1 Monday, 15 September 2008
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.31 p.m.
6 JUDGE MOLOTO: Good morning, to everyone in and around the
8 Madam Registrar would you please call the case.
9 THE REGISTRAR: Good afternoon, Your Honours, good afternoon
10 everyone in and around the courtroom. This is case number IT-04-83-T,
11 The Prosecutor versus Rasim Delic.
12 JUDGE MOLOTO: Thank you very much. May we have appearances for
13 today, starting with the Prosecution.
14 MR. MUNDIS: Thank you, Mr. President. Good afternoon, Your
15 Honours, to my learned colleagues from the Defence, General Delic and,
16 everyone in and around the courtroom. Daryl Mundis, Kyle Wood, Aditya
17 Menon, Laurie Sartorio, and our case manager Fraser McIlwraith for the
19 JUDGE MOLOTO: Thank you very much. And for the Defence.
20 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours, good
21 afternoon to my colleagues from the Prosecution. Vasvija Vidovic and
22 Nicholas Robson on behalf of Mr. Delic, together with our legal
23 assistants. Thank you.
24 JUDGE MOLOTO: Thank you very much.
25 The Trial Chamber is sitting today to deliver its Judgement in
1 the case of The Prosecutor versus Rasim Delic. For the purposes of this
2 hearing, I will read out a summary of Trial Chamber's findings. I would
3 like to emphasise that this is but a summary and that the only
4 authoritative account of the Chamber's findings is the written Judgement,
5 which will be made available at the end of the session.
6 The proceedings of this trial commenced on the 9th of July 2007
7 and concluded on the 11 June 2008
8 and admitted 1399 exhibits into evidence. It also received evidence from
9 a total of 64 Prosecution witnesses and 13 Defence witnesses.
10 Rasim Delic is charged with four counts of violation of the laws
11 or customs of war, pursuant to Article 3 of the statute of the Tribunal.
12 It is alleged that Rasim Delic, as commander of the Main Staff of the
13 army of the Republic of Bosnia and Herzegovina, or ABiH for short, incurs
14 individual criminal responsibility under Article 7(3) of the statute for
15 having failed to prevent the crimes alleged in the indictment and/or
16 punish the perpetrators thereof.
17 Counts 1 and 2 of the indictment charge Rasim Delic with
18 responsibility for murder and cruel treatment in relation to three
19 separate incidents. One, what is called the Maline-Bikosi in June of
20 1993; 2, Livade and Kamenica camp in July and August of 1995; and 3,
21 Kesten and the Kamenica camp in September 1995.
22 The first incident concerns the killing of approximately 24
23 captured Bosnian Croat civilians and soldiers of the Croatian Defence
24 Council, called HVO, by foreign Muslim fighters who are known as
25 Mujahedin. In the same incident, at least another six Bosnian Croat
1 individuals were allegedly injured by gunshot wounds. The crimes
2 allegedly took place in June 1993 in the village of Bikosi
3 Travnik municipality in Central Bosnia.
4 The second incident concerns the killing of three captured
5 soldiers of the army of the Republika Srpska, called VRS, and the cruel
6 treatment of VRS captives in July, August 1995 at the hands of the
7 Mujahedin from the so-called El Mujahedin Detachment or EMD for short,
8 which the Prosecution contends were incorporated in the ABiH. The crimes
9 are alleged to have been committed in the village of Livade
10 municipality of Zavidovici and in a camp run by the EMD in the Gostovic
11 valley in the vicinity of Zavidovici. This camp was also known as the
12 Kamenica camp. The alleged perpetrators of these crimes are members of
13 the EMD.
14 The third incident allegedly took place in September 1995. It
15 concerns the killing of two VRS soldiers nearby the village of Kesten
16 the municipality of Zavidovici
17 killing of approximately 52 VRS captured soldiers, the killing of an
18 elderly Serb man and the cruel treatment of ten VRS captured soldiers in
19 the Kamenica camp. Again, the alleged perpetrators were soldiers of the
21 Under counts 3 and 4, Rasim Delic is charged with individual
22 criminal responsibility for the crimes of rape and cruel treatment.
23 Those crimes allegedly took place in September 1995, and involved three
24 Bosnian women who were contained at the Kamenica camp. In its Judgement
25 of acquittal of 26 February 2008
1 had no case to answer in respect of the rape under count 3. Thus, in
2 relation to the events involving the three women, Rasim Delic remains
3 only charged with cruel treatment under Count 4.
4 The Trial Chamber will now give a brief summary of the background
5 to the events relevant to this case.
