1 Tuesday, 19 January 2010
2 [Appeals Hearing]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 9.34 a.m.
6 JUDGE VAZ: [Interpretation] Good morning to everyone.
7 Madam Registrar, would you please call the case before us today.
8 THE REGISTRAR: Good morning, Your Honours. This is case
9 IT-04-83-A, the Prosecutor versus Rasim Delic.
10 JUDGE VAZ: [Interpretation] Thank you.
11 I would first like to inquire whether Mr. Delic can follow the
12 proceedings in a language he understands. Thank you, Mr. Delic, for
13 telling us so.
14 Could I please have the appearances, starting with Mr. Delic's
16 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. Good
17 morning to all in the courtroom. Vasvija Vidovic and John Jones for the
18 Defence of General Delic, with Lejla Gluhic and Sabina Dzubur as our
20 JUDGE VAZ: [Interpretation] Thank you.
21 And on the Prosecution side?
22 MR. KREMER: Morning, Your Honours. Peter Kremer appearing on
23 the Prosecution, assisted by Todd Schneider, Elena Martin-Salgado,
24 Kyle Wood, and our assistant this morning is Lourdes Galicia
25 JUDGE VAZ: [Interpretation] Thank you, Mr. Kremer.
1 First of all, I recall that a Status Conference was held on the
2 6th of February, 2009, pursuant to Rule 65 bis of the Rules of Procedure
3 and Evidence. Having consulted the parties and on account of the fact
4 that Rasim Delic was on conditional release in the period pending appeal,
5 it was decided not to hold any further appeal Status Conferences.
6 The Appeals Chamber is sitting today to hear the parties'
7 submissions related to the appeals filed by Rasim Delic and the
8 Prosecution against the trial judgement. Before I give the floor to the
9 parties, let me briefly summarise the grounds of appeal pending before
10 the Appeals Chamber and I will also outline the way the hearing the
11 proceed today.
12 In its judgement of 15th of September, 2008, Trial Chamber I made
13 up of Judge Moloto, Presiding Judge, Judges Harhoff and Lattanzi,
14 sentenced by a majority decision Rasim Delic to a single sentence of
15 three years of imprisonment for the count he was found guilty of, namely,
16 Count 2, cruel treatment, a violation of the laws or customs of war,
17 punishable under Articles 3 and 7(3) of the Statute of the Tribunal in
18 relation to events in Livade and the Kamenica camp from July to
19 September 1995.
20 Rasim Delic appealed against the trial judgement and the
21 Prosecution appealed against the sentence against Rasim Delic.
22 Under his first ground of appeal, Rasim Delic submits that the
23 Trial Chamber erred in law or in fact in finding that he had effective
24 control over the El Mujahed Detachment from July to December 1995.
25 First, he contends that the Trial Chamber erred in fact in
1 relation to the indicators of effective control that it found to have
2 existed and in failing to consider indicators of lack of effective
4 Second, Delic contends that the Trial Chamber failed to draw the
5 proper inferences from its findings and from the evidence regarding the
6 structure, functioning, and role of the ABiH, the RBiH Presidency, the
7 KM Kakanj, and the chain of command within the Army of
9 Third, Delic submits that the Trial Chamber erred when it found
10 that the ABiH organisation improved considerably in the period between
11 1993 and 1995, allowing Delic to exercise effective control over the EMD.
12 Fourth, Delic contends that the Trial Chamber erred in law in
13 misapplying the burden and the standard of proof.
14 Fifth, Delic argues that the Trial Chamber erred in law by
15 denying him the right to a fair trial when convicting him on the basis of
16 his superior-subordinate relationship to the EMD, whereas it was not
17 pleaded in the indictment.
18 Under his second ground of appeal, Delic contends that the
19 Trial Chamber erred in finding that he had reason to know that members of
20 the EMD were about to commit or had committed the crime of cruel
21 treatment against VRS soldiers detained by the EMD.
22 First, he argues that by virtue of the cumulative effect of a
23 number of errors, the Trial Chamber erred in fact, occasioning a
24 miscarriage of justice.
25 Second, the Delic submits that the Trial Chamber erred when it
1 found that he had received information concerning the EMD's record of
2 misdemeanours and criminal offences and that this information was such as
3 to qualify bulletin 137 as sufficiently alarming to justify his immediate
4 intervention in order to determine whether members of the EMD were about
5 to commit or had committed crimes in Livade and the Kamenica camp in July
6 and August 1995 or had committed them.
7 Third, Delic claims that the Trial Chamber erred in law in
8 finding that he had reason to know that crimes had been or were about to
9 be committed on the sole basis that he had sufficiently alarming
10 information at his disposal.
11 Fourth, Delic claims that the Trial Chamber erred both in law and
12 in fact in holding that his failure to conduct an investigation to
13 determine whether EMD members were about to commit or had already
14 committed crimes in Livade and the Kamenica camp in July and August 1995
15 entailed that he exacted the risk that crimes were about to be committed
16 or had been committed by EMD members in July and August 1995.
17 Fifth, Delic argues that the Trial Chamber erred in law in
18 finding that Delic's alleged knowledge of less serious offences committed
19 by the EMD which did not contain the elements of cruel treatment as a
20 violation of the laws or customs of war was sufficient to put him on
21 notice that the more serious offences of cruel treatment would be
22 committed by the EMD.
23 Lastly, in his third and last ground of appeal, Rasim Delic
24 claims that the Trial Chamber erred in finding that he had not taken the
25 necessary and reasonable measures to prevent and punish the cruel
1 treatment inflicted by members of the El Mujahed Detachment on soldiers
2 of the Army of the Serb Republic
3 Livade and in the Kamenica camp in July and August 1995.
4 Firstly, Mr. Delic submits that the Trial Chamber committed a
5 two-fold error of law and fact when it held that he had the material
6 ability to prevent and punish the cruel treatment committed in July and
7 August 1995.
8 Secondly, Mr. Delic alleges that the Trial Chamber committed a
9 two-fold error of law and fact when it failed to specify any of the
10 necessary and reasonable measures he could have taken under the
11 circumstances at the time and that were in his power to prevent and
12 punish the crimes committed by the El Mujahed Detachment.
13 Thirdly, Mr. Delic contends that the Trial Chamber erred in
14 finding that neither he or any other individual under his authority or
15 under his leadership or command had taken the necessary and reasonable
16 measures to prevent or punish the cruel treatment inflicted on the
17 detainees in Livade and in the Kamenica camp in July and August 1995.
18 Fourthly, Mr. Delic submits that the Trial Chamber erred when it
19 relied on the information contained in bulletin 137 to establish his
20 responsibility for failing to prevent or punish the crimes.
21 Mr. Delic, therefore, requests the Appeals Chamber to quash his
22 conviction and to substitute it for a finding of not guilty.
23 The Prosecution objects to Rasim Delic arguments. The
24 Prosecution more specifically claims that the Trial Chamber committed no
25 error of fact or law when it concluded that Mr. Delic exercised effective
1 control over the members of the El Mujahed Detachment, that he had reason
2 to know that members of this detachment were about to commit crimes or
3 that they had committed them, and that Rasim Delic failed to take the
4 necessary and reasonable measures to prevent or punish the crimes.
5 As stated above, the Prosecution appeals against Rasim Delic's
6 three-year sentence. The Prosecution argues that the Trial Chamber
7 correctly stated the law that applies to sentencing, but that it erred in
8 law in imposing a manifestly inadequate sentence.
9 Firstly, the Prosecution alleges that the Trial Chamber's
10 sentence does not reflect the appallingly brutal nature of the crimes
11 committed by Rasim Delic's subordinates.
12 Secondly, the Prosecution argues that the Trial Chamber did not
13 sufficiently consider the gravity of Rasim Delic's breach of his duties
14 as a commander.
15 Thirdly, the Prosecution claims that the Trial Chamber erred when
16 it failed to consider the likely sentence of Rasim Delic's subordinates.
17 And fourthly, the Prosecution claims that the Trial Chamber
18 failed to meet the two main objectives of sentencing that apply to
19 international crimes, namely, deterrence and retribution. The
20 Prosecution requests the Trial Chamber -- the Appeals Chamber to impose a
21 more appropriate sentence of seven years' imprisonment.
22 At this hearing, the counsel of the parties may submit their
23 grounds and subgrounds of appeal in the order they consider the most
24 appropriate. I would nonetheless like to remind the parties that they
25 have been asked to develop three questions which have been disclosed to
1 them in the addendum to the Scheduling Order of the 15th of December,
2 2009, questions I shall not go over here.
3 I shall now remind you of the standards that apply to errors of
4 fact and errors of law on appeal. Appeals against trial judgements do
5 not give rise to a trial de novo. The parties may not merely repeat the
6 arguments that the Trial Chamber has heard already. It follows from
7 Article 25 of the Statute that the Appeals Chamber's role is limited to
8 correcting errors of law that invalidate the decision and errors of fact
9 that have occasioned a miscarriage of justice. Consequently, the party
10 alleging an error on a question of law must present arguments in support
11 of its claim and explain how the error invalidates a decision.
12 As for errors of fact, it is well established in the
13 jurisprudence of this Tribunal that the Appeals Chamber does not lightly
14 disturb findings of fact reached by a Trial Chamber. The Appeals Chamber
15 will thus only intervene once it has been established that no reasonable
16 trier of fact could have reached the same finding or when that finding is
17 wholly erroneous.
18 Moreover, the Appeals Chamber may summarily dismiss, without
19 considering them on their merits, arguments submitted by a party that
20 have no chance of reversing or setting aside the impugned decision. The
21 appealing parties must also provide specific references of the material
22 presented in support of their arguments on appeal. In addition, the
23 Appeals Chamber must not be expected to analyse the findings of the
24 parties in detail if they are obscure, contradictory, or vague, or if
25 they suffer from other formal and obvious insufficiencies.
1 Lastly, the Appeals Chamber has an inherent power to determine
2 which arguments merit a reasoned response in writing and which arguments
3 may be dismissed without any detailed reasoning because they are
4 evidently unfounded.
5 This hearing will proceed according to the addendum to the
6 Scheduling Order of December -- of 15th of December, 2009. The Defence
7 will start submitting its arguments this morning for one hour and a
8 quarter. After a 30-minute break, the Prosecutor may submit its
9 arguments in response for 50 minutes. After the Prosecution's response,
10 the Defence will have 20 minutes to submit its arguments in reply. After
11 one -- a one-hour lunch break, the Prosecution may submit its arguments
12 for one hour. The Defence will have 50 minutes to submit its arguments
13 in response. The Prosecution will then have 20 minutes to submit its
14 arguments in reply.
15 Finally, Mr. Delic will be invited to take the floor, if he
16 wishes to, for a short statement lasting no longer than ten minutes.
17 Arguments presented clearly, logically, and concisely would
18 greatly assist the Appeals Chamber. The Judges will take the liberty to
19 interrupt the parties at any time to ask for clarifications or to put
20 questions. This is what I wish to share with you. If there are no
21 questions on the conduct of these proceedings, I would now like to invite
22 the Defence to submit its arguments on appeal.
23 MR. JONES: Your Honour, I'm obliged. By way of preliminary,
24 we've prepared bundles containing extracts of the case law to which I'll
25 refer in the course of answering the first of the Chamber's questions.
1 So I wonder if we could distribute that now. There are six copies, one
2 for the Prosecutor and five for the Bench and one for the Registry.
3 And, Your Honours, looking at the clock, I see that it's nearly
4 10.00. I take it, then, that I can go until 11.15. I realise that's
5 slightly later than the Scheduling Order --
6 MS. VIDOVIC: [Interpretation] Exactly.
7 MR. JONES: I'm obliged.
8 Your Honours, this morning I'm going to address the three
9 questions posed by the Chamber, but I'd like to start, if I may, by
10 encapsulating our appeal on ground one in one core submission, which is
11 this. The conclusion of Judge Harhoff and Judge Lattanzi on effective
12 control simply does not follow from their own findings. Against the
13 backdrop of the Chamber's own findings on effective control, their
14 conclusion is a non sequitur. That's their error. A reasonable trier of
15 fact doesn't reach conclusions which are contradicted by their own
16 findings, and that's also why Judge Moloto's dissent is so important,
17 because his conclusion does follow from the Chamber's findings.
18 Excuse me, I'm obliged to my colleague.
19 As a matter of law, logic, and fact, Judge Moloto's conclusion
20 does follow and his dissent shows that the only reasonable view of the
21 case was that there was at least a reasonable doubt that Delic exercised
22 effective control over the EMD. And so the majority erred and they
23 occasioned a miscarriage of justice.
24 Fortuitously, Your Honours' first question helps me to illustrate
25 that point, and so I turn to the indicators of effective control. We say
1 the case law establishes at least the following 12 propositions. The
2 first proposition. In order to establish effective control it must be
3 shown not only that an accused issued orders, but that those orders were
4 in fact obeyed by the perpetrators. This proposition is well established
5 and finds expression, for example, in the Strugar appeal judgement at
6 paragraph 256, whether a superior's orders are, in fact, followed can be
7 indicative of a superior's effective control over the subordinates. The
8 Appeals Chamber notes that in addition to finding that Strugar had the
9 authority to issue orders, the Trial Chamber also established that
10 Strugar's orders were actually followed. And we rely for that
11 proposition too on the Halilovic appeal judgement, paragraph 207; the
12 Hadzihasanovic appeal judgement, paragraph 199; and the Dragomir
13 Milosevic appeal judgement, at paragraph 280.
14 It follows that a counter-indicator of effective control is
15 disregard or noncompliance by the perpetrators with orders or
16 instructions issued by the accused. This is usefully illustrated by the
17 Hadzihasanovic appeal judgement at paragraphs 225 to 227, where the
18 Appeals Chamber dealt with the ABiH 3rd Corps' inability to obtain the
19 release of one of its own soldiers who had been abducted, detained, and
20 mistreated by the EMD for consuming alcohol. Although the 3rd Corps
21 commander ordered his release, the EMD did not obey, nor did they release
22 him even when threatened with attack. As the Appeals Chamber noted at
23 paragraph 227:
24 "The EMD was never requested by the 3rd Corps to catch hostages,
25 nor did it receive any approval for doing so. Quite to the contrary, its
1 behaviour was in reckless disregard of the 3rd Corps' requests that it
2 abstain from these abductions. It did not comply with Mehmed Alagic's
3 order to release them or release them when threatened with the use of
5 And so the Appeals Chamber found that:
6 "These events confirm that Hadzihasanovic did not have effective
7 control over the El Mujahed Detachment and:
8 "Demonstrate that there were areas in which the EMD acted
9 independently from the 3rd Corps." Paragraph 226.
10 These facts are, of course, strikingly similar to the facts of
11 this case. Indeed, we say, the evidence is much stronger, as you'll see
12 from paragraphs 403 to 404 of the judgement, where the Chamber held that
13 by capturing and holding VRS soldiers who were mistreated, in July and
14 August 1995, the very events for which Delic was convicted:
15 "The EMD did not comply with the obligations as set out by the
16 35th Division commander concerning the handling of captives taken during
17 combat," and that the EMD acted "in defiance of ABiH orders, in defiance
18 of ABiH orders."
19 Yet Judges Harhoff and Lattanzi failed to draw the obvious
20 conclusion from this, the conclusion reached by the Appeals Chamber in
21 Hadzihasanovic and by Judge Moloto in this case, in particular at
22 paragraph 27 of his dissent, namely, that such events showed that the
23 accused did not have effective control over the EMD. And a litany of
24 orders disobeyed by the EMD is further set out by the Chamber at
25 paragraphs 371 to 385 of the judgement.
1 The second proposition, evidence that the alleged subordinates
2 reserved their right to participate or not to participate in combat is a
3 counter-indicator of effective control. The Hadzihasanovic trial
4 judgement provides authority for that proposition. At paragraph 795, the
5 Chamber referred to evidence:
6 "That the Mujahedin reserved the right to decide for themselves
7 whether or not to join combat."
8 In this case too, the Chamber clearly found that the EMD "made
9 their own decisions" about whether to participate in combat,
10 paragraph 382, and that the EMD would simply "decline to take part in a
11 given ABiH operation" if they deemed the conditions not met. In other
12 words, the EMD simply made up their own mind whether to participate in
13 combat, regardless of what the ABiH ordered. If that's effective
14 control, then it has to be said it's not very effective.
15 The third proposition, erratic behaviour and prior instances of
16 indiscipline on the part of the alleged subordinates is relevant to
17 assessing effective control. This proposition is found, for example, in
18 the Strugar appeal judgement at paragraph 257, where the Appeals Chamber
19 found that:
20 "Evidence of prior instances of indiscipline and of noncompliance
21 with orders would be clearly relevant to an assessment of whether Strugar
22 had effective control over his subordinates."
23 Likewise, in the Oric appeal judgement:
24 "The Appeals Chamber considers that if a superior-subordinate
25 relationship existed, it cannot be relevant to ask whether the
1 subordinate's behaviour was erratic. However, if it is not clear whether
2 that relationship existed, it can be relevant to take into account the
3 erratic behaviour of the subordinate in determining whether the superior
4 had the 'material ability to prevent or punish' necessary for effective
5 control." Paragraph 159.
6 That observation is clearly relevant here. In this case it was,
7 at the very least, not clear that a superior-subordinate relationship
8 existed between Delic and the EMD. Indeed, we say, it was abundantly
9 clear that the EMD members were not Delic's subordinates.
10 So in those circumstances it was highly relevant to take into
11 account the erratic behaviour of EMD members in determining whether Delic
12 had effective control. The majority entirely failed to do so. There was
13 a super-abundance of evidence of the EMD's erratic and dangerous
14 behaviour, by which I mean dangerous to the ABiH whom EMD members
15 habitually threatened and abused. See paragraph 408 of the judgement.
16 So one is in a sense spoiled for choice. In E 774, for example, one
17 finds this account of a dispute between the EMD and a regular ABiH unit:
18 "On this occasion," and this is July 1995, precise time of
19 these -- the events at which Delic was convicted.
20 "On this occasion, members of the El Mujahed were saying that the
21 basic objective of their struggle was to exterminate the Serbs and Croats
22 and added that they were expecting from everyone to remain on the path of
23 Allah, and sooner or later the two units, i.e., the EMD and the ABiH unit
24 in question, would clash because of their difference."
25 And one sees the same thing in dozens of exhibits, E 125, E 667,
1 E 670, E 760 -- sorry, E 737, E 800, E 801, E 872, E 892, E 903, E 934,
2 E 938, E 1084, each of which I would urge the Appeals Chamber to review
3 in order to get a true flavour of how the EMD behaved, how dangerous to
4 other ABiH units, and how wild and completely ungovernable they were.
5 And Prosecution witnesses, Hasanagic, Imamovic, Sljuka, and Sehic, all
6 told the same story at T3102, T4058, T4370, and T5086, respectively. And
7 really, there can be no dispute as to the bizarre erratic, and dangerous
8 behaviour of the EMD.
9 The fourth proposition, effective control is absent when the
10 perpetrators have the independent power to take decisions and to act.
11 Thus, in the Oric trial judgement at paragraph 706, the Chamber found
12 that local armed groups "were primarily loyal to their respective
13 commanders" and acted independently. And, therefore, it followed they
14 were not under Oric's effective control. Again, we say this applies a
15 fortiori to the EMD and Delic's command.
16 "The EMD had a 'religious council,' the shura, which was its
17 supreme decision-making body."
18 Those are the Chamber's own words, its own finding at
19 paragraph 189 of the judgement. And "the shura was the final authority,
20 the final authority, within the EMD regarding all matters of importance.
21 The Emir was elected by and answerable to the shura; his decisions could
22 be amended or overturned only by that body."
23 Again, the Chamber's own words from the same paragraph, and it
24 was to the Emir alone that the EMD were loyal.
25 In our submission, the fact, as found by the Chamber, that the
1 supreme decision-making body, the final authority over the EMD was not
2 the ABiH, but the religious council, the shura, cannot be reconciled with
3 there not even being a reasonable doubt as to effective control.
4 Look what Ismet Alija, again a Prosecution witness, said about
5 the EMD.
6 "In my knowledge and according to my information, the EMD was not
7 within the system of command and control. They were a closed unit and
8 they stood for themselves. They were independent. They were very
9 difficult to reach or receive information about their activities. They
10 made their own decisions."
