO: Mr. Mundis, all that you are asking for is not

24 being denied -- is not being disputed. The Chamber is prepared to give

25 you those few days.

Page 239

1 What I do not understand is the link between the start of the

2 trial and the rendering of the decision on what you want to put before the

3 Court. I can't see why we can't start. We can start now, you can have as

4 much time as you need and collect your thoughts, put your motion on paper,

5 bring it orally. We will listen to it, and we will give you a decision

6 accordingly.

7 Now, you are not telling me why we cannot now start the trial,

8 sir. And I think we now are debating this thing and going in circles, and

9 I think we've got to come down to resolving this issue, you know. At

10 least we've got to start. You can give your opening statements, and we

11 can have a 65 ter meeting tomorrow. We can have a 65 ter meeting as and

12 when you think you are ready to have it, but we can be starting the case.

13 You haven't given me the link between these two, and I'm saying to

14 you, this is precious time. I wouldn't like to waste this precious time.

15 I would like to make use of today to hear opening statements, and then you

16 can come later with everything you want to come with.

17 MR. MUNDIS: Thank you, Your Honour.

18 Could I just have a moment to consult, please?

19 JUDGE MOLOTO: Yes, of course.

20 [Prosecution counsel confer]

21 MR. MUNDIS: Thank you, Your Honours.

22 The short answer to the question as to why we are not in a

23 position to proceed today is actually quite simple. Until we know the

24 exact size of our case and the amount of time available to us, and have

25 had time to digest the pre-trial rulings that were rendered this morning,

Page 240

1 I am not in a position to fully articulate the scope of that case. In

2 other words, I'm not sure if I'm going to be opening about this part of

3 the case or that part of the case until I know which witnesses I'm calling

4 and the full scope of what I'm to be dealing with.

5 I understand that that might be not fully satisfactory; but the

6 truth of the matter is, I don't know if I'm calling 55 witnesses or if

7 somewhere down the road I might have more witnesses than that, and the

8 full scope of my case cannot be presented with 55 witnesses. So by

9 definition, I cannot start explaining a case when I, myself, don't know

10 the full scope of the case I'm going to be allowed to put before the Trial

11 Chamber.

12 JUDGE MOLOTO: With respect, indeed, you are right, Mr. Mundis,

13 that is not persuasive indeed.

14 I don't think that explaining, in an opening statement, the scope

15 of your case has to do with the number of witnesses you are going to call.

16 This Trial Chamber is aware, everybody is aware, everybody can hear you,

17 that you want more witnesses. All you're doing in an opening statement is

18 giving us the scope of your case as fully as you know it to be. And you

19 know you are going to either put further arguments before the Trial

20 Chamber for more witnesses and more hours.

21 And if I may address the question that you raised a little

22 earlier, if, at that time, you still get a negative answer, I don't see

23 what stops the Prosecution from taking the decision it would have taken

24 had it known in advance that they are not getting more witnesses and more

25 time. At that time, you can still take that decision, sir.

Page 241

1 So I don't see why we cannot start now, Mr. Mundis. Let's start

2 the case, because there is no link between the start and the resolution of

3 the motion for more witnesses and more time. That motion, if well

4 motivated, it will be considered. If not -- and that's why at this stage

5 the only answer that the Chamber can say is, yes, it may grant the motion,

6 but it can't give a guarantee without having seen the papers.

7 We've got to see the papers, we've got to hear the argument,

8 we've got to hear what the Defence has to say, we've got to weigh

9 arguments, and then give a decision.

10 So, yes, the answer is "may," but having given that answer,

11 whatever the answer, positive or negative, the Prosecution -- it's still

12 open to the Prosecution to take the decisions it wants to take and to take

13 the actions it wants to take. There is no bar to starting today.

14 Can we start with the opening statements?

15 MR. MUNDIS: Your Honour, the Prosecution would respectfully

16 request a brief adjournment. I need to take further instructions on this

17 matter from the Prosecution.

18 JUDGE MOLOTO: Thank you very much. How long for you to

19 consider?

20 MR. MUNDIS: Twenty minutes.

21 JUDGE MOLOTO: Twenty minutes. Court adjourns.

22 --- Recess taken at 2.53 p.m.

23 --- On resuming at 4.09 p.m.

24 JUDGE MOLOTO: Good afternoon, once again. Apologies for taking

25 much longer than the 20 minutes that we said we were going to take.

Page 242

1 Factors beyond our control kept us out.

2 Mr. Mundis.

3 MR. MUNDIS: Thank you, Mr. President, Your Honours.

4 Before the Prosecution commences with its opening, I would like to

5 take this opportunity to introduce to the Trial Chamber the Prosecution

6 trial team for this case, the faces that you'll be seeing.

7 To my immediate right is Laurie Sartorio; next to her is Kyle

8 Wood; and, finally, Aditya Menon. One other member of the team, Matthias

9 Neuner, is currently assigned to another case and is unable to be with us

10 this afternoon, but will be appearing for the Prosecution throughout these

11 proceedings.

12 JUDGE MOLOTO: Thank you very much, Mr. Mundis.

13 MR. MUNDIS: Your Honours, we are all defined by the values which

14 we cherish. We are all judged by the decisions we make in defending those

15 values.

16 There is much truth in the old saying "actions speak louder than

17 words." Inaction, however, especially in the face of an obligation to

18 act, speaks even louder. In short, this is a case about values,

19 decisions, and inaction.

20 As a man of arms, the values which the accused, Rasim Delic,

21 fought for were noble. The decisions which he took in defending those

22 values are the foundation of the charges which he must now answer before

23 this International Tribunal.

24 The Prosecution has alleged that as the Supreme Commander of the

25 Army of Bosnia and Herzegovina, the accused, Rasim Delic, failed in his

Page 243

1 duty to prevent certain crimes from being carried out by his units over

2 which he exercised effective control. Alternatively, the Prosecution has

3 alleged that the accused, as the Supreme Commander of the Army of Bosnia

4 and Herzegovina throughout the indictment period, failed with respect to

5 his obligations to punish the perpetrators of those crimes, having been

6 put on notice that such crimes had been committed.

7 These failures, this inaction, if you will, is what this case is

8 all about. Thus, the case, from a conceptual point of view, is actually

9 quite simple. He had a duty to act, he failed in that duty; and as a

10 result, crimes were committed and perpetrators were allowed to escape

11 justice.

12 On another level, however, the case is complex. As a so-called

13 7.3-only case, many aspects must be established through circumstantial

14 evidence. Many aspects must be established through large numbers of

15 documents, which will require witnesses who will come in and explain the

16 context in which those documents were created. Other aspects of the case,

17 such as the failure to punish, will require the proof of a negative; that

18 is, that no one was prosecuted, no one was investigated, no one was

19 charged, no one was convicted.

20 For these reasons, in this opening that you're hearing today, the

21 Prosecution has opted to rely mainly on a number of documents and maps.

22 This material will serve as a road map for the Trial Chamber, in order to

23 have a brief understanding of what it is the Prosecution will seek to

24 prove in this case. Rather than simply explaining to you what happened,

25 we will endeavour to show you what happened by way of contemporaneous

Page 244

1 material, including, as I indicated, documents. This opening will focus

2 on documents.

3 First, some brief information about the accused in this case. A

4 former professional soldier in the Yugoslav People's Army, Rasim Delic

5 attended the Command Staff School of the JNA between 1988 and 1999, and he

6 requested to leave the JNA on the 13th of April 1992, as the war in

7 Bosnia-Herzegovina began.

8 Shortly thereafter, he was involved as the head of training and

9 operations organ of the Territorial Defence of Bosnia-Herzegovina, and he

10 later headed the Vozuca tactical group, before becoming a member of the

11 Main Staff of the Territorial Defence, with responsibilities for

12 organising and commanding armed combat activities in a number of

13 municipalities in Bosnia-Herzegovina.

14 In October 1992, he was appointed the acting head of the

15 Department for Operations, Planning, and Training in the Main Staff of the

16 Army of the Republic of Bosnia and Herzegovina.

17 On 8 June 1993, the Presidency of Bosnia and Herzegovina

18 restructured the Army Supreme Command headquarters to include establishing

19 the post of Commander of the Main Staff, the position to which the accused

20 was appointed to fulfill.

21 The document which has been marked as PT-11-86, which Your Honours

22 will be -- or will be placed before Your Honours during the course of this

23 trial, is a document of the 8th of June, 1992, signed by the President of

24 the Presidency of Bosnia and Herzegovina, Alija Izetbegovic. This is the

25 decision on the redistribution of the Republic of Bosnia and Herzegovina

Page 245

1 Supreme Command headquarters and the appointment of senior officers.

2 Paragraph 1 of this document establishes the post of Commander of

3 the Main Staff of the armed forces, while at the same time retaining the

4 staff or the position of Chief of the Main Staff.

5 Paragraph 4 of this document indicates Rasim Delic shall be

6 appointed Commander of the Main Staff of the armed forces of the Republic

7 of Bosnia and Herzegovina. This is paragraph 4.

8 If we then look at paragraph 6 of the same document, it indicates

9 that persons appointed under paragraph 4, such as the accused, Rasim

10 Delic, are hereby relieved of the posts they have hitherto held. The

11 Prosecution submits that this paragraph is important in understanding the

12 overall document, because we would assert that based on this document, and

13 the fact that Rasim Delic was relieved of his prior responsibilities, is a

14 clear indicia that as of the 8th of June, he assumed the new position as

15 the Supreme Commander. Again, 8 June 1993, signed by Alija Izetbegovic,

16 President of the Republic of Bosnia and Herzegovina Presidency.

17 Let me turn now to the issue of the Mujahedin. This case -- you

18 will hear in this case exclusive evidence and extensive evidence as to the

19 involvement in these crimes of the Mujahedin. These people who were

20 foreign fighters, who began entering Bosnia in 1992, joined a number of

21 units of the Army of Bosnia and Herzegovina in the period 1992/1993,

22 before being formed in August 1993, as we'll explain in a few moments, in

23 the El Mujahedin Detachment.

24 With respect to the arrival of the Mujahedin, a witness you will

25 hear tomorrow, a journalist by the name of Andrew Hogg, went into Bosnia

Page 246

1 in the summer of 1992 with the explicit aim of seeking to find some of

2 these foreign fighters and interview them. He worked at that time for

3 "The Times of London." Andrew Hogg was able to locate and identify a

4 leader of these foreign fighters; a man by the name of Abu Abdel Aziz. He

5 then interviewed this individual in August of 1992. That interview was

6 tape-recorded, and you will hear that interview tomorrow in full.

7 Prior to this interview, it's important to point out that Abu

8 Abdel Aziz required the permission of the Bosnian authorities before he

9 granted Mr. Hogg the interview, and Andrew Hogg obtained this permission,

10 from, as we will expect he will testify, the army Command post by the

11 waterfall in Travnik, and the interview was conducted.

12 Just a few words about Abu Abdel Aziz. This foreign fighter, who

13 is from Saudi Arabia, was alternately known as Barbaros or Red Beard.

14 Mr. Hogg, we expect, will testify that some of these foreign fighters,

15 including Abu Abdel Aziz, as you see in the photograph, would put henna in

16 their beard in order to dye it, so that they would look appropriate upon

17 being martyred before Allah. That is what Mr. Hogg will testify about why

18 Abu Abdel Aziz has coloured his beard in this way.

19 This individual was relatively well known in the Jihad community.

20 He had fought in Africa, Kashmir, the Philippines, and Afghanistan, and he

21 was in central Bosnia by the summer of 1992, and, again, was the subject

22 of the interview which you'll hear tomorrow. In effect, Abdel Aziz was

23 the first commander of these foreign fighters in Bosnia and Herzegovina.

24 Now, among some of the questions which Mr. Hogg addressed to Abdel

25 Aziz, in the summer of 1992, was the issue of why did Mujahedin come to

Page 247

1 Bosnia; and if everything goes to according to plan, we'll hear a little

2 clip from that interview to explain why the Mujahedin came.

3 [Audiotape played]

4 MR. MUNDIS: The next question that might be of importance is:

5 Where did the Mujahedin come from? And, again, with respect to that

6 question, Abdel Aziz provided the following answers to Mr. Hogg.