6 The events alleged in the indictment took place against the
7 background of the break up of the Former Socialist Federal Republic
11 In the summer of 1992, the first foreign Mujahedin arrived in the
12 areas of Travnik and Zenica in Central Bosnia mainly with a few to
13 supporting the military struggle against the Bosnian Muslims adversaries.
14 They settled in various locations without forming a homogenous entity. A
15 number of different groups comprising foreign and/or Bosnian Mujahedin
16 were active in Central Bosnia between 1993 and 1995, in particular, as of
17 late 1992 or early 1993, a group of foreign Mujahedin established a camp
18 in a location called Poljanice a few hundred kilometres from Mehurici in
19 the Travnik municipality. Notwithstanding instances of participation in
20 combat alongside each other, it appears that the different groups of
21 Mujahedin were anxious to maintain their distinct identities.
22 The presence of foreign fighters in Central Bosnia and their
23 participation in the war effort did not go unnoticed by the ABiH
24 3rd Corps and the ABiH Main Staff in Sarajevo. According to a report
25 from mid-1993, those foreigners displayed "conduct that was not befitting
1 that of members of the army of Bosnia and Herzegovina."
2 On the 18th of June, 1993, the issue of "soldiers from foreign
3 countries" was discussed at a meeting within the ABiH Main Staff. The
4 attendants of the meeting proposed to Rasim Delic, who had been appointed
5 commander of the Main Staff on 8 June 1993 that those "foreign citizens"
6 should either be sent back to where they had come from, or organised into
7 a unit within the ABiH.
8 On the 23rd of July, 1993, Rasim Delic issued a written
9 authorisation to Sakib Mahmuljin, then a member of the 3rd Corps command,
10 to enter into negotiations with the representatives of the
11 "Mujahedin Unit from Zenica" on the issues of: 1, including the
12 Mujahedin in the ABiH; 2, their use "in joint struggle against the
13 Chetniks"; and 3, the manner of their subordination to the 3rd Corps
15 On the 12th of August, 1993, the commander of the 3rd Corps,
16 Enver Hadzihasanovic, submitted a written proposal to the Main Staff in
18 the 3rd Corps's area of responsibility into a detachment within the ABiH.
19 On the following day, 13 August 1993
20 authorising the formation of a detachment named El Mujahedin. Following
21 its establishment, the EMD significantly grew in size, and by 1995, it
22 comprised approximately 1.000 fighters.
23 Throughout 1993, the ABiH put to on several fronts against both
24 the VRS and the HVO. As a result, Central Bosnia remained effectively
25 isolated from the outside world with serious humanitarian consequences
1 for the local civilian population. The hostilities between ABiH and HVO
2 came to an end with a so-called Washington Agreement with the 18th of
3 March, 1994. In the summer of 1995, the ABiH intensified military
4 activities in the so-called Vozuca pocket in Central Bosnia, which was
5 held by Serb forces. In September 1995, the ABiH launched two successful
6 operations called Uragan, and Farz, which resulted in VRS forces being
7 driven out of the Vozuca pocket. The EMD played an important role in the
8 success of these operations. The general framework agreement for peace
9 in Bosnia and Herzegovina also known as the Dayton Agreement was signed
10 on 14 December 1995 and finally brought to an end the conflict.
11 The Trial Chamber will now turn to the crimes alleged in the
13 The events of the 8th on June 1993 in Maline-Bikosi unfolded in
14 the context of an offensive launched by ABiH forces in the Bila valley
15 against HVO. The evidence shows that on/or around that day, different
16 groups of Mujahedin, including the one from the Poljanice camp near
17 Mehurici and Abu Hamza's group based in Guca Gora or the Turkish
18 Guerrilla from Zenica were also engaged in the fighting at various
19 locations in Bila valley.
20 After taking control of the village of Maline
21 June 1993, the ABiH soldiers escorted captured Bosnian Croat civilians
22 and HVO soldiers from Maline towards Mehurici, in separate groups.
23 Before roaching Mehurici, on their way through Poljanice these groups
24 were intercepted by armed foreign and Bosnian Mujahedin. The Mujahedin
25 forcibly seized approximately 30 individuals from these groups including
1 some wounded soldiers and ordered them to walk back in the direction of
3 On the way to Bikosi, a lady named and Ana Pranjes, who had been
4 joined to the group of captives at one point was harassed by two foreign
5 Mujahedin and was eventually killed by a volley of gun-fire. Ana Pranjes
6 wore a Red Cross armband.