11 He went on to explain the shura:
12 "Your Honours, I believe that you know that they had their own
13 way of decision-making. That term is 'shura,' is something like a
14 council of sorts. And if they decided to do something, they did it. And
15 if they decided not to do, they didn't do it. And they would not take
16 anybody's orders." T4156.
17 Those are the words of a Prosecution witness. How striking is
19 As with all Prosecution witnesses, I emphasise the fact because,
20 in our submission, the Prosecution cannot credibly go behind or seek to
21 contradict the words of its own witnesses, not if they haven't had them
22 declared hostile.
23 The fifth proposition is that an insufficiently developed or
24 dysfunctional chain of command is a counter-indicator of effective
25 control. That proposition is axiomatic and finds expression, inter alia,
1 in the Oric trial judgement at paragraph 707.
2 The sixth proposition is that evidence that the alleged
3 subordinates did not regard themselves as being under the command of the
4 alleged superior and vice versa indicates a lack of effective control.
5 Authority for that proposition is to be found, inter alia, in the
6 Hadzihasanovic trial judgement at paragraph 795, where the Chamber
7 referred to the evidence that:
8 "3rd Corps commanders did not believe they had the authority to
9 give orders to the Mujahedin."
10 In this case, again on the Chamber's own finding, the EMD stated:
11 "'We are now one unit, we have our own body which is formally
12 under the control of the [ABiH], but the [ABiH] cannot order us to engage
13 in actions against our will.'"
14 I hope to revert to the matter later if I have time, but the very
15 concept that one cannot be ordered to engage in actions against one's
16 will gives the line to the idea that there is compliance when the EMD
17 went along with all this. They're not following orders or obeying orders
18 if it simply coincides with what you would do anyway. That's the
19 Chamber's finding at paragraph 381, and we would also refer you to its
20 findings at paragraphs 432 and 453 in that regard. And this was also the
21 evidence of Prosecution Witness Imamovic, T4045; Prosecution Witness
22 Sljuka, T4301, and T4369; Prosecution Witness Hajderhodzic at T3784;
23 Prosecution Witness Husic at T446; and Prosecution Witness Awad at T172
24 of the Sarajevo
25 Time and again, former EMD members in this trial gave evidence
1 that they did not consider themselves a part of the ABiH at all and
2 exhibits bore that out. Yet, the majority didn't consider this aspect at
3 all as detracting from or creating a reasonable doubt as to effective
5 The seventh proposition concerns reporting, evidence that the
6 perpetrators did not submit reports to the alleged superior and/or that
7 they did submit reports to other superiors is a counter-indicator of
8 effective control. We refer to the Hadzihasanovic trial judgement at
9 paragraph 795, which refers to the relevance of the fact that there was
10 "no evidence indicating that the Mujahedin sent combat reports or other
11 reports on their activities to those in charge of the combat in which
12 they took part."
13 Now, reporting is key to effective control. As Judge Moloto
14 correctly pointed out in his dissent at paragraph 15:
15 "The EMD's failure to report to its immediately superior unit
16 coupled with the EMD's erratic behaviour towards the orders of the ABiH
17 seriously undermined the command and control of Rasim Delic. A chain of
18 command lies in the flow of orders and information, the transmission of
19 information up and down the chain of command, and the ability of a
20 commander to exercise his authority through orders constitute the two
21 essential components of a system of command and control. Only if these
22 two components function is a commander in a position to control his units
23 and induce obedience from them. However, this did not happen in relation
24 to the EMD."
25 Yet again, the majority's conclusion regarding effective control
1 is belied by its own findings. The Chamber found or at least did not
2 dispute that "the EMD never submitted written or oral operative reports
3 to the 35th Division," its allegedly superior unit in the ABiH, paragraph
4 424 --
5 JUDGE VAZ: [Interpretation] One moment, please.
6 Yes, Judge Meron, has a question for you.
7 JUDGE MERON: Thank you. In paragraph 430 of the judgement, last
9 MR. JONES: Sorry, I didn't catch the paragraph?
10 JUDGE MERON: I'm terribly sorry, paragraph 430 of the judgement.
11 "Although the EMD was officially re-subordinated to the
12 35th Division ... it orally reported several times to the 3rd Corps
13 command on the progress of the combat activities," how to reconcile this
14 with your argument, counsel.
15 MR. JONES: Yes.
16 JUDGE MERON: And the fact that there is some evidence of oral
17 reporting by the EMD to its superior's commanders, would this not
18 indicate a level of control?
19 MR. JONES: Yes. If I may, the position with the 3rd Corps and
20 the 35th Division in itself is extremely revealing about the lack of
21 effective control, because according to the evidence as accepted by the
22 Chamber, the principle of unity of command meant that subordinate units
23 reported to their next superior unit, which was the 35th Division. So
24 already the fact that the EMD simply disregarded that and when they felt
25 like it went over the heads of the 35th Division to the 3rd Corps,
1 reveals that they didn't care [indiscernible] about the system which was
2 meant to be in place.
3 As to oral reporting, we would respectfully adopt what
4 Judge Moloto says in relation to that, which is that oral reporting,
5 firstly when written reports are required to be submitted, hardly meets
6 the requirements imposed within the ABiH. But oral reporting, the
7 evidence showed, was entirely consistent with two allied units fighting
8 together, ensuring before an action that they didn't end up shooting each
9 other. It's something which any allied co-operative fighting unit would
10 do in order to avoid friendly fire. It's common sense. The majority
11 suggested that this was because there was a language problem, which we've
12 dealt with in our appeals brief. It's a non-explanation. Because of the
13 Bosnian speakers in the EMD, they could have easily submitted written
14 reports if they wanted to. The fact that the majority felt that they
15 needed to make that explanation is itself revealing.
16 I don't know if that assists.
17 Now, by contrast, the EMD did send detailed written reports to
18 its foreign masters. See, for example -- sorry, is there another
19 question from the Bench?
20 JUDGE VAZ: [Interpretation] Yes, indeed. Judge Liu had a
21 question for you.
22 JUDGE LIU: Well, I wonder whether you finished your answer. If
23 not, you may continue; and after that I'll raise my question to you.
24 MR. JONES: No, I am finished.
25 JUDGE LIU: Yes. Thank you.
1 Well, I believe that in your presentations you mentioned the
2 insufficiently developed and dysfunctional chain of command in the ABiH
3 and EMD, and you also mentioned the case law in Hadzihasanovic's case. I
4 understand, you know, that the Appeals Chamber overturned the
5 Trial Chamber's finding of effective control in that case. But I wonder
6 whether you noticed the time difference between the Hadzihasanovic case
7 and the present case. I believe the crimes of which Mr. Hadzihasanovic
8 was convicted was committed between January and September 1993, while in
9 the present case which took place in July and August 1995. The
10 Trial Chamber specifically found out that the command and control
11 improved significantly from 1993 to 1995. Therefore, the circumstances
12 of the present case are materially different from those of the
13 Hadzihasanovic case.
14 What's your comments on this time difference? Thank you.
15 MR. JONES: Yes. Thank you.
16 If I didn't make it clear, I apologise. We rely on
17 Hadzihasanovic appeal judgement purely for the legal principles. That's
18 what I was extracting, and it would be clearly simplistic in the extreme
19 to say, well, there was an acquittal on appeal in Hadzihasanovic and
20 we're entitled to the same acquittal. Obviously, there's a two-year
21 difference. However, the majority's conclusion, that's at paragraph 460:
22 "The Majority finds that the structure, organisation as well as
23 command and control within the ABiH improved significantly from the time
24 when Delic was appointed as Commander" in 1993 until 1995.
25 That's the premise of the majority which distinguishes, if you
1 like, Hadzihasanovic. But if you look at that paragraph there is no
2 reference to any evidence at all. It's pure assertion, and we've dealt
3 in detail in our appeals brief and why we say that's not based on
4 evidence. It's contradicted by the evidence. It's very revealing, they
5 don't cite any evidence there. Surely that's a moment to cite to a
6 witness who says, well, things improved a lot in those two years. No one
7 said that. The exhibits didn't show it. That was their own way to get
8 around Hadzihasanovic.
9 JUDGE LIU: Thank you very much.
10 MR. JONES: In relation to reporting the other component is the
11 EMD did send - and this is revealing - detailed written reports to its
12 foreign masters. And I was referring to, as you'll see, a very detailed
13 combat report at paragraph 444 of the judgement. If you have it out,
14 I'll ask you to turn it up because it's revealing. The report is so
15 specific it refers to how the assault groups began to advance at
16 12.02 a.m.
17 different areas involved in the combat. Nothing like that was sent to
18 the alleged superiors in the ABiH, but it was sent abroad.
19 And in terms of oral communication, I've touched on this but I'll
20 perhaps reiterate it, it's hardly surprising that there was some oral
21 communication between the EMD and ABiH units before or during combat
22 because it would be suicide not to, just as it would be suicide for the
23 EMD to launch its own combat operations without telling anyone else. And
24 the majority seemed to consider it significant that the EMD didn't just
25 launch attacks without telling anyone, but obviously, obviously, they
1 wouldn't, if not -- if only for their own self-preservation. And that's
2 what allies do: They communicate in order to co-ordinate their
3 respective combat activities.
4 The French and British forces did it at the Battle of the Marne
5 in the First World War. Allies do it today to avoid friendly fire. It's
6 obvious. And this highlights a crucial point about the flaws in the
7 majority's reasoning. If oral reporting is consistent with nothing more
8 than co-operation, then oral reporting doesn't prove effective control.
9 Indeed, in relation to each indicator, we invite the Appeals Chamber to
10 ask the Prosecution this question: What did the Trial Chamber find which
11 is consistent only with effective control, not consistent with anything
12 else? And the answer is: Nothing. Or putting the question the other
13 way: Is there any finding by the Chamber which is wholly inconsistent
14 with co-ordination, co-operation, joint or mutual assistance or even
15 attempts to establish control, all of which would fall short of effective
16 control? And again the answer will inevitably be: No, there is nothing.
17 The majority should have been able to say: We rule out that these are
18 just two armies co-operating with each other, because if it were only
19 that and not effective control, then X, Y, and Z, but you won't find that
20 in the judgement. They never did that.
21 Which means that Delic had to be acquitted and that his
22 conviction should be quashed now.
23 I turn to the eighth proposition, which is that where authority
24 exists over the perpetrators from persons other than the accused, then
25 that indicates absence of effective control. We refer to paragraphs 216
1 and 217 of the Hadzihasanovic and Kubura appeal judgement, from which two
2 points of principle emerge. First, that:
3 "Effective control cannot be established by process of
5 So we didn't have to show that someone else had effective control
6 over the EMD, but for the Trial Chamber could conclude that Delic did
7 not. Second, that if authority was exercised over the perpetrators by
8 persons other than the accused, then that is a relevant counter-indicator
9 of effective control. That's obvious. No servant can serve two masters,
10 for either he will hate the one and love the other, or else he will hold
11 to the one and despise the other. That's the parable of the unjust
13 In this case there was abundant evidence accepted by the Chamber
14 that authority over the EMD was exerted by foreign state organs, Islamic
15 organisations such as the ICI
16 The ninth proposition is that a key indicator of effective
17 control is whether the perpetrators received weapons and ammunition from
18 the accused. This indicator is clearly expressed in the report of the
19 International Commission of Inquiry on Darfur of 25 January 2005, at
20 paragraphs 111 and 113. The Appeals Chamber will appreciate the chairman
21 of that commission was Antonio Cassese - the first President of this
22 Tribunal and now President of the Special Tribunal for Lebanon - and so
23 while the report is not case law as such, we say it is of strong
24 persuasive authority.
25 In finding "clear links between the Sudanese state and militias,
1 the commission relied as an indicator of effective control, the fact that
2 militias received weapons and regular supplies of ammunition from the
3 army and other state organs."
4 In this case, the Chamber found that the ABiH's assistance to the
5 EMD in terms of ammunition and weaponry was "sporadic and insufficient."
6 Paragraph 418. Conversely, there was abundant evidence that the EMD
7 obtained arms and munition and ammunition from their own sources.
8 Prosecution's own witness Awad, a former EMD member, testified: "We had
9 our own independent logistics and we were stronger than the corps as far
10 as that is concerned." That's T260 on 10.2.08. And the Chamber referred
11 to this unchallenged evidence in footnote 1079 of the judgement and
12 apparently accepted it.
13 This was also borne out by PW-9's evidence at T5682 and by E 676.
14 The tenth proposition may be captured by the dictum, he who pays
15 the piper calls the tune; or in other words, control of the finances and
16 salaries paid to the perpetrators is another indicator of effective
17 control. But for this proposition again we cite the Darfur report,
18 paragraph 113, referring to the payment of monthly salaries as an
19 indicator of control. And the Musema trial judgement at paragraph 880
20 where the Trial Chamber found that Musema had effective control over the
21 employees of the Gisovu Tea Factory, inter alia, because "he exercised
22 legal and financial control over these employees."
23 In this case, the Chamber found that "the EMD was financed
24 through separate channels," separate from the ABiH. And that the
25 salaries of EMD members "came from funds secured by the EMD." That's
1 paragraphs 418 to 419 of the judgement.
2 The evidence in terms of the EMD's financing was
3 incontrovertible. We refer to E 782, the evidence of Prosecution witness
4 PW-9 at T8633 and E 1201, from which you can see the ICI, the Islamic
5 Cultural Institute, sent monthly payments to the EMD. The Chamber
6 accepted this exhibit at footnote 1145.
7 The point about salaries was picked up by Judge Moloto at
8 paragraph 18 of his dissent:
9 "The links of the EMD with the foreign authorities show another
10 area in which the EMD acted independently from the ABiH. Indeed, none of
11 the EMD members was paid by the ABiH." That's a very striking fact. I
13 "Furthermore, the fact that these contacts were put in place by
14 the EMD with a view to promoting its cause and attract funds may also
15 allow the inference that the authorities sponsoring the EMD might have
16 retained a significant influence over them."
17 And as an aside here, I would make an important point that
18 Judge Moloto and the majority shared the same factual findings; they
19 simply drew different conclusions from them. It's an obvious inference
20 and an obvious point but one which escaped the majority. He who holds
21 the purse strings is clearly in a position to dictate terms, to exercise
22 control, and precisely by the threat of cutting off financial support if
23 his orders are not followed.
24 The ABiH and Delic crucially were never in a position to make
25 that threat, to exert control through holding the purse strings. They
1 couldn't threaten to stop paying the EMD if the EMD didn't obey orders
2 because they weren't paying [Realtime transcript read in error "saying"]
3 them. It's as simply as that.
4 And -- sorry, correction in the transcript because they weren't
5 paying them.
6 Indeed one finds that obvious logic that money equals control or
7 the potential for control reflected in the Tribunal's jurisprudence from
8 the earliest days in the Tadic appeal judgement of 15th July 1999 in the
9 context of deciding whether the VRS was under the control of the FRY
10 government. One of the decisive factors for the Appeals Chamber was
11 "'the continuing payment of salaries, to Bosnian Serb and non-Bosnian
12 Serb officers alike, by the government of the Federal Republic
14 The 11th proposition is to prove effective control it must be
15 shown that the accused has disciplinary and investigative powers over the
16 perpetrators as a result of his position of authority, that those powers
17 were actual and effective as opposed to merely formal and unenforceable,
18 and finally that those measures were capable of punishing the crimes that
19 were the basis of the charges and not some other crimes. For example,
20 ordinary crimes like theft. Whereas here it's alleged that the accused
21 had effective control on the basis that crimes by the perpetrators, the
22 EMD, were on occasion punished. There are two separate questions which
23 have to be asked: Who initiated the prosecution and was the prosecution
24 for war crimes or for ordinary crimes? The issue is addressed, for
25 example, in the Oric appeal judgement at paragraph 142, where the Chamber
1 held that Oric's alleged ability to take disciplinary action against the
2 perpetrators was not demonstrated by the fact that he had been
3 "'... instrumental in promoting an investigation'" of the military police
4 chief. Since the Trial Chamber "did not find that Oric took this
5 measure, or was able to do so, as a result of an authority on his part
6 over the military police."
7 The Appeals Chamber therefore quashed Oric's conviction, ruling
8 that the Trial Chamber had erred in finding that Oric exercised effective
9 control over the military police.
10 When we turn back to this case, two very striking facts emerge
11 from the Chamber's findings. One, there was no evidence that Delic was
12 able to discipline EMD members at all. In the section of the judgement
13 dealing with the ability to investigate and punish EMD members, the
14 Chamber was only able to point to criminal proceedings brought against
15 foreign members of the EMD for "illegal behaviour although not for
16 violations of international humanitarian law." Paragraph 470. That's a
17 crucial fact of which the majority failed entirely to appreciate the
19 Second, the criminal proceedings relied on by the majority were
20 not brought by Delic or even by the military, but by the civilian
21 authorities. So in this way the majority fell into the exact same error
22 as the Hadzihasanovic Trial Chamber. In Hadzihasanovic, the
23 Trial Chamber relied on the domestic prosecution of an EMD member to show
24 Hadzihasanovic's authority to punish EMD members. And the Appeals
25 Chamber found that this was an error. At paragraph 219 of the
1 Hadzihasanovic appeal judgement it's stated:
2 "Witness Siljak testified that the alleged perpetrator 'had to
3 appear before the court in Travnik' without specifying which court it
4 was. Even if it were true that the said individual had been brought
5 before the Travnik district military court, there is no indication in the
6 trial judgement as to what role Hadzihasanovic would have had in bringing
7 about the initiation of proceedings against that perpetrator. Nor does
8 Witness Siljak's testimony demonstrate that the perpetrator was
9 prosecuted following measures taken or initiated by the 3rd Corps. The
10 Appeals Chamber stresses that the perpetrator was an identified local
11 Muslim and that both the civilian police and the witness himself may have
12 filed the complaint against him."
13 The exact same situation applies to the Trial Chamber's findings
14 in this case. The majority relied on the arrest of EMD members for the
15 killing of the British aid worker, Paul Goodall, referred to at
16 paragraph 448 of the judgement. Yet, those proceedings were instituted
17 by the Ministry of Interior, civilian ministry, before a civilian court,
18 as the Chamber itself accepted. And that's clear too from Exhibit 887,
19 which is referred to in footnote 1158 of the judgement. The Ministry of
20 Interior civilian police brought a criminal report to the civilian
21 prosecutor in Zenica against the EMD. That has nothing to do with the
22 military or Delic.
23 Likewise, with Exhibit 880 relied on by the majority, see
24 footnote 1164, these were criminal proceedings for theft, an ordinary
25 crime, not one of international humanitarian law. And as in
1 Hadzihasanovic, the perpetrator was an identified local Bosnian Muslim,
2 Sefik Bijelo. And in none of this was there any evidence as to what role
3 Delic would have had in bringing about the initiation of proceedings
4 against the perpetrator.
5 So we say that the Appeals Chamber's reasoning for overruling the
6 Trial Chamber in Hadzihasanovic applies equally here, and the Chamber's
7 findings, we say, at paragraphs 447 to 453 of the judgement are,
8 therefore, absolutely incapable as a matter of law of supporting the
9 majority's conclusion at paragraph 470 that Delic had the material
10 ability to investigate, prevent, and punish war crimes committed by the
11 EMD in July/August 1995.
12 I turn to our 12th and final proposition, which is that effective
13 control is absent if the alleged superior needs to negotiate or have
14 recourse to external pressure to ensure compliance with his decisions and
15 orders. Here, too, we rely on the Hadzihasanovic appeal judgement at
16 paragraph 227, which is worth citing in full.
17 "The independence of the El Mujahedin Detachment from the
18 3rd Corps, as opposed to its subordination to it, is further confirmed by
19 other circumstances. The 3rd Corps had to engage in negotiations for the
20 release of the hostages with some members of the detachment while at the
21 same time putting pressure on them with the support of certain
22 international organisations, as well as Muslim clerics and naturalised
23 Bosnian Muslims. Had the members of the El Mujahedin Detachment been
24 subordinated to the 3rd Corps, no negotiations or external pressure would
25 be necessary -- sorry, would have been needed. The 3rd Corps's orders to
1 release the hostages would have been complied with. Another circumstance
2 showing the independence of the El Mujahedin Detachment from the
3 3rd Corps is the Trial Chamber's finding that the only means available to
4 the 3rd Corps to obtain the release of the hostages was to use direct
5 force against the El Mujahedin Detachment."
6 And again, we rely on this for legal principle, obviously not for
7 factual finding.