7 [Audiotape played]

8 MR. MUNDIS: Abdel Aziz was also asked by Mr. Hogg about the level

9 or type of support which these foreign fighters received from the armed

10 forces of Bosnia and Herzegovina in the summer of 1992, and here is what

11 Mr. Aziz had to say about that.

12 [Audiotape played]

13 MR. MUNDIS: With respect to the issue of command and control over

14 these foreign fighters in the summer of 1992, Abdel Aziz had the following

15 to say.

16 [Audiotape played]

17 MR. MUNDIS: It's interesting, in that clip, Mr. Abdel Aziz made

18 reference to the Muslim forces; and although the transcript said

19 "inaudible," I believe, and when you hear this tomorrow, if you listen

20 carefully, you can hear him say, "Muslimanske Snage." I'll talk about the

21 Muslim forces or the Muslimanske Snage in a few moments. But I think it's

22 important to understand and realise at this point exactly what it is Mr.

23 Abdel Aziz is talking about when he talks about Muslim forces, and so I

24 highlight that at this point so that when we talk about that in a few

25 moments, you can link that back up with what Abdel Aziz had to say.

Page 248

1 The final clip from this interview I'd like to share with you at

2 this point is simply where were the Mujahedin active in this time period,

3 the summer of 1992, when Mr. Hogg interviewed Abdel Aziz.

4 [Audiotape played]

5 MR. MUNDIS: I'd like to now turn and briefly put before the Trial

6 Chamber some photos and some basic information about other leaders of the

7 foreign Mujahedin; that is, the foreign fighters who came to Bosnia. A

8 number of witnesses throughout this trial will be talking about such

9 individuals, and so I think it's important at this point to simply start

10 thinking in terms of linking photos and images of these people so that we

11 understand who they are.

12 The first person is an individual by the name of Sheikh Anwar

13 Shabbah. Shabbah, an Egyptian, was the dominant spiritual leader within

14 what ultimately became the El Mujahedin Detachment. You'll see a number

15 references in today's opening and throughout this trial to the EMD, that's

16 the El Mujahed Detachment, a unit which was formed and was within the Army

17 of Bosnia and Herzegovina, 3rd Corps, in 1993. Sheikh Anwar Shabbah was

18 killed in December 1995, shortly after the conclusion of the Dayton

19 Agreements.

20 The next leader is known widely as Abu Haris. Abu Haris, again,

21 was a senior commander of the El Mujahedin Detachment. He replaced a

22 individual by the name of Vahudin, as the commander of the Mujahedin in

23 late 1992.

24 An Algerian, Abu el-Maali, or Abu Maali, traveled to Bosnia in

25 1992. He replaced Abu Harith Alibi as emir of the El Mujahedin

Page 249

1 Detachment,; that is, as leader of the El Mujahedin Detachment. His

2 headquarters, which we'll also be hearing about throughout this trial, the

3 abandoned Vatrustalna factory complex in Zenica. Zenica, of course, being

4 the location where the ARBiH, the Army of the Republic of Bosnia and

5 Herzegovina, 3rd Corps headquarters was located. So, again, you'll hear

6 numerous references in this case to Zenica, which was the location of the

7 Army's 3rd Corps.

8 Muataz, this individual is an Egyptian, a veteran of the Afghan

9 war, was responsible primarily for training. He ran the training centres

10 that the EMD and the Mujahedin ran and was the chief of military

11 operations and training, beginning in late 1993, following the death of

12 Vahudin. In August of 1994, he was officially promoted to the rank of

13 captain in the Army of the Republic of Bosnia and Herzegovina; and in

14 1995, he was killed in a series of clashes with the VRS, the Army of the

15 Republika Srpska, near Vozuca.

16 Next, Vahudin, you've heard me refer to him a couple of time

17 already, an Egyptian. He also was involved in the war in Afghanistan,

18 against the Soviet Union, and was responsible, among other things, for

19 prisoner exchanges, and particularly, a well-known prisoner exchange in

20 Zenica. He was killed in the autumn of 1993, when there was fighting

21 between the ABiH, or ARBiH, and the HVO, the Croatian Defence Council, in

22 central Bosnia-Herzegovina.

23 Aiman Awad, a Syrian, also known as Abu Aiman, studied medicine in

24 Zagreb, prior to the war, and consequently was fluent in the B/C/S

25 language, as we now call it. He was tasked, among other things,

Page 250

1 translating documents and maintaining contacts with other leaders within

2 the ARBiH. Due to his language skills, he was at various times personal

3 aide and liaison to Abu el-Maali; and similar to several of the other

4 person we've talked about, was promoted to the rank of captain in the to

5 Army of the Republic Bosnia and Herzegovina in August 1994.

6 And, finally, Abu Hamza. Similarly, Abu Hamza had studied

7 medicine in the former Yugoslavia, spoke the language, and was a senior

8 leader within the El Mujahedin Detachment in 1994-1995.

9 These individuals will be referred to throughout the course of

10 this trial, and, again, we thought it might be helpful at this stage to

11 briefly introduce you to these individuals.

12 Let's talk now about these foreign fighters in the period from the

13 summer of 1992 until August of 1993, when the El Mujahedin Detachment was

14 formed; that is, these foreign fighters in that year-long period before

15 the formation of the El Mujahedin Detachment.

16 At this point, let me just make a few comments about what Abdel

17 Aziz referred to as the Muslim forces or the Muslimanske Snage. We'll see

18 numerous documents where the reference that included the abbreviation "MS"

19 for Muslimanske Snage. Similarly, the Muslim armed forces or the

20 Muslimanske Oruzane Snage, or MOS. These were early units that the

21 Prosecution submits were --

22 JUDGE MOLOTO: Sorry for that. Were these words used

23 interchangeably to mean one and the same thing?

24 MR. MUNDIS: Yes, they were, Your Honour.

25 JUDGE MOLOTO: Thank you very much.

Page 251

1 MR. MUNDIS: Thank you for that intervention.

2 The MS or the MOS were used interchangeably, and these were early

3 units that the Prosecution will lead evidence on concerning how members

4 went from various units of the ARBiH. And we'll see some documents and

5 some material about that during this opening and throughout the course of

6 the trial.

7 Let's take a look now at what's been marked as PT6001. This is a

8 video clip of an oath-taking ceremony in the Central Bosnia-Herzegovina

9 town of Travnik on 21 August 1992; and if you look carefully, you will see

10 Abdel Aziz speaking to these assembled troops at this oath-taking ceremony

11 outside the madrasa in Travnik.

12 [Videotape played]

13 MR. MUNDIS: What you see here, Your Honours, is the mufti of

14 Travnik, Mufti Abdubegovic [phoen], translating the comments of Abdel Aziz

15 from Arabic into B/C/S for the benefit of the soldiers who were present.

16 Unfortunately, the quality of the tape is not very good in terms of the

17 audio.

18 JUDGE MOLOTO: And the script.

19 MR. MUNDIS: And the video. The building in the background is the

20 madrasa in Travnik. The individual in the center of the screen with a

21 beard is a man by the name of Makteuf. His name may also come up during

22 the course of this trial, although not particularly extensively. Makteuf

23 is an Iraqi who was in that unit.

24 Let's take a look now at a list of the Travnik Muslim forces.

25 This is PT1014. Again, what we're going to do a number of these documents

Page 252

1 is show you snippets or excerpts from a number documents that highlight

2 certain aspects of the Prosecution case. This document, dated the 15th of

3 September, 1992, indicates a list of soldiers from the Travnik area. And,

4 again, what we've done here is placed the B/C/S and the English texts on

5 the same slide. This is a list of soldiers in the Muslim forces or the

6 Muslimanske Snage in Travnik.

7 If you again look, this list, which again there will be a number

8 of these lists that show how soldiers moved from one unit to the other,

9 including into the El Mujahedin Detachment, this document contains the

10 list of the names of the first nine persons on this list, and you see

11 there number 2 is Mr. Makteuf, the individual I just pointed out to you in

12 the videotape, as well as a number of other individuals, some of whom will

13 feature in this case. This document was signed by the commander of that

14 unit who -- Mr. Redzic.

15 The next document, similarly, is a list. This one from the

16 Defence Staff of the Territorial Defence of the Travnik. And, again, you

17 will see a number of individuals, some of whom were also on the previous

18 list. And in the far right-hand column in the handwritten of the script,

19 it's not so legible in this page, but it will be in the next, it says

20 "Muslimanske Snage." And these are the individuals, including as you see

21 on this page of this document a number of who you will see on this

22 document, a number of individuals who do not appear to have names that

23 would come from the former Yugoslav. These are some of the foreign

24 fighters who are in the Muslimanske Snage.

25 All of these documents, we believe, will be in evidence during the

Page 253

1 course of the trial and will allow the Trial Chamber to make its own

2 conclusions with respect to these foreigners in units, including the

3 Muslimanske Snage or the MOS.

4 Let's talk a little bit about foreign fighters in the 7th Muslim

5 Mountain Brigade. And, again, this will be some of the circumstantial

6 evidence that the Prosecution will lead with respect to the presence of

7 foreigners in that unit.

8 PT1043. Now, this is a document, dated 15 March 1993, that

9 indicates the combat disposition and engagement of the 7th Muslim Mountain

10 Brigade. The report indicates that at that point in time, mid-March 1993,

11 the brigade had 1.439 men divided into three battalions.

12 The 1st Battalion of the 7th numbered around 325 soldiers and was

13 engaged in Bijelo Bucje and in Ravno Rostovo. The 1st Battalion of the

14 7th Muslim Mountain Brigade, it continues in this paragraph, indicates men

15 in Gornji Vakuf, men in Vitez, men in Visoko. And at the end,

16 interestingly enough, it says additionally, there are around 60 Arabs and

17 Turks, who are also not included in this total which might sound a bit

18 strange in terms of the wording, but this is part of the evidence that the

19 Prosecution asserts shows that there were, at this point, in time in

20 mid-March 1993, 60 Arabs and Turks within the 7th Muslim Mountain Brigade.

21 This document was signed for the Commander of that brigade by Amir Kubura.

22 JUDGE MOLOTO: The signature --

23 MR. MUNDIS: The signature on this document is that of Mr. Amir

24 Kubura, who was signing for the Commander of the 7th Muslim Mountain

25 Brigade.

Page 254

1 JUDGE MOLOTO: I see, Asim Koricic.

2 MR. MUNDIS: It's a good point, Your Honour. If you see to the

3 immediate left, where it says "Komandant," you'll see handwriting. It is

4 actually the letters "ZA," meaning "4." So Asim Koricic, at this point in

5 time, was the Commander of the 7th Muslim Mountain Brigade. He must not

6 have present on the 15th of March, and Amir Kubura signed on his behalf.

7 JUDGE MOLOTO: Thank you very much.

8 MR. MUNDIS: The next document, PT1055, a document dated the 2nd

9 of April, 1993, is addressed, you'll see, at the bottom. And it's

10 indicated that it's a warning, and it's addressed to the HVO command of

11 the Central Bosnian operation zone to Mr. Dario Kordic.

12 In this document, the Commander of the 7th Muslim Mountain Brigade

13 issues a warning to Mr. Kordic. Kordic, at this point in time, was a

14 commander of the HVO, as counterpart unit within the HVO, the

15 Bosnian-Croat Defence Council. And in this, the Commander of the 7th

16 Muslim Mountain Brigade is complaining about incidents of arrest,

17 harassment, abuse, or even killing of members of the 7th Muslim Mountain

18 Brigade by members of the HVO units.

19 And he goes on to state: "The saddest part is that this is also

20 being done to foreign nationals, volunteers in our ranks, particularly

21 those from Arab countries. We warn you, Mr. Kordic, to release all

22 foreign nationals, both members of the BH Army and civilians."

23 This is a theme that you will see in a few of other documents that

24 we'll be showing you in just a couple a minutes. These are complaints by

25 the 7th Muslim Mountain Brigade, a unit of the 3rd Corps of army of Bosnia

Page 255

1 and Herzegovina, complaining to the HVO units about harassment of Arabs,

2 foreigners, volunteers, members of our units. This, again, we would

3 submit, is evidence that within the 7th Muslim Mountain Brigade, there

4 were such foreign citizens.

