1 Thursday, 14 July 2005
2 [Open session]
3 --- Upon commencing at 9.14 a.m.
4 [The accused entered court]
5 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, could you call
6 the case, please.
7 THE REGISTRAR: [Interpretation] Thank you, Mr. President. Case
8 number IT-01-47-T, the Prosecutor versus Enver Hadzihasanovic and Amir
10 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar. Could
11 we have the appearances for the Prosecution, please.
12 MR. MUNDIS: Thank you, Mr. President. Good morning, Your
13 Honours, counsel, and everyone in and around the courtroom. For the
14 Prosecution Tecla Henry-Benjamin, Stefan Waespi, Matthias Neuner, Daryl
15 Mundis, and our case manager, Andres Vatter.
16 JUDGE ANTONETTI: [Interpretation] Thank you. Could we have
17 appearances for Defence counsel, please.
18 MS. RESIDOVIC: [Interpretation] Good morning, Mr. President, good
19 morning, Your Honours. On behalf of General Enver Hadzihasanovic, Edina
20 Residovic, counsel, Stephane Bourgon, co-counsel, and Vedrana Residovic
21 case manager and translator. Thank you.
22 Mr. President, General Hadzihasanovic is not receiving any
24 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, we seem to have a
1 It's working now. So could we have the appearances for the other
2 Defence team, please.
3 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours. On
4 behalf of Mr. Kubura, Fahrudin Ibrisimovic, Rodney Dixon, and our
5 assistant, Nermin Mulalic.
6 THE INTERPRETER: Microphone for the Presiding Judge, please.
7 JUDGE ANTONETTI: [Interpretation] I was saying that today on the
8 14th of July, 2005, would I like to greet everyone present, all the
9 representatives of the Prosecution who are in the courtroom today, all the
10 Defence lawyers who are also all present and General Hadzihasanovic and
11 Brigadier Kubura. Naturally I would not wish to forget to mention
12 everyone else present in the courtroom.
13 As you are well aware, we are 20 minutes late because of a
14 technical problem that concerned a faulty cable, so we will not be
15 adjourning at 1.45. We will be adjourning at 2.00 p.m. instead so that no
16 time is lost when the closing arguments are being made.
17 I will now give the floor to General Hadzihasanovic's Defence who
18 will be continuing with their closing argument. I think that Mr. Bourgon
19 has the lectern in front of him.
20 [Defence Closing Statement]
21 MR. BOURGON: [Interpretation] Good day, Madam Judge, good day,
22 Mr. President, good day, Your Honour. May it please the Court, it is with
23 pleasure I will continue presenting the closing arguments on behalf of
24 General Hadzihasanovic, and we have been involved in these proceedings for
25 over 18 months as I said yesterday.
1 Mr. President, on your screen you will be able to follow the plan
2 that I will be following when presenting the closing arguments on behalf
3 of General Hadzihasanovic. I'm not quite sure whether the equipment is
4 functioning correctly, but you will see the first issue that I would like
5 to deal with today, and this concerns General Hadzihasanovic as the
6 commander of the 3rd Corps, then I will deal with the applicable law with
7 regard to the responsibility of a commander. This concerns Article 7(3)
8 of the Statute. I will also talk about the lack of a relationship of
9 subordination between the 3rd Corps and the Mujahedin. My colleague will
10 then deal with events mentioned in the indictment. She will commence with
11 counts 1 and 2 and then 5, 6, and 7 will be dealt with. Finally, counts 3
12 and 4 will be dealt with.