8 It stands to reason that if you can only exercise "control" over
9 a detachment by calling in some outside body, say to someone else, Can
10 you please control these people because we can't, then you yourself are
11 not in control. And that was clearly found to be the case here, as, for
12 example, when the 35th Division commander had to ask municipal
13 authorities for help in dealing with disorderly conduct by EMD members.
14 That's at paragraph 441 in the evidence at footnote 1144 of the
15 judgement. It's as if the head of the British army has to call in the
16 Scotland Yard or the civilian police to deal with the Scots Guards. It's
17 an absurd situation but one which indicates clearly that there was no
18 effective control within the ABiH.
19 And what's even more clear is that if you can only exercise
20 control by attacking and overwhelming the perpetrators, then you're
21 obviously not in control. I mean, otherwise an army which can defeat its
22 enemy in battle would retrospectively be said to have had effective
23 control over the enemy. It's an absurdity. Which calls to mind
24 paragraph 230 of the Hadzihasanovic appeal judgement, where the Chamber
25 said of the relationship between the EMD and 3rd Corps:
1 "It was quite close to overt hostility, since the only way to
2 control the EMD was to attack them as if they were a distinct enemy
4 That's quite aside from the impracticality of requiring the ABiH
5 to wage war against the EMD while at the same time fighting the Serbs and
6 the Croats. And the law cannot seriously require Delic to open up a war
7 on, in fact, four fronts, VRS, HVO, Fikret Abdic's forces in Bihac, and
8 the EMD, even if such a decision were up to him, a political decision,
9 which it wasn't.
10 Yet, the evidence shows that's all he could have done to try to
11 bring the EMD fighters under control. And the Chamber's own findings
12 show that's all he could have done.
13 The way that Judges Lattanzi and Harhoff dealt with this is
14 utterly devoid of evidential support or, with the greatest respect to
15 them, common sense. At paragraph 468 they say:
16 "Several witnesses testified that, in their view, nothing could
17 be done to discipline the EMD since coercive measures would have entailed
18 a violent conflict with the EM D." I pause there. That's the evidence.
19 That's the evidence which witnesses have given. Nothing could be done.
20 But then they simply go on to say:
21 "This position is not borne out by facts adduced in the
22 evidence." One would expect, though, wouldn't one, to see what the facts
23 are, a reference, a footnote. What facts? There is nothing, there is
24 nothing there. On such a crucial issue, they simply failed to say what
25 these critically important facts are. No footnote to the evidence, no
1 facts cited, just bald assertion.
2 And then follows one of the most critical passages --
3 JUDGE VAZ: [Interpretation] One moment, please. We don't hear
4 the interpretation in French anymore.
5 You may proceed.
6 MR. JONES: There follows one of the most critical passages in
7 their conclusion:
8 "Rather than saying that nothing could be done to oppose
9 undisciplined behaviour of the EMD members, the majority finds that
10 nothing was done or even attempted to be done, in particular in
11 connection with the alleged violations of international humanitarian law
12 during the detention of enemy soldiers and civilians by the EMD. In the
13 majority's view, this failure to take any steps to assume control over
14 the detainees constitutes a failure to take the necessary and reasonable
15 measures to prevent and punish the crimes in question."
16 Now, there are at least three things fundamentally wrong with
17 this critical conclusion. First, conclusions have to be based on the
18 evidence, and yet the majority here simply rejects out of hand a
19 reasonable view of the evidence, namely, that nothing could be done to
20 control the EMD short of violent conflict, the view taken by the Appeals
21 Chamber in Hadzihasanovic, and the view taken by Judge Moloto in this
22 case, rejected out of hand merely on the basis that that's their
23 preferred view of the matter.
24 Second, the only supporting reasoning provided in footnote 1200,
25 which appears to criticise ABiH officers for not trying again or trying
1 harder when the EMD denied them access to Serb detainees, has got nothing
2 to do with whether Delic had effective control over the EMD. It's one of
3 those non sequiturs. It begs the very question issue, namely, whether if
4 they had tried any harder, it would have made any difference. If the
5 fact is that even if the ABiH officers had tried again or tried harder,
6 it still would have been impossible to gain access to the detainees.
7 Then effective control is absent. The majority leaves that possibility
9 In any event, the officers reported the matter, and within four
10 weeks, the detainees were no longer held by the EMD. So the reproach
11 that they should have done more may ring hollow.
12 Thirdly and most fundamentally, the majority in this passage
13 fundamentally confuses the third element of command responsibility.
14 They're discussing effective control here, the first element, and
15 suddenly they skip to the failure to take reasonable measures.
16 "In the majority's view, this failure to take any steps to assume
17 control over the detainees constitutes a failure to take the necessary
18 and reasonable measures to prevent and punish the crimes."
19 So, in fact, their conclusion doesn't even have anything to do
20 with effective control.
21 So we respectfully submit that the conclusion of Judge Harhoff
22 and Judge Lattanzi is fundamentally confused, flawed, and indefensible.
23 Finally, with regard to question one, we would draw attention to
24 the Appeals Chamber's holding that "criminal responsibility does not
25 attach to a military official merely on the basis of his overall
1 command," paragraph 214, Halilovic appeal judgement, an important and
2 pertinent principle here.
3 I turn to the Chamber's second question, question 2A, whether the
4 Trial Chamber erred by failing --
5 JUDGE VAZ: [Interpretation] I would just like to remind you that
6 you have approximately ten minutes left to answer the questions.
7 MR. JONES: I have an hour and 15 minutes, I believe, and I
8 started at 10.00, so I think I have until 11.15, which would be
9 20 minutes. I will stand corrected if that's wrong.
10 Question 2A, whether the Trial Chamber erred by failing to
11 consider one or more of the indicators of effective control discussed in
12 the trial judgement to be incompatible with the notion of effective
13 control. In our submission, the indicator identified at paragraph 368,
14 VI ...
15 [Appeals Chamber and Legal Officer confer]
16 MR. JONES: I appreciate there may have been a need to take a
17 break for the tapes or the interpreters. I'll continue until told to
19 The indicator which is identified at paragraph 368, VI, and
20 discussed at paragraphs 416 to 422 of the judgement, mutual assistance
21 between the ABiH and the EMD, is incompatible with the notion of
22 effective control. Assistance, co-operation, or even co-ordination which
23 exists between allied armed forces is plainly not the same thing at all
24 as effective control, and that's -- that runs as a thread through all of
25 the Tribunal's case law. For example, the Hadzihasanovic appeals
1 judgement, paragraph 214:
2 "Thus while these Trial Chamber's findings indicate that the
3 3rd Corps co-operated with the El Mujahedin Detachment, they are
4 insufficient to establish the existence of effective control."
5 And indeed the Chamber in this case itself had clearly
6 contemplated that forces can fight together without one being under the
7 control of the other. See paragraph 345:
8 "It is not implausible that engagement in combat can take place
9 on the basis of mutual consultations and agreement between two fighting
10 forces as opposed to orders issued from one to the other."
11 And also paragraph 350 that said that the relationship between
12 the Mujahedin as opposed to the EMD and the ABiH "is appropriately
13 characterised as co-operation between such groups as separate and
14 independent military entities rather than subordination of the Mujahedin
15 within the single military structure."
16 On that basis, Delic was found not guilty of the crimes committed
17 in Maline and Bikose in June 1993. But the majority should have applied
18 this same principle to the relationship between the ABiH and the EMD in
19 1995, but it failed to do so. Its findings are full of the language of
20 consultation, consensus, co-operation, one sees references to requests
21 being addressed from the ABiH to the EMD, requesting authorisation to
22 speak with the commander or to access the camp, not command. For
23 example, the 3rd Corps commander only made "recommendations to the EMD,"
24 at paragraph 395 of the judgement, not issuing orders. The 35th Division
25 security officer sought the "approval of the EMD to interview soldiers."
1 A superior doesn't request approval of subordinate units in a matter like
2 this, paragraph 408.
3 The indicator relationship between the EMD and authorities
4 outside the ABiH, depending on how that's construed, is also incompatible
5 with the notion of effective control. The majority's treatment of this
6 issue was superficial in the extreme. At paragraph 464 it stated:
7 "It is true that the EMD communicated with foreign institutions
8 outside Bosnia and Herzegovina; however, in the majority's view, the main
9 purpose of these communications was to promote its cause and attract
10 financial support. Thus, this did not affect the chain of command and
11 the effective control exercised by Rasim Delic over the EMD and its
13 The word "thus" in that sentence is singularly misplaced. The
14 conclusion does not follow from the premise. That is again a
15 non sequitur. The EMD communicated with foreign bodies to get finance,
16 the majority finds, it was paid by those bodies, the majority finds,
17 ergo, according to the majority, this had no impact on Delic's effective
18 control. That makes absolutely no sense. It's a classic example of how
19 the majority's conclusions have little or nothing to do with their
20 factual findings.
21 I turn finally to the Appeals Chamber's third question, in
22 essence, whether the Chamber erred in finding that Delic had effective
23 control over the EMD in July and December 1995. Of course, we say they
24 did err. That's the main thrust of our first ground of appeal, so
25 obviously I won't repeat our submissions here. What I may usefully do in
1 the remaining time is simply to outline some major conceptual problems in
2 relation to the majority's findings and conclusions, and the first
3 relates to the very concept of following orders.
4 In relation to the power to give orders and have them executed,
5 just as a preface, I would remind the Chamber of the following findings
6 made by the Chamber, and all paragraph references are to the judgement.
7 The EMD and its members did not reliably execute all of the orders issued
8 by the ABiH, paragraph 371. The EMD refused to surrender a captured tank
9 in August 1995, para 372. The EMD refused an ABiH order to establish a
10 list of all their members; they didn't know who was a member of EMD.
11 They refused an ABiH order to make statements that they had joined army
12 units voluntarily, para 373. And that's crucial because without such a
13 statement they couldn't join the ABiH at all under its rules, you'll see
14 that in paragraph 113 of the judgement. They refused to comply with the
15 decree of the ABiH Ministry of Defence to register with municipal defence
16 secretaries, para 373. They set up the Kamenica camp where they chose to
17 rather than where they had been ordered to, para 374. The commander of
18 the 35th Division could not even threaten the EMD, much less issue orders
19 to them, when they disobeyed orders he could only "invite" their leaders
20 to a meeting, where they would typically just say "God willing,
21 everything is going to be okay," para 375.
22 In combat, as we've seen repeatedly, the EMD themselves said and
23 the Chamber did not dispute: "The ABiH cannot order us to engage in
24 actions against our will," para 381. The EMD would routinely decline to
25 "obey ABiH orders to participate in battle," para 383. And as a former
1 member of the EMD and a Prosecution witness accepted as a fair summary,
2 the ABiH commander would "give orders but unlike other units, you did not
3 accept those orders, you simply decided on your own whether you would
4 accept an order or not," para 384, they accepted that. Even if the EMD
5 did agree to participate in combat, once in the field the EMD commanders
6 would "make their own decisions," para 382. In that situation, the
7 35th Division commander would not even have influence, not even influence
8 over the EMD much less be in a position to exercise effective control
9 over them. And as we've seen the EMD supreme decision-making body was
10 not the ABiH commander but a shura, para 385. In fact, the EMD's
11 disobedience to orders would be comic if it were not tragic, considering.
12 For example, their plainly absurd excuse, as found by the Chamber, of not
13 going into battle on one occasion because "leaves were falling," which
14 seems to be some sort of joke, and conducting instead a fake attack, a
15 fake attack, the object of which was plainly to deceive the ABiH. And
16 this not surprisingly caused "great distrust of the EMD in the ABiH,"
17 paragraphs 389 and 443. They abandoned the positions of the front line
18 without prior notice and for unknown reasons, that's at para 392.
19 And indeed, such was the ABiH's distrust of the EMD that it could
20 not even trust the unit not to "slaughter its own non-Muslim soldiers."
21 You'll see that at paragraph 434 of the judgement. The Chamber found
22 "out of concern for their safety, i.e., the safety of Croatian and Serb
23 ABiH soldiers, battalion command stopped sending its non-Muslim soldiers
24 to the front line. So how on earth, one might ask, is it compatible with
25 the ABiH having effective control over the EMD that the only way they
1 could stop the EMD from slaughtering their own soldiers was by not
2 transferring those soldiers to the front line where they were needed.
3 Notwithstanding this, the majority concluded "the reticent approach,"
4 that's their wording, very strange wording.
5 "The reticent approach by the EMD in respect of some superior
6 orders does not create a reasonable doubt as to the general ability of
7 ABiH commanders to have their orders implemented," para 462.
8 And I say "reticent" is a very strange word to use here, it means
9 not saying very much, when what we're talking about is outright defiance
10 and disobedience to orders by the EMD. But underlying this misuse of
11 language, which in itself is revealing, there lies a far more fundamental
12 conceptual mistake, and I'll end on that. I see I have seven minutes
13 left according to my calculation.
14 It's plain that subordinate units which are under effective
15 control are not permitted simply to opt out of war from combat operations
16 as leaves are falling or for whatever other pretext, whatever their
17 reservations about the action. That's simply inconsistent with military
18 reality. And conceptually, an order which you either obey or choose not
19 to obey, depending on your preference or your whim, is not properly
20 understood an order at all. So when the Prosecution says, well, they
21 obeyed some orders, it's not obeying an order if you go along with it
22 when it suits you. Obeying an order means doing so whether it suits you
23 or not, whether it means you're rushing headlong into death. There's not
24 to reason why; there's but to do or die.
25 So that's the acid test. If you would obey the order, even if
1 you were utterly against it, and the EMD failed that acid test
2 completely. So with the EMD when they "complied with orders," to use the
3 Chamber's preferred term, it cannot be said that that amounts to obeying
4 orders; it's just that their will and that of the ABiH sometimes happened
5 to coincide. After all, they were in Bosnia to fight. They weren't
6 there to go on a picnic. Of course they were going to fight.
7 So the crux of the matter is that if they didn't wish to do so,
8 they didn't follow orders. That was indisputably their modus operandi.
9 And so in reality they never obeyed orders, even if sometimes they went
10 along with ABiH tactical plans.
11 I come to the second fundamental error and I'll end on this. For
12 the majority, "the EMD's participation and engagement in the armed
13 conflict against the VRS lies at the core of the determination of
14 Rasim Delic's command and effective control," that's paragraph 461. Now,
15 why should the EMD's participation in the conflict against the VRS lie at
16 the core of its determination? This case didn't concern war crimes
17 committed by the VRS -- sorry, by the EMD in the battle-field. It
18 concerned the treatment of detainees. So surely what lies at the core of
19 the determination of Delic's command and effective control is what
20 happened with prisoners, is what happened with gaining access to
21 prisoners, being able to interview prisoners, find out what's happening
22 to them. So it's almost as if the majority chose the indicator which
23 they thought would give them the most mileage in finding effective
24 control and said that's the core, that's the most important thing.
25 In terms of access to prisoners, the indicators are unequivocally
1 against a finding of effective control. In relation to the EMD's capture
2 of VRS soldiers and their removal to Kamenica camp in July 1995, during
3 Operation Proljece II, the Chamber found that "the EMD did not comply
4 with obligations as set out by the 35th Division Commander concerning the
5 handling of captives taken during combat." Para 403. In other words,
6 the EMD captured and detained the very soldiers who were the subject of
7 this indictment in clear breach of ABiH orders, and in September 1995
8 again the Chamber found that the EMD detained captives "in defiance," I
9 can't emphasise that strongly enough, "in defiance of the ABiH combat
10 order of Operation Farz." That's paragraph 404 of the trial judgement
11 which stipulated POWs were to be handed over to the military police. And
12 the Chamber further found that the military police had to "act in a
13 consensual manner because the two units were not in a hierarchical
14 relationship," paragraph 405. I'm finishing now.
15 The EMD refused ABiH units access to their camp, in particular to
16 conduct interviews with the captives in the hands of the EMD or to
17 conduct criminal investigations, para 406. The 3rd Corps security
18 service itself reported that "all those captured are under the control of
19 the EMD who do not allow any access to them." That's crucial, they
20 denied access. And see also paragraphs 276 and 281 of the judgement.
21 Yet, it's precisely that lack of access by the ABiH to the detainees
22 which extended even to turning away ABiH security officers, telling them
23 that "there were no detainees," para 410, which meant that the ABiH could
24 not effectively detect and investigate crimes committed by the EMD
25 against the captives. And so nor could Delic. And it's precisely that
1 lack of access which indicates the absence of effective control in that
2 key area, and the majority seriously erred in law when it failed to draw
3 the obvious conclusion resulting in a miscarriage of justice.
4 Thank you, I'm obliged, unless there are any further questions
5 from the Bench.
6 JUDGE VAZ: [Interpretation] Thank you very much, Mr. Jones.
7 There are no questions from the Judges for the time being. We are
8 therefore going to have a 30-minute break now, and we shall resume at
9 quarter to 12.00, so a little over 30 minutes.
10 The hearing stands adjourned.
11 --- Recess taken at 11.12 p.m.
12 --- On resuming at 11.48 p.m.
13 JUDGE VAZ: [Interpretation] The court is back in session. I turn
14 to my fellow Judges to ask them whether they have any questions to put to
15 Mr. Jones. If that's not the case, I'd like to thank you.
16 There's one question from Judge Guney -- you have the floor for
17 your question.
18 JUDGE GUNEY: [Interpretation] You submitted your arguments this
19 morning. You developed the key question, i.e., whether Rasim Delic
20 exercised effective control over the MED [as interpreted] extensively.
21 This question ties closely into the -- one of our questions, namely, the
22 fact that Mr. Delic was incriminated under Article 7(3) of the Statute.
23 You did not address this second question very extensively. I would like
24 to know to what extent Rasim Delic was advised of Article 7(3) and the
25 crimes committed by members of the EMD, the fact that he occupied a very
1 high position in the ABiH, to which the EMD was subordinated. Therefore,
2 what connections there were and, more specifically, what role he played
3 and what authority or effective control he exercised. Thank you.
4 MR. JONES: Well, insofar as the question related to effective
5 control, I think I've covered the main principles. The fact that Delic
6 occupied a very high position in the ABiH, of course, is not at all a
7 basis in itself to say that therefore there was effective control. That
8 was why I cited from the Halilovic appeals judgement, that it would be
9 simplistic in the extreme to say he was top of the pyramid and therefore
10 he had effective control over the EMD.
11 You -- the -- your question seems to start from the assumption
12 that the EMD was subordinated to the ABiH, but that's precisely what we
13 challenge, if what you're talking about is effective control. They were
14 not under the effective control of the ABiH. That's our whole point. So
15 I'm not sure -- I'm not sure what else really Your Honour would like me
16 to develop in that regard, whether it's a question about de jure, the EMD
17 being de jure subordinated, that's a perhaps sufficiently developed
18 already in our pleadings. But if the key question is effective control,
19 I've addressed that.
20 THE INTERPRETER: Microphone, Your Honour, please.
21 JUDGE GUNEY: [Microphone not activated].
22 JUDGE VAZ: [Interpretation] Please open your microphone,
23 Your Honour.
24 JUDGE GUNEY: [Interpretation] I'm sorry. I want to know whether
25 Mr. Delic was advised of the fact that he was being incriminated under
1 Article 7(3) of the Statute for the crimes committed by the EMD, and what
2 role he played in the event that he did have that information in light of
3 the high position he held in the hierarchy of the ABiH.
4 MR. JONES: I'm afraid, I think as we all see from the
5 transcript, there's a technical difficulty in seeing the question. I
6 heard the first part of the question was, has Mr. Delic been advised that
7 he's been indicted under Article 7(3) of the Statute. If that means
8 advised by us, well, of course he knows he's charged under Article 7(3).
9 As to what Delic did when informed of crimes in light of the, as
10 you say, high position he held, I'm not sure if that's addressed to what
11 our case was or what the Chamber's findings were, or what the
12 Prosecution's case was. It's very difficult to answer a question like
13 that in the abstract. And if the question relates to the third element
14 of command responsibility, taking necessary and reasonable measures, I
15 think we've addressed that at length in our appeals brief and I would
16 simply rely on that and refer the Chamber to what we say there. It would
17 be impossible for me now to recite what action we say Delic took. That
18 would be really re-litigating the whole trial.
19 Sorry. If I have misunderstood, our position clearly is that
20 Delic didn't receive any information about the specific crimes. That's
21 all set out in our appeals brief.