5 The next document, PT1056, is a bulletin, dated the 4th of April,

6 1993, from the Security Administration of the Staff of the Supreme Command

7 of the Republic of Bosnia and Herzegovina. And in this document, which

8 again is a Security Administration document, a bulletin, if you will,

9 which is addressed to, among others, the Main Staff of the armed forces:

10 "Members of the 7th Muslim Mountain Brigade --"

11 This is a complaint about a check-point incident in Travnik.

12 Members of the 7th Muslim Mountain Brigade were inside the car. The

13 driver was a citizen of Bosnia, while the rest of them were from Arab

14 countries. And at gunpoint, they were harassed by members of the HVO at

15 this check-point. The next day, the military police of the 7th Muslim

16 Mountain Brigade found one of the foreign citizens who had been so heavily

17 beaten up that he's probably died by now.

18 They go on to report that a corpse of a male found between 30 and

19 35 was found in the zone of responsibility of the 306th Mountain Brigade,

20 again, a unit of the 3rd Corps of the ARBiH. We have reliable information

21 that he was a foreign citizen and most probably a member of the 7th Muslim

22 Mountain Brigade; again, the ARBiH Security Administration on foreigners

23 who were killed by the HVO at check-points.

24 The next document, PT1059, 12 April 1993, a report of the 7th

25 Muslim Mountain Brigade on "Members of our Brigade taken prisoner by HVO

Page 256

1 members." This document is signed by Ahmet Adilovic, the assistant

2 commander for morale, information and propaganda, and religious matters

3 within the 7th Muslim Mountain Brigade. He goes on to report an

4 increasing number of HVO cases where members of the 7th Muslim Mountain

5 Brigade, again, have been stopped at check-points, taking prisoner foreign

6 citizens who are members of the BH Army, i.e., "volunteers who are in

7 unit." He goes on to query why the HVO would do that because the

8 foreigners are only fighting against the Chetniks. In other words, why

9 would the Bosnian Croats harm or attack our foreign nationals in our

10 units. They're here to help us in our joint fight against the Serbs."

11 This document goes on to list a number of individuals who have

12 been taken prisoner by the HVO, including five Arabs and two Iranians who

13 were taken to the barracks in Kajenik [phoen], which is an HVO location.

14 We see names and countries of origin including Pakistan, Algeria, Tunisia,

15 and Egypt. They go on to talk about three Arabs and three Iranians or

16 Turks who are in prison in Kiseljak, again held by the HVO. And it goes

17 on to talk about two other individuals who were killed at a hairpin bend

18 near Novi Travnik and others taken prisoner at that location as well.

19 And finally an indication of three Saudi Arabians who were

20 arrested near Vitez and are probably now in Kajenik and again in the hands

21 of the HVO and three turks and two or three Arabs who were imprisoned,

22 again complaints by the 7th Muslim Mountain Brigade about mistreatment of

23 its foreign soldiers, its Mujahedin soldiers.

24 Let's turn now very quickly to PT1102, which is the minutes of a

25 7th Muslim Mountain Brigade meeting on the 18th of May, 1993. And the

Page 257

1 subject of this meeting, interestingly, is the distribution of war booty.

2 One of the members attending this meeting complained about the

3 lack of organisation in collecting booty stemmed from their lack of

4 experience, that unit, the 7th, lack of experience in distributing war

5 booty and indicates that the Arabs did not permit access to one ammunition

6 explosives depot. It goes on to issue the conclusions from this meeting,

7 that Afandi Adilovic who we saw earlier talking about the HVO mistreatment

8 of the foreign citizens, is charged with holding talks with the Arabs

9 about the war booty which they took.

10 Let's turn now to Bijelo Bucje. We indicated earlier that that

11 was one of the locations where the first battalion of the 7th Muslim

12 Mountain Brigade was active, and again June 1993 we see an order delivered

13 to the 3rd corps command, the subject this is responsibility for not

14 obeying orders, this document again signed by Amir Kubura on behalf of the

15 commander or for the commander Asim Koricic. Paragraph 2 of this document

16 indicates the Commander of the 1st Battalion of the 7th Muslim Mountain

17 Brigade, that's MBBR, immediately sent a unit of 70 soldiers to the Bijelo

18 Bucje sector.

19 "Counter-attack was carried out from three directions. During the

20 action, four soldiers, foreign citizens, Arabs, were killed."

21 Again, demonstrating the presence of these foreign fighters within

22 the 7th Muslim Mountain Brigade in the period prior to the formation of

23 the El Mujahedin Detachment.

24 Let's move to the 306th Mountain Brigade. This is another unit

25 within the 3rd Corps of the Army of Bosnia and Herzegovina that the

Page 258

1 Prosecution has alleged contained some foreign fighters.

2 Now, the school in Mehurici. Mehurici is a small village. It's

3 located near Maline and Bikosi, you'll hear a lot of evidence about events

4 in Mehurici, you'll hear evidence about the school Mehurici. This was

5 known as the headquarters for the Mehurici Arabs, if you will, or the

6 Mujahedin until they moved out of this school to a location at Poljanice,

7 several hundred metres away from the school just outside the actual

8 border, if you will, of the small town of Mehurici. Forces of the 306th

9 Mountain Brigade were also in the school headquartered in the school at

10 the same time the Mehurici Arabs were there before they relocated to

11 Poljanice.

12 This document, dated the 25th June, 1993, is a report, a

13 handwritten report on the state of combat morale in the units in the area

14 of responsibility of the 306th Mountain Brigade. This document indicates

15 that a lack of coordination between the units, again, in the 306th

16 Mountain Brigade area of responsibility, lack of coordination between the

17 units, the 306th, the 17th, the 312th, the 314th, the 7th, Arabs from

18 Mehurici, and MS, mostly Muslimanske Snage from Mehurici, led to the

19 situation that several soldiers died; in other words, there was a lack of

20 coordination between these various units within the 306th Mountain

21 Brigade's area of responsibility, and it makes reference to the Mehurici

22 and the MS, Muslimanske Snage, from Mehurici. This document was signed by

23 the Assistant Commander of the 306th Mountain Brigade for morale,

24 information, and propaganda, and religious affairs, Halil Husic, and we'll

25 see his name also come up in other documents in a few moments.

Page 259

1 So a little bit about Mujahedin in other units; that is, foreign

2 fighters in units other than the 7th Muslim Mountain Brigade and the 306th

3 Mountain Brigade.

4 The next document dated the 16th of June, 1993, which is addressed

5 to the 3rd Corps Command and to the Commander personally states:

6 "Since the beginning of the war, volunteers from foreign

7 countries and a group of Bosnians united in a so-called guerrilla unit,

8 have been staying on the territory of Zenica."

9 Again, 3rd Corps headquarters:

10 "With the aim of their focused engagement in our struggle I hereby

11 order send these groups to Igman and merge them with the Supreme Command

12 Staff independent detachment in Zukic unit, otherwise they should have

13 hospitality withdrawn and possibly disarmed."

14 This document is signed on the 16th of June, 1993, by the accused,

15 Rasim Delic.

16 El Jihad or Brigada Jihad. There came a time in 1993, prior

17 immediately prior to the formation of the El Mujahedin Detachment in

18 August, that the foreigners began coalescing into a unit which they called

19 "El Jihad" or "Brigada Jihad" this name became relatively well-known

20 throughout the area, and as we'll see in just a moment, official documents

21 of the Army of Bosnia and Herzegovina began referring to this unit as

22 "Brigada Jihad" or"Jihad Brigade."

23 Let's take a look at PT1433. This is a document of the 306th

24 Mountain Brigade dated 30th of July, 1993, addressed to the 3rd corps

25 sector for morale guidance, information and propaganda, and in religious

Page 260

1 affairs, and in this document you'll see a reference for different motives

2 and number of combatants has joined the newly-formed El Jihad Unit, where

3 they train, are not on the front line, are financially stimulated, et

4 cetera. Again, the 306th Mountain Brigade is making reference to the

5 newly-formed El Jihad Unit, 30 July 1993, again signed Halil Husic, who

6 was the assistant commander for morale guidance, information and

7 propaganda and religious affairs of the 306th Mountain Brigade.

8 The next document, PT1454, 10 August 1993, we're moving much

9 closer to the formation of the El Mujahedin Detachment, a report to the

10 President of the Presidency of the Republic of Bosnia and Herzegovina on

11 changes in the battlefield for 9 August 1993:

12 "Discontent is growing amongst the soldiers in the zone of

13 responsibility of the Bosanska Krupa operations group after a company from

14 the 1st Brigade of the 17th Glorious Mountain Brigade abandoned its

15 position on 8th August and returned to the camp with the intention of

16 joining up with the El Jihad Unit."

17 Again, 10 August 1993, signed by the accused, Rasim Delic.

18 Let's turn now to the El Mujahedin Detachment itself. A brief

19 explanation on some of these military documents that you'll see. This

20 document is, I believe, the first document that was sent by way of an

21 electronic communications system that was used by the Army of Bosnia and

22 Herzegovina known by the name "Packet" or "Packet communications." You

23 see the line all the way across this document. Above that line, basically,

24 is the information that indicates when the document was received. So this

25 document was received on 13 August 1993 at 10.03 in the morning. Below

Page 261

1 that line, you'll see information about when the document was sent and who

2 sent it. This document was sent from Zenica on the 12th of August, 1993.

3 This is a proposal. This is a proposal for the formation of a detachment

4 of foreign citizens, dated 12 August 1993, received in Sarajevo on 13

5 August 1993. It's addressed to the Republic of Bosnia and Herzegovina

6 armed forces Supreme Command Staff. And in this document, or in this

7 request, which was sent, as we'll see in a moment, by Enver

8 Hadzihasanovic, who was the 3rd Corps commander and who later became the

9 Chief of Staff to the accused Rasim Delic, this proposal was for the

10 formation of a unit with all foreign volunteers in the Republic of Bosnia

11 and Herzegovina Army in the zone of responsibility of the 3rd Corps into a

12 detachment. In other words, put all of the foreign volunteers into one

13 unit.

14 Mobilisation collection point for the detachment, Mehurici. The

15 name of the unit, El Mujahedin, its number -- military unit number to be

16 determined by the Supreme Command Staff, logistic support coming from the

17 3rd Corps. "We request urgency," says Commander Hadzihasanovic.

18 Thirteen August 1993, the same day the document is actually

19 received in Sarajevo, we have an order for the formation of the

20 El Mujahedin Detachment in the 3rd Corps zone of responsibility. This

21 document is addressed to the 3rd Corps command and is signed again by

22 Rasim Delic.

23 In this order, he indicates that the creation of the El Mujahedin

24 Detachment is to begin immediately and to be finished no later than 31

25 August 1993. The newly-formed unit shall be registered under the 3rd

Page 262

1 Corps. And he directs that the appointment of officers shall be done

2 according to regulations.

3 Shortly thereafter, a ceremony was held where the El Mujahed

4 Detachment, in effect, was formally established. The following video clip

5 shows this formation ceremony.

6 [Videotape played]

7 MR. MUNDIS: Shortly thereafter, or as early as 16 August 1993,

8 3rd Corps Commander Enver Hadzihasanovic issues an instruction to the

9 Commander of the Operation Group Bosna indicating that 50 members of the

10 El Mujahedin Detachment are interested in going to the front line at

11 Zavidovici.

12 Now, you'll recall the 13 August 1993 order dictated that the

13 El Mujahedin Detachment be formed no later than 31 August 1993, yet here

14 three days after that order we already see the 3rd corps commander

15 referring to the El Mujahedin Detachment, leading to the presumption that

16 the unit was formed relatively quickly after the 13th August 1993 order,

17 because the 3rd corps commander, which was the overall command under which

18 the El Mujahedin Detachment functioned, is already indicating that 50

19 soldiers of this unit were interested in going to the front lines at

20 Zavidovici and indicating that if the Operation Group Bosna commander

21 could provide transportation or fuel, that those soldiers would be made

22 available to him.

