Tribunal Criminal Tribunal for the Former Yugoslavia

Page 9005

 1                           Monday, 15 September 2008

 2                           [Judgement]

 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

 7     courtroom.

 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

18     Prosecution.

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

Page 9006

 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.  The Trial Chamber sat 114 trial days

 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

Page 9007

 1     individuals were allegedly injured by gunshot wounds.  The crimes

 2     allegedly took place in June 1993 in the village of Bikosi located in the

 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 in the

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 in

16     the municipality of Zavidovici, as well as the cruel treatment and the

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

20     EMD.

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, the Trial Chamber held that Rasim Delic

Page 9008

 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 of

 8     Yugoslavia.  In April 1992, an armed conflict broke out in Bosnia and

 9     Herzegovina between Serb forces and forces of the Republic of Bosnia and

10     Herzegovina.

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

Page 9009

 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

14     command.

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

17     Sarajevo which provided for the organisation of all foreign volunteers in

18     the 3rd Corps's area of responsibility into a detachment within the ABiH.

19     On the following day, 13 August 1993, Rasim Delic signed an order

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

Page 9010

 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

12     indictment.

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 in the morning of 8

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

Page 9011

 1     some wounded soldiers and ordered them to walk back in the direction of

 2     Bikosi.

 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

Page 9012

 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

23     2.

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

Page 9013

 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

 7     shocks.

 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.  The captives were

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

Page 9014

 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 and 14th December 1995.  The Trial Chamber

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

Page 9015

 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

Page 9016

 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, Mujahedin from the Poljanice camp engaged in the

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

Page 9017

 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 Staff when the killings in Bikosi occurred.  In this

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

18     day.

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

Page 9018

 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 and

22     Herzegovina, the ability to investigate and punish EMD members,

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,

Page 9019

 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 until the EMD had been disbanded in December 1995, at the

 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

Page 9020

 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

Page 9021

 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

Page 9022

 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,

Page 9023

 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.

Page 9024

 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

Page 9025

 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

12     killing."

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.

Page 9026

 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

Page 9027

 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

21     Dayton Agreement.  The majority also took into consideration the fact

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, including the lack of organisation and

25     equipment within the ABiH, and a number of senior officers who had not

Page 9028

 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

Page 9029

 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.

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