22 JUDGE GUNEY: [Interpretation] Thank you, Mr. Jones.
23 JUDGE VAZ: [Interpretation] We'd like to thank, Mr. Jones.
24 I shall now give the floor to the Prosecutor so that he can
25 submit his arguments in response to Mr. Delic's arguments.
1 You have 50 minutes.
2 MR. SCHNEIDER: Thank you, Your Honour. Good morning,
3 Your Honours. Todd Schneider appearing for the Prosecution. I will be
4 addressing that General Delic did have effective control in my
5 submissions today. We, of course, are happy to answer questions relating
6 to that General Delic knew or had reason to know of the crime of cruel
7 treatment and that he failed to take the necessary reasonable measures in
8 relation to this crime.
9 Your Honours, the Trial Chamber reasonably found that
10 General Delic had effective control over the El Mujahed Detachment as of
11 July and August 1995, when members of this unit committed the crime of
12 cruel treatment by beating and terrorising a group of a dozen Bosnian
13 Serb prisoners for one month. Because effective control -- because
14 effective control is an evidentiary issue, the Defence must show that no
15 reasonable Trial Chamber could have made this finding. It has failed to
16 do so.
17 I would note that time-lines have been distributed that I will be
18 addressing later on in my submissions. I appreciate the help in
19 distributing those.
20 But before turning to the time-lines, I'm going to start by
21 answering the three questions Your Honours have asked regarding effective
22 control for today. The first, of course, was to elaborate on the
23 indicators of effective control from the Tribunal's jurisprudence that
24 are relevant to determining if a superior does have effective control.
25 Your Honours, the Trial Chamber correctly identified the relevant
1 indicators of effective control for this case at paragraphs 62, 367, and
2 368 of the judgement. Rather than go through all of these indicators
3 today, I will be focusing more broadly on General Delic's proven
4 ability -- proven material ability to prevent or punish crimes by members
5 of the El Mujahed Detachment, which is of course the definition of
6 effective control. I will further discuss one particular indicator, the
7 ability to issue orders that are followed.
8 Of course I would be happy to discuss any other indicators that
9 you might so wish.
10 The second question was whether any of the indicators of
11 effective control discussed in the judgement are incompatible with the
12 notion of effective control. The answer is no, none of the indicators
13 discussed are incompatible, for two reasons. First, there are no
14 essential, no indispensable indicators of effective control; rather, it
15 is a case-by-case analysis based on the totality of the evidence and that
16 comes from the Strugar appeal judgement, paragraph 254.
17 Second, even particular instances of non-compliance do not
18 necessarily show a lack of control if the other evidence demonstrates
19 that the commander can exercise control when he or she wants to do so.
20 The standard is effective control, not absolute compliance. And of
21 course the example of this is again the Strugar appeals judgement.
22 This case was cited repeatedly earlier by the Defence. However,
23 the Defence has not noted the other important aspect of this judgement.
24 In Strugar the Appeals Chamber upheld a finding that General Strugar had
25 effective control over his troops when they shelled the Old Town
2 failed to comply with prior orders not to shell the same location.
3 Strugar appeals judgement 257, 305. These same troops also committed
4 various crimes from October through December 1991, Strugar appeals
5 judgement 257. The Appeals Chamber noted that General Strugar chose not
6 to act regarding these acts of non-compliance. "Where it was important
7 to him, his orders were actually followed." Strugar appeals judgement
8 paragraph 259.
9 The same is true here, General Delic could act where he wanted.
10 The importance of Strugar, the holding of Strugar also is in
11 relation to the Defence's claim that so-called lack of access to
12 prisoners in this case must demonstrate lack of control. I will discuss
13 more fully that there was access to these prisoners early on by other
14 parts of the Bosnian army. But what's important is that we see here --
15 or we see in Strugar that prior acts of non-compliance for the crime in
16 question - don't shell the Old Town
17 again shell the Old Town
18 control because General Strugar chose not to act. Therefore, any
19 non-compliance in prisoner access in this case, does not necessarily
20 preclude a finding of effective control when the other evidence
21 demonstrates the Trial Chamber was reasonable in its conclusion that
22 General Delic did exercise control given the many other times he and
23 other Bosnian commanders had taken steps.
24 The final question was whether the Trial Chamber erred in
25 concluding and finding that General Delic had effective control over the
1 El Mujahed Detachment as of July and August 1995. The Trial Chamber
2 reasonably found that General Delic did have effective control and the
3 rest of my submissions will elaborate on this answer.
4 In doing so, I'm going to focus on the same two pillars that the
5 Trial Chamber focused on. First, that the El Mujahed Detachment was
6 subordinated to its superior, General Rasim Delic, for two years by the
7 time the crime of cruel treatment occurred in July 1995; second,
8 General Delic had the ability to prevent or punish crimes by members of
9 this unit given the many other times he and other Bosnian army commanders
10 had taken steps to do just that; furthermore, the detachment did comply
11 with orders, particularly those relating to combat. Despite some
12 instances of non-compliance, General Delic still exercised effective
14 Turning to the first point, subordination, we of course start
15 with General Delic himself, who, as we know, was the commander of the
17 the entire army. You see that in paragraphs 99 to 101 of the judgement.
18 When he took over in June 1993, he worked to establish command and
19 control over the entire army, and as the Trial Chamber found, command and
20 control of the army did improve significantly from 1993 to 1995,
21 paragraph 460 of the judgement. The Defence today has asserted there's
22 no evidence to support this finding. We, in our response brief,
23 paragraphs 98 through 109, have set forth the many findings and the
24 detailed evidence that supported this particular finding of improvement
25 of effective control -- of command and control over the army.
1 At this point I would ask you to turn to the first time-line I've
2 distributed entitled "The El Mujahed's Detachment's Subordination to
3 General Rasim Delic." This time-line is based on the findings of the
4 judgement. I will walk through with you each event listed on the
5 time-line, and for ease of reference we've divided those events involving
6 General Delic below the time-line with the rest above.
7 And of course what this time-line shows in total is that the
8 El Mujahed Detachment was subordinated to General Delic for two years --
9 over two years, starting at the beginning, the beginning of the unit. We
10 see on August 13th, 1993, General Delic authorising the creation of the
11 unit and subordinating them to the 3rd Corps. Prior to this time, there
12 had been requests within the Bosnian army to bring foreign fighters in
13 Central Bosnia
14 specifically made a request that they join the army itself. The
15 Main Staff proposed General Delic that this occur; he agreed. He
16 authorised negotiations which led to the creation of the unit. All of
17 this is discussed at paragraphs 172 to 176 of the judgement. What's
18 important about the formation is that the Bosnian army commanders wanted
19 to incorporate these foreign fighters into the army to achieve command
20 over them and to prevent their unlawful conduct, while the fighters
21 themselves wanted to join to ensure their fighting would be legal,
22 paragraphs 172 to 174.
23 Once a unit is created we see it resubordinated several times
24 over the next two years. It is true the El Mujahed Detachment did not
25 comply with all resubordination orders, that's at paragraph 363 of the
1 judgement. However, we have noted on this time-line the many times they
2 were successfully resubordinated; in September 1993, autumn 1994, and
3 repeatedly throughout 1995, in March, in June, and in September. On top
4 of these many resubordinations, we see the Bosnian army transferring
5 soldiers from other parts of the army into the El Mujahed Detachment. We
6 see that in October 1994, in August 1995. As we note in our response
7 brief, paragraph 70, they transferred approximately 86 soldiers into the
8 unit, a significant number. They also resubordinated the 5th Manoeuvre
9 Battalion to the El Mujahed Detachment, as noted on September 11th, 1995.
10 As the Trial Chamber noted, this transfer of soldiers into the unit, this
11 resubordination of units to the detachment, shows that the unit was
12 within the hierarchy of the Bosnian army. The commanders would not have
13 been abandoning control of so many soldiers by sending them apart to a
14 separate entity, paragraph 467.
15 Finally, we see the events relating to the disbandment of the
16 unit at the end of the time-line. On December 12th, 1995, General Delic
17 ordering that the unit be disbanded. A few days later, the 3rd Corps
18 issuing its order on the same topic. The unit is disbanded, and on
19 January 1st, 1996
20 unit, attended by General Delic himself.
21 Apart from all these many events in the time-line, we have the
22 findings throughout the judgement that the Bosnian army commanders issued
23 dozens of orders to this unit. Many of them are collected at
24 footnote 1183 of the judgement. These orders relate to combat,
25 redeployment, reporting, and other subjects. We are not suggesting that
1 they complied with all these orders; rather, we are raising in the
2 context of subordination that the high volume of orders issued to this
3 unit and the fact that they were continually issued throughout the
4 two-year time-span of the unit's existence, in particular in 1995, shows
5 again that the El Mujahed Detachment was within the hierarchy of the
6 Bosnian army. It would have been illogical for Bosnian army commanders
7 to issue so many orders to a unit that wasn't part of their structure.
8 All that I've discussed shows that the Trial Chamber was
9 reasonable in finding that the El Mujahed Detachment was subordinated to
10 General Delic for two years, and particularly July 1995.
11 JUDGE VAZ: [No interpretation].
12 JUDGE MERON: [No interpretation].
13 [In English] You will agree with me that the question of
14 treatment of prisoners is very central to this appeal. And I would be
15 very grateful if you would in the course of your argument explain to the
16 Bench how does EMD's lack of co-operation with regard to the handling of
17 prisoners impact on the convictions entered. Thank you.
18 MR. SCHNEIDER: Certainly, Your Honours. I would turn to that
19 right now. I would start, though, by saying, as I hope to develop
20 further, all the evidence demonstrated the reasonableness of the
21 Trial Chamber's finding regarding many areas of control.
22 With regard to the issue of prisoners, it is true that the
23 El Mujahed Detachment did deny access sometimes to prisoners it held into
24 its camp, but at the same time they handed over some prisoners
25 immediately, paragraph 403 of the judgement. They also handed over other
1 prisoners eventually, albeit in an untimely manner, including the
2 particular victim prisoners from July 1995, and that's paragraph 283.
3 Moreover, they did provide access to the prisoners subjected to
4 cruel treatment from July. This occurred almost as soon as they were
5 captured and it resulted in detailed interviews gathering intelligence
6 from the prisoners, which was the focus of the access. And this may be
7 found in paragraphs 274 to 275, 282, and 549.
8 Therefore, when the Defence has asserted today that it was
9 impossible to gain access to the detainees, at page 32, that's not
10 correct based on the findings of the judgement. Apart from this specific
11 prisoner issue, I would note that Bosnian army soldiers and commanders
12 entered the camps at other times, paragraphs 411 and 431. Furthermore,
13 there were lots of meetings between members of the El Mujahed Detachment
14 and their superiors in the Bosnian army. Many of these are noted between
15 paragraphs 427 and 433 of the judgement. This shows the El Mujahed
16 Detachment was available regarding these prisoners. They were not hidden
17 away with no way to get in touch with them and no idea where they might
18 be. It would have been easy to get in touch with the prison -- with the
19 El Mujahed Detachment further regarding these prisoners rather than just
20 seek to interview them for intelligent purposes.
21 And I would just note at this point that the fact that there were
22 many meetings between the El Mujahed Detachment and their superiors in
23 the Bosnian army refutes the Defence's assertion or reliance on one
24 witness who says it was very difficult to reach the detachment. One
25 particular piece of evidence does not undermine the reasonableness of the
1 Trial Chamber's findings that there was repeated contact, communication,
2 and meetings between the El Mujahed Detachment and their superiors.
3 Returning for a moment to the question of subordination in
4 general, not only was it reasonable for the Trial Chamber to find that
5 there was subordination. All of the evidence I've talked about shows the
6 Defence has failed to show that the Trial Chamber was unreasonable in
7 rejecting its theories of co-operation and outside control.
8 First, with respect to co-operation, this is not a case about
9 co-operation or mere influence. As the Trial Chamber noted and as the
10 Defence has also cited earlier today, co-operation involves separate,
11 independent entities rather than a single military structure.
12 Co-operation involves mutual agreement rather than the issuing of orders.
13 And this is all from paragraphs 345, 349, and 350 of the judgement. The
14 Defence asked today: Is there any finding in the judgement inconsistent
15 with co-operation? Of course there is. If you're co-operating with
16 somebody, if you're co-ordinating with another unit, you don't create the
17 unit, you don't disband the unit, you don't issue dozens of orders to the
18 unit, you don't transfer soldiers into the unit, you don't assign them a
19 headquarters, you don't promote members of the unit, you don't give
20 members awards, you don't issue them passports, you don't grant them
21 permission to travel abroad, as General Delic personally did,
22 paragraph 422 of the judgement; you don't repeatedly investigate the
23 unit, as I'll discuss more in a moment. These are the hallmarks of a
24 subordinated unit.
25 As for the Defence's theory of outside control, yes, the
1 El Mujahed Detachment did receive financial and logistical support from
2 local authorities, paragraph 441. They received financial support and
3 were in communication with private foreign institutions, paragraph 442.
4 This support and communication, though, was not evidence of control by
5 these outsiders, nor did any of this interfere with the control exercised
6 by the Bosnian army over its subordinate unit, the El Mujahed Detachment.
7 The Defence's focus on theoretical control by others ignores the actual
8 control exercised by General Delic and the Bosnian army commanders.
9 At this point I would turn from the issue of subordination to
10 General Delic's material ability to prevent or punish crimes, and in
11 doing so I would refer to the second time-line that we've distributed.
12 Again, this time-line is based on the findings of the judgement. I'll
13 walk you through each of the events listed on the chart, and we have
14 divided this chart so that measures relating to prevention are below the
15 time-line and those relating to punishment are above.
16 Before actually going into the particulars of this chart, though,
17 I do want to correct an assertion by the Defence that the question is the
18 ability to prevent or punish war crimes. No. That limitation is not in
19 the Tribunal's jurisprudence; rather, it is preventing or punishing
20 crimes by one's subordinates. And here we see ample examples of this.
21 First, with regard to prevention, we see in December 1993,
22 General Delic himself ordering a "clamp-down" on the El Mujahed
23 Detachment and another unit. In spring 1995 we see General Delic again
24 getting involved to personally authorise Operation Vranduk, designed to
25 curb illegal activities by members of the unit. Around the same time,
1 April 12th, 1995
2 by members of the El Mujahed Detachment, writes on a report to the
3 security administration "proposal to finally resolve this."
4 Moving on, in July 1995, we see after an investigation by
5 military security into threats made by members of the unit against a shop
6 owner, military security announcing they will take measures to prevent
7 such incidents. And finally, in December 1995, an admission by a member
8 of the El Mujahed Detachment that:
9 "The army today prevented us from attacking Zepce for revenge."
10 At the same time, throughout these two years, we see steps
11 related to punishment. We see two members of the El Mujahed Detachment
12 arrested in February 1994 for the murder of Paul Goodall, a British
13 humanitarian worker. Proceedings are initiated. However, they later
14 escape. Contrary to any suggestion by the Defence, this was not merely a
15 civilian exercise, but rather a joint military effort to arrest these
16 men. Throughout 1995, again of course critical, in this case we see
17 military security investigating members of the El Mujahed Detachment
18 again and again; in January for abduction and mistreatment, on May 23rd
19 for torture, on May 26th for desecrating a cemetery, in July for threats
20 against a Bosnian army soldier. The Defence has raised these threats
21 many times this morning without noting the resulting investigation into
22 this particular incident. Finally, in October 1995, we see criminal
23 proceedings again initiated against a member of the El Mujahed
24 Detachment, this time for theft.
25 All of these examples show General Delic's material ability to
1 prevent or punish crimes by members of the El Mujahed Detachment. The
2 Defence is incorrect when it suggests you only focus on what
3 General Delic did as opposed to what his subordinates did as well when
4 examining -- when reviewing the reasonableness of the Trial Chamber's
5 finding that General Delic had the ability to prevent and punish crimes,
6 either by acting himself or through his subordinates, which is typical of
7 someone in his high power.
8 An incident that's not mentioned on this time-line but that was
9 highlighted by Defence this morning relates to the 35th Division asking
10 for help from local authorities in relation to misconduct by members of
11 the unit. At paragraph 441 of the judgement. The significance of this
12 request is that it again shows the fact that Bosnian army commanders,
13 General Delic, if necessary through his subordinates, could act either
14 alone as evidenced by the many times on this time-line military security
15 itself had taken steps, or with the help of civilian authorities, in
16 paragraph 441 and again is referenced in arresting the suspected murders
17 for Paul Goodall. There are multiple options available for preventing or
18 punishing crimes by this unit.
19 Furthermore, all the steps listed on this time-line,
20 investigations, arrests, and others, show that contrary to the
21 Defence's --
22 JUDGE VAZ: [Interpretation] I was going to ask you to slow down,
23 please, because it is difficult for the interpreters. Thank you.
24 MR. SCHNEIDER: I apologise.
25 All of the events discussed in this time-line, the
1 investigations, the arrests, the criminal proceedings, show that the
2 Defence was not correct when it asserted even this morning that use of
3 force was the only option. There were many other proven steps available
4 to General Delic, in respect specifically to July 1995 and in general in
5 demonstrating his ability to prevent and punish crimes. So these many
6 examples show the Trial Chamber's finding was reasonable that
7 General Delic could prevent or punish crimes.
8 It further shows that the Defence was wrong when it claimed it
9 was impossible for General Delic and others to act. We know that it was
10 a choice not to act rather than any impossibility, given the many other
11 times highlighted on this time-line that General Delic and other Bosnian
12 army commanders had taken steps to prevent or punish crimes by members of
13 the El Mujahed Detachment. All this further shows that the following is
14 not true, that the El Mujahed Detachment had a propensity to violence if
15 it was confronted, that confronting the El Mujahed Detachment would start
16 a war on a third front, this is noted in Judge Moloto's dissenting
17 opinion, paragraphs 8 and 9, raised again by the Defence questioning the
18 Trial Chamber's finding in paragraph 468 that these broad claims of
19 violence were not credible. The Trial Chamber's rejection of these broad
20 claims of a third front or violence was reasonable based on the findings
21 in evidence before it, based on the many times highlighted on this
22 time-line where General Delic and other Bosnian army commanders had taken
23 steps to prevent or punish crimes without any violent third front
25 The question arises: If the Bosnian army could take steps in
1 general, why didn't they in July and August 1995 regarding the specific
2 crime of cruel treatment? The answer is: Military expediency. They
3 prioritised the El Mujahed Detachment's compliance with combat orders
4 over its misconduct in other areas. First in this regard is Exhibit 583,
5 an August 30th military security report. The judgement quotes this
6 partially in footnote 1159. We've quoted it more fully in our response
7 brief at paragraph 39. In the context of talking about repeated
8 misconduct by members of the El Mujahed Detachment, military security
10 "No energetic measures have been taken so that the relations with
11 this unit would not be spoiled and that combat operations would be
12 carried out as successfully as possible."
13 The timing of this is key. It is right after the crime of cruel
14 treatment in this case has ended, in August 1995, and right before the
15 Bosnian army will launch Operation Farz and Uragan, in September 1995,
16 during which the El Mujahed Detachment will play a key role in helping
17 them achieve one of the top military objectives of the Bosnian army.
18 Now, it's true that Exhibit 583 also contains broad claim that
19 the El Mujahed Detachment "has operated independently and has not
20 respected the control and command system." The Defence has cited this in
21 its reply brief at paragraph 19. We had already noted the same language
22 in footnote 114 of our response brief. Importantly, the Trial Chamber
23 viewed this broad claim skeptically and did so reasonably given all the
24 specific evidence of control and the ability to prevent and punish
25 already discussed, as well as the fact within the same report, on the
1 same page, military security says the El Mujahed Detachment "has
2 completed all the assigned military tasks." We don't control them, but
3 they do everything we ask them to do. It just doesn't make sense.
4 Similar in this regard is Exhibit 938, an exhibit the Defence has
5 actually highlighted today earlier in its submissions. This is a
6 July 5th, 1995
7 investigation into the El Mujahed Detachment's threats against fellow
8 Bosnian army soldiers that was discussed extensively earlier by the
9 Defence and that I noted already on our time-line. This particular
10 exhibit is noted in 1162 of the judgement. And the report
11 demonstrates -- report shows that after conducting its investigation and
12 determining that these threats were made, military security met with
13 threatened soldiers and "tried to console them, telling them that they
14 were prepared to do everything requested by members of the
15 above-mentioned unit," clearly the El Mujahed Detachment, "in order to
16 execute planned assignments, i.e., occupy Paljenik and Vozuca."