7 When the group reached Bikosi, another captive was shot dead when
8 he attempted to flee. Shortly, thereafter, one of the captives started
9 screaming in an epileptic fit. The Mujahedin reacted by opening fire at
10 the entire group. Eventually 24 individuals were killed and a minimum
11 five individuals were seriously injured by gun-fire.
12 The Trial Chamber found that the Prosecution had established
13 beyond a reasonable doubt the elements of murder and cruel treatment, as
14 violations of the laws or customs of war, under Counts 1 and 2.
15 With respect to the identification of the Mujahedin perpetrators,
16 the evidence is not clear as to which particular unit or group they
17 belonged. The Trial Chamber took into account several factors to
18 determine the identity of the perpetrators, and, for reasons detailed in
19 the written judgement, reached the conclusion that it was not established
20 beyond a reasonable doubt that the perpetrators were Mujahedin from the
21 Poljanice camp.
22 The Trial Chamber will now turn to the events in Livade and
23 Kamenica camp in July and August 1995.
24 On the 21st of July, 1995, following a military operation in the
25 Vozuca pocket called Operation Proljece II Mujahedin captured 12 VRS
1 member, including a doctor and a paramedic and detained them in a
2 two-storey house in Livade for the next two days. For the reasons set
3 out in the written judgement, the Trial Chamber was satisfied that the 12
4 detainees had been held in the custody of the EMD.
5 On two occasions on the 21st of July 1995, one of the Mujahedin
6 brought to the detainees' room a severed head from which fresh blood was
7 gushing. These two severed heads belonged to Momir Mitrovic and
8 Predrag Knezevic. While the detainees did not witness the killing of
9 Momir Mitrovic and Predrag Knezevic the Trial Chamber was satisfied, for
10 the reasons set out in the Judgement, that these men had been
11 intentionally killed by the EMD members. The Trial Chamber found that
12 the Prosecution had established beyond a reasonable doubt the elements of
13 murder violation of the laws or customs of war under Count 1.
14 Between the 21st and 23rd July 1995, members of the EMD
15 restrained the 12 VRS detainees in uncomfortable positions, and subjected
16 them to various kinds of maltreatment, including beatings and the display
17 of the freshly severed heads of Momir Mitrovic and Predrag Knezevic. The
18 Trial Chamber found that this treatment had caused the detainees serious
19 mental and physical suffering as well as injury and also amounts to
20 serious attacks on human dignity. The Trial Chamber therefore found that
21 the Prosecution had established beyond a reasonable doubt the elements of
22 cruel treatment as a violation of the laws or customs of war under Count
24 On the 23 July, the Mujahedin transferred the 12 VRS detainees
25 from Livade to the Kamenica camp where they were detained in a derelict
1 house. On the night of that day, a Mujahedin fired a shot in cold blood
2 at one of the detainees, Gojko Vujicic. The head of Gojko Vujicic was
3 subsequently severed and placed on his stomach. Later on, the detainees
4 were forced to kiss the severed head. While at the Kamenica camp, the
5 VRS detainees were subjected to various other forms of maltreatment and
6 humiliation including severe beatings and the infliction of electric
8 On 24th of August 1995, they were transferred to the Zenica
9 KP Dom facility. The Trial Chamber was satisfied that in relation to the
10 killing of Gojko Vujicic, the Prosecution had established beyond a
11 reasonable doubt the elements of murder, as a violation of the laws or
12 customs of war, under Count 1.
13 And in relation to the 12 VRS detainee, the Trial Chamber was
14 satisfied that the Prosecution had established elements of cruel
15 treatment as a violation of the laws or customs of war, under Count 2.
16 The Trial Chamber will now turn to the events in Kesten and the
17 Kamenica camp in September 1995.
18 In the afternoon of the 11 September 1995, a day after operations
19 Uragan and Farz were launched, soldiers from the 5th battalion of the
20 ABiH 328th Brigade and Mujahedin captured approximately 60 Bosnian Serb
21 soldiers and civilians, including three women, called DRW-1, DRW-2, and
22 DRW-3 in the vicinity of the village of Kesten
23 ordered to walk in a column towards Kesten. On the way, two captives,
24 Milenko Stanic, and Zivinko Todorovic, were shot. The Trial Chamber
25 found that an EMD member had killed Milenko Stanic, and that the
1 Prosecution had established beyond a reasonable doubt the elements of
2 murder as a violation of the laws or customs of war, under Count 1.
3 However, the Trial Chamber found that the Prosecution had not proved
4 beyond a reasonable doubt that Zivinko Todorovic had been killed by a
5 soldier of the EMD, as alleged in the indictment.