13 Mr. President, this should take us to the last part of our closing
14 argument in which we will deal with the erroneous theories presented by
15 the Prosecution in the course of these proceedings. Naturally, we will
16 also be dealing with preventive measures and -- or present measures taken
17 by General Hadzihasanovic. We will also talk about the current policies
18 of the Tribunal in the light of the charges against General
19 Hadzihasanovic, and finally my colleague will present the Defence's
21 Without wasting any more time, Mr. President, I will deal with the
22 first item. Before I do so, there are two minor comments I would like to
23 add. The first one which I forgot to make yesterday was to say my
24 mea culpa to the Trial Chamber given the length of our trial brief. In
25 fact, Mr. President, the trial brief, the final trial brief is longer than
1 it should be according to the practice directive. It is my
2 responsibility. It is my fault because I put the final product together
3 at the very last moment. It is my responsibility alone. I miscalculated
4 the number of pages, and at the very last minute we tried to exclude
5 certain sections, and -- in order to respect the criteria set out in the
6 practice directive. All I can say is that it is my responsibility, Mr.
7 President, and I hope that nevertheless our arguments will be examined as
8 they should be, very carefully, and as I have said, it's my responsibility
9 and the practice directive should be respected.
10 The second issue I'd like to raise concerns criminal law, general
11 criminal law and the principles that should be applied to this trial that
12 we have been involved in for over 18 months, as I have already said on a
13 number of occasions.
14 Criminal law, Mr. President, all lawyers, all criminal lawyers
15 agree that it should be something quite simple, would like it to be quite
16 simple. There are some charges. There is the act that consists of the
17 actus reus and the mens rea. If the Prosecution manages to put the two
18 together and prove beyond all reasonable doubt that these two elements are
19 present, an accused is convicted, and the Trial Chamber has to render a
20 decision on this basis. This law is quite simple, Mr. President, but it
21 requires a rigorous approach, and what we will be presenting you with
22 today are arguments that demonstrate the lack of rigor on the part of the
23 Prosecution's part when presenting its case in this trial.
24 When we're playing with the lives of individuals, with the lives
25 of the accused -- "play" is perhaps not right the term, it's perhaps not
1 the appropriate word, but when we're dealing with criminal law and
2 consequences of what we do will determine whether an individual is a
3 criminal in the eyes of society or not, a criminal who should serve a
4 prison sentence. When we're dealing with such matters, rigor must be
5 demonstrated and the matter must be proved beyond any reasonable doubt.
6 This principle, Mr. President, does not change and must not change because
7 we are before the International Criminal Tribunal for the former
8 Yugoslavia. On the contrary, this principle must be applied with any
9 greater care. The more serious the consequences, the greater the
10 objective, gravity of an alleged crime is and the more one must be sure
11 that the matter has been proven beyond reasonable doubt if a guilty
12 sentence is delivered.
13 The Chamber mentioned on a number of occasions that the system
14 within which we operate is not a common law system and is not a civil law
15 system either. This is something we understand and something that we
16 accept. It's a unique system that is only in force before this Tribunal.
17 But this clash between these two main judicial systems can give rise to
18 certain difficulties and when there are certain difficulties concerning
19 interpretation. Because of this clash between these two main judicial
20 systems in force in the world, it is our submission, Mr. President, that
21 if there are any doubts as a result of this clash, it should always be to
22 the advantage of the accused.
23 In this system, there is a burden of proof, and the burden of
24 proof is on the Prosecution. It is for the Prosecution to prove its case.
25 And if the Prosecution has failed to prove its case, and this is what we
1 believe, General Hadzihasanovic would then be acquitted on each count in
2 the indictment.
3 Naturally it's not something that will surprise you if I say this
4 in most cases the Prosecution will say, we have acquitted ourselves of a
5 task. We have proven the case beyond any reasonable doubt, and the
6 Defence naturally will tell the Chamber that the Prosecution has not
7 proved its case beyond any reasonable doubt and the accused is not guilty,
8 and this is quite common in all cases.
9 How can one make the same statement and say that in this case it
10 is not just a statement that is being made as a matter of principle, but
11 it is a statement that is of great significance. We believe that the
12 counts in the indictment against General Hadzihasanovic have not been
13 proven. Why is this our opinion? It is our opinion that this is the case
14 because we believe that the Prosecution has failed to understand what is
15 at stake in this case. My colleague said this yesterday, and we wish to
16 reiterate this today.