17 As I'd mentioned with regard to the prior exhibit, Vozuca was
18 this key, top military objective of the Bosnian army, paragraph 86 of the
19 judgement, that was successfully captured in September 1995, and
20 Paljenik, as mentioned in the report, was the "gateway to enter the
21 Vozuca pocket," paragraph 398.
22 There is nothing in these two exhibits about it being impossible
23 to crack down on the El Mujahed Detachment. Rather, what the reports --
24 what military security is saying is: Hold off on doing anything because
25 we need them to succeed in combat.
1 And how did the commanders in the Bosnian army know that they
2 would achieve this military success with the El Mujahed Detachment?
3 Because, quite simply, they knew that the El Mujahed Detachment did
4 follow orders, particularly those relating to combat. As the
5 Trial Chamber found, the Bosnian army controlled the El Mujahed
6 Detachment's participation in and engagement in combat, paragraph 461.
7 Importantly, the El Mujahed Detachment never fought without authorisation
8 from its superiors in the Bosnian army, paragraphs 386 and 465.
9 We see especially in the combat operations surrounding the
10 July 1995 crime of cruel treatment, the El Mujahed Detachment repeatedly
11 following orders relating to combat. In May 1995, in Operation Proljece,
12 where they spear head an attack as ordered. In July 1995, in
13 Operation Proljece II, where they are the primary leader of the attack
14 and they follow various orders to attack. And finally, in what I've
15 mentioned before, Operations Farz and Uragan, in September 1995, where
16 they again followed various orders to attack. And all of this is
17 referenced in the trial judgement paragraphs 394 to 402.
18 Now, it is true, as noted in the judgement and highlighted by the
19 Defence, that there was some non-compliance with combat orders, but we
20 need to understand the process by which this happened. First, the
21 El Mujahed Detachment's questioning orders from its superiors was part of
22 the general process within the Bosnian army of planning operations in
23 general, paragraphs 377 to 379. Specifically, the Trial Chamber found
24 that this dialectical relationship applied to the El Mujahed Detachment
25 and its superiors in the Bosnian army, paragraph 465. There were a few
1 times when the El Mujahed Detachment refused to participate in attacks at
2 the time they had been ordered. This was not: We won't go and fight, we
3 sit on our hands for no reason whatsoever. Rather, not carrying out the
4 attack at this time was a reasoned decision by the detachment that they
5 shared with their superiors. Either the unit itself or battle-field
6 conditions were not ready for the attacks at the time they were ordered,
7 paragraphs 388 to 390 of the judgement. As the Trial Chamber found,
8 their superiors in the Bosnian army agreed with the El Mujahed
9 Detachment's assessment, because two of the three attacks were carried
10 out at a later time and the third was cancelled. 388 to 390 of the
12 Importantly, no steps or sanctions were taken against the
13 El Mujahed Detachment for this non-compliance, paragraph 462 of the
14 judgement. And just to respond to a point raised by the Defence earlier,
15 when the detachment said that battle-field conditions were not ready, for
16 example, because the leaves had fallen, this was not a "joke," but
17 rather, this was an important consideration that there was no foliage, no
18 trees, leaves, available to hide the attackers and they would have been
19 open to the enemy combatants. And in this respect I would refer you to
20 transcript pages 66 to 67 of Witness Awad from the Sarajevo hearing.
21 But what is important about these delays in fighting was that it
22 ended at the latest by March 1995. The El Mujahed Detachment fought
23 pursuant to orders throughout May to September 1995, again right around
24 the time of cruel treatment in July 1995. Moreover, this non-compliance
25 is very different from the ability to prevent or punish crimes. In fact,
1 many of the examples highlighted by the Defence of alleged non-compliance
2 don't show any interference with the superior's ability to prevent or
3 punish crimes. Yes, they set up camp 13 kilometres away from Zavidovici
4 instead of 12. Yes, they refused to comply with many paperwork
5 requirements that were highlighted earlier today at paragraph 373 of the
6 judgement. These don't conflict with the actual examples of prevention
7 and punishment that I've already discussed today.
8 Even the question of reporting. First, the Trial Chamber
9 reasonably found that the El Mujahed Detachment's oral reporting partly
10 compensated for its failure to submit written reports as ordered,
11 paragraph 463 of the judgement. And perhaps going to a question raised
12 by Judge Meron earlier, when it came to the fact that while subordinated
13 to the 35th Division the El Mujahed Detachment did report directly above
14 the 35th Division to the 3rd Corps is entirely consistent that at the
15 same time, again while the detachment is under the 35th Division, the
16 3rd Corps is directly ordering the El Mujahed Detachment itself. And
17 that's at paragraph 431 of the judgement. So it would be unsurprising
18 that the detachment was reporting directly in September 1995 to a
19 commander that was at the same time giving its orders. But frankly,
20 what's important about this question of reporting at what level is that
21 in the end General Delic was above 35th Division and the 3rd Corps, and
22 any question of who was reported to below him did not affect the flow of
23 information up and the flow of orders down.
24 JUDGE VAZ: [Interpretation] Yes, Judge Meron has a question.
25 JUDGE MERON: [Interpretation] Thank you, Your Honour.
1 [In English] Now supposing that there was broad compliance with
2 orders pertaining to combat, could that not be explained on the basis of
3 tactical co-operation rather than on the basis of a command structure?
4 And I wish you would be as specific with regard to compliance with orders
5 not plaining to combat but with respect to treatment of people,
6 particularly POWs. Thank you.
7 MR. SCHNEIDER: In -- under the facts of this case, the
8 compliance with orders was yet further evidence of the subordination of
9 the El Mujahed Detachment to its superiors rather than examples of
10 co-operation. Given, as I'd mentioned before, the many other steps
11 related to this unit, creating it, disbanding it, promoting members,
12 giving them awards, investigating them, if you're just going to
13 co-operate with another unit, you're not going to bother going through
14 all those steps.
15 As far as its compliance with orders relating to treatment of
16 prisoners of war, in the first respect -- as again I'd mentioned there
17 was direct access to those prisoners quickly, of course if there had been
18 no violations of how to treat the prisoners of war, there would be no
19 case today. Apart from that, we do see the El Mujahed Detachment
20 treating other prisoners properly, correctly, as they are required to do
21 under the laws of war in handing them over immediately at paragraph 403
22 of the judgement.
23 If I could return briefly to the topic of reporting. Any
24 questions about reporting problems in the end, again, doesn't interfere
25 with an ability to prevent or punish crimes when there are the many
1 examples of this occurring at other times and these particular reporting
2 problems aren't interfering with knowledge of further crimes by members
3 of the El Mujahed Detachment. In particular, in respect to the July
4 prisoners subjected to the cruel treatment, other parts of the Bosnian
5 army knew immediately of the situation despite any "reporting problems,"
6 and that's paragraphs 274 to 282.
7 What the Defence seeks to do is to use a magnifying glass to
8 highlight a problem here, look only at a problem there. The proper --
9 the Trial Chamber properly examined the entire picture, the totality of
10 the circumstances, and in particular looked at all the events from 1993
11 to 1995 rather than just isolated incidents, paragraph 370.
12 The Defence has mentioned today, many times, the appeals
13 judgement in Hadzihasanovic. Your Honours, the El Mujahed Detachment in
14 the Hadzihasanovic case from October 1993 was a very different unit than
15 the El Mujahed Detachment of this case in July 1995. And this, of
16 course, relates to a question Judge Liu had raised earlier. This key
17 two-year time difference is reflected in the many examples of
18 subordination and control I've already discussed today. In this case as
19 well, there actually was a finding of a lack of control back in 1993
20 relating to a predecessor of this unit. In this regard I would also
21 refer to or note that the Defence cited, from paragraph 381 of the
22 judgement, a report from the unit that they are not part -- considering
23 themselves part of the Bosnian army. This again is from November 1993,
24 almost two years away from the crime of cruel treatment in July 1995.
25 There are many other significant differences between the
1 El Mujahed Detachment of Hadzihasanovic and this case. First, there were
2 almost no orders issued to the unit in Hadzihasanovic. Only three are
3 discussed at paragraphs 199 to 200 of the judgement [sic]. Here, of
4 course, dozens of orders were issued to the El Mujahed Detachment. In
5 Hadzihasanovic it was noted that communication and contact with the
6 El Mujahed Detachment was difficult and that there were almost no
7 investigations of members of this unit, paragraphs 211, 218, and 219.
8 Here, communication was easy, given the many meetings between the
9 El Mujahed Detachment and its superiors, given the access provided to the
10 camp and prisoners at times. Furthermore, given the many investigations,
11 criminal proceedings, and other steps taken in response to crimes or
12 misconduct by members of the unit that are detailed in this case.
13 Finally, in Hadzihasanovic, Bosnian army commanders repeatedly
14 took steps, issuing orders, issuing threats, to try to free the prisoners
15 that were being held. Here all they did was take steps to interview the
16 prisoners and gather detailed intelligence.
17 In sum, Your Honours, the El Mujahed Detachment was subordinate
18 to its superior General Rasim Delic for two years by July 1995.
19 Furthermore, General Delic had the proven material ability to prevent or
20 punish crimes by members of this unit, given the many times such steps
21 had been taken.
22 It was therefore reasonable for the Trial Chamber to find that
23 General Delic did have effective control. The Defence has failed to show
24 otherwise. It has instead focused on broad claims rather than noting the
25 specific findings in evidence. We therefore respectfully request that
1 Defence's challenges in particular to effective control in ground 1 be
2 dismissed, and that would conclude my submissions on that point. Thank
3 you. Unless there are any questions either on this point or on the other
4 two issues, grounds, in which case we would ask that you dismiss those
5 grounds of appeal as well.
6 JUDGE VAZ: [Interpretation] Thank you, Mr. Schneider.
7 Are there any questions from the Judges? Yes, Judge Liu has a
8 question for you.
9 JUDGE LIU: Thank you very much for providing us with the
10 time-line and your comments on the differences between the two cases,
11 that is, the Hadzihasanovic case and this case. I just want to know what
12 is your position on the reply given by the Defence counsel to my question
13 this morning in which Mr. Jones, if I'm not mistaken, alleges that the
14 Trial Chamber committed an error in not substantiating or giving any
15 reasons to its finding that the command and control were improved
16 significantly from 1993 to 1995. Thank you.
17 MR. SCHNEIDER: If I might have a moment to consult before I
18 answer, Your Honours.
19 [Prosecution counsel confer]
20 MR. SCHNEIDER: Thank you for your patience. Your Honour, in
21 paragraphs 98 to 109 of our response brief we highlight many of the
22 findings showing improvement in the command/control generally in the
23 Bosnian army. I would highlight in particular the fact that in
24 paragraphs 287 -- I'm sorry, that's my footnote, in paragraph 460 it is
25 noted that general functioning regarding planning and preparation of
1 combat orders had improved, in part because of General Delic's efforts to
2 improve the system of command and control. And again in the same
3 paragraph, that loyalty difficulties encountered when General Delic
4 originally took over had been addressed.
5 Furthermore, importantly, as noted in paragraphs 136 and 137,
6 General Delic authorised several specific operations "to remove obstacles
7 to the functioning of the Bosnian army system of command and control."
8 All of these steps and many other evidence demonstrated the
9 reasonableness of the Trial Chamber's finding that the command and
10 control over the army generally had improved.
11 JUDGE LIU: So you mean that the Trial Chamber did not commit an
12 error because all the reasonings are scattered everywhere in the
13 judgement and taking into the overall, total evidence all-together?
14 MR. SCHNEIDER: That is a much answer, if I may say, and to the
15 point, yes.
16 JUDGE LIU: Thank you.
17 JUDGE VAZ: [Interpretation] Thank you.
18 Judge Meron.
19 JUDGE MERON: Mr. Schneider, if I understood you correctly, you
20 said a few minutes ago that in contrast to Hadzihasanovic, Delic and
21 others in this case did nothing with regard to getting really involved in
22 this question of prisoners. Now, there was -- paragraph 403 of the
23 judgement indicates that there was a standing order of the 35th Division
24 commander concerning handling of captives and that all -- and according
25 to this order, prisoners were to be brought in to the nearest security
1 unit and then to the 35th Division.
2 Now -- so there were orders to move the prisoners to a central
3 command where presumably they would be under better protection. Now, I
4 understand that this order was not executed. What can we learn from
6 MR. SCHNEIDER: I would focus on two points in answering that
7 question. First, there was some compliance with this order, as noted in
8 the same paragraph. They did immediately hand over some prisoners.
9 Furthermore, such general orders relating broadly would not be sufficient
10 in the context of necessary or reasonable measures to show that this
11 would be sufficient in response to the actual information, alarming
12 information, that was passed throughout the Bosnian army and up to
13 General Delic.
14 JUDGE MERON: Thank you. I suppose that the Defence would later
15 point out if there was a more specific order.
16 JUDGE VAZ: [Interpretation] Judge Pocar has a question for you.
17 JUDGE POCAR: I tried to understand exactly how the situation was
18 in fact, because many of arguments went to the de jure subordination, and
19 on that we can perhaps easily agree. But what is relevant is the
20 de facto subordination that amounts to really effective control, which of
21 course has to be proven beyond reasonable doubt. One cannot rely on the
22 de jure subordination which forces an indicator maybe of the effective
23 control is one of the indicators but cannot be the basic indicator alone.
24 And I'm referring essentially to the -- your answer to the question put
25 by Judge Liu, the impression one gets that efforts were made by Delic to
1 make effective a control which originally was not and originally was not
2 as it's proven by the Hadzihasanovic case. There was no real control of
3 the ABiH army over the EMD, but efforts were made to make the control
4 effective. Where are we exactly? I mean, did these efforts make the
5 control fully effective, is that your position, that the control was made
6 fully effective as a consequence of these acts so that the only
7 reasonable conclusion that the Trial Chamber could reach was that indeed
8 the efforts succeeded; or is there still a margin of doubt? Because you
9 said some prisoners were handed over, some were not. Was it fully --
10 fully effective, the control, in your view? Because we have to remove
11 any margin of doubt. You are aware of that.
12 MR. SCHNEIDER: If I may consult for a moment, Your Honour.
13 [Prosecution counsel confer]
14 MR. SCHNEIDER: Your Honour, the finding of effective control is
15 a factual finding in this case, as in many other cases, and therefore the
16 standard to review is whether the Trial Chamber was reasonable. The
17 evidence and findings demonstrate the reasonableness. Turning first to
18 the de jure subordination, that of course can be and in this case
19 happened -- was a prima facie indicator of effective control, as is
20 consistent with the jurisprudence of the Tribunal. Furthermore, the many
21 steps taken following the initial creation, the resubordination from here
22 to here which they complied with, transfer of orders, the fact that a
23 unit disbanded when ordered, these not only relate to subordination
24 narrowly, but to generally effective control over the entire unit and of
25 course compliance with orders.
1 As far as, again, the Hadzihasanovic case, the findings in this
2 case relate to entire two-year period, much of which, of course, would
3 not be in the Hadzihasanovic case, which focused on October 1993. And
4 during 1994 and 1995 we see repeated compliance with combat orders,
5 repeated investigations of the members of the unit, them being subjected
6 to criminal proceedings. Therefore, the findings generally that command
7 and control improve significantly over the entire Bosnian army as well as
8 the fact that by July 1995 General Delic had effective control over the
9 El Mujahed Detachment was reasonable based on the evidence before the
10 Trial Chamber.
11 And if I may add one more point to that. Of course it's not
12 absolute compliance, full control; it's effective control. And the
13 Strugar appeals judgement demonstrates that certain acts of
14 non-compliance, even relating to the particular issue crime in question,
15 did not show a lack of effective control; rather, it must be - and the
16 Trial Chamber did here - an analysis of all the evidence of whether the
17 commander was choosing not to act which was the case there and is the
18 case here.
19 JUDGE VAZ: [Interpretation] Thank you, Mr. Schneider.
20 The Defence may now proceed with their reply. You have
21 20 minutes to do so.
22 MR. JONES: Thank you, Your Honour.
23 In terms of the schedule, in fact I was going to suggest that if
24 we're not continuing after the lunch break that we might have a comfort
25 break, as it's sometimes colloquially referred, just for five minutes,
1 otherwise I can continue. But ...
2 [Appeals Chamber confers]
3 MR. JONES: If it's a difficulty, I can press on.
4 JUDGE VAZ: [Interpretation] Please continue. Thank you.
5 MR. JONES: I'm obliged. Thank you.
6 Well, if I could start firstly in response to a matter raised by
7 Judge Meron, he referred the Prosecutor to paragraph 403 of the
8 judgement. And the Prosecutor replied that insofar as that was
9 concerned, there was partial compliance because some detainees were
10 released. Well, those were captured Bosnian Muslims. They're not even
11 prisoners of war at all. So there's no compliance at all because the
12 order concerns prisoners, not civilians who have just -- civilian --
13 Bosnian Muslim civilians who had simply got in the way.
14 And you asked whether there were any other orders. Well,
15 paragraph 404 goes on to refer to another order which was defied by the
16 EMD, and so that's -- obviously that's pertinent too.
17 Now, responding to the Prosecution's submissions, the Prosecution
18 repeatedly said how the Trial Chamber found effective control. Well,
19 that's of course completely wrong. It's not the Chamber, it's only two
20 Judges, with Judge Moloto dissenting, and the Judges themselves were
21 clear about that. And it's worth reflecting that 2-1 vote is a very
22 small margin. Translated into a jury trial that would be 8 to 4
23 think isn't acceptable in any common law jurisdiction. But be that as it
24 may, it's allowed under the Statute, but one swing vote means that a
25 man's fate hangs on a very slender thread.
1 My learned friend also referred repeatedly to what was reasonable
2 in terms of conclusions by the Chamber. That -- the assessment of
3 reasonableness has to be seen in the context of what the Chamber itself
4 said about a case based on circumstantial evidence. And you'll see at
5 paragraph 28 where the Chamber reminded itself:
6 "It is not sufficient that it is," it being guilt, "a reasonable
7 conclusion available from that evidence. It must be the only reasonable
8 conclusion available. If there is another conclusion which is also
9 reasonably open from that evidence and which is consistent with the
10 innocence of the accused, he must be acquitted."
11 So the point I make is it's not enough if one says: Well, the
12 majority's view was one reasonable view. It's only if their view was one
13 open to them only on the basis that it was the only reasonable
14 conclusion. And we say, of course, that it wasn't.
15 Now, I'm going to deal as much as I can in an orderly manner with
16 my learned friend's submissions, but of course when one replies, it's not
17 always possible to have a completely logical progression. I'll start
18 with the issue of resubordination and the orders on resubordination. In
19 fact, the orders on resubordination show the complete opposite of what
20 the Prosecution thinks. They say the orders on resubordination were
21 successful. Well, that's their gloss on it. All that we have is
22 evidence of many orders on resubordination. And the reason why there
23 were many is precisely because it was unsuccessful. They weren't
24 succeeding to resubordinate the unit. And we've referred to this at
25 paragraph 25 in our appeals brief. One sees that in six days the EMD was
1 issued three orders on subordination or resubordination and that it
2 didn't follow any of these orders, and that's the evidence of PW-9. So
3 they weren't issuing lots of resubordination orders because it was such a
4 success. It's the complete opposite. They had to keep trying because it
5 wasn't working.
6 And here perhaps I can deal also with the issue of improvement,
7 the notion that there was improvement. And I think I have to ask to go
8 into closed session because there's an exhibit which is under seal which
9 I just want to call up. I believe that e-court is able to call up
10 exhibits and it's E 661, but of course if they can refrain from calling
11 it up.
12 JUDGE VAZ: [Interpretation] Very well. Let's move into closed
14 [Private session]
8 [Open session]
9 THE REGISTRAR: We're back in open session, Your Honours.
10 MR. JONES: Thank you.
11 Yes, dealing with the first time-line, we see Delic authorising
12 the creation of the EMD. Well, I won't call up the relevant exhibit,
13 given the shortness of time, but it's E 273, which shows firstly this was
14 a proposal by the RBiH and that Delic was not out of his own personal
15 authority creating the EMD. And it's well established in the Tribunal's
16 case law that merely being a conduit through which your superior passes
17 an order doesn't place you in a position of effective control. And at
18 the end of that exhibit there are a list of things which had to happen in
19 order for the EMD to be established. It had to provide a list of its
20 members, it had to report on what it had done, and none of that -- none
21 of that happened. So right from the start it didn't actually work out,
22 and that's clear from the evidence, and if we have time I'll provide the
23 reference to our -- where that's dealt with in our Defence appeals brief.