6 The Mujahedin and the ABiH soldiers then took 52 VRS soldiers to
7 a hall in Kesten. At the hall, ABiH soldiers of the 5th battalion of the
8 328 Brigade guarded the detainees. At a certain point, approximately 20
9 armed Mujahedin barged into the hall, and seized the detainees from the
10 ABiH soldiers at gunpoint. The detainees were transported on two trucks
11 to the Kamenica camp.
12 At the Kamenica camp, some or all of the 52 detainees were
13 incarcerated on two floors of a derelict house. Circumstantial evidence,
14 including exhumation evidence indicates that those 52 detainees were
15 eventually killed. In light of the evidence as a whole, and for the
16 reasons detailed in the written judgement, the Trial Chamber was
17 satisfied that the 52 men listed in Annex C to the indictment had been
18 intentionally killed by members of the EMD at the Kamenica camp between
19 the 11th of September 1995
20 therefore held that the Prosecution had established beyond a reasonable
21 doubt the elements of murder, as a violation of the laws or customs of
22 war, under Count 1. However, in light of the insufficient evidence
23 regarding the cruel treatment of the detainees, the Trial Chamber found
24 that in relation to the 52 detainees the Prosecution had not proved
25 beyond a reasonable doubt the elements of cruel treatment, as a violation
1 of the laws or customs of war, under Count 2.
2 On or about 17 September 1995, a new group of ten Bosnian Serb
3 captives arrived at the Kamenica camp and were detained on the ground
4 floor of the derelict house. EMD members subjected them routinely to
5 maltreatment, amounting to serious mental and physical suffer, including
6 beatings and the infliction of electric shocks. Further more,
7 Nenad Jovic who had been brought to the Kamenica camp several days after
8 17 September, died either as a result of beatings or of drinking
9 unsuitable water, or a combination of both, in conjunction the conditions
10 of detention at the Kamenica camp. As regards, Nenad Jovic the Trial
11 Chamber was satisfied that the Prosecution had proved beyond a reasonable
12 doubt the elements of murder as a violation of the laws or customs of
13 war, under Count 1.
14 The Trial Chamber further found that the Prosecution had proved
15 beyond a reasonable doubt, in relation to the ten detainees, listed in
16 Annex D to the indictment, the elements of cruel treatment as a violation
17 of the laws or customs of war, under Count 2.
18 In relation to Count 4, the Trial Chamber made the following
19 findings. On the 11 September 1995, the three Bosnian Serb women -
20 DRW-1, DRW-2, DRW-3 - were brought to the Kamenica camp independently of
21 the 52 VRS soldiers mentioned above. The women were detained at the
22 Kamenica camp in a wooden shed and routinely subjected to EMD members to
23 acts amount to go serious mental and physical suffering, including
24 beatings as well as the infliction of electric shocks. The Trial Chamber
25 therefore found that the Prosecution had proved beyond a reasonable doubt
1 the elements of cruel treatment as a violation of the laws or customs of
2 war, under Count 4.
3 The Trial Chamber will now discuss whether Rasim Delic can be
4 held responsible under Article 7(3) for not having prevented the crimes
5 described above and/or punished the perpetrators thereof.
6 The Trial Chamber will thus examine whether, 1, there existed a
7 superior-subordinate relationship between Rasim Delic and the said
8 perpetrators; 2, Rasim Delic knew or had reason to know about the
9 commission of these crimes, and, if so; 3, whether he took any necessary
10 and reasonable measures to prevent or punish the crimes in question.
11 As regards the existence of a superior-subordinate relationship
12 between Rasim Delic and the perpetrators of the crimes in Bikosi in 1993,
13 the Trial Chamber recalled its earlier finding that it was not proved
14 beyond a reasonable doubt that the perpetrators, as alleged by the
15 Prosecution, had been Mujahedin of the Poljanice group. The Trial
16 Chamber, nonetheless, examined the Prosecution's contention that on the
17 8th June 1993 the Poljanice Mujahedin had been de facto subordinated to
18 the 3rd Corps. In this regard, the Trial Chamber noted that there is no
19 specific evidence concerning orders received by the Poljanice Mujahedin
20 from units of the ABiH. In particular, the evidence only shows that on
21 the 8th June 1993
22 fighting against the HVO in the Bila valley, simultaneously as units of
23 the ABiH. Furthermore, while the evidence shows that the Mujahedin from
24 the Poljanice camp and the ABiH soldiers were aware of each other's
25 presence, the evidence is unclear whether the two groups were acting in
1 concert. Thus, the Trial Chamber was not satisfied that the Poljanice
2 Mujahedin had been de facto subordinators to Rasim Delic.
3 In relation to the Mujahedin groups in general, the Trial Chamber
4 was also not satisfied that these groups had been de facto subordinated
5 to Rasim Delic. It found that the relationship between any groups of
6 foreign Mujahedin and the ABiH at that time was appropriately
7 characterized as cooperation between separate and independent military
8 entities, rather than subordination of the Mujahedin within a single
9 military structure.