23 The next document is again one of the number of lists which the

24 Prosecution will put before the Trial Chamber during the course of this

25 trial. This one, again the copy is not particularly high quality, but in

Page 263

1 the upper left-hand corner you'll see "Republika BiH," Republika of

2 Bosnia-Herzegovina, Army of Bosnia-Herzegovina, 3rd Corps, El Mujahedin

3 Detachment," this is a list of soldiers in that unit. Unfortunately, it's

4 not dated, but it does indicate with a serial number of 001/93. And in

5 this document, which contains the first and last names, place of birth and

6 a column indicating, in the ABiH sense, we can get or begin to get a sense

7 of who some of these persons were that were early members of the

8 El Mujahedin Detachment. And I've provided in this visual that's now on

9 the screen several excerpts from this document. I'm not going to

10 highlight any names in particular, but I will indicate to the

11 Trial Chamber that a number of the witnesses that we will be calling,

12 particularly in the next few weeks, name appear on the excerpt that was

13 just visible on the screen, and those witnesses will be talking about the

14 early formation of that unit.

15 Similarly, towards the end of the document we begin to see -- and

16 again this is early -- this is 1993, early in the period of the EMD, the

17 El Mujahedin Detachment. We see Pakistanis, an Englishman, a Palestinian,

18 a Dane, a Moroccan, Kenyans, Jordanians, Saudi Arabians and persons from

19 Qatar. This document also contains an overview of El Mujahedin Detachment

20 in the sense of the detachment command staff. And who do we see listed at

21 the Emir or commander - that's a term that was used within the

22 El Mujahedin Detachment, the Emir - Dr. Abu Haris, whom we met a few

23 moments ago.

24 "Deputy" -- and this is a quote from the document:

25 "Deputy," that is, the representative of the Emir in Zenica, Abu

Page 264

1 Maali, Military Commander Wahiuddeen, et cetera, Deputy of the Military

2 Commander representative in Zenica, Muataz. At the bottom, Deputy

3 Commander for Security, Abu Iaman.

4 With respect to command and control over the Mujahedin in 1993,

5 this document, which is a document sent by a field worker from the UN

6 Centre for Human Rights, reports -- and this is October 1993,

7 interestingly enough, October 1993, several months after the El Mujahedin

8 Detachment is formed. Meeting -- reports on a meeting with the

9 Deputy Commander of the 3rd corps of the BH Army, Dzemal Merdan, this was

10 a meeting in 23 September and answering the field officer writes --

11 answering my question concerning the Mujahedin factor he - that is 3rd

12 Corps Deputy Commander Dzemal Merdan - explained that there are no

13 Mujahedin units in the BiH Army. That's untrue. But there are many

14 volunteers from a number of countries, including some Westerners, they

15 came to fight back modern fascism, and all of them are required to obey

16 orders and to respect the laws of the army."

17 We would submit that this is one of several instances where the --

18 even the presence or the formation of the El Mujahedin unit was something

19 which leaders of the 3rd Corps and other units within the ARBiH denied.

20 Let's turn finally to PT2880. We're fast-forwarding now towards

21 the end or past the end of the El Mujahedin Detachment. 26 February 1996,

22 this document is instructive for a couple of purposes. First of all,

23 again, it's a list of members of the El Mujahedin Detachment. You see

24 clearly the VJ number. That's the military unit number that we saw

25 referred to earlier, where a military unit number would be assigned. The

Page 265

1 Mujahedin Detachment was 5689. Any document or reference to 5689, VJ5689,

2 is the El Mujahedin Detachment of the 3rd Corps of the Army of Republic of

3 Bosnia and Herzegovina.

4 This is a list of all the members of that unit. And, again, it

5 starts off with Saudi Arabians, Turks, Algerians, Palestinians, Libyans,

6 Tunisians, South Africans, et cetera. If we go to the very end of this

7 document, above the signature line of Sakib Mahmuljin, who was the 3rd

8 Corps Commander during the period of 1994-1995, you'll see that this list

9 contains 1.774 names on it. And towards the end of this list, which you

10 see above the signature block, you see a number of individuals who clearly

11 are from Bosnia-Herzegovina, Travnik, Gornji Vakuf, Sarajevo, Zenica.

12 Let's turn now to the crime base. Maline-Bikosi, 8 June 1993, the

13 very day which the Prosecution submits Rasim Delic was appointed the

14 Commander of the Army of Bosnia and Herzegovina.

15 On the 5th of June, 1993, three days prior to the alleged crimes,

16 we see a report and a proposal. This is a document from the Operation

17 Group at Bosanska Krajina, a unit of the 3rd Corps of the ARBiH, which

18 included the 306th Mountain Brigade. Let me briefly explain what we have

19 here is a number of corps, military corps, the 3rd Corps being the

20 prominent one in this case.

21 Under the corps, there were a number of operational groups which

22 were established, some of them for longer periods of time than others.

23 The operational groups then consisted of brigades,, so that we have Corps,

24 Operation Groups, Brigades, and then of course Battalions, Companies,

25 Platoons.

Page 266

1 The operation group, Bosanska Krajina, at this time period, June

2 1993, included the 306th Mountain Brigade. For purposes of what we're

3 going to be discussing right now, that's important to understand.

4 This is a proposal, dated the 5th of June 1993, to the 3rd Corps

5 commander from, from the OG Bosanska Krajina commander. He's ordering the

6 commander of the 306th Mountain Brigade to organise a unit on the strength

7 of one battalion to move on the axis of villages of Maline, Radonjici,

8 Krpeljici, Velika Bukovica. And towards the little church, the little

9 chapel, Sveta Ivan, with the aim of deblocking Travnik.

10 The next document, a telegram, or at least written on a telegram

11 form, from 306th Mountain Brigade to 3rd Corps Command. Time of

12 recording, 8 June, 2210 hours. And what do we have? The 306th Mountain

13 Brigade commander reporting:

14 "We are currently on the line Maline, Guca Gora, Mosor, Velika

15 Bukovica, exactly in conformity with the plan of the OG Bosanska Krajina

16 commander three days earlier."

17 The next document, again, from the 306th Mountain Brigade, to the

18 3rd Corps, dated 9th June, indicates the presence of that unit having

19 taken Maline. "Our forces," towards the bottom: "Our forces reached the

20 line of villages Maline, Guca Gora, Mosor, Velika Bukovica yesterday."

21 That would be on the 8th of June.

22 And in a regular combat report to the Supreme Command Staff of the

23 armed forces of the Republic of Bosnia-Herzegovina, dated 9 June, again,

24 we see a report that: "Our forces have taken or are on the line along

25 Maline, Prcanj, Dzumalija [phoen] and requesting additional support for

Page 267

1 those units."

2 The 306th Mountain Brigade was the unit which we will assert or do

3 submit, which had foreign fighters in it, went into Maline on the 8th of

4 June, 1993.

5 On the morning of 8 June 1993, approximately 200 to 300 people,

6 including Bosnian Croat civilians and HVO, that is, Bosnian Croatian

7 Defence Council, that's the Bosnian Croat Army, let's make sure that we're

8 all clear on that. The HVO is the Bosnian Croat army. Approximately, two

9 or 300 people, including Bosnian Croat civilians and HVO members from the

10 villages of Maline, Podstinje, Podovi, and Matici had gathered in Gornji

11 Maline, when Maline was taken by the ARBiH on the morning of 8 June 1993.

12 A very brief lesson in the B/C/S language. "Gornji" as a prefix

13 means "Upper." You will hear some of the translations, where the witness

14 is being translated, it will come across as "Upper Maline." "Donje" means

15 "Lower." So in this instance, what we have here, the village of Maline

16 having in effect two parts: Upper Maline and Lower Maline.

17 Following negotiations on that morning, these 200 to 300 Bosnian

18 Croats, who were in Gornji Maline, surrendered to the ARBiH forces at

19 about 1100 hours in the morning. The HVO members surrendered their

20 weapons, and some of the witnesses will talk about the presence of

21 Mujahedin in the village while the Bosnian Croats were surrendering or

22 shortly thereafter.

23 The 200 to 300 surrendered HVO members and Croat civilians were

24 then ordered to form lines with the intention that they would walk from

25 Gornji Maline via Bikosi, which is over a relatively steep mountain,

Page 268

1 towards Mehurici. They were escorted by armed ARBiH soldiers.

2 As the column left Gornji Maline, the men and women were

3 separated. Those who had been wounded during the attack were left behind

4 in Gornji Maline.

5 The main group of Croats - or at this point I'm talking about the

6 men - the main group of the men, including the surrendered HVO members and

7 the Bosnian Croat civilian men, was led by the ARBiH, via Bikosi, down to

8 Poljanice, which is where the Mujahedin camp was located after having left

9 the school in Mehurici that we saw before. And in this map, you can

10 clearly see Mehurici in the upper right. Right below the letter "H," you

11 see the abbreviation "SK." That's the school on this map. That is the

12 school. Right below that, the "L" shape below "SK," is the school in

13 Mehurici. You also see the word "Poljanice." That's the Mujahedin camp,

14 and we've marked that on this map, the Mujahedin camp.

15 JUDGE MOLOTO: At this point, are you able to tell us how many

16 were these who managed to go forward of the captured people?

17 MR. MUNDIS: Of the captured people, there were -- there were more

18 than 200 people in this line, moving from Gornji Maline up to Bikosi and

19 then down towards Mehurici.

20 JUDGE MOLOTO: The number 200 to 300 relates to the number after

21 the women were separated and the wounded were left behind?

22 MR. MUNDIS: The number 200 to 300 refers to the total start

23 group. After the women are taken out and the wounded are left behind,

24 there are still approximately 200 people in this column. So there are 200

25 men, approximately, moving in this direction in these columns.

Page 269

1 JUDGE MOLOTO: Thank you.

2 MR. MUNDIS: As this group or this column approaches the camp, the

3 Mujahedin camp in Poljanice, approximately nine Mujahedin, five locals and

4 four foreigners, all carrying automatic weapons, came out of the Poljanice

5 camp. We believe the evidence will show that the locals who had joined

6 with the Mujahedin were wearing masks in order to hide their identity;

7 whereas, the foreign Mujahedin felt no need to conceal their identity

8 because the local people would not know who they were.

9 They stopped this column. These nine Mujahedin stopped the

10 column. They held the ARBiH commander, who was escorting them, and the

11 military police commander at gunpoint; and at that point made a further

12 separation of this group, taking approximately 30 to 40 of the males out

13 of the column and, in effect, ordering them to turn around and head back

14 towards Bikosi. The remaining group - that is, as you see on this slide -

15 the main group continued to the school in Mehurici; 30 or 40 taken out of

16 the group, ordered to turn around, head back; the remaining people head

17 towards the school in Mehurici.

18 On the way back towards Bikosi, the Mujahedin line up the captured

19 Bosnian Croat men in front of trenches and threaten to kill them. That

20 does not happen at this point, however.

21 Meanwhile, back in Gornji Maline, the group of the wounded Bosnian

22 Croats that had been left behind were put on a truck or trucks by the

23 soldiers, the ARBiH soldiers, together with the Mujahedin who boarded at

24 least one of the trucks with an automatic rifle. This truck is then

25 driven towards Bikosi. But before getting there, it stops and the wounded

Page 270

1 are ordered to get off the truck and begin walking towards the camp in

2 Poljanice or towards Mehurici, just as the other group had done from

3 Bikosi.

4 JUDGE MOLOTO: Are you able to give us the number?

5 MR. MUNDIS: Of the wounded? No, it's a bit unclear. There were

6 certainly than a handful of people, but I can't be much more specific than

7 that.

8 Now, at this point, what we now have is a situation where the 30

9 to 40 men are returning back from Poljanice back towards Bikosi, when they

10 encounter this group of wounded walking down the mountains towards

11 Mehurici or towards Poljanice and Mehurici, as you see on the slide before

12 you.

13 At the point the two groups meet, the wounded group is now ordered

14 to turn around and join the group of 30 to 40 people marching or walking

15 back up towards Bikosi. And this is, again, on an upward trajectory. You

16 have Maline on one side, Mehurici on a low side, Bikosi on one a mountain

17 in between the two, if you can envision that.

18 So we now have a situation where the wounded, plus the 30 or 40

19 captured Bosnian Croat males, are walking back in the direction of Bikosi.