24 The Prosecution says that Delic replenished the unit, but in fact
25 as we see from the judgement, joining the EMD was even treated as
1 desertion, paragraph 174.
2 In terms of all the orders which were issued and which they
3 rely -- the Prosecution rely very heavily on footnote 1183, which is
4 indeed key for the majority as being all the orders -- a whole list of
5 orders which were issued to the EMD, combat orders. You'll notice very
6 significantly in that paragraph that there are no references to
7 transcripts at all, no references to witness evidence. And so
8 significantly, there's no evidence that those orders were complied with.
9 In fact, these are just exhibits which mentioned the EMD on it. And
10 that's why, as I say, very significantly, that there's absolutely not a
11 single transcript reference in that whole footnote.
12 Besides, this was co-operation with tactical parts of the combat
13 orders, that's the Chamber's own words at 461, and so we say consistent
14 anyway with co-operation.
15 As for disbandment, again relied on as creating and disbanding
16 the unit, well, if we see paragraph 198 of the judgement, and I'll ask
17 you to simply turn that up, it's a matter which we've dealt with in our
18 appeals briefs, one sees this:
19 "According to a former EMD member, without the surest consent the
20 EMD would have continued fighting."
21 So in any event, disbandment hinged on the shura agreeing. It
22 wasn't because Delic ordering it. And as we all know, this is in the
23 context of the Dayton Peace Agreement which provided that all foreigners
24 had to leave the territory. So it was in that context that this
1 My learned friend went through a list of the facts which he said
2 were incompatible with co-operation, and he listed, for example,
3 promoting members, appointing members to the EMD by the ABiH. Well,
4 you'll see at paragraph 191 of the judgement that there were no ranks in
5 the EMD. So the notion that actually appointing or promoting people is
6 fairly meaningless, particularly given that the leaders were not
7 appointed by the ABiH. That's paragraph 187 of the trial judgement.
8 In terms of issuing awards, my learned friend says, well, that's
9 never done in terms of allied armies; well, quite the contrary. I won't
10 mention that my grandfather, an American colonel, got the OBE from the UK
11 for his wartime services. He wasn't under the effective control of the
14 French. That is certainly something which allied armies can do and do
15 do. So it's, if anything, a very weak indicator, if it's an indicator at
16 all, of effective control.
17 The second time-line refers to the Goodall case. Really, it's
18 sufficient to look at what the Chamber itself said about that at
19 paragraph 448. Exhibit E 887 sets out all of what we rely on in that
20 regard. But it's plain from the judgement itself, proceedings were
21 instituted before a civilian court and they were never even concluded.
22 So as to what one can draw from that, we say very little, and they
23 subsequently escaped.
24 My learned friend says that it's not correct to say that the use
25 of force was not the only option, and they develop this theory which I
1 don't see the majority is developing particularly, but that there was a
2 question of military expediency, that the ABiH had sort of decided to do
3 a pact with the devil and not confront them because they were so useful.
4 In fact, as we've seen, far from being useful, the EMD, for example,
5 meant that they couldn't send Catholic or Orthodox soldiers to the front.
6 But what they refer to in support of that very thin submission is
7 footnote 1159. But it's not Delic who made the remark about not taking
8 energetic measures in order not to spoil relations, it's the
9 35th Division. And so that's significant. It can't be held against him
10 that someone expressed that view. And to the contrary, he was in fact in
11 favour of confronting, violently, if necessary, the EMD. And we've set
12 that out in our appeals brief at paragraph 383, that in fact there was a
13 division within the ABiH of how to deal with the EMD. And Delic was
14 actually in favour of taking strong action, but it was said - and this is
15 Witness Karavelic - any attempt that General Delic took on his own to
16 disarm them would have inevitably had led to loss of life among
17 civilians. "He did not have the right to do that from the Supreme
19 So that's very significant. He in fact, had it been in his power
20 to do so, would have taken action. So he certainly can't be charged with
21 accepting the EMD for military expediency.
22 The Prosecution referred to E 583, showing that the EMD had
23 completed all its tasks. Well, obviously what one has to see is that
24 exhibit in context. Time doesn't allow it, but if we look at E 583,
25 obviously the phrase "has completed all assigned military tasks" has to
1 be read in context.
2 The Prosecution referred to the dialectical approach and the idea
3 that what the EMD did what a normal dialectic with superior commands, but
4 that simply misunderstands what Dr. Paul Cornish, the expert who
5 introduced the expression, was referring to. You find it at paragraph
6 379 of the judgement. And what he says is that: Yes, you have an
7 exchange of ideas, but where there's effective control in essence at the
8 end the commander says: Thank you for your contribution, but this is how
9 we're going to do it. And that's not how it went with the EMD. That's
10 the critical distinction. If there was this exchange and they EMD said:
11 No, we don't want to fight for this and this reason, they wouldn't accept
12 an ABiH commander saying: Well, tough luck, you have to do it. And
13 that's critical. And they and the majority misunderstood that.
14 My learned friend has referred to Strugar on which they rely, it
15 seems, quite heavily. A very different case obviously. Strugar involved
16 regular army units, a fundamentally different proposition from foreign
17 fighters with the extremist views, bizarre and erratic behaviour of the
18 shura, the Emir, the foreign supporters. It really is barely worth
19 comparing the two.
20 Forgive me. Just, I think, two other matters. With respect to
21 Delic being informed of measures taken against the EMD, which is
22 highlighted in the time-lines, certainly there was an attempt to have
23 information to clarify what was happening with the EMD, but that isn't
24 tantamount to effective control. It's only human, it's only normal,
25 you're going to try and find out what's happening with this unit. But
1 the crucial point is the ABiH couldn't liaise with the EMD in order to
2 carry out proper investigations because the EMD had their own superiors
3 and they didn't have security officers or intelligence officers. And
4 that's precisely the organ which deals with crimes being committed and
5 investigation. And that's clear from paragraph 425 of the trial
6 judgement, where you see that the assistant commander for security --
7 sorry, in the words of one witness:
8 "Each battalion had a security organ, brigades had a security
9 organ, and the division had a security organ. The exception to this was
10 the EMD, which -- with which we never established contacts with respect
11 to the security organ."
12 And so that was what was preventing anything from really
13 happening. You'll see Awad as well, at paragraph 192, says that
14 officially his title was security officer but he just acted as an
15 interpreter. So it's hopeless. Without the EMD having security
16 intelligence organs it wasn't possible to properly investigate. And
17 what's more, because they didn't provide a list of the identities of
18 their members, they didn't know who was even in the EMD. So how do you
19 investigate a crime maybe committed by the EMD if you don't even know who
20 was in the unit?
21 They also, the EMD, besides submitting - and you'll see in the
22 evidence a list of their members only with nationalities, Kuwait
24 identification documents, that's paragraph 191, again making proper
25 security and intelligence investigation work impossible. And finally, on
1 prisoners Prosecution say: Well, yes, the ABiH did get access eventually
2 to the prisoners. Well, that's certainly not true of the September
3 prisoners who were simply killed by the EMD.
4 The ABiH in fact had to leave the camp of the EMD because of fear
5 for their own safety. And you'll see that at paragraph 275 of the
6 judgement, where -- relates to how the assistant commanders of the
7 35th Division went to see the VRS detainees.
8 "When Imamovic asked the detainees about the circumstances of
9 their capture, an armed Mujahedin appeared and started yelling in a
10 foreign language. Out of concern for their own safety, the two ABiH
11 soldiers left."
12 Again, that's very significant. It's not just slight
13 difficulties in gaining access. They're running out of the camp for fear
14 that they're going to be killed or injured by the EMD. Again, how does
15 that equate to effective control?
16 And yes, the Prosecution gave examples of how sometimes access
17 was given to the camp, but it's very significant what that was for. It
18 was clearly for religious propaganda purposes. You see at paragraph 411
19 they would allow other members into the camp in order to pray together.
20 They were probably recruiting. It would be quite a good way to get new
21 members. So one has to see the context.
22 We do say that access to the detainees and the camp is critical
23 in a case of this nature. Otherwise, one can imagine this reductio ad
24 absurdum. Let's imagine not the facts of this case, I emphasise, but
25 let's imagine the EMD complied absolutely with combat orders without
1 fail, but conversely they would fight to the last man before they would
2 give access to their camps. It's not that far, the latter anyway, from
3 the facts in this case. How, then, would that be a basis for saying that
4 an accused should have done something, could have done something about
5 detainees? Again, it's a non sequitur. What has combat got to do with
6 whether there was effective control in relation to these crimes?
7 And finally, Hadzihasanovic was not distinguished purely on the
8 basis that Hadzihasanovic only issued three orders, here there were many.
9 That's an over-simplistic way of distinguishing that case from this. But
10 in any event, I think you have our submissions and unless I can assist
11 you further.
12 JUDGE VAZ: [Interpretation] We thank you, Mr. Jones. We shall
13 now have a one-hour break and resume at 20 minutes past 2.00 p.m. and
14 hear the Prosecution's appeal. We shall resume at half past 2.00.
15 The court stands adjourned.
16 --- Luncheon recess taken at 1.20 p.m.
17 --- On resuming at 2.31 p.m.
18 JUDGE VAZ: [Interpretation] Good afternoon to you all. The court
19 is back in session. We shall now give the floor to the Prosecutor so
20 that he may present his appeal. You have one hour.
21 MR. WOOD: Thank you, Your Honour.
22 For 35 days in the summer of 1995, General Rasim Delic's
23 subordinates, members of the El Mujahed Detachment, humiliated and
24 terrorised 11 prisoners of war. General Delic, as you heard earlier
25 today, formed the El Mujahed Detachment out of a group of violent
1 foreigners. Not only did he create this unit, he tolerated their
2 criminal behaviour for two years before the prisoners of war at issue in
3 this case fell into their hands. When the war ended, General Delic
4 disbanded the unit and thanked and praised its members for their service.
5 General Delic's three-year sentence fails to reflect both the
6 gravity of the "appallingly brutal" crimes at issue here and the gravity
7 of his failure to prevent and punish the crimes of members of the
8 El Mujahed Detachment. The sentence lacks any deterrent value to
9 dissuade future commanders to choose, as General Delic did in this case,
10 military expediency over an obligation to enforce international
11 humanitarian law. As such, the sentence attracts the condemnation of the
12 international community. The Appeals Chamber should revise this
13 manifestly inadequate sentence and impose a more appropriate sentence of
14 seven years' imprisonment.
15 The path leading to the abuse and terrorisation of these
16 11 prisoners of war in July 1995 starts in Central Bosnia in 1993. On
17 June 13th, 1993
18 "In the general area of Zenica municipality since the beginning
19 of the war, there have been volunteers from foreign countries who have
20 not entered the BH army." And that:
21 "In fighting to date, they have been acting outside the usual
22 context and lawful methods of combat, which is detrimental to the
23 BH state, and especially to the RBiH army." That's from trial judgement
25 As a solution to this problem, General Delic's subordinate
1 commanders proposed that these foreigners should either be sent back to
2 where they came from or organised into a unit, and that's at trial
3 judgement 173. General Delic acted quickly on this request, and on the
4 13th of August he signed an order "authorising the formation of a
5 detachment named El Mujahedin" composed of "foreign volunteers currently
6 on the territory of the 3rd Corps zone of responsibility." That's at
7 trial judgement 177. This is the El Mujahed Detachment.
8 After this unit was formed, General Delic was "informed via
9 bulletins sent by the Security Administration of numerous instances of
10 misconduct involving the El Mujahed Detachment members, some of which
11 amounted to criminal offences." This is at trial judgement 501, which
12 lists a number of instances in which General Delic was put on notice of
13 criminal behaviour of the El Mujahed Detachment. And the last of these
14 reports which is cited by the Trial Chamber was dated on the
15 19th of July, 1995, that's two days before members of the
16 El Mujahed Detachment captured the prisoners of war at issue in this
17 case. Then, as we see in the judgement, three days later, on the
18 22nd of July, another bulletin specifically directed to Rasim Delic
19 provided information that the prisoners were being held by the El Mujahed
20 Detachment and that "so far, they do not allow access." And
21 General Delic did not follow-up on this information, that's from trial
22 judgement 553, and the abuse of the prisoners of war continued until the
23 24th of August.
24 Why would General Delic countenance the El Mujahed Detachment
25 within his army, knowing their history of criminal behaviour? Because,
1 as we've explained earlier in our submissions, the El Mujahed Detachment
2 was effective in combat. As the judgement shows, it was a specialised
3 assault unit assigned with spear-heading attacks and breaking through
4 enemy lines, the most dangerous assignments in the field. The
5 El Mujahed Detachment was described as "the primary leader" in the
6 July operation that resulted in the capture of the 12 POW at issue in
7 this case. Now, I said "12" there, I said "11" earlier and I'll explain
8 that difference in a second.
9 This tolerance of the El Mujahed Detachment's criminal behaviour
10 is reflected in the 5 July 1995
11 Mr. Schneider referred to earlier. I'm just going to go into that in a
12 little bit more detail. As you recall, that report was regarding threats
13 to "slaughter" all the Croats and Chetniks who were in the 1st Battalion
14 of the ABiH 328th Brigade, and this is what that report indicated:
15 "The security body of the 1st Battalion of the 328th Mountain
16 Brigade held separate interviews with permanent top command members and
17 the non-Muslim members and tried to console them, telling them that they
18 were prepared to do everything requested by members of the
19 above-mentioned unit," and of course that's the El Mujahed Detachment,
20 "in order to execute the planned assignments, i.e., occupy Paljenik and
21 Vozuca." And that's from Exhibit 938 and cited in the judgement at
22 paragraph 434.
23 What this illustrates, Your Honours, is the choice of military
24 expediency over any other consideration. Rasim Delic chose expediency,
25 that is, the capture of Paljenik and Vozuca, over his responsibility to
1 enforce international humanitarian law. And as the judgement indicates,
2 in September the El Mujahed Detachment, having never been punished for
3 their crimes against the prisoners of war in July and August, captured a
4 hill called Paljenik, and that's at trial judgement 398.
5 The Chamber found that the apparent impunity with which members
6 of the El Mujahed acted through mid-July 1995, just before the capture of
7 the prisoners, "was also likely to have an encouraging effect on the
8 perpetrators and the El Mujahed Detachment at large," and that's from
9 paragraph 512 of the judgement.
10 Delic's failure to punish the perpetrators of the July crimes
11 showed the members of the El Mujahed Detachment that they could commit
12 even more serious crimes than those recounted by the Chamber in
13 paragraph 501. And again that's the paragraph that lists the bulletins
14 in which Rasim Delic was informed of the criminal behaviour of the
15 El Mujahed Detachment. The murders of at least 53 Serb prisoners in the
16 Kamenica camp by the EMD members in September only serves to illustrate
17 the gravity of Rasim Delic's failure to punish the crimes of the
18 El Mujahed Detachment soldiers in July and August.
19 As the Prosecution has explained in its brief, General Delic's
20 failure to control the EMD before the 21st of July, 1995, was inherently
21 grave, given the enormous powers he exercised as both the highest
22 military commander in the Army of Bosnia and Herzegovina and as a member
23 of the BiH Presidency, which was, as the Chamber described it, "the
24 Supreme Command of the armed forces." And that's at trial judgement 94.
25 The highest military commander in the Army of Bosnia and Herzegovina
1 great power, and with this power came great responsibility. Delic had
2 the duty to ensure that international humanitarian law was followed.
3 This principle underpans -- underpins the very idea of command
4 responsibility, Your Honours. As the ICRC commentary to Article 7 [sic]
5 of Additional Protocol I notes:
6 "Everything depends on the commanders," who "more than anyone
7 else can prevent breaches by creating the appropriate frame of mind,
8 ensuring the rational use of the means of combat, and by maintaining
10 As the commentary says, the commander's failure in his duty to
11 enforce international humanitarian law is "the paramount breach, which
12 encompasses all others."
13 What the Geneva Conventions stand for is that the international
14 community has a fundamental interest to ensure that superior
15 responsibility remains an effective tool in enforcing international
16 humanitarian law. Delic's three-year sentence fails to protect this
17 interest. Delic's failure to prevent and punish the crimes of the
18 El Mujahed Detachment is itself inadequately punished.
19 The three-year sentence additionally fails in the other goal of
20 sentencing at the ICTY, and that is of deterrence. And this is from
21 Trial Chamber judgement, paragraph 559. Not only did Delic fail to
22 prevent and punish members of the EMD for their criminal acts, he
23 personally thanked them for their service and awarded some members of the
24 unit the army's highest award for combat, the Golden Lily. That's at
25 trial judgement 198, and specifically Exhibit 828. His inadequate
1 sentence effectively sanctioned General Delic's decision to ignore his
2 obligations to enforce international humanitarian law and to continue to
3 use the El Mujahed Detachment in battle. The three-year sentence will
4 fail to deter future military commanders from making this same choice,
5 and the three-year sentence diminishes the power of command
6 responsibility as a tool for enforcing international humanitarian law and
7 protecting vulnerable people like the 11 prisoners of war who were ill
8 treated in the Kamenica camp in 1995.
9 Now, that goes to General Delic's -- the gravity of his failure.
10 The three-year sentence also fails to properly reflect the gravity of the
11 crimes committed by the El Mujahed Detachment against the prisoners as
12 the second part of the two-part analysis.
13 As I mentioned, for 35 days the El Mujahed Detachment abused,
14 humiliated, and terrorised 11 of the prisoners. The 12th, Gojko Vujicic,
15 was shot and beheaded the morning after he and the other prisoners
16 arrived in the Kamenica camp. The survivors describe an atmosphere of
17 constant physical and mental abuse that began in the village of Livade
18 the 21st of July and continued in the Kamenica camp until the
19 24th of August.
20 One of the survivors, a doctor, a medical doctor,
21 Dr. Branko Sikanic, described how the men were bound by their hands and
22 feet to a stick, forcing their faces to their knees. In his statement he
24 "I had a lot of problems with this stick and the terrible
25 position I was tied." And that's from Exhibit 927, cited in footnote 660
1 of the judgement.
2 In Livade, two of the prisoners were shown the freshly severed
3 heads of two Serb soldiers, identified later as Predrag Knezevic and
4 Momir Mitrovic, who had been murdered by EMD members as an act of
5 terrorisation. The conditions did not improve for the prisoners after
6 they were transferred to the EMD camp in Kamenica. Dr. Sikanic described
7 how the prisoners were restrained once they arrived at that camp.
8 "We were put laying on our stomachs, hands were tied behind our
9 backs, and also our legs were tied. There was some kind of terrible pain
10 caused to my legs, but I am not able to tell what caused that pain. I
11 had a feeling that somebody was slightly cutting off my feet slowly with
12 some object which was moving." And again, this is from his statement
13 which is cited by the Trial Chamber at paragraphs 257 and 258.
14 As I mentioned, Gojko Vujicic was shot and beheaded on the first
15 day at the camp. This had an impact on the others who survived. One of
16 the prisoners of war, Triv icevic, described what he saw.
17 "And one of the Mujahedin who were in the tent at prayer came out
18 of the tent, took an automatic rifle that was right next to the entrance,
19 he cocked it on his way. And then walking, he stopped next to Gojko's
20 head and Gojko could see him coming up, and he just turned his head
21 towards me, to his left.
22 "And then going along, he stood next to Gojko's head and coolly
23 fired a shot at Gojko's right temple and then went back to the tent. And
24 I just looked at Gojko and I could see his little finger still twitching
25 as if he were alive. The Mujahedin went to the tent, then he took a
1 sword. He came back to Gojko and in several strokes he severed Gojko's
2 head. He tried to place this head on the chest, but since the body was
3 tilting backwards, the head wouldn't stay there. He tried it several
4 times, and when that didn't work, he placed the head on the stomach.
5 Then it rolled off ... he put it back on the stomach, and then it stayed
6 there." This is from transcript 3639 to 3640, also cited by the Chamber
7 in paragraph 260.
8 And in the next paragraph, the judgement recalls that the men
9 were made to kiss the severed head.
10 During their stay the men were subjected to regular beatings,
11 electric shocks, and weren't given enough water throughout their
12 imprisonment in the Kamenica camp, and this is from the judgement at 273.