10 The Trial Chamber also found that the evidence did not establish
11 beyond a reasonable doubt that Rasim Delic was already the commander of
12 the ABiH Main
13 regard, the evidence shows that the incident took place at some time in
14 the afternoon of the 8th June 1993, while the Republic of
15 Bosnia-Herzegovina Presidency elected Rasim Delic as Main Staff
16 commander, sometime after 2.00 in the afternoon. Rasim Delic did not
17 assume his position until between 7.00 and 9.00 in the evening of that
19 In conclusion, the Trial Chamber found that no
20 superior-subordinate relationship had existed between Rasim Delic and the
21 perpetrators of the killings in Bikosi on the 8th of June, 1993.
22 Consequently, Rasim Delic does not incur individual criminal
23 responsibility pursuant to Article 7(3) of the statute for the crimes
24 committed in Bikosi on 8 June 1993
25 Turning to the issue of whether the superior-subordinate
1 relationship existed between Rasim Delic and the EMD members who
2 committed the crimes between July and September 1995, the Trial Chamber
3 recalled that the EMD had come into existence as a unit of the ABiH
4 3rd Corps by virtue of an order of 13th of August 1993 signed by Rasim
5 Delic. The Trial Chamber was satisfied that from the time of its
6 establishment in August 1993 until its disbandment in December 1995, the
7 EMD had been a unit de jure subordinated to the ABiH 3rd Corps or to one
8 of the units that had been subordinated in turn to ABiH 3rd Corps. Since
9 Rasim Delic was the de jure superior of the 3rd Corps, it follows that
10 the EMD was de jure subordinated to Rasim Delic.
11 The Trial Chamber was then confronted with one of the salient
12 questions in this case; namely whether the EMD had been "under the
13 command and effective control" of Rasim Delic, as alleged in the
14 indictment. In this regard, the Trial Chamber examined a number of
15 different indicators which it considered suitable to determine whether
16 effective control in this particular case existed. These indicators are
17 spelled out in the written Judgement and include, inter alia, EMD
18 compliance with difference ABiH order, the participation of the EMD in
19 ABiH combat operations, the mutual assistance and relationship between
20 ABiH and the EMD, the procedure of reporting followed by EMD the EMD's
21 relationship with authorities outside of the army of Bosnia
23 appointments and promotions of and awards to EMD members by the ABiH and,
24 finally, the disbandment of the EMD.
25 Based on these indicators the majority of the Trial Chamber,
1 Judge Moloto dissenting, found that the structure, organisation and
2 command and control within the ABiH had improved significantly from the
3 time when Rasim Delic had been appointed as commander of the Main Staff
4 on 8 June 1993
5 end of the armed conflict in Bosnia and Herzegovina. In the majorities
6 view, when the crimes were committed in Livade and Kamenica in July and
7 September 1995, Rasim Delic was in a consolidated position which enabled
8 him to enforce his designation decisions upon his subordinate, including
9 the EMD and its members.
10 During operation Farz, which was conducted under the overall
11 command and control of Rasim Delic, the EMD breached combat orders by
12 failing to hand over enemy captives. These captives ended up being
13 subjected to the crimes committed by member of the EMD in July, August,
14 and September 1995. ABiH officers were denied access to these detainees
15 during their detention at the Kamenica camp.
16 Several witnesses testified that in their view, nothing could be
17 done to discipline the EMD since coercive measures would have entailed a
18 violent conflict with the EMD but this position is not borne out by facts
19 adduced in the evidence. However, rather than saying that nothing could
20 be done, to oppose undisciplined behaviour of EMD members, the majority
21 found that, in fact, nothing was done or even attempted to be done, in
22 particular in connect with the alleged violations of international
23 humanitarian law during the detention of enemy soldiers and civilians by
24 the EMD. In this regard the majority recalled that foreign members of
25 the EMD had been subject to criminal proceedings in some instances of
1 illegal behaviour although for not for violations of international
2 humanitarian law. In the majority's view this confirms that the superior
3 commanders did have the material ability to prevent and/or punish crimes
4 committed by the EMD.