20 Shortly before the group reaches Bikosi, the only woman in the group, Ana

21 Pranjes, was shot dead by one of the Mujahedin soldiers. And after this

22 murder, the group continues walking up hill, where they reach a junction,

23 the decision was taken to go towards Bikosi, rather than on the way around

24 the mountain back towards Maline.

25 At this point, as this group is at or about this junction, perhaps

Page 271

1 a little bit farther up - it's not a very far distance from the junction

2 to the few houses that constituted the village of Bikosi - Sreco Bobas,

3 one of the captured HVO soldiers, suffered an epileptic seizure. Now, the

4 witnesses that you hear on this count will testify about of him having a

5 fit. A couple of the witnesses knew him and knew that he suffered from

6 epilepsy. So for them, it wasn't anything completely unexpected. They

7 knew him, he was a neighbour, and they knew he suffered from epilepsy.

8 Sreco Bobas had an epileptic seizure at this point in time. The

9 Mujahedin began firing indiscriminately at the entire group of Bosnian

10 Croat men at this point. The Mujahedin then continued firing at close

11 range with single shots, we would submit, to kill off any of the

12 survivors, until one of their own soldiers apparently was accidentally

13 shot during this gunfire, at which point they withdrew.

14 As a result, 24 Bosnian Croats were murdered. Agreed Fact 39

15 provides their identity. The Defence have agreed that these 24 people

16 were, in fact, killed that day at Bikosi. Of course, the issue as to how

17 and who, and who had effective control, is in dispute. But the fact of

18 the matter is the parties have agreed that these 24 people were murdered

19 on the 8th of June, 1993, in and around Bikosi.

20 The survivors, there were at least six people who survived this

21 massacre. Several of them suffered serious gunshot wounds, but otherwise

22 survived. Briefly, among the survivors: Zeljko Puselja, shot in the

23 right arm; Darko Puselja, wounded in the left shoulder and the left side

24 of his ribs; Marian Bobas, in his right shoulder; Berislav Marijanovic

25 wounds to his legs; Zdravko Pranjes superficial wounds in the chest and

Page 272

1 leg; and Pavo Barac, who escaped with miraculously with only scratches.

2 Marian Bobas and Darko and Zeljko Puselja were later captured by

3 the ARBiH and detained in the Mehurici elementary school gym until 4 July,

4 when they were transferred to the KP Dom Zenica, the Zenica music school,

5 or otherwise released. Now, why do I mention that? Why do I mention

6 that? As we'll see later, when the opportunity comes to investigate

7 exactly what happened at Bikosi on the 8th June 1993, it's certainly

8 relevant that there were survivors of that shooting incident who were

9 being detained by a unit of the ARBiH, affording the opportunity to

10 properly investigate what happened, because the survivors, or at least

11 three of them, were in the custody of a unit of the ARBiH. That's one of

12 the reasons why it's particularly relevant with respect to the survivors

13 and what happened to them in the immediate aftermath of this massacre.

14 JUDGE MOLOTO: What is meant by "otherwise released"?

15 MR. MUNDIS: Your Honours, there were a number of instances where

16 combatants were exchanged, prisoner exchanges, prisoner of war exchanges,

17 et cetera. So I believe that at least one of these individuals was the

18 subject of a prisoner exchange.

19 JUDGE MOLOTO: Thank you.

20 MR. MUNDIS: Let's talk a little bit about notice of the crimes

21 committed in Bikosi.

22 On the 13th of June, 1993, Enver Hadzihasanovic sends a report

23 directly to the accused, Rasim Delic; and in this document, he makes

24 reference to foreign fighters, volunteers from foreign countries, Arabs

25 and Turks. He makes reference to the so-called guerrilla group, and we

Page 273

1 saw an earlier document signed by the accused making reference to the

2 guerrilla group. They were in this territory even before the formation of

3 the 3rd Corps. In fighting to date, they have been acting outside the

4 usual context and lawful methods of combat, which is directly detrimental

5 to the BH state.

6 Now, in complete transparency, Hadzihasanovic does not make

7 reference to the events in Maline or to Bikosi in this document of the

8 13th of June, but he does make reference to acting outside the usual

9 context and lawful methods of combat.

10 Two days later, 15 June, in a document addressed to the commander

11 of Main Staff of the BH Army, personally; again, that's the accused, Rasim

12 Delic. A document indicating that, again, serious crimes are being

13 committed in the area of the 3rd Corps; Susanj, Ovnak, lack of

14 coordination murders are getting away. One of the reasons these people

15 are leaving, these are Bosnian Croat areas. This document is referring to

16 crimes being committed in the area of an area around Zenica. This is the

17 first of several documents coming from Stjepan Siber, the deputy commander

18 of the Army of the Republic of Bosnia and Herzegovina.

19 And let me here just stop to again, brief information for the

20 benefit of the Trial Chamber. The accused, Rasim Delic, Bosnian Muslim,

21 overall Commander of the Army of Bosnia and Herzegovina, two deputies, a

22 Bosnian Serb by the name of Divjak and a Bosnian Croat deputy, Stjepan

23 Siber. Stjepan Siber, in this document here, is raising complaints about

24 crimes committed by the ARBiH against Bosnian Croats and Bosnian Croat

25 areas.

Page 274

1 We'll see, in just a moment, additional documents where General

2 Siber raises further complaints about what happened in Maline. 23 June

3 1993, a document he addresses to the Commander of the 3rd Corps,

4 Hadzihasanovic, and the chief of the Security Services Centre, Mr. Asim

5 Fazlic.

6 Siber informed us in his document, or this is actually a document

7 of General Delic and Mr. Bakir Alispahic, who was the Minister of the

8 Interior. Siber informed us in his document about "serious security

9 problems in your area," and this is addressed to 3rd Corps commander and

10 this addressed to the civilian police chief, if you will. The facts

11 indicate that increasing number of members of the armed forces are among

12 the perpetrators of the most serious crimes. So Delic and Alispahic are

13 sending this document to their respective military and police commanders

14 concerning crimes in the area of Zenica.

15 24 June, in a document addressed to the Supreme Command Staff and,

16 for your information, to the President of the Presidency, we have a

17 document that indicates, in the village of Mehurici, 247 civilians are

18 placed in the gym of a school. That would include at this point the

19 women, wounded, all those people who made it to the gym at Mehurici:

20 "They are under the protection of the 306th Brigade," the Mountain

21 Brigade we talked about before. "They are also subject to a lethal danger

22 from the so-called 'Death Brigade,' composed primarily of Mujahedin

23 foreigners billeted in the immediate vicinity."

24 25 June, another document where, again, General Siber, referring

25 to earlier notice documents he sent, he asks -- he takes the liberty to

Page 275

1 insist to the President of the Presidency, Alija Izetbegovic, and the Army

2 Supreme Command Staff Commander, Rasim Delic, he assists on them coming to

3 Zenica to sort out the problems with respect to foreigners.

4 PT1328 also goes on to say: "On 8 June, 1993, 35 Croats were

5 executed in the village of Bikosi. Four witness were wounded, but

6 survived. Personal changes in the 3rd Corps command are essential." This

7 is the Deputy Commander of the ARBiH warning General Delic and putting him

8 under strict notice, as of the 25th of June, that 35 people have been

9 murdered in Bikosi.

10 One or two more documents on this. Again, 3 July, approximately a

11 week later, again to the BH Army General Staff Commander: "Please reply

12 to my letter of 3 July. I, again, request and insist that you, the BH

13 President and the BH Mini Minister of the Interior, come to this town

14 before it is too late. I do not have the power or competence to make any

15 major changes without you." Signed Stjepan Siber, Deputy Commander.

16 It's not until the 17th of October, 1993, after President

17 Izetbegovic receives a letter from the special rapporteur, Tatuous

18 Masovetski [phoen], about crimes in Maline, that Rasim Delic finally takes

19 steps. And on the 17th of October, Rasim Delic orders the 3rd Corps

20 command to look into allegations of a massacre of 25 Bosnian Croats, and

21 it says in parenthesis "civilians" in village of Maline he requests

22 necessary information, including the name of the units that participated;

23 a short account of the combat situation; whether the massacre was

24 occurred, and if so, what was the extent; if there was a massacre, the

25 measures taken against the perpetrators.

Page 276

1 He gets a report back several days later from Mr. Asim Delalic

2 [phoen], who was the security officer of the 306th Mountain Brigade; and

3 in this document, Asim Delalic reports: "Please note all persons were

4 killed during the combat activities." And that information then is

5 reported, notwithstanding the fact that his deputy commander had warned

6 him about massacres, that information is reported to the Ministry of

7 Foreign Affairs, so they can respond to Mr. Masovetski's request, this

8 international special rapporteur's request, and they explain that it was

9 combat fatalities.

10 "It can be seen from the above that in this case the massacre

11 which is being attributed to the RBiH Army did not take place. As a

12 result of an armed conflict caused by extremist HVO forces, 25 people were

13 killed on one side, including villagers of Croatian nationality," signed

14 by the accused.

15 JUDGE MOLOTO: May I interrupt you? We started at five past 4.00.

16 I'm not quite sure, at this stage, how long we can go for before we go on

17 a break.

18 Let's find out from the recorders.

19 [Trial Chamber and registrar confer]

20 JUDGE MOLOTO: I'm advised the interpreters would like a break.

21 MR. MUNDIS: We always listen to the interpreters, Your Honour.

22 JUDGE MOLOTO: Thank you very much.

23 What time shall we come back, at 6.00? Court will adjourn and

24 come back at 6.00.

25 --- Recess taken at 5.28 p.m.

Page 277

1 --- On resuming at 6.00 p.m.

2 JUDGE MOLOTO: Mr. Mundis, may the Trial Chamber just apologise to

3 you for not asking you whether it was a convenient moment to take the

4 break.

5 MR. MUNDIS: Thank you. That was actually a fine moment, anyway.

6 JUDGE MOLOTO: Thank you very much.

7 MR. MUNDIS: Let's move on, then, to the next issue concerning the

8 incident or the massacre at Bikosi, the issue of whether the perpetrators

9 of this crime were ever actually punished.

10 Document PT2918 is a letter that was received by the Office of the

11 Prosecutor from the Cantonal Public Prosecutors Office in Travnik, dated

12 the 16th of April, 2002, in response to some queries our office made

13 concerning whether this event was investigated and prosecuted. According

14 to this document, they report that the District Military Court and the

15 District Military Prosecutor's Office in Travnik and the Travnik District

16 Military Court and District Military -- Prosecutor's Office in Vitez were

17 functioning during between January 1993 March 1994 and according to the

18 information that was available to that office and the archives which that

19 office accessed in order to assist the Office of the Prosecutor, there was

20 no documentation relating to alleged war crimes committed by members of

21 the BH Army, other than for a few crimes in question which do not relate

22 to the incident in Bikosi. We'll lead extensive evidence on this failure

23 to punish these perpetrators.

24 Similarly, we sent a submission to the Zenica Cantonal Court and

25 Zenica and Travnik are neighbouring municipalities, and because the

Page 278

1 location was -- is very close to the Zenica Municipality, we actually

2 asked both municipalities, in the event that the case may have been

3 improperly before a court at that point in time and again the Zenica

4 District Military Court or the Zenica Cantonal Court reported that there

5 were three cases involving war crimes during the relevant time period and

6 not a single case was tried in the period in question with regard to

7 members of the ARBiH; that is, not a single soldier of the BH Army was

8 prosecuted for war crimes during a relevant time period in the

9 Zenica Cantonal or, at that point in time, Zenica District Military Court.

10 JUDGE MOLOTO: Do they say who was involved in the three war crime

11 cases?

12 MR. MUNDIS: Yes, they do, and we can get you that document. That

13 letter will contain that information.

14 JUDGE MOLOTO: Thank you.

15 MR. MUNDIS: Finally, then again in 2006, we made further

16 inquiries with the Cantonal Court in Zenica, and this is PT2946. And in

17 response to that, they wrote back to us, indicating that regarding

18 existence or non-existence of other files or documents "Please be advised

19 that no trials were conducted --"

20 Or they actually say, "No reports were received, no trials

21 conducted, nor any indictments were submitted for the murder of 25

22 Croatian civilians on 8 June 1993 in the area of the villages Maline and

23 Bikosi."

24 Again, extensive evidence will be led with respect to this failure

25 to punish concerning the crimes in Maline.