13 This had lasting impact on the victims. As Dr. Sikanic explained:
14 "The serious lack of water caused the dehydration and weight
15 loss, 13 to 15 kilogrammes. As I lost so much weight, my right kidney
16 moved to a lower position than normally. Because of that, I still
17 occasionally have severe pain in the right kidney. As a result of stress
18 and lack of food, I developed an ulcer in the lower intestine," and that
19 is from his statement which is cited in paragraph 268 and 271 of the
21 Delic's three-year sentence fails to reflect the gravity of the
22 series of crimes, not single crime but series of crimes that were
23 inflicted against these 11 men over a period of 35 days. As the Appeals
24 Chamber has held, superior responsibility is not inherently less grave
25 than responsibility as a perpetrator of the crime. That's at Celebici
1 appeal judgement, paragraph 735.
2 And as Judge Shahabuddeen declared in the Oric appeal judgement:
3 "The punishment for the commander's crime of failing to control
4 his subordinates should be measured by the punishment of his subordinates
5 for the actual crimes committed by them." And that's at
6 Judge Shahabuddeen's declaration, paragraph 22.
7 So Delic is given a three-year sentence. Now, as an example, a
8 conviction for a single instance of cruel treatment under the relevant
9 articles of the SFRY Criminal Code would have resulted in "a minimum
10 sentence of five years' imprisonment," with the most severe penalty being
11 that of death. And that's cited in the judgement.
12 Given the number of victims in this case, 11 -- well, 12, because
13 Gojko Vujicic was also mistreated during his time when he was still
14 alive, and the length of the ongoing abuse inflicted on these men, the
15 appropriate sentence for Delic's perpetrator subordinates would be well
16 in excess of five years. Delic's own sentence of just three years is
17 manifestly inadequate.
18 To conclude, this three-year sentence fails to take into account
19 the critical role that Rasim Delic played in creating the
20 El Mujahed Detachment and in tolerating the behaviour of its members
21 leading up to the July 1995 crimes. He rewarded them when he should have
22 punished them. He deployed them when he should have held them back.
23 The Chamber's three-year sentence was taken from the wrong shelf.
24 It fails to serve as any kind of retribution for these offences. It has
25 no deterrent value to dissuade future commanders from choosing, as
1 General Delic did in this case, military expediency over an obligation to
2 enforce international humanitarian law. The Appeals Chamber should
3 revise this sentence and impose a more appropriate sentence of seven
4 years' imprisonment.
5 And unless there are any questions, that concludes my remarks
7 JUDGE VAZ: [Interpretation] Thank you. The Judges have no
9 I shall now give the floor to the Defence. Mrs. Vidovic, I
10 believe, you are going to be taking the floor and you have 50 minutes.
11 MS. VIDOVIC: [Interpretation] Yes, thank you, Your Honours. Good
12 afternoon, again.
13 Your Honours, the Prosecution's submissions contained both in the
14 appeals and those presented today have no foundation in the case law of
15 the Tribunal and have been fully negated through the majority's thorough
16 and argumented analysis. The Prosecutor's plea actually represents an
17 unfounded request for a more severe punishment.
18 As the Prosecution claims in its appeal, the majority has
19 correctly cited all the relevant factors that have to be taken into
20 consideration when sentencing. Namely, according to the Tribunal's case
21 law there are two basic goals of punishment in war crime case. They have
22 both found their reflection in the sentence pronounced. These are
23 retribution and deterrence or, that is to say, the prevention of future
25 The principle of retribution requires a just and appropriate
1 sentence which is commensurate with the gravity of the act of the accused
2 himself. Deterrence, according to the majority, has two forms: An
3 individual and a general one. However, as the majority has correctly
4 warned in paragraph 559 of the judgement, the principle of deterrence
5 must not be accorded undue prominence in the overall assessment of the
6 sentences to be imposed on persons convicted by the International
7 Tribunal. This position, Your Honours, has been taken by Appeals
8 Chambers in the Kordic and Cerkez cases, paragraph 1078; Celebici,
9 paragraph 801; Tadic, paragraph 48; and Aleksovski, paragraph 185. The
10 majority has correctly evaluated the factors that have to be taken into
11 consideration when sentencing pursuant to Article 24 of the Statute and
12 Rule 101 of the Rules of Procedure and Evidence. Therefore, the
13 Prosecution's appeal is completely unfounded and should be dismissed by
14 the Appeals Chamber.
15 The majority has correctly stated that the gravity of a fact is
16 the crucial factor when determining the sentence. The sentence must
17 reflect the inherent gravity of the act committed by the convicted
18 person, bearing in mind the specific circumstances of the case and the
19 form and the degree of participation of the person convicted in the
20 crime, paragraph 561 of the judgement. This is in compliance with the
21 first goal of retribution.
22 As on all criminal cases, the most important factor in the cases
23 that deal with command responsibility are the acts committed by the
24 accused and the circumstances under which the act was committed.
25 Although the crimes committed by subordinates must definitely be taken
1 into the consideration, the Court must not lose sight of the fact that
2 the convicted person is punished for their own failures and not the
3 offences of their subordinates. This is stated in paragraph 101 in the
4 Krnojelac case, which reads:
5 "It cannot be overemphasised that where superior responsibility
6 is concerned, an accused is not charged with the crimes of his
7 subordinates but with his failure to carry out his duty as a superior to
8 exercise control."
9 The Prosecution ignores the nature of command responsibility and
10 the importance of the acts committed by the accused when it says that the
11 findings by the majority that deal with the nature of the crimes
12 committed by Delic's subordinates illustrate the mismatch between the
13 gravity of the underlying crimes and the three-year sentence imposed.
14 This is paragraph 9 of the Prosecution's appeal.
15 The Prosecution has described in detail the "appalling brutality"
16 of the crimes committed by Delic's subordinates without explaining in
17 what way the gravity of each such described situation should contribute
18 to the sentencing, given that it has been established that Delic did not
19 had actual knowledge about the crimes. Nowhere in the Tribunal's case
20 law is command responsibility defined as strict liability. Therefore,
21 when considering the responsibility of the accused and the
22 appropriateness of the sentence, the conduct of the subordinates must not
23 be afforded too much importance. I again refer us to the case law of
24 this Tribunal, case Celebici, paragraph 239, where it is specifically
25 said that command responsibility is not strict liability; the judgement
1 in Halilovic case, paragraphs 42 to 54, confirmed by the Trial Chamber's
2 judgement; and Hadzihasanovic case, paragraph 66 to 75. The majority,
3 when delivering this sentence, was fully aware of all the details
4 relating to the subordinates' crimes and afforded them appropriate weight
5 in the process of sentences which can be seen in paragraph 564 of the
7 Contrary to the Prosecution's claims, the possible sentence for
8 his subordinates cannot affect the decision on Delic's punishment because
9 Delic was not convicted of direct involvement in the crimes, but rather,
10 for the failure to prevent and punish his subordinate for the crimes
11 committed. Although the Prosecution correctly states that command
12 responsibility is not per se less serious than the responsibility of
13 perpetrators themselves, it does not follow from this that the superior
14 automatically must be given either the same or even more severe
15 punishment than the one delivered on his subordinates. Command
16 responsibility is another form of a criminal offence, and therefore the
17 punishment must be different, having in mind the nature of the failure of
18 the superior. This is decided by the Trial Chamber in the Halilovic
19 case, paragraphs 42 to 52; and re-affirmed in the Halilovic case,
20 paragraph 39 of the appeals judgement.
21 The Prosecutor mentioned today the case law of the domestic
22 courts and the SFRY Criminal Code. He erroneously invokes the practice
23 of certain legal systems with regard to sentences, because these systems
24 have a completely different concept of command responsibility than the
25 one applied by this Tribunal. In any of the systems mentioned by the
1 Prosecution - and he mentioned a lot today - the severity of the sentence
2 is a very important factor when deciding the punishment for the superior;
3 and the superior himself is therefore considered an accomplice or aider
4 and abetter in the crime.
5 The Appeals Chamber of this Tribunal has specifically stated that
6 criminal responsibility is a separate criminal offence and that those who
7 are convicted on this basis shall not be considered as accomplices, and
8 therefore, their punishment cannot be equal to the punishment imposed on
9 the subordinates. I refer here to the Halilovic judgement of the
10 Trial Chamber, paragraph 42 to 54; confirmed in the Hadzihasanovic case,
11 trial judgement paragraph 66 to 75; and the appeal judgement in the
12 Celebici case, paragraph 239.
13 So the case law of the -- of the courts of the former Yugoslavia
14 in this particular case is of lesser importance.
15 Delic has been convicted for the failure to prevent and punish
16 his subordinates and not for his direct involvement in the crimes. The
17 Prosecution is also in error when taking into account the case law of
18 these courts by overlooking what has been said in paragraph 558 of the
19 judgement. The majority concluded that -- or rather, although the
20 majority stated that jurisprudence must be one of the factors taken into
21 consideration when determining the sentence, in its further analysis it
22 concluded that the SFRY Criminal Code does not contain the form of
23 liability that corresponds to Article 7(3) of the Statute, and that the
24 Tribunal's case law regarding the punishment is relevant for this
25 particular case, paragraph 593 of the judgement.
1 However, as the Prosecutor stated, according to the SFRY Criminal
2 Code the minimum sentence - as quoted in paragraph 593 of the
3 judgement - was five years of imprisonment. However, the sentence
4 pronounced in this case against Rasim Delic is completely adequate and
5 appropriate in view of the fact that he was convicted on the principle of
6 command responsibility and he didn't have actual knowledge about the
7 crimes committed. Therefore, instead of the acts and possible punishment
8 for the perpetrators, the most important factor when sentencing must be
9 the conduct of the accused himself. Since the doctrine on command
10 responsibility theoretically can be applied to a wide spectrum of
11 dereliction or breach of duty which may vary in terms of nature and
12 gravity, so can the sentence to a great extent vary in different cases.
13 There are three basic factors relevant in determining the scope
14 within which a superior can be deemed responsible for the crimes
15 committed by his subordinates and which sentence would be appropriate
16 under the given circumstances. These factors are the gravity of his
17 dereliction of duty, the seriousness of the consequences of such
18 dereliction, and the scope within one might say that his failure to act
19 contributed to the commission of crime, which is failure to act and
20 prevent, or for not imposing punishment on his subordinates.
21 The gravity of the dereliction of duty will be measured by
22 comparing the measures that the accused was legally bound to undertake
23 and had material capability of adopting and, eventually, the conduct
24 adopted by himself in given circumstances. It is important to underline
25 that the superior had some responsibility and relevant authority. One
1 cannot take that as a basis for a presumption that he had a comprehensive
3 We also have to bear in mind that according to the international
4 law, a high-ranking officer is neither expected nor requested to
5 personally see to the implementation of measures aimed at preventing or
6 punishing crimes committed by lower-ranking personnel. Please bear in
7 mind the fact that we are talking here about the commander of the
8 Main Staff of the ABiH army, who under him within the chain of command
9 had corps commands, division commands and their commanders, brigade
10 commands and their commanders, battalion commands and their commanders,
11 and the detachment that we are discussing here. So at that level, this
12 detachment only one of the thousand units that existed within that chain.
13 The question which measure or measures a superior must adopt
14 within a given context primarily hinges on the material capabilities that
15 the superior had and the circumstances that prevailed at the time. That
16 was the conclusion of the Trial Chamber in the Strugar case,
17 paragraph 378. Therefore, the Tribunal must have carried out a very
18 specific check of the situation in which the commander was and the means
19 that he had at his disposal during the indictment period, taking into
20 account all the relevant facts of the case. This is in compliance with
21 international law, which clearly imposes that the gravity of failure of
22 the accused as one of the main factors for sentences cannot be
23 established without taking into account all the circumstances in which
24 this failure was committed. This was underlined by the Chamber itself in
25 paragraph 558 of the judgement, and it was also ruled in the Toyoda case,
1 page 5001.
2 Speaking about Delic's failure, the Prosecution claims that a
3 three-year sentence affects the effectiveness of responsibility as an
4 instrument of the implementation of international humanitarian law,
5 having in mind the circumstances of the case. However, the Prosecution
6 did not cite any circumstance that would justify more severe punishment
7 in order -- which would be the way in which the international law would
8 treat the responsibility of a commander. On the contrary, there is a
9 series of circumstances under which Delic was acting which justify the
10 position of the Trial Chamber.
11 The facts clearly show that the circumstances in which
12 Rasim Delic acted from the time he assumed the position of the commander
13 of the Main Staff of the RBiH all the way to the Dayton Accords
14 considerably restricted his capability to undertake any measures against
15 the EMD. On the other hand, the evidence clearly shows that Delic had
16 undertaken all the measures that were available to him under the
18 One of the most important circumstances that the Chamber must
19 take into consideration when considering the guilt of Rasim Delic and the
20 appropriate sentence is the fact that his capability of taking any
21 measures against the EMD was even more restricted in view of the fact
22 that this unit refused to recognise the authority of the commander of the
23 RBiH. This was particularly obvious from the fact that members of the
24 EMD did not allow access to representatives of the RBiH to their camps,
25 paragraphs 407 and 410 of the judgement; that RBiH itself had very
1 limited data about the identity of certain members of the EMD,
2 paragraph 373; and as my colleague put it, they didn't know the origin of
3 the countries from which they came; and that this unit persistently
4 refused to accept the system of subordination within RBiH, as testified
5 by Imamovic on the 10th of October, 2007, transcript 4045 to 4046;
6 Sljuka, 24th of October, 2007, transcript 4301-4369; Hajderhodzic,
7 8th of October, 2007, transcript T-3784 to 3785; Edin Husic, 23rd of
8 October, 2007, transcript 4446 to 4447; Awad, 2nd -- 9th of February,
9 2008, transcript 172 to 173; and Alija, 16th of October, 2007,
10 transcript 4156. These were all Prosecution witnesses. All the
11 above-stated circumstances are extremely relevant when assessing the
12 individual responsibility of the accused and determining the sentence.
13 It is a relevant fact that Rasim Delic, in spite of the problems
14 cited, has undertaken decisive, albeit often unsuccessful, steps towards
15 establishing a system of command and control in general as well as
16 some -- undertaking some specific measures in order to try and put the
17 EMD under control.
18 Already in June 1993 Delic ordered the 3rd Corps to disarm,
19 disband and expel the Mujahedin, Exhibit 163; then Exhibit 661; then
20 Exhibit 963. In October 1993, he initiated the action Trebevic 1 against
21 two units of the RBiH that were outside of control, as was established by
22 one -- in paragraph 136 of the judgement. Afterwards, he initiated some
23 other actions like Trebevic 2, 3, and 4, respectively, in order to remove
24 obstacles in the functioning of the system of command and control within
25 the Army of Bosnia and Herzegovina
2 On the 9th of December, 1993, Delic ordered a clamp-down on the
3 illegal activity of the units of guerilla Mujahedin and El Mujahedin, as
4 stated in paragraph 449 of the judgement. Finally, the operative action
5 Vranduk that you saw, or rather, whose plan you saw, that was the last
6 exhibit that was displayed to you by my colleague, had as its objective
7 investigating the activities of EMD and constituted yet another attempt
8 by the Army of Bosnia-Herzegovina to place El Mujahedin under control.
9 All of these actions indicate that Delic was a responsible
10 commander who tried to establish a system of command and control within
11 the Army of Bosnia
12 Mujahedin; however, due to a variety of factors that we discussed in
13 greater detail in subground 2D, paragraph 250 through 258 of our appeal,
14 that was not established.
15 The decision of the majority that the Prosecutor calls a twin
16 failure in his appeal is actually a perfectly appropriate judgement in
17 view of the context in which Delic operated. Many difficulties that he
18 encountered on a daily basis no doubt affected his actual ability to
19 prevent and punish. Therefore, Your Honours, the assertion of the
20 Prosecutor that the sentence is inappropriate is far from reality. The
21 majority states in several places in the judgement that Rasim Delic
22 failed to prevent and punish his subordinates, paragraph 564 of the
23 judgement; and on the basis of this it can be concluded that the majority
24 had in mind this twin failure when deciding on sentencing.
25 And therefore, the Prosecution assertion is totally unfounded.
1 The Prosecutor fully neglected certain circumstances, and that
2 was repeated today by the Prosecution to a certain extent, that Delic did
3 not act in accordance with international humanitarian law and that he
4 decided in favour of expediency instead of obligations imposed on him by
5 international humanitarian law. Specifically, the Prosecutor says that
6 Delic closed his eyes before violations of international humanitarian law
7 by the EMD and continued to use this unit in operations because that
8 suited his military purposes. This statement is contrary to the findings
9 of the majority. First of all, the majority established that Delic never
10 had any actual knowledge about any crimes, but only had reason to know
11 that the members of the El Mujahedin are preparing to commit a crime of
12 cruel treatment in the camps of Livade and Kamenica in July and
13 August 1995, as stated in paragraph 542 of the judgement. So, for
14 someone who did not have actual knowledge of violations of international
15 humanitarian law, one cannot say that he closed his eyes, as it were,
16 before such violations.
17 Your Honours, you have truly heard some horrifying descriptions.
18 However, none of these descriptions or none of this knowledge ever
19 reached General Delic. And the majority never found any such thing.
20 Secondly, the Prosecution's argument is contrary to the findings
21 of the majority, namely, that Delic worked on resolving the problems
22 related to EMD and that he was involved in training his subordinates on
23 principles of international humanitarian law. And I'm now referring to
24 paragraph 544 of the judgement. Specifically, the majority decided that
25 Delic took measures in order to promote knowledge of and the application
1 of international humanitarian law within the Army of Bosnia-Herzegovina,
2 and that he instructed commands of the corps of the Army of
3 Bosnia-Herzegovina to treat enemy combatants who were taken prisoner in
4 accordance with Geneva Conventions and allow the representatives of the
5 ICRC to have access to detention premises, paragraph 544 of the
7 The Prosecution assertions that Delic decided in favour of
8 military expediency, neglecting obligations imposed on him by
9 international humanitarian law, are totally unfounded. What is also
10 unfounded thereby is what was stated today by the Prosecutor, that the
11 three-year sentence effectively sanctioned Delic's decision to ignore his
12 responsibilities under international humanitarian law and to continue to
13 use the EMD in battle, and that such a sentence has a diminished value as
14 a deterrent.
15 It is not only unjustified, Your Honours, it is also offensive in
16 relation to the Trial Chamber. It does not encourage in any way other
17 commanders to use individuals or units prone to violence in military
18 operations. Also the Prosecution is mistaken when claiming that Delic's
19 decision not to -- or rather, when he mentions Delic's decision not to
20 control the EMD. The majority never found that Delic consciously decided
21 not to control the EMD.
22 The Prosecutor claims that Delic neglected to notice that the
23 El Mujahedin had committed crimes and that he even awarded this unit and
24 thanked it for their services. That is a distortion of facts and
25 findings of the Trial Chamber. In the paragraphs of the judgement,
1 paragraphs 198 and 455, the Trial Chamber found that the recognition
2 given to the EMD was actually there by way of impetus to foreigners to
3 leave Bosnia and Herzegovina, and that promotions of the members of the
4 EMD were a result of the decisions of the Presidency of the RBiH, not
5 decisions of Rasim Delic.
6 Your Honours, that was also referred to in paragraph 455 of the
8 The Prosecutor completely ignores this context when claiming that
9 the fact that Delic thanked the unit for the assistance they rendered
10 during the course of the war should be taken as an indication for his
11 disregard of international humanitarian law. The findings of the
12 Trial Chamber, paragraph 456 of the judgement, no doubt indicate that
13 Delic's statement was in accordance with the decision of the Presidency
14 and that it was given under pressure that was brought to bear by the
15 international community which, after the signing of the Dayton Accords,
16 asked that all foreigners leave Bosnia-Herzegovina. That is what Witness
17 Loncaric testified on the 10th of April, 2008; Halim Husic as well, on
18 the 12th of March, 2008; also Awad, a Prosecution witness. In such a
19 situation, the representatives of military and political structures had
20 to act highly diplomatically towards foreigners so that they would make
21 sure that they actually left the country.