5 For the foregoing reasons which are spelled out more in detail in
6 the written judgement, the majority, Judge Moloto dissenting found beyond
7 reasonable doubt that Rasim Delic had effective control over the EMD from
8 the period July to September 1995. Consequently, the majority was
9 satisfied that a superior subordinate relationship existed between Rasim
10 Delic and the EMD perpetrators of the crimes committed in July, August,
11 September 1995 as charged in the indictment.
12 Judge Moloto in his dissenting opinion held the view that
13 Rasim Delic did not have effective control over the EMD at any time from
14 the time of his assumption of duties as the commander of the Main Staff
15 of the ABiH on the 8th June 1993 until the EMD was disbanded in
16 December 1995. He noted that the EMD throughout 1995 erratically
17 compiled with the ABiH orders and made its participation in combat
18 contingent on certain requirements. The EMD carried out the tasks given
19 by the ABiH only when it chose to do so. The evidence shows that the
20 issuing of ABiH orders was preceded by "agreement" with the EMD. And in
21 Judge Moloto's view this was inconsistent with the system of command and
22 control. Judge Moloto also noted that the majority seemed to draw Rasim
23 Delic's effective control from the fact that he did not take measures
24 against the EMD while he could do so. He respectfully held that
25 Rasim Delic's inaction only confirmed in light of the totality of the
1 evidence the absence of his effective control. To this end, he recalled
2 that despite the fact that the ABiH on some occasions took investigative
3 steps against EMD members all attempts to punish the EMD members for
4 their criminal behaviour inevitably failed.
5 Therefore, Judge Moloto respectfully submitted that the majority
6 failed to show that in practice that Rasim Delic had the material ability
7 to punish members of the EMD.
8 The majority will now turn to the issue whether Rasim Delic had
9 knowledge or had reason to know that the crimes of murder and cruel
10 treatment were about to be or had been commit the members of the EMD
11 between July and September 1995.
12 As regards the crimes commit in the Livade and Kamenica camp in
13 July and August 1995, the evidence shows that information concerning the
14 capture of the VRS soldiers by the EMD in July 1995 was reported to the
15 Main Staff security administration. These reports formed the basis for
16 bulletin 137, which was sent to the KM Kakanj on 22 July 1995, with an
17 instruction to forward it to Rasim Delic. The bulletin informed Rasim
18 Delic that VRS detainees were held by the EMD and that they did not allow
19 anybody access to these detainees. However, it did not make any
20 reference to crimes committed by EMD members against the detainees. The
21 majority was not satisfied that Rasim Delic had knowledge of the crimes
22 in July and August 1995 as there is no evidence either direct or
23 circumstantial from which to infer that Rasim Delic was actually aware
24 that EMD members were about to commit or had committed such crimes. The
25 majority will therefore turn to the issue whether Rasim Delic had reason
1 to know. Namely, whether he had information available that was
2 sufficiently alarming to put him on notice of the risk that crimes might
3 be committed by the subordinates.
4 The majority recalled that the jurisprudence of the Tribunal
5 requires to establish knowledge of a superior, the relevant information
6 only needs to have been provided or available to the superior or in his
7 possession. It is not required that a commander actually acquainted
8 himself with the information. For reasons detailed in the Judgement, the
9 majority was satisfied that the information contained in bulletin 137 had
10 been conveyed to Rasim Delic.
11 The next question is whether Rasim Delic had additional
12 information which would qualify the report on the capture of VRS
13 detainees contained in bulletin 137 as sufficiently alarming. In this
14 regard, the majority examined whether Rasim Delic had knowledge of
15 subordinates' past offences and if he had failed to punish them. It
16 therefore took into account 1, the crimes in Bikosi in 1993; 2, the
17 killing of humanitarian worker in 1994; and 3, other instances which show
18 the general propensity of EMD members to commit crimes.
19 In relation to the crimes in Bikosi, the evidence shows that in
20 October 1993, Rasim Delic initiated an investigation into the alleged
21 execution of a group of Croats by Mujahedin after he was requested to do
22 so, by President Izetbegovic. As a result of the investigation,
23 Rasim Delic was informed that 25 Bosnian Croat civilians died in combat
24 activities around the 8th June 1993. The Prosecution contends that the
25 investigation was not "real" and that Rasim Delic was, in any way,
1 personally informed of the crimes by one of his deputies in early summer
2 1993. The majority dismissed the Prosecution's contention and noted that
3 no substantiated claims regarding the killings had been brought to the
4 attention of Rasim Delic after the investigation. In addition, even
5 assuming that the allegations raised by the deputy would have called into
6 question the reliability of the investigation, the information available
7 to Rasim Delic indicated that the perpetrators of the crimes in question
8 were the Mujahedin, and did not allow for the conclusion that they were
9 the men who later formed the EMD.