17 Crimes were committed in Bosnia, without a doubt. There were
18 victims in Central Bosnia. There is no doubt about that. There were
19 victims and crimes that were committed by all the parties in the
20 conflict. There are victims and crimes were committed and there is no
21 doubt about that. It is not because we have a high-ranking commander who
22 is present in the courtroom that we should establish a link between the
23 indictment and the charges, the facts and the victims, the events in
24 question and the victims. This is something that has to be proved.
25 I will now move on to my first item, the performance of General
1 Hadzihasanovic as commander of the 3rd Corps.
2 Who is this person who has been here for 218 sessions? Who is
3 this person sitting in front of you observing you and being observed by
4 you? Who is General Hadzihasanovic.
5 We have heard many witnesses who have had the occasion of meeting
6 General Hadzihasanovic, who have spoken to him, and who have been in a
7 position to assess the type of person he is, individuals who at the time
8 of the events concerned were in a position to see the type of decisions he
9 would take and were in a position to observe the reasons for which he took
10 such decisions.
11 Mr. President, General Hadzihasanovic is not a politician. He has
12 no religious contacts. According to the evidence that has been heard in
13 the course of these proceedings, General Hadzihasanovic is a career
14 officer who first served in the JNA, the Yugoslav People's Army, and who
15 in spite of everything that we have heard about how officers of Muslim
16 origin were treated in the JNA, in spite of all of the evidence we have
17 heard about this, his talent as a commander and his ability to command was
18 recognised. Reports were drafted in which it was stated that he was an
19 excellent officer. And this is the point of departure that should guide
20 the Chamber when assessing the evidence.
21 General Hadzihasanovic, for reasons that you are well -- that you
22 are familiar with, and these reasons also concern numerous witnesses who
23 have appeared before this Chamber, General Hadzihasanovic left the JNA at
24 a given point in time to join the army of the Republic of
25 Bosnia-Herzegovina. Why did he do this? He did this in order to attempt
1 to save his country, Bosnia and Herzegovina. He did not do this for the
2 sake of political or religious principles. He did this in order to save
3 his country that was the subject of aggression committed against it by the
5 In the course of these proceedings, you have heard that an
6 unofficial attempt was first made to form this army, and subsequently the
7 army was officially formed by the Presidency of Bosnia and Herzegovina.
8 And as we all know, the Presidency took charge of the destiny of the
9 country because they said that there was an imminent threat of war and
10 subsequently there was a state of war that prevailed then.
11 His performance during this period has been commented on by a
12 number of witnesses, and without going over everything that we have
13 included in our final trial brief, it should suffice to mention a few
14 names. For example, General Duncan. Yesterday, I told you what my
15 opinion of General Duncan was. The Chamber witnessed a certain clash
16 between General Duncan and myself in the course of the General's
17 testimony. However, General Duncan is an important person, and what did
18 he say about General Hadzihasanovic? He said that he was an intelligent
19 commander. He said that he was calm. He was a thinker who was in
20 control, a commander who acted and demonstrated diligence when acting. He
21 recognised the fact that he was a commander who had taken necessary and
22 reasonable measures, and he put in place a system of discipline and
23 ensured that these measures were taken. It's slightly improvised
24 translation. In English I'll quote what he said [In English] "He took the
25 necessary and reasonable measures, and he put up a disciplinary system and
1 made sure they happened." [Interpretation] Those are not my words. There
2 is what General Duncan said.
3 Mr. President, General Garrod, Sir Martin Garrod. I still find it
4 difficult to say Sir Martin. He said that General Hadzihasanovic was a
5 good general, an honest general, a general who demonstrated that he was
6 not only capable but that he was also a responsible commander, given his
7 vision of things. What I remember -- what I remember of General Garrod's
8 testimony, well, the Chamber was able to see what sort of a man Martin
9 Garrod was. He said he was a professional soldier in all respects, but he
10 also said General Hadzihasanovic did everything to ensure that his corps
11 functioned and he said he was not a fundamentalist.