Page 279

1 Let me turn now to 1994. There are no crimes alleged in this

2 indictment concerning 1994. However, we will lead evidence to show that

3 throughout that time period, the Mujahedin were again involved in criminal

4 activities which the accused was put on notice for. This evidence, we

5 submit, goes to the issue of his knowledge as to the propensity of members

6 of the El Mujahedin Detachment to commit crimes, and therefore it is

7 relevant for that limited purpose of knowledge and notice.

8 JUDGE MOLOTO: Is that evidence going to be very detailed?

9 MR. MUNDIS: No, it will not be detailed at all, Your Honours, and

10 it's primarily documentary evidence. But of course we may require one or

11 two witnesses to explain these documents and the steps taken particularly

12 with respect to what I'll be describing in a few moments, an operation

13 known as Operation Vranduk, but we don't expect to lead extensive evidence

14 on that, but simply some evidence to demonstrate that notwithstanding the

15 fact that there were no crimes charged during this time period, members of

16 this unit continued committing crimes, and the accused was aware of those

17 crimes, which goes, in our submission, to the point of the propensity of

18 members of that unit to commit crimes and the knowledge of the accused

19 thereof.

20 1994 January, the murder of Paul Goodale. Paul Goodale was a

21 humanitarian worker who was in Bosnia-Herzegovina, and we will see from

22 this document, PT1679, that on the 29th of January, 1994, an operative

23 plan was put into effect in order to determine the circumstances under

24 which Mr. Goodale was killed. Three UNHCR workers, Simon King, David Kurt

25 and Paul Goodale were kidnapped on the 27th of January, 1994, by

Page 280

1 unidentified uniformed persons with beards and dark complexions, according

2 to this document.

3 Later, around 2130 hours that evening, Paul Goodale was shot and

4 murdered.

5 This document calls for "in view" -- as it says:

6 "In view of the security assessment, the following operative

7 measures shall be put into effect: Make an assessment of the persons of

8 interest to security, referring to members of the El Mujahedin Unit, and

9 the related persons and forward it to the Ministry of Defence Security

10 Sector."

11 The document goes on to indicate that on based on the information

12 then available, it was likely that members of the El Mujahedin Unit were

13 involved. Such persons needed to be interviewed, and they warned, in

14 effect, that there would likely be a less-than-positive reaction on behalf

15 of the El Mujahedin Unit to this investigation.

16 PT1783, August 1994, again a document relating to the El Mujahedin

17 Detachment. In this document, it indicates:

18 "With the formation of the units involving the foreigners, there

19 was a great influx of foreign citizens from Afro-Asian countries."

20 I should also warn Your Honours that in a number of these

21 documents of the ABiH, there are a references to persons from"A/A"

22 countries and many of the people in Bosnia-Herzegovina refer to foreigners

23 as persons from African or Asian countries, and so sometimes we'll see the

24 abbreviation "A/A" or persons from "A/A" countries, and those are the same

25 thing, in our submission, the Mujahedin, the foreign fighters, persons who

Page 281

1 came from North Africa or the Middle East, if you will.

2 There's a great influx from foreign citizens from Afro-Asian

3 countries, the channels to which they came to the ABiH, the Republic of

4 Bosnia and Herzegovina, were mainly through the Republic of Croatia. The

5 final destination was Central Bosnia, where in the beginning they joined

6 the existing ARBiH units, and after a certain period of time several units

7 were formed whose members were mainly foreigners of Afro-Asian origin as

8 well as Bosniaks; that is, Muslims. Problems with these foreigners

9 started immediately after their arrival in Bosnia-Herzegovina, and it then

10 begins to list some of the problems that they had, such as the

11 difficulties with the locals, provoking the locals, attempts to introduce

12 a particular brand of Islam Vahabism, which is Saudi-based form of Islam,

13 et cetera.

14 And then this document continues:

15 "One of the most serious incidents," it reports, "was caused by

16 members of this unit happened on 27 January 1994 when Paul Goodale was

17 killed. The main suspect, Abdul Hadi el-Katani [phoen] was abducted by

18 four masked men during his transfer to Sarajevo."

19 And then it goes on to report: "Various incidents whose

20 perpetrators are members of this detachment occur daily." This are just

21 examples of their scandalous behaviour, that is, behaviour which

22 disregards laws of this state, and he goes on. This is signed by General

23 Sakib Mahmuljin, ARBiH 3rd Corps Commander in August of 1994.

24 As a result of this, and as a result of these continued crimes in

25 the 1994 period, what came to be known as "PO Vranduk, or "Preparatory

Page 282

1 Process Vranduk," was undertaken. And this is was a situation they were

2 going to place the El Mujahedin Detachment under surveillance for a number

3 of reasons, and we'll talk about those in just a moment. But beginning in

4 1994, at the latest, Preparation Process Vranduk was underway, which led

5 to this Operation Vranduk being ordered into existence in 1995.

6 PT2069 relates to this, and we see "OA-Subject: Operation

7 Vranduk" concerning the El Mujahedin Detachment, the 3rd corps, and their

8 contacts.

9 I will again be quite frank with the Trial Chamber. There were a

10 number of reasons why Operation Vranduk was put in place. The alleged

11 criminality of the El Mujahedin Detachment was by no means the sole

12 motivation for placing this unit under surveillance. We'll see that in

13 the documents. But at the same time, there are references in this

14 documents to the criminality of members of that unit as being one of the

15 reason why Operation Vranduk was put in place.

16 The document goes on, and it's, again, a Security Administration

17 document that we are looking at: "The El Mujahedin Detachment is by its

18 formation an organisation and entity comprised of a number of

19 African-Asian nationals whose behaviour is very suggestive, from a

20 security point of view."

21 It goes on: "Apart from the aforementioned and a number of

22 illegal activities and actions committed by some members of the

23 detachment, there is also a significant issue of evading participation in

24 combat activities. Brigadier General Jusef Jusarovic [phoen], who was the

25 head of the Security Administration, therefore, suggests," or he indicates

Page 283

1 "'with the aim of monitoring, documenting, and intercepting intelligence

2 activities and shedding light on all activities of the members of this

3 detachment.'" He suggests the introduction of operative action in the El

4 Mujahedin Detachment.

5 At the bottom of this document, the accused, Rasim Delic, approves

6 the commencement of Operation Vranduk.

7 Among the other reasons, as I indicated, in addition to the

8 crimes, there were some indications that members of the El Mujahedin

9 Detachment were reporting information to outside intelligence agencies of

10 outside states and/or were reporting what was happening in Bosnia and

11 Herzegovina to outside states. That's why the Security Administration was

12 heavily involved in this Operation Vranduk as well. So we are asserting

13 that there were two reasons: These outside intelligence activities of the

14 El Mujahedin Detachment and this alleged criminality.

15 But regardless of the actual reason for the establishment of

16 Vranduk, as we will see, by placing the El Mujahedin Detachment under

17 surveillance in 1995, the accused was being informed on a regular basis

18 about the activities of that unit, including alleged criminality. And we

19 will lead evidence to that effect during the course of this trial.

20 Let's go to the next document. This is a report, 15 June 1995,

21 information report, concerning the El Mujahedin and intelligence, and it

22 reports right at the outset members of the El Mujahedin Unit continue to

23 conduct reconnaissance: "In the past ten days or so, members of the unit

24 destroyed several dugouts, liquidated tens of Chetniks, instilled panic

25 and fear. Following the killing of a member of the El Mujahedin Unit,

Page 284

1 they organised a squad of combatants who barged through defence lines,

2 liquidated a number of Chetniks, slaughtered two, and carried their heads

3 through the villages down the Krivija [phoen] River, showing them to the

4 locals and the school children."

5 On the front line, soldiers are receiving food and fruit from

6 them, the El Mujahedin Unit, as well as ammunition and other necessary

7 things, and saying they would not want the unit to leave their AOR; that

8 is, other ARBiH units did not want the Mujahedin Detachment to leave: "We

9 will continue to follow the conduct of El Mujahedin Unit members through

10 operative work in the field and subsequently report to you."

11 And will you see, during the course of this trial, a number of

12 such reports concerning the activities of the El Mujahedin Detachment.

13 Let's turn now to the Kamenica Camp, the focus of a number of the

14 crimes in the 1995 crime base.

15 In April 1995, as indicated on PT2016, the 35th Division

16 Command. And now let me again explain briefly to the Trial Chamber what's

17 gone on here in terms of the difference between the 1993 crime base and

18 the 1995 crime base.

19 I told you earlier this afternoon that in 1993, below the corps

20 level, there were what were called operational groups. By 1995, the

21 concept of the operational group was replaced with the more western or

22 NATO terminology of a "division." So divisions were implemented; and by

23 1995, below the corps level, we have divisions which consisted or were

24 made of the battalions rather than operations groups.

25 So what we have here is a document from the 35th Division Command

Page 285

1 to the 3rd Corps, copied as well to the El Mujahedin Detachment. And in

2 this document, April 1995, we see, under paragraphs 5, 6, and 7, the 35th

3 Division is indicating that a deployment area for the El Mujahedin

4 Detachment should be made -- should be prepared at the 12th kilometre.

5 And, again, this is a location where the Kamenica Camp eventually was

6 built.

7 It refers to the 12th kilometre point south of Zavidovici on the

8 highway or on the road. Sometimes it's referred to as 12 kilometres,

9 sometimes it's referred to as 13 kilometres. As we've explained in the

10 indictment and in our Pre-Trial Brief, it's all the same thing. Whether

11 they talk about 12-kilometre camp or 13-kilometre camp or Kamenica Camp

12 and, it's all the same thing. And in this document, we see that this

13 location, the 35th Division of the 3rd Corps, is making this location

14 available for the El Mujahedin Detachment, to be used, as they put it,

15 their deployment area.

16 Now, what was in this location? Well, at the location where the

17 camp was built, there were about two houses which were abandoned. There

18 was a red building and another building that didn't have a roof. There

19 was a number of tents were established, as we saw in one of the earlier

20 photos, including a tent that was used for prayers. And there was also an

21 area that many of the witnesses referred to as the football field. Now,

22 it's unclear whether it was actually marked out as a football field. It

23 was simply a big, grassy area where they often played football, and they

24 refer to that. You'll hear the witness refer to that as the football

25 field. Throughout its existence, this camp was operated by the El

Page 286

1 Mujahedin Detachment of the 3rd Corps of the ARBiH.

2 Turning to the military operations in 1995. Again, unlike the

3 situation in 1993, where the crime base was as a result of an armed

4 conflict or combat between the Army of Bosnia and Herzegovina and the HVO,

5 that is, the Bosnian Croats, the situation in 1995 involves combat between

6 the ARBiH and the VRS, or the Bosnian Serb army, the army of Republika

7 Srpska. What we have in 1993 are Croat victims. What we have in 1995 are

8 Serb victims, and the conflict in 1995 is the conflict between the ARBiH

9 and the VRS.

10 Now, between April and November of 1995, the ARBiH, 3rd Corps,

11 35th Division, which at this stage included the El Mujahedin Detachment,

12 conducted four operations, the primary purpose of which was to liberate

13 the territory in the Vozuca pocket area. These are four combat operations

14 at various points in time: In April 1995, we have the Operation Behar

15 95; in May, Operation Sabur 95; in June-July, Operation Proljece 95.

16 Proljece meaning "spring," as in the season; and between 10 September and

17 10 October 1995, Operation Farz, which is also referred to in a number of

18 documents as F-95. These are the four military campaigns during this time

19 period that all relate to liberating this territory from the Bosnian Serb

20 Army.

21 Operations Behar 95 and Sabur 95 were not as successful as the

22 Main Staff would have hoped, which was why Operation Proljece 95 was put

23 into place. The strategic objective was to gain the Ozren salient and the

24 foothill areas around Vozuca and to liberate that territory from the VRS.