10 It follows that his failure to conduct further inquiries into the
11 allegations raised in 1993 cannot be considered as an indicator that
12 Rasim Delic had sufficiently alarming information that future similar
13 crimes could be committed by the EMD in 1995 more than two years after
14 the Bikosi events.
15 The majority then examined whether the alleged killing of Paul
16 Goodall, a British humanitarian worker by members of the EMD would
17 provide Rasim Delic with sufficiently alarming information. In early
18 1994, a joint military-civilian force arrested three suspect, two of whom
19 were identified as members of the EMD. The majority took into account
20 the fact that Rasim Delic had been aware that adequate measures had been
21 taken to punish the perpetrators and that no subsequent incidents of
22 murder by EMD members had been reported to him in the following 16
23 months. These circumstances, in the majority's view, militate against
24 his reason to know that similar crimes would be committed in July and
25 August 1995 by the same group of subordinates.
1 The majority also examined other instances in which Rasim Delic
2 had been informed via bulletins sent by Security Administration, of
3 incidents of misconduct involving EMD members, some of which amounted to
4 criminal offences including physical assaults. The majority was of the
5 view that these incidents had called for further inquiry on the part of
6 Rasim Delic, in particular with a view to preventing the commission of
7 war crimes by EMD members. The majority was therefore satisfied that the
8 EMD's record of misdemeanours and criminal offences had constituted
9 information which would qualify the report on the capture of enemy
10 soldiers in bulletin 737 as sufficiently alarming to justify his
11 immediate intervention to determine whether the EMD was about to commit
12 or had commit crimes in July and August 1995. In failing to conduct any
13 inquiry, Rasim Delic accepted the risk of the commission of those crimes.
14 In particular, in light of the entire evidence, the majority was
15 satisfied beyond a reasonable doubt that Rasim Delic had reason to know
16 that members of the EMD were about to commit or had commitment the crime
17 of cruel treatment against these detainees. However, as explained in
18 more detail in the judgement, the majority found that the information
19 available to Rasim Delic about the propensity of EMD members to commit
20 crimes had not been sufficiently alarming to put him on notice that the
21 crime of murder might be committed by such members.
22 The majority also found that Rasim Delic had failed to take the
23 necessary and reasonable measures to prevent the crimes in July and
24 August of 1995 and after the commission of those crimes, to punish the
25 perpetrators thereof. In this regard, the majority was satisfied that
1 there is no evidence to indicate that Rasim Delic had reacted in any way
2 to the information contained in bulletin 137 of the 22nd of July 1995
3 about the capture of VRS soldiers by the EMD, nor is there any other
4 piece of evidence which would suggest that Rasim Delic attempted to find
5 out more about the fate of the detainees in the custody of the EMD.
6 As regards the crimes committed by Kesten and the Kamenica camp
7 in September 1995 by EMD members the evidence shows that the Main Staff
8 Security Administration received a report from the security service of
9 the 3rd Corps on the 16 September 1995. This report forwarded an
10 intercepted fax of the EMD stating that "the Mujahedin gained ground and
11 entered a group of Serbian villages, and took 60 prisoners after the
13 However, this information was not included in the bulletins sent
14 to Rasim Delic. Rather, the report of 16 September 1995 was eventually
15 deposited with the counter-intelligence department of the Security
16 Administration. There is no evidence that Rasim Delic had information in
17 his possession that the EMD had taken captives, much less that any crimes
18 were committed against them. Contrary to the Prosecution's contention,
19 the majority was not satisfied that the Security Administration of the
20 Main Staff, or any other source had informed Rasim Delic of the capture
21 and killing of the captives. The majority noted that, unlike the
22 bulletins which had within provided specifically to Rasim Delic there is
23 no evidence that information in the possession of the 3rd Corps and the
24 two articles published in ABiH gazettes was able to Rasim Delic or that
25 the information contained therein was brought to his attention.