12 Witness HI, who was not the last witness, the last person to
13 appear in Bosnia-Herzegovina, he spent a significant time in Bosnia and
14 Herzegovina in a very important position, a position that enabled him to
15 be a privileged witness of everything that took place in Central Bosnia.
16 This is something we have said in our brief. This witness is a witness
17 who, contrary to many others, saw what was happening, realised what was
18 happening, realised what the nature of the game being played by the
19 parties in the conflict was.
20 What did Witness HI say? He said that General Hadzihasanovic
21 wanted a disciplined army, wanted to leave a good impression and took the
22 measures necessary to ensure that that was the case. But the witness
23 added that in fact this was the impression that all the members of his
24 organisation had. He was a career military officer who had all the
25 qualities required to occupy the highest position, that of a corps
1 commander, and to be present in an area that was one of the most important
2 areas of Bosnia-Herzegovina at that point in time. And he added he was
3 honest, straightforward, and reliable.
4 Mr. President, when the time comes for the Trial Chamber to
5 examine all the evidence, it is our respectful submission that you should
6 bear in mind these comments. If you have any doubts about the
7 significance of such-and-such a document, if you have any doubts about
8 certain games being played by the 3rd Corps in 1993, any duplicity of any
9 kind, well, there were no -- there was no duplicity. All the witnesses
10 have said so. Nothing was concealed. There were no cover-ups, to use the
11 word of my colleague. There was an army in an extremely difficult
12 context, and everyone did their best for the survival of their country,
13 and by doing so they respected all of their legal obligations. So as I
14 have said, there was no hidden agenda. I will move on to this later on.
15 We have referred to the testimony of other witnesses in our brief.
16 Among the international witnesses there was naturally Witness HC, there is
17 witness Bryan Watters, who was the deputy commander of Bob Stewart. I
18 mention this officer because the Prosecution casted doubt on the statement
19 made by Colonel Stewart, on the testimony of Colonel Stewart who appeared
20 here and said, and I'll use his own words, it's a disgrace to see General
21 Hadzihasanovic who has been charged with crimes by this Tribunal. It's
22 not -- the Prosecution said, "Yes, Colonel Stewart, that's not what you
23 said when you testified in the Kordic case," and he said, "Yes, perhaps,"
24 but he said nothing bad in the Kordic case. In the Kordic case he quite
25 simply said that the person who had left the best impression on him in
1 Bosnia was Merdan. He said absolutely nothing that would make us doubt
2 the integrity of General Hadzihasanovic. And when he testified before
3 you, he said that this man should not be here before this Tribunal. He
4 said that it was a disgrace.
5 His deputy commander, Bryan Watters, whom you have heard, a
6 Prosecution witness, also said that he was an intelligent commander, an
7 extremely intelligent commander who was capable of adopting an operational
8 vision or strategic vision with regard to the events. He was respected by
9 his men, and he was a military commander who was far better than his
10 counterpart who was Colonel Blaskic.
11 Andrew Jackson, a captain, an officer who worked closely with the
12 3rd Corps. Jeremy Fleming, a member of the monitoring mission who met the
13 general almost every week. Max Topping who had regular meetings with the
14 general. Lars Baggesen. All these people. Torbjorn Junhov. All of
15 these people are of the same opinion. He is a man of integrity, a good
16 commander and a responsible commander.
17 Naturally one should not forget another witness, a witness from an
18 international organisation. I can't mention the name of the organisation,
19 nor can I mention the name of the person in question. But this person
20 said, and this person expressed a different point of view. This person
21 was not examining the accomplishment of the mission or commenting on the
22 accomplishment of the general's mission which is what we are concerned
23 with, but this person had one thing in mind, that was the harmony among
24 people, the passage of humanitarian convoys, the survival of the
1 And what did this witness say about General Hadzihasanovic? The
2 witness said General Hadzihasanovic said that he was making efforts to
3 protect the population, to protect the Croatian population in Zenica and
4 in the surrounding villages. The witness added in practice these efforts
5 were made. And General Hadzihasanovic did everything that was necessary
6 to ensure that humanitarian convoys could pass through.