22 The Prosecutor's assertion that Delic actually deserves a graver
23 sentence because of the fact that his breach of duty to enforce
24 international humanitarian law is especially grave since he was the most
25 senior military commander, that was stated in the appeal and repeated
1 today, is based on an erroneous interpretation of jurisdiction related to
2 command responsibility. Rank or a high position in the hierarchy cannot
3 at the same time be grounds for conviction according to the doctrine of
4 responsibility of the superior and also an aggravating factor in
5 sentencing. Such a procedure would result in taking his position as
6 relevant into account twice, as relevant for sentencing. This was stated
7 in the judgement of the Trial Chamber in the Hadzihasanovic and Kubura
8 case, page 614, footnote 4877; then in the appeal judgement in the
9 Celebici case, paragraph 745, footnote 1261.
10 The fact that the accused held a high position and that he had
11 certain authority can make criminal conduct graver only if the accused
12 person had abused this authority or used it with a view to achieving his
13 own or someone else's criminal acts, and only in situations when the
14 accused person was not found guilty on the basis of command
15 responsibility. Krstic Trial Chamber, paragraph 709; then the appeals
16 judgement in Celebici, paragraph 736; the appeals judgement in
17 Aleksovski, paragraph 183; the sentencing judgement in Sikirica,
18 paragraph 172; the sentencing judgment in Babic, paragraphs 54 through
19 62; and the sentencing judgement in the Simic case, paragraph 67.
20 Your Honours, the Prosecutor did not prove in any way that
21 Rasim Delic had abused his office or position in any way.
22 The Prosecutor says that Delic was supposed to be given a higher
23 sentence and quotes the appeal judgement in the Strugar case to support
24 that assertion; however, as my colleague already stated, there is an
25 important distinction between these two cases. As opposed to Strugar,
1 Strugar was -- as opposed to Delic, Strugar was found guilty on the basis
2 of Article 7(1) and Article 7(3) of the Statute. The Appeals Chamber in
3 Celebici made a clear distinction between these two forms of
4 responsibility when speaking of sentencing; namely, proof of active
5 participation by a superior in the criminal acts of subordinates adds to
6 the gravity of the superior's failure to prevent or punish those acts and
7 may therefore aggravate the sentence. That is paragraph 736 of the
8 Celebici appeal; and in Aleksovski, it is -- the appeals judgement in
9 Aleksovski, it is paragraph 183. So any kind of comparison between these
10 two cases is inappropriate.
11 Delic was found guilty by the majority of the Trial Chamber only
12 on the basis of cruel treatment and only on the basis of indirect or
13 imputed knowledge of crimes. This last allegation is particularly
14 important in terms of sentencing. The majority itself stated that
15 relevant factors when determining the gravity of a crime of a superior
16 also involved the question whether the superior had actual or imputed
17 knowledge about the crimes committed by the subordinates and the extent
18 to which this was foreseeable. Paragraph 563 of the judgement.
19 And it is important to state that Rasim Delic had imputed and not
20 actual knowledge of these crimes. Paragraph 564 of the judgement.
21 Your Honours, I'm briefly going to deal with what the Prosecutor
22 said today. The Prosecutor said that Rasim Delic had indirect knowledge
23 about criminal behaviour or crimes that had been committed by
24 El Mujahedin previously. That is not true, Your Honours. Even as far as
25 criminal reports are concerned against the killers of Paul Goodall, it
1 does not mean that there are several perpetrators and only some are
2 members of the EMD. On the other hand, the information that was
3 accessible in the bulletins did not have to do with criminal offences at
4 all, but minor offences often committed against civilians. Because of
5 the different traditions involved and the fact that Arab soldiers had
6 different perceptions when compared to those of the Bosnian people. So
7 there is no evidence of previous criminal conduct that Rasim Delic would
8 have to be aware of.
9 The nature of knowledge of a subordinate concerning crimes of --
10 of a superior concerning crimes committed by subordinates is an important
11 element when looking at the second and third factor relevant and to the
12 extent to which this can be looked into if the subordinates remained
13 unpunished for anything they had committed.
14 I do apologise for being too fast.
15 The Prosecution says in their appeal, in view of his previous
16 role of high-ranking commander of the Army of Bosnia-Herzegovina, Delic's
17 failure to prevent and punish his subordinates is particularly serious
18 because he stimulated the creation of a climate of impunity in the entire
19 chain of control. Delic was the superior of every soldier in the army
20 structure of Army of Bosnia-Herzegovina. More than anyone else, he was
21 responsible for exercising the function of command in the
22 Army of Bosnia-Herzegovina. That is paragraph 33 of the Prosecutor's
24 When presenting this assertion, the Prosecutor is ignoring
25 relevant jurisprudence and facts in this case.
1 First of all, as for Strugar and Hadzihasanovic, namely, the
2 failure of a commander to punish a crime can be as a consequence an
3 increased risk from having it repeated, can pertain only to a situation
4 where the superior had actual knowledge about crimes committed. I'm
5 referring to Hadzihasanovic appeal paragraph 30, and then the Strugar
6 appeal judgement paragraph 301. Since Delic had only indirect rather
7 than actual knowledge about an isolated incident, one cannot say that
8 this climate of impunity was created by any failure on his part,
9 especially in view of the fact that he actively worked on acquainting
10 members of the Army of Bosnia-Herzegovina with international humanitarian
12 Secondly, the findings of the Appeals Chamber in the Celebici
13 case that the Prosecutor refers to in his appeal, that constant failure
14 on the part of a commander to prevent or punish crimes of subordinates
15 can encourage subordinates to commit new crimes, paragraph 739, is not
16 applicable in this case, Your Honours. Actually, as opposed to the
17 accused in the Celebici case, the majority did not conclude that Delic on
18 a continued basis failed to carry out his duties. On the contrary, he
19 was found guilty on the basis of the conclusion that he had reason to
20 know of one isolated incident, as stated in paragraph 551 of the
22 The Chamber itself in the Celebici case states that constant
23 failure on the part of a commander to prevent and punish must be
24 considered significantly graver than cases of isolated incidences of this
25 kind -- incidents of this kind, paragraph 739.
1 The Prosecution's -- the Prosecutor's statement that Delic was
2 the superior commander of every soldier within the military structure of
3 the Army of Bosnia-Herzegovina, that more than anyone else he was
4 responsible for command in the Army of Bosnia-Herzegovina, that is
5 paragraph 33, is contrary to facts and the findings of the Trial Chamber.
6 From the evidence it is clear that the command structure of the Army of
7 Bosnia-Herzegovina is based on singleness of command. So although Delic
8 was the commander of the Main Staff of the Army of Bosnia-Herzegovina, he
9 did not command all soldiers within the Army of Bosnia-Herzegovina.
10 E 419 clearly states who the persons were to whom Delic was a direct
11 commander, including the commanders of the corps, and so on and so forth,
12 Your Honours.
13 Finally, the Prosecutor ignored many mitigating factors that the
14 majority took into consideration in sentencing. First of all, Delic
15 voluntarily surrendered to the Tribunal immediately after the indictment
16 was issued, as stated in paragraph 573 of the judgement. Secondly, there
17 is an abundance of evidence about his good character; he did not have a
18 criminal record; he was an advocate of implementing international
19 humanitarian law within the Army of Bosnia-Herzegovina; he was
20 instrumental in the initiation of Operation Trebevic I and subsequent
21 actions to crack-down on unruly units, and he was involved in peace
22 negotiations, as stated in paragraphs 582 through 584 of the judgement.
23 Finally, the majority took into consideration the circumstances that
24 prevailed in Bosnia and Herzegovina and the difficulties that Delic faced
25 because of resistance by persons from his own milieu in certain political
1 groups, paragraphs 588 and 589 of the judgement.
2 The fact that the Prosecutor ignored these mitigating
3 circumstances when asking for a new sentence of seven years clearly
4 states that his request is inappropriate.
5 Your Honours, on the basis of what I've stated so far, it is
6 clear that the majority did take into account all significant factors
7 when asking for an appropriate judgement for Rasim Delic. The three-year
8 sentence reflects the gravity of Delic's failure, all the circumstances
9 in which the failure took place, as well as many mitigating
10 circumstances. The Prosecutor did not present a single valid reason
11 showing why this sentence is inappropriate. The Prosecutor's arguments
12 are contrary to evidence and the findings of the majority and they are
13 based on a misinterpretation, as I've already said, of relevant
14 jurisprudence, and therefore the Prosecution's claims should be
16 JUDGE VAZ: [Interpretation] Judge Pocar has a question.
17 JUDGE POCAR: As just a question to be clear about what your
18 position is, because perhaps I didn't get it correctly through the
19 interpretation. Is that correct that your point is that command
20 responsibility is a separate crime consisting of the failure to prevent
21 or punish separate, distinct, from the crime committed by the
22 subordinate? Is that correct what I heard?
23 MS. VIDOVIC: [Interpretation] Yes, Your Honours.
24 JUDGE POCAR: If it is so, is that your point that command
25 responsibility is not responsibility for the crime committed by the
1 subordinate, but is a different kind of responsibility that is not linked
2 necessarily to the crime committed? I heard you saying that it depends
3 on the gravity of omission of the duty measured in light of the measures
4 that the commander should have taken. So is that correct, your point is
5 a quite different offence which has nothing to do or very little to do
6 with the crime committed by the subordinate? In other terms, it is not a
7 mode of responsibility for the crime committed by the responsibility, but
8 is a completely different offence. Is that your position?
9 MS. VIDOVIC: [Interpretation] Yes, Your Honours. Our position
10 and the position of the majority of Trial Chambers in this International
11 Tribunal is that this is a separate crime, that this is a distinct crime.
12 In other words, a commander is responsible for his own failure to either
13 prevent or punish, but not for the crimes committed by his subordinates
14 as such.
15 JUDGE POCAR: Thank you. In such a case, am I correct that in
16 your view, the gravity of the failure to prevent or punish is not
17 dependent on the gravity of the crime committed by the subordinate? That
18 has to be measured differently?
19 [Defence counsel confer]
20 MS. VIDOVIC: [Interpretation] Actually, yes, Your Honours. Yes.
21 JUDGE POCAR: I thank you.
22 JUDGE VAZ: [Interpretation] Judge Meron has a question.
23 JUDGE MERON: If I may follow on the penetrating questions asked
24 by my distinguished colleague, Judge Pocar. You are in fact saying in
25 answering him that there is no nexus between the gravity of the sentence
1 to be imposed, say, on Mr. Delic and the conduct of his, let's assume,
2 subordinates without going into the question of effective command now.
3 Would that also be your position if Mr. Delic would have known what were
4 the crimes committed and how grave they were; or are you resting your
5 argument, or your answers to Judge Pocar on the fact that he was not
6 familiar with what was happening in the Mujahedin compound?
7 MS. VIDOVIC: [Interpretation] Your Honours, actually no.
8 General Delic should be convicted on the basis of his own credibility,
9 that is to say -- actually, yes, I apologise. I made a mistake.
10 General Delic should be tried and convicted on the basis of his
11 own failure and the gravity thereof, that is to say, his failure to
12 prevent and pressure. Certainly, the gravity of the crimes committed
13 should be taken into account, but in no way should it be accorded too
14 much importance, because otherwise one can always assume that every
15 commander should get life imprisonment for any serious crimes committed
16 by his subordinates. Therefore, we have to judge his own failure and his
17 own liability.
18 And, Your Honours, allow me to answer the second part of your
19 question. Of course it is extremely important in this situation to know
20 whether he was convicted due to the existence of actual knowledge or
21 indirect knowledge. If he didn't have any actual knowledge about the
22 specific circumstances, then definitely it is a different kind of failure
23 as opposed to the situation in which he had actual knowledge. Had he had
24 actual knowledge, his failure would have been more serious.
25 JUDGE MERON: Thank you.
1 JUDGE VAZ: [Interpretation] Well, there are no other questions.
2 Therefore, Mr. Prosecutor, you have 20 minutes for your reply.
3 MR. WOOD: Thank you, Your Honour.
4 The most important point to take away from the Prosecution's
5 submissions, Your Honour, and in response to what the -- in reply to what
6 the Defence has said today, the Prosecution's argument here is that the
7 Chamber failed to properly assess the gravity of crimes and also the
8 gravity of Rasim Delic's breach. The circumstances as a whole on the
9 facts of this case, as applied to Rasim Delic, this is -- this three-year
10 sentence is manifestly inadequate.
11 I heard a lot in response that imputed knowledge should be
12 treated as something different than actual knowledge, and that was
13 repeated throughout the Defence submission today and throughout their
14 brief, and this is an important point to address, I think. The reason
15 that Rasim Delic did not have actual notice of these crimes is because of
16 a failure to inquire further when he had alarming information about
17 prisoners being held by this particular unit out of a thousand, after he
18 had received information that this particular unit out of a thousand, as
19 the Defence says, had a propensity to commit violent criminal acts. To
20 say that he should be given a lower sentence because he only had imputed
21 knowledge versus actual knowledge, only rewards his failure to inquire
22 further when he got this information.
23 There's nothing in the jurisprudence of the Tribunal that
24 suggests imputed knowledge should be treated anything differently than
25 actual knowledge, and that is not a step that the Appeals Chamber should
1 take in this case either.
2 A few other points. The Defence said that there should not be
3 undue prominence given to deterrence. Now, that's obviously in the
4 jurisprudence. The Prosecution agrees with that proposition, but that
5 doesn't in any way have any effect on their arguments in this case.
6 Retribution -- or deterrence should not be given undue prominence,
7 perhaps, but it should be given some prominence. The Prosecution's
8 argument in this case is that the three-year sentence for these crimes
9 under these circumstances, considering Rasim Delic's knowledge of the
10 criminal behaviour of the EMD shows that the deterrence has actually no
11 prominence, and that is where the Trial Chamber erred.
12 Now, there's also some debate about -- in response to some
13 questions about whether the criminal acts of the accused or of the
14 perpetrators is transferred to the commander under 7(3). Now, there is
15 some dispute about whether 7(3) is actually a crime of failing to prevent
16 or punish, or whether the commander convicted under 7(3) is actually
17 convicted of the crimes themselves. But for this case, Your Honour,
18 that's not a discussion that needs to be delved into that deeply because
19 even on the facts and the law as the Chamber has described them or has
20 recounted in this case, Rasim Delic's failure in this case on these facts
21 shows that the three-year sentence is inadequate. Now, even if you agree
22 that the crimes of the perpetrator are not imputed to the commander, the
23 case law is still very clear that there must be some correlation between
24 the likely crime of the subordinate and the crime that the commander
25 would receive.
1 Now, in this case I did go into some detail about the gravity of
2 the crimes themselves, and it's important to remember this is not a
3 low-level cruel treatment case, Your Honours. This was cruel treatment
4 inflicted on first 12 and then 11 prisoners of war over a period of
5 35 days, on a daily, constant basis. It's important to bear that in mind
6 and to consider that the perpetrators in this case would certainly, under
7 virtually any standard, have been given a sentence of more than three
8 years. Now, whether that should be -- whether Rasim Delic's sentence
9 should be equal to that of what the perpetrators received, that is not
10 what the Prosecution is arguing necessarily. The Prosecution's argument
11 is that there should be some correlation, and that for crimes that are
12 this grave, considering especially the fact that Rasim Delic was on
13 notice that the EMD was holding vulnerable prisoners and that the EMD had
14 a propensity for criminal violence, the three-year sentence is manifestly
16 As to the Defence argument that the Prosecution fails to take
17 into account the difficult circumstances under which Rasim Delic was
18 functioning, the Prosecution's contention here is that this three-year
19 sentence is manifestly inadequate, even considering - this is what we
20 said in our reply brief as well - even considering the mitigating
21 circumstances that the Chamber found. Even taking that into account,
22 this is still a manifestly inadequate sentence.
23 Another major theme, of course, was that Rasim Delic chose
24 military expediency over international humanitarian law, his obligation
25 to enforce that. That was on page 100 of the transcript today. The
1 evidence as a whole in this case, Your Honours, shows that Rasim Delic
2 knew based on the notice that he'd received, as recounted in
3 paragraph 501 of the judgement, and of course I'd invite Your Honours to
4 take a close look at paragraph 501 which does show exactly what kind of
5 notice he received. The Chamber found that the notice that was recounted
6 in paragraph 501 showed that he knew starting in 1994, and even perhaps
7 as early as 1993, that the El Mujahed Detachment had a propensity for
8 violence, had a propensity for criminality. Rasim Delic continued to
9 employ the El Mujahed Detachment notwithstanding that. That shows,
10 Your Honours, that he did choose military expediency over his obligation
11 to enforce international humanitarian law, and that culminated in the
12 report that he received or the report that was directed to him
13 specifically on the 21st of July, the bulletin, which showed that -- the
14 22nd of July, which showed that the El Mujahed Detachment had members --
15 or had prisoners of war in its possession and was refusing to allow
16 access. He had an obligation at that point to do something or at least
17 to inquire further, and it's his failure to do so that resulted in the
18 cruel treatment of these men until August 24th, for 35 days.
19 Just a couple other points, Your Honours. As for the Defence
20 argument that the rewards were only given to the El Mujahed Detachment as
21 an impetus for them to leave, that is a mis-characterisation of the
22 findings of the Chamber. Your Honour, if you look at paragraph 455, it
23 shows that a number of El Mujahed Detachment members were promoted by a
24 decision of the Presidency, of which General Delic was a member even in
25 June 1995, at various moments before the final ceremony where Rasim Delic
1 attended and thanked the El Mujahed Detachment for their service. They
2 were being promoted even during their service as an effective fighting
3 force for the army. So to say that they were only given awards and
4 promotions because of an impetus to leave, the evidence doesn't show
6 And finally, the Defence suggests perhaps that the Prosecution
7 argues that we want his position of authority to be counted twice and
8 that it's only an abuse of a position of authority that can be counted as
9 an aggravating circumstance. Now, the Prosecution agrees with that
10 proposition. It says that's pretty clear in the jurisprudence that only
11 an abuse of authority can be considered an aggravating circumstance; but
12 that's not what the Prosecution's argument is in this case. The
13 Prosecution doesn't suggest that his high position should be counted
14 twice, but rather that it should be properly assessed the first time in
15 assessing the gravity of his breach. As the Prosecution has said in its
16 brief, Delic in a position -- more than anyone else had a position or was
17 in a position to intercede in July 1995 when he got information or when
18 that information was directed to him that these men were being held and
19 that access was not being provided to them.
20 One additional point. As to the culture of impunity, this feeds
21 into the Defence argument that imputed knowledge should be treated
22 differently than actual knowledge. The Chamber found in paragraph 512
23 that the failure to punish the El Mujahed Detachment members for the
24 series of crimes going back to 1994 had to have an encouraging effect on
25 them and did create a culture of impunity. That's straight from the
1 Chamber's finding at paragraph 512.
2 Unless there are any further questions, if I could just consult
3 with my colleagues for just one moment.
4 [Prosecution counsel confer]
5 JUDGE VAZ: [Interpretation] Are you finished, Prosecutor? We
6 don't have any questions for you.
7 MR. WOOD: Yes. Thank you, Your Honour.
8 JUDGE VAZ: [Interpretation] Thank you.
9 Absent any further questions, we're now going to turn to
10 Mr. Delic and ask him whether he has anything to say to the
11 Appeals Chamber. In the affirmative, he may proceed but not for more
12 than ten minutes.
13 THE APPELLANT: [Interpretation] Your Honours, that will be more
14 than enough.
15 First of all, it is my duty to thank you for giving me the floor
16 to say a few words. I don't want to go into legal evidence and the legal
17 situation as it is because, on the one hand, it is the task of the
18 Prosecutor to prove what they wish to prove; we on the Defence side want
19 to prove what the truth is; and you have your own duty as the Appeals
21 It is my duty to say that I trusted this Tribunal as an army
22 commander at the time when it was being established. Because of the
23 situation in my country, I believed that this Tribunal was needed in
24 order to have my own country advance, that is to say, to have
25 reconciliation and progress in my country. Through my own efforts, I
1 supported the work of this Tribunal up until the end of the war, until
2 1995, and afterwards as one of the commanders of the joint army of the
3 Federation. So irrespective of the punishment meted out by the
4 Trial Chamber, I still trust this Tribunal to decide on the basis of law
5 and legal arguments. I have no doubt in that regard. I would like to
6 thank you for these fair proceedings and I am grateful for the fact that
7 these proceedings took place in a fair way without any incidents
8 involved. Thank you.
9 JUDGE VAZ: [Interpretation] Thank you, Mr. Delic.
10 Let me now thank the Legal Officers, the representative of the
11 Registry who helped us hold this hearing, the court reporters for their
12 very invaluable help, as well as the interpreters that -- who made it
13 possible for us to communicate. We are now going to deliberate. You
14 will be informed of the date for the appeal judgement in due time. Thank
15 you very much.
16 The hearing stands adjourned.
17 --- Whereupon the Appeals Hearing
18 adjourned at 4.01 p.m.