1 Finally the majority examined a number of bulletins received by
2 Rasim Delic during the period from August to September 1995, containing
3 information on criminal behaviour of EMD members. However, the majority
4 found that, in the absence of evidence that Rasim Delic had known that
5 Bosnian Serb soldiers and civilians were detained by the EMD, the
6 information contained in the bulletins alone was insufficiently alarming
7 to put him on notice of the risk of the crimes committed in Kesten and
8 the Kamenica camp in September 1995. The majority found that it could
9 not be concluded beyond a reasonable doubt that Rasim Delic had reason to
10 know that the EMD was about to commit or had committed the crimes of
11 murder and cruel treatment against Bosnian Serb soldiers and civilians in
12 Kesten and the Kamenica camp in September 1995.
13 To sum up, the majority only found beyond a reasonable doubt that
14 Rasim Delic, as a superior, had reason to know of the crime of cruel
15 treatment committed by EMD members against 12 VRS detainees and had
16 failed to prevent and punish this crime. Rasim Delic therefore, incurs
17 individual criminal responsibility for the crime of cruel treatment under
18 Article 7(3) of the statute.
19 The majority now turns to the matter of sentencing.
20 In relation to the gravity of the crimes, the majority, amongst
21 others recalled the appallingly brutal nature of the acts of mistreatment
22 against the 12 VRS soldiers which had lasted more than one month and the
23 physical and mental suffering that the victims had endured while
24 subjected to such abysmal treatment during their detention in Livade and
25 the Kamenica camp. The majority also noted that the victims had been
1 detained under strict guard of the EMD. This situation rendered the
2 victim the particularly vulnerable. The majority was also mindful that
3 it had found Rasim Delic to have had inputted knowledge of these crimes
4 as opposed to actual knowledge.
5 The Prosecution submits that the fact that Rasim Delic held "the
6 highest military position" in the ABiH must be considered as an
7 aggravating circumstance. The majority, however, recalled the Appeals
8 Chamber's holding that "in the context of a conviction under Article 7(3)
9 of the statute use of the superior's position of authority as an
10 aggravating circumstance would be inappropriate since it is itself an
11 element of the criminal liability."
12 It is the superior's abuse of authority that may be taken into
13 consideration. In this case, there is no evidence suggesting that
14 Rasim Delic abused his authority.
15 As a mitigating circumstance -- circumstances, I'm sorry, the
16 majority took into account the voluntary surrender of Rasim Delic, his
17 family circumstances, the absence of a prior criminal record, and his
18 good character as represented by among others his efforts to disseminate
19 international humanitarian law within the ABiH and his substantial
20 involvement in the negotiation of peace accords, including the
22 that Rasim Delic had faced a number of extraordinary challenges and
23 difficulties from the moment that he took office as ABiH Main Staff
24 commander on 8 June 1993
25 equipment within the ABiH, and a number of senior officers who had not
1 immediately accepted the authority of Rasim Delic.
2 Mr. Delic, will you please rise.
3 This Trial Chamber, having considered all of the evidence and the
4 arguments of the parties and based upon the factual and legal findings as
5 determined in the judgement unanimously finds you, Rasim Delic, not
6 guilty pursuant to Article 7(3) of the statue and therefore acquits you
7 of the following counts:
8 Count 1, murder, as a violation of the laws or customs of war,
9 pursuant to Article 3 of the statute.
10 Count 2, cruel treatment as a violation of the laws or customs of
11 war, pursuant to Article 3 of the statute in relation to the events in
12 Bikosi on the 8th June 1993 as well as the events in Kesten and the
13 Kamenica camp in September 1995.
14 Count 4, cruel treatment, as a violation of the laws or customs
15 of war, pursuant to Article 3 of the statute.
16 The Trial Chamber by majority Judge Moloto dissenting finds you
17 Rasim Delic guilty pursuant to Article 7(3) of the statue of the
18 following count:
19 Count 2, cruel treatment as a violation of the laws or customs of
20 war pursuant to Article 3 of the statute, in relation to the events in
21 Livade and the Kamenica camp in July and August, 1995.
22 The Trial Chamber by majority, Judge Moloto, dissenting, hereby
23 sentences you, Rasim Delic, to a single sentence of three years
24 imprisonment. You have been in custody for 488 days, pursuant to Rule
25 101(C) of the rules, you are entitled to credit for the period of time
1 you have been in custody towards service of the sentence imposed.
2 Pursuant to Rule 103(C) of the rules you shall remain in custody of the
3 Tribunal pending the finalization of arrangements for your transfer to
4 the state where you shall serve your sentence.
5 Judge Moloto appends a dissenting opinion. He also places on
6 record that he participated in the deliberations on and agreed with all
7 findings on Rasim Delic's notice and failure to prevent and punish.
8 However, based on his conclusion on effective control as detailed in his
9 dissenting opinion, he dissented from the sentence that the majority
10 imposed on Rasim Delic.
11 That concludes the judgement.
12 --- Whereupon the hearing adjourned at 3.31 p.m.