7 There are also local witnesses, Mr. President, and as far as these
8 witnesses are concerned, all I will do is mention witnesses who were not
9 members of the 3rd Corps. For example, a witness such as Veseljak. He
10 talked about measures implemented by General Hadzihasanovic. Witnesses
11 who testified before this Chamber, and some of them by way of example are
12 Serbs. We did have Serbs who testified here, Serbs from Zenica. What did
13 they say about General Hadzihasanovic? What were these Serbs doing in
14 Zenica in 1993? Why did they stay there? Because they realised that
15 efforts were being made in order to make it possible for the Croat
16 population to stay in Zenica. And opposed to what the Prosecution has
17 said when they cast doubt on the sincerity of the Republic of Bosnia and
18 Herzegovina in terms of promoting a multi-ethnic society. We've said it
19 in our brief, Mr. President. You only need to compare the manifesto of
20 the Republic of Bosnia and Herzegovina with the same level documents
21 coming either from the Republika Srpska or from the HVO. And you can see
22 the difference straight away. You can see that the HVO and the VRS have
23 territorial expansionist ambitions, and you can see that the Republic of
24 Bosnia and Herzegovina adopts a responsible approach in order to protect
25 their territory and their country on the basis of a multi-ethnic approach
1 And from our point of view, General Hadzihasanovic was in agreement with
2 this policy, and that was his guiding principle, in all of his duties and
3 all of his tasks, everything that he accomplished in 1993.
4 A little bit later I'm going to refer to measures spoken of by
5 witnesses who came here and told us things had changes when General
6 Hadzihasanovic arrived. He introduced some order. He did not go along
7 with the 3rd Corps policy. That was quite obvious. Had there been any
8 crimes? Yes, Mr. President. And had there been any pillaging? Yes. Had
9 houses been looted? Yes, Mr. President, houses had been looted. But we
10 still need to establish link between the looted houses and the commander
11 of an army corps who commands more than 30.000 men. But not 30.000 men
12 that are like players in a chess game. He needs to organise and kind of
13 task that would require at least 40.000 people in order to just hold the
14 front line, and this is something that has not been argued against in the
15 report of our expert witness Karavelic. Simply holding the front line
16 would have required 40.000 men, just for the front line.
17 If you look at the annexes to the witness -- expert witness
18 report, you can see that there is a map of Bosnia and Herzegovina, and you
19 can see all the dotted lines on top of that map, and those dotted lines
20 indicate the areas of responsibility of each individual brigade, and you
21 can see that they go all the way around the map.
22 Unfortunately in the course of your visit in Bosnia, I don't know,
23 but apparently on the basis of the report that I've read you are supposed
24 to have seen the front line, but it is very difficult to go out in the
25 field and try and imagine a front line which is about 400 or 300
1 kilometres long. It is extremely difficult. I mean, I spent quite a few
2 years in the army myself, and I visited Bosnia with General Polutak, and
3 he explained to me about these front lines and he indicated where they
4 were, but I just could not picture them. I could not imagine them. I
5 found it very difficult to create a clear image of the front line in my
6 mind. It is very difficult to understand, and so we have to trust those
7 witnesses who were there at the time. And General Karavelic said that
8 40.000 people would be needed simply to hold the front line, and there
9 were approximately 30.000, a little bit less, a little bit more. So this
10 means that there were no reserve forces.
11 It doesn't really matter what the legal of a commander is, and
12 this is what we've talked about with General Reinhardt, and that's his
13 area of expertise, commanding troops, and we've talked about him -- about
14 it with him in the course of the cross-examination. What does it mean for
15 a commander not to have any reserve forces? A commander who does not have
16 any reserve forces is a commander who has no freedom of action. He can
17 only react. He can be reactive but not pro-active. He is no longer able
18 to think ahead, to command.