25 The Mujahedin Detachment was involved in this operation.

Page 287

1 During the course of the trial, there will be some evidence about

2 the planning of this operation and how it was set forth, simply to give

3 the Trial Chamber enough understanding and background to show that the El

4 Mujahedin Detachment was actively involved both in Proljece 95 and Farz

5 95. Again, not a lot of evidence will be led on this. This is not an

6 unlawful attack or an unlawful conduct of hostilities case, but it is

7 important to understand the background of these military operations to

8 show, again, notice that the accused was aware that the El Mujahedin

9 Detachment was participating in these combat operations and also goes to

10 the issue of the prisoners that were actually taken during that -- those

11 combat operations.

12 Again, the actual operational maps of Proljece 95, signed off by

13 Favil Hasanovic, who was the 35th Division commander. And you will see in

14 this document, along the front lines is marked -- or the proposed lines of

15 attack, as marked, you will see "EL-M," indicating the location where the

16 El Mujahedin Detachment was to be involved in this operation.

17 PT2075, as early as 15 May 1995, a plan of attack is being

18 proposed or put forward. And this document, signed by Abu Maali of the El

19 Mujahedin Detachment, indicates: "We have planned an attack on the

20 Podujevo sector on three axes," indicating what the El Mujahedin

21 Detachment is planning with respect to this operation.

22 PT2130, again, sets forth an analysis of the attack and how it's

23 proposed to go forward, and regular combat reports then went forward,

24 including on the 6th of July, 1995, as this operation is underway. A

25 report to the Main Staff of the Armed Forces of the Army of the Republic

Page 288

1 of Bosnia and Herzegovina indicates that the El Mujahedin visited the 35th

2 Division command in order to coordinate tasks for the upcoming operations;

3 again, indicating that the accused was on notice that the El Mujahedin

4 Detachment was going to be involved in this operation.

5 Finally, on 16 July 1995, with respect to Operation Proljece, we

6 see an order undertaking active combat operations, addressed to a number

7 of corps, including the 3rd Corps: "Immediately undertake active combat

8 operations on the entire front along selected areas."

9 On the 18th of July, the following day, a report on the progress

10 to the Main Staff command post in Kakanj, indicates that pursuant to the

11 orders of the Supreme Command Staff, the combat is underway and units of

12 the 35th Division in coordinated action with the El Mujahedin Detachment

13 carried out the necessary preparations, and "we expect the beginning of

14 the attack shortly. The detachment command will set the time of

15 readiness, since El Mujahedin is the main unit in charge of the coming

16 assignment."

17 The July 1995 crime base. In the early hours of 21 July 1995, the

18 El Mujahedin Detachment of the 3rd Corps launched an attack in Krcevine in

19 the Zavidovici Municipality. Soldiers of the VRS were captured and taken

20 to Livade, a village not too far away.

21 During the evening of 21 July 1995, soldiers of the El Mujahedin

22 Detachment could be heard shouting "Allahu Akbar," and then an El

23 Mujahedin soldier entered the room where these prisoners were being

24 detained, carrying the severed heads of two of the prisoners of war:

25 Momir Mitrovic and Predrad Knezevic.

Page 289

1 While detained in this building in Livade for two or three days,

2 these captured VRS prisoners were subjected to daily beatings before being

3 taken on the 23rd of July, 1995 to the Kamenica Camp.

4 That evening, upon arrival there, the prisoners were blindfolded

5 and taken to the football field, where a number of them were beaten and

6 otherwise mistreated.

7 The following morning, Gojko Vujicic was shot and killed in the

8 camp. The soldier -- the El Mujahedin Detachment soldier who killed Gojko

9 Vujicic then retrieved a sabre from the prayer tent, decapitated the

10 corpse, and the prisoners of war were then forced to kiss the severed

11 head, which was then hung from a wall on the cell where they were being

12 detained.

13 The following day, the mistreatment continued to include beating

14 with objects such as rubber hoses. At least one prisoner was threatened

15 and wounded by a foreign member of the El Mujahedin Detachment with a

16 sabre. The prisoners were taken outside and high-pressure air hoses were

17 tied around their legs, resulting in severe pain.

18 On the afternoon of 23 or 24 August, the prisoners were brought to

19 the football field and, again, severely beaten and electrical shocks were

20 inflicted upon them from batteries.

21 On the 28th of July, 1995, a report on the action of the El

22 Mujahedin Detachment was sent to the General Staff of the Army Military

23 Security Service Administration; and in this report, it's indicated that a

24 reliable source had reported on the El Mujahedin activities. And it

25 indicates in this document that ten to 15 captives were being hemmed in,

Page 290

1 and further reports that the El Mujahedin Detachment will continue to be

2 monitored. And the information was completely reliable and the source was

3 accurate.

4 We point out, we believe, evidence will be established that during

5 the time period while these prisoners were being kept in the Kamenica

6 Camp, the accused, Rasim Delic, visited the 35th Division command post in

7 Zavidovici, approximately 12 kilometres from the camp, with President

8 Izetbegovic and the 3rd Corps commander, Sakib Mahmuljin. The basis for

9 that is PT2356, which indicates, in a regular daily combat report of the

10 35th Division, that one of the factors having a positive impact on combat

11 morale was, in fact, the visit of the President of the Presidency, the

12 Chief of the Main Staff, the accused, and the Commander of the 3rd Corps.

13 On the 24th of August, 1995, these prisoners of war were

14 transferred to the KP Dom Zenica, which is a civilian prison. KP Dom is a

15 correctional penitentiary in Zenica, where these prisoners were held for a

16 few more days until they were finally exchanged and released. The ARBiH

17 security Main Staff Security Administration was informed of these

18 developments as well, and these prisoners were interviewed and

19 interrogated while at KP Dom Zenica. And, again, this goes, we would

20 submit, to the issue of whether those prisoners were debriefed and/or

21 interviewed with an eye towards criminal prosecutions with respect to

22 those persons who committed the crimes in that camp during that time

23 period.

24 30 August 1995, in a briefing for the Chief of the Military

25 Security Service Department of the 3rd Corps, again, a further report on

Page 291

1 intelligence activities concerning persons from African-Asian countries.

2 And we have further information about the efforts being taken. And this

3 document is important because it indicates that the security organ of the

4 35th Division has noted all these incidents, not specifically relating to

5 the camp but relating to other activities, and this is why this is

6 important.

7 But they did not take energetic measures, as they did not want to

8 disrupt relations with this unit, meaning the El Mujahedin Detachment, so

9 as to ensure successful completion of combat actions. "We don't want to

10 intervene because we don't want to disrupt combat operations that would

11 involve the El Mujahedin Detachment."

12 Let's turn now to Operation Farz or F-95.

13 Unlike what we've been talking about thus far, Operation Farz,

14 this operation lay along the fault line, if you will, between two corps of

15 the Army of the Republic of Bosnia and Herzegovina. Operation Farz, at

16 this point, what we have is the 2nd Corps coming from the north and the

17 northeast, and we have the 3rd Corps towards the southwest on this front.

18 The 2nd Corps' code name for this joint operation was "Uragon" [phoen].

19 So you'll see some documents relating to Uragon. Uragon and Farz were

20 complimentary actions that were designed to squeeze the Bosnian Serbs in

21 the Vozuca area, in this Ozren saline of the Vozuca pocket. So you'll see

22 some references in some of the documents to Uragon. That's the ARBIH 2nd

23 Corps counterpart, if you will, to F-95 or Farz 95.

24 This operation took place in September of 1995. And, again, as

25 early as the end of August, we begin to see the planning process for this

Page 292

1 operation, and we see an order from the accused, directed to the

2 commanders of the 2nd and 3rd Army, or Corps, if you will, to carry out

3 preparations and draft documents for the liberation of the Vozuca pocket.

4 And that document is, again, under the signature of the accused, which

5 leads us to Operation Farz.

6 The map you see before you is, in effect, the planning map for

7 Operation Farz. You'll be able to see a larger version of this, and it

8 indicates clearly that it's designed to go from 10 September to 10 October

9 1995.

10 On the 28th of August, 1995, in preparation for this operation, we

11 see that the commands of the 3rd, 4th, and 5th Battalions of the 329th

12 Brigade are to set forth the conditions for training of their troops in

13 the organisation of the El Mujahedin Detachment; that is, the El Mujahedin

14 Detachment is now being charged for training three battalions of the 329th

15 Mountain Brigade in anticipation of this attack.

16 The 3rd Corps logbook, which has an "F" indicated for, again, the

17 date period starting 26 August, the "F" we would submit relates to" Farz."

18 On 2 September 1995, and, again, these are excerpts from this logbook,

19 indicates at 2000 hours the Commander of Subordinated Units briefed the

20 3rd Corps Commander: "From 1000 to 1800 hours today, the commander of the

21 of the 37th Division, the head of the Tesanj, Teslic, and Doboj

22 municipalities toured an El Mujahedin Detachment.

23 On 3 September, we see orders concerning F-95 to the command of

24 the 328th Brigade, an El Mujahedin Detachment, to pull out 55 Mujahedin

25 members of the Asim Camdzic Company and to re-subordinate them. What this

Page 293

1 shows, Your Honours, is a very clearly-defined level of involvement of the

2 3rd Corps and 35th Division commanders redeploying the El Mujahedin Unit,

3 or subcomponents the El Mujahedin Detachment, throughout the active combat

4 operations, or in the preparatory stages of that combat operations,

5 clearly showing that this unit was a full-fledged component unit of the

6 ARBiH, 3rd Corps, and particularly the 35th Division. This is not just

7 some rogue soldiers who are just roaming around somewhere on the

8 battlefield. We have clearly defined orders, re-subordination, requests

9 for training, et cetera.

10 Similarly, PT2513, 3 September 1995, fortification of combat

11 positions pursuant to a demonstrated need and as requested by the El

12 Mujahedin Detachment, and in order to provide fire support, "I hereby

13 order the fortification of combat positions for antiaircraft guns," et

14 cetera. We see fortification orders at the request are being undertaken

15 at the request of the El Mujahedin Detachment.

16 7 September, supplement to order for attack, addressed to the 3rd

17 Manoeuvre Battalion, El Mujahedin Detachment, and commands. Here we see

18 an order directing that the 3rd Manoeuvre Battalion command is to join the

19 El Mujahedin Detachment command for the execution of the task as requested

20 by the El Mujahedin Detachment command. So we see re-subordination of

21 units to the commander of the El Mujahedin Detachment.

22 The document goes on and indicates that the 3rd Manoeuvre

23 Battalion commander will be at the El Mujahedin Detachment forward command

24 post, from where they will jointly conduct command and control.

25 Another logbook, PT2561, and the relevant time periods, 9

Page 294

1 September 1995, that is, on the eve of the commencement of Operation

2 Farz: "2015, the commander of the 35th Division informed the commander of

3 the 3rd Corps that everything was going according to plan. Forty-five

4 minutes later, the commander of the El Mujahedin Detachment and Aiman

5 Detachments had a meeting with the 3rd Corps commander at the 3rd Corps

6 IKM forward command post."

7 Let's return to that Operation Farz map that we looked at a little

8 bit earlier. Again, the time period, 10 September to 10 October. On the

9 upper left-hand corner of the map, "Approval, General Rasim Delic." Delic

10 has approved this Operation Farz map as put forward.

11 Let's return to the logbook, PT2465. This is the 3rd Corps,

12 Operation Farz, 26 August, the starting day of this. Under 10 September

13 1995, at 0620 hours, and this is Day 1, Operation Farz. At 0620 hours, El

14 Mujahedin Detachment informed the 3rd Corps commander that the specific

15 task was almost complete, i.e., that Paljenik was mopped up in less than

16 five minutes: "Following this initial success of our forces, everything

17 transpired with lightning speed. From one minute to the next, the Chetnik

18 strongholds fell one after the other."

19 "By 1000 hours, Our forces succeeded in expelling the Chetniks

20 from a number of locations, where our forces were able to join up at the

21 very entrance to Stog village."

22 The logbook goes on to report: "These exceptional results and

23 military victories in dominant facilities in the general sector of Vozuca

24 were achieved by the joint units of the 3rd Corps, i.e., the El Mujahedin

25 Detachment; the 1st, 2nd, 3rd, and 4th Manoeuvre Battalion, which were the

Page 295

1 units that had been subordinated; Garrison Units of the 329th and 328th.

2 By the 11th of September, the following day, we have new

3 assignments being reflected in the logbook, the new axis of attack in the

4 zone of responsibility of the 35th Division, El Mujahedin Detachment, and

5 the 2nd Manoeuvre Detachment are attacking and taking a number of

6 additional locations.

7 Now, an interesting point. At the time Operation Farz is being

8 launched, the accused, Rasim Delic, is not in the territory of Bosnia and

9 Herzegovina. However, after his return, he's interviewed by a journalist

10 in Sarajevo. And she asked him about this operation and the fact that he

11 was outside of the country at the time this operation was being

12 undertaken. Here's what he had to say about that.

13 [Videotape played]

14 MR. MUNDIS: Now, we would submit that what the accused told this

15 reporter - and particularly at the beginning of this exchange, was

16 particularly important in this context - he says: "One must know that

17 these operations had been planned for a long time, and I personally

18 watched over every one of those maps; that they began on 9 September, that

19 is, the day after I left for Malaysia, but they kept being performed under

20 my immediate supervision because the system of command and control

21 functions, although one is not physically present at the site, because I

22 was in continuous contact and secured that all that keeps functioning."

23 Immediate aftermath of Operation Farz, and then we'll turn to the

24 September 1995 crime base.

25 On 11 September 1995, while the accused is in Malaysia at this

Page 296

1 conference, the 3rd Corps logbook reports that the President of the

2 Presidency, Mr. Alija Izetbegovic, will come for an inspection tour of the

3 unit "tomorrow"; and, in fact, the logbook on the 12th indicates that

4 President Izetbegovic did, in fact, make such a visit to these locations.

5 Let's turn now to the September 1995 crime base.

6 On 11 September 1995, the 2nd Company of the 5th Battalion of the

7 328th Mountain Brigade, while undertaking Operation Farz, captured

8 approximately 60 people, primarily Bosnian Serb army soldiers, but a few

9 civilians, including three females who had remained after Vozuca was

10 taken. The soldiers, along with a few women and children, surrendered in

11 groups in the upper part of Kesten, near a creek. They surrendered to the

12 2nd Company of the 5th Battalion of the 328th. One such group of Serbs

13 was captured in the forest in the afternoon by ARBiH soldiers, which

14 included some members of the El Mujahedin Detachment. They were then

15 taken to the village of Kesten. On the road, on the way to Kesten,

16 Zivinko Tadorovic and Milenko Stanic were killed by soldiers of the El

17 Mujahedin Detachment, and they never actually made it to the village of

18 Kesten. Soldiers of the El Mujahedin Detachment then immediately took

19 away four other Bosnian Serb Army prisoners of war who have never been

20 heard from since.

21 The remaining group of prisoners, including a few civilians and

22 the women, are then taken to a hall in Kesten. Shortly thereafter, the

23 three women are taken away to another location, which they themselves were

24 not sure where it was. Shortly after that, additional members of the El

25 Mujahedin Detachment arrive and take charge of the Bosnian Serb Army

Page 297

1 prisoners of war who had been in the custody of the 5th Battalion of the

2 328th Mountain Brigade.

3 PT2596, a regular daily combat report, makes reference -- this is

4 a 328th Mountain Brigade combat report of 13 September, and this document

5 reports on 11 September two companies of the 5th Battalion captured 61

6 hostiles and three Serbian women. Members of the El Mujahed Unit took

7 charge of all captives except two, while the two were turned over to the

8 328th Brigade military police.

9 Now, PT2596 makes reference to the capture of 61 hostiles and

10 three women. PT2575 is a contemporaneous list of the detainees that was

11 compiled by a member of the 5th Battalion of the 328th Mountain Brigade at

12 Kesten. This document refers to a total of 62 persons.

13 Let's take a look at 2356, a list of the detainees or the

14 persons -- this list was made in Kesten. And if you look at this

15 document, it has a numerical sequence up to 51, followed by an

16 explanation: Four taken by Arabs immediately; three women, one was set

17 free, two killed on the road to Kesten, two children released; altogether,

18 62.

19 Now, these numbers don't quite exactly add up. I will tell you

20 that the 51 persons listed on this document, their names and identities

21 are all set forth in an annex to the indictment. There's one person who

22 we submit was not included on this list, and we are unable to explain how

23 that happened. But the bottom line is, Your Honours, we would submit that

24 these numbers are certainly close enough that in a combat situation or

25 shortly thereafter, that one person might be -- one person's name might

Page 298

1 not show up on the list, and that's not something that is particularly

2 fatal under these conditions to the Prosecution's case. But I do draw

3 that to your attention, because there is a discrepancy in the numbers.

4 The 51 named individuals are listed in the indictment along with one other

5 individual who we have evidence to suggest was with this group, but for

6 whatever reason his name was not included on this list that was made at

7 the Kesten hall.

8 Returning to 11 September 1995, the soldiers of the EMD thereafter

9 took these prisoners of war from the Kesten hall to the Kamenica Camp.

10 Shortly thereafter, the women, who had been taken to an intermediate

11 location, are also taken to the camp, where they're placed in a wooden

12 shed, or "wooden structure," as they describe it, on the grounds of the

13 Kamenica Camp.

14 In the period from 11 to 17 September 1995, the male prisoners of

15 war were subjected to cruel treatment. The women heard screams and

16 shouting and the sounds of beatings and gunfire. On three or four

17 occasions, military commands to the effect of, "Prepare your weapons and

18 shoot," were heard, followed by bursts of gunfire, and we believe the

19 evidence will show that some of the victims were mutilated with a saw or

20 other type of cutting device during this period in early mid-September

21 1995.

22 The three women were detained in the Kamenica Camp for several

23 days, during which time they were mistreated. They were then transferred

24 on the 13th of September, 1995, to the Vatrostalna building in the village

25 of Brezik on the outskirts of Zenica, which was the headquarters of the El

Page 299

1 Mujahedin Detachment. These women were kept in that location for

2 approximately two weeks before they were also transferred to the KP Dom

3 Zenica, where they remained until they were released. They remained there

4 about six weeks before they were released on the 15th of November, 1995.

5 But let's return to the Kamenica Camp and the 52 captured VRS

6 soldiers who had been taken prisoners of war on 11 September. During this

7 time period, in addition to the beatings and other mistreatment I

8 mentioned a moment ago, a number of these men were shot. Some were

9 murdered in other ways, including decapitation. Each of these men that

10 was murdered was murdered in and around the Kamenica Camp. By 17

11 September, fewer than a dozen of the original group of 52 captured on the

12 11th of September were still alive.

13 PT2964, a document which we believe will come into evidence, is an

14 exhumation report concerning an exhumation at a riverbank near the

15 Kamenica Camp, where several of the corpses of these persons that were

16 captured on the 11th of September and subsequently taken to Kamenica Camp,

17 where their bodies were located.

18 On the 17th of September, 1995, a further group of approximately

19 ten VRS soldiers surrendered to the ARBiH a few kilometres northwest of

20 Vozuca on the main road between Vozuca and Zavidovici. This group was

21 initially taken to a building in Brezik, Zavidovici Municipality, that was

22 then occupied by soldiers of the El Mujahedin Detachment. After being

23 briefly detained there, this group of soldiers was similarly taken to the

24 Kamenica Camp.

25 During the time period these soldiers were detained in that camp,

Page 300

1 they were interrogated, similarly beaten with sticks and rubber hose, and

2 otherwise mistreated by soldiers of the EMD; and, again, electrical shocks

3 were administered to them, and one of the prisoners was threatened by an

4 EMD soldier with having his ear cut off.

5 At the time this group of ten soldiers arrived on the 17th, as

6 we've indicated a few moments ago, there were still a few survivors from

7 the group of 52; and on the 18th of September, seven of the surviving 52

8 group from the 11th were taken out onto a field, where gunshots were then

9 heard, and none of those seven men were ever seen or heard from again.

10 Sometime between the 20th and 22nd of September, 1995 - and we pin

11 that date on the fact that it was a couple of days or a few days after the

12 17 September group arrives - Nenad Jovanovic, an elderly Bosnian Serb man,

13 who was detained in the room with the group of ten from the 17th of

14 September, was beaten, stripped, and given water mixed with petrol to

15 drink. He died a few days later in the camp.

16 On the 29th of September, the group that was captured on the 17th

17 of September is transferred by the ABiH or ARBiH 3rd Corps military police

18 from the Kamenica Camp to the KP Dom Zenica. So we have the group of ten

19 that was captured on the 17th remaining in the camp until the 29th, at

20 which point they are transferred to KP Dom Zenica. By the time they leave

21 on the 29th of September, 1995, three or four of the remaining group of 52

22 from the 11 September capture are still alive in the Kamenica Camp. Those

23 three or four prisoners of war who are from that group of 52 have never

24 been heard or seen ever since.

25 Now, briefly I'm cognizant of the time, Your Honours, I will not

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1 be able to finish today, but I do have one last area I do need to focus

2 on, and then I think I need another half hour tomorrow to complete.

3 With respect to notice, we believe that the totality of the notice

4 evidence that will be led, from the beginning, from Day 1 of his

5 assumption of command as the ARBiH Supreme Commander, that Rasim Delic was

6 on notice that members of the El Mujahedin Detachment had a propensity to

7 commit crimes, and that these crimes were particularly directed

8 non-Muslims, such as what happened in Maline, when foreigners were

9 involved that eventually ended up being members of the El Mujahedin

10 Detachment; to the crimes in 1994; to the notice that he received from

11 Operation Vranduk; and into the July 1995 crime base. The accused was

12 certainly on notice that members of this unit, in particular, were

13 extremely dangerous and had a propensity to commit crimes, and under no

14 circumstances should there have ever been a situation where this unit was

15 put in charge of prisoners of war.

16 Let me briefly touch on the issue of whether anyone was

17 investigated or punished for the crimes in Livade, Kesten, or the Kamenica

18 Camp in the period from July through September 1995.

19 There will be evidence led that no soldier of any ARBiH unit was

20 prosecuted or investigated for these crimes. Again, documents were sent,

21 requests were made to the relevant military prosecutor's office and

22 military courts and the archives that currently hold those collections, to

23 look through this material.

24 And the final document I want to share with you, PT2943, a letter

25 from October 2006, addressed to the Office of the Prosecutor, whereby we

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1 had asked for, again, official confirmation for them to go back into the

2 archives and search for any information that might suggest that anyone was

3 investigated or prosecuted for these crimes. And we see, in paragraph 2,

4 the chief prosecutor of the Zenica-Doboj Cantonal Prosecution Office which

5 holds these archives, there were no files or other documents which would

6 indicate that the following was carried out: Submission of criminal

7 reports, investigation or pressing of charges related to the following

8 events: Number 1, Maline, and we've already talked about that; number 2,

9 murder and maltreatment of three prisoners of war in the village of

10 Livade; murder and maltreatment of 62 prisoners of war, members of the

11 VRS, in the area of Kesten. And they make reference to the lists of names

12 of victims which was provided to them with respect to these crimes.

13 We would submit, Your Honours, that no one has been brought to

14 justice for any of the crimes that we've alleged in this indictment, and

15 that failure to punish these perpetrators rests with this accused, Rasim

16 Delic.

17 As I've indicated, I believe I need approximately 30 minutes to

18 complete this opening tomorrow. We will then call the first witness. I,

19 again, do not anticipate that his evidence will take us past tomorrow.

20 The witness scheduled for Wednesday will be available to testify on

21 Wednesday.

22 JUDGE MOLOTO: Thank you very much.

23 Does that bring us to the end of your presentation for today?

24 MR. MUNDIS: For today, I think, Your Honour, in light of the

25 time. I think in 30 minutes tomorrow, perhaps a little bit less, I'll be

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1 done with the opening, and we'll call the first witness in this case.

2 JUDGE MOLOTO: Thank you very much, Mr. Mundis.

3 Due to the lateness of the hour, court adjourns until tomorrow at

4 2.15 p.m. in Courtroom II.

5 Court adjourns.

6 --- Whereupon the hearing adjourned at 7.00 p.m.,

7 to be reconvened on Tuesday, the 10th day of

8 July, 2007, at 2:15 p.m.