19 In this case, General Hadzihasanovic had to juggle the forces that
20 he had available at all times, and he basically had to make
21 decisions, "Shall I sacrifice this bit of the front line to the advantage
22 of such-and-such a secondary operation?" And that was the challenge he
23 had to face up to on a daily basis. What he tried to do, what he managed
24 to do was to command his army corps whilst trying to respect his legal
25 obligations as much as possible.
1 Let me now move on to the second point of my presentation this
2 morning, that is to say Article 7(3) of the Statute. This article,
3 Article 7(3) is referred to on page 16 of our final brief -- or, rather,
4 of the Prosecution's brief, and we did it as well on pages 196 to 200.
5 It is also interesting to mention that the Chamber had already
6 dealt with this with regard to Mr. Hadzihasanovic's Defence according to
7 Article 98 bis of the regulation. We fully agree with the point of view
8 of the Trial Chamber on this topic. So my point today, my aim today, is
9 to first of all explain that certain things impose themselves to suggest
10 to the Trial Chamber what in our view is the best way of interpreting and
11 using Article 7(3) of the Statute in this case. This article deals only
12 and exclusively with the responsibilities of a commander.
13 I believe, Mr. President, that I can't even count the number of
14 times I've mentioned this, and I don't think I'll ever mention it often
15 enough, because it is for that reason that we are here. The provisions of
16 the Article 7(3) of the Statute, in order to establish whether a commander
17 has carried out his duties properly, or whether he's a criminal, he acted
18 in such a way which would mean that he has to go to prison, that's why
19 we're here. But General Hadzihasanovic is, in our view, absolutely not
20 the type of general who failed to act in line with his duties with regard
21 to every single count of the indictment, and we really don't see that he
22 should be sentenced to a prison sentence. You're not facing a criminal
23 here. You're facing a commander who has exercised the highest possible
24 duties in one of the most difficulty contexts imaginable.
25 We can ask what is -- anyone can ask what is the most difficult
1 moment in a person's life. Your Honours, what is the most difficult, what
2 has been the most difficult moment in your lives? Difficult either
3 professionally speaking or on a purely human level, as a human being. And
4 when I asked myself that question I found it very difficult to come up
5 with an answer. Professionally speaking, for example, it was when I
6 represented a client who was a Albanian from Kosovo, and I had to make
7 extremely difficult decisions on his behalf because he claimed that he was
8 not the right person, he was not the person who should have been brought
9 before this Court. And it was an extremely difficult time for me from a
10 purely professional point of view since it entailed serious consequences
11 for that person. That was the most difficult professional moment for me.
12 Your Honours, my colleagues, anyone in this room can probably
13 think of such a moment in their professional lives. But what I'm trying
14 to say, Mr. President, and I don't think I'm wrong, obviously I can't make
15 sure but I believe the context in which General Hadzihasanovic had to work
16 and to carry out his duties in 1993 goes far beyond anything that any of
17 us in this room can even imagine in terms of our professional duties, in
18 our professional lives and careers. Obviously, Mr. President, I'm making
19 this comment with all due respect, because of course I have no intimate
20 knowledge of other people's professional lives, especially Your Honours,
21 but it is just a comparison in order to illustrate the extremely difficult
22 context in which General Hadzihasanovic had to work.
23 So Article 7(3) of the Statute, which deals with the
24 responsibilities of a commander, let me just make another statement. If
25 somebody is accused, because Article 7(2) and 7(3), together or if you
1 have simply 7(3) -- well, there is a big difference between the two.
2 There is a fundamental difference because on both sides there may be the
3 presumption of innocence, but on the other hand there are actual
4 allegations of actual participation of the person involved in those
5 crimes, whereas on the other hand the allegations have to do with a
6 failure to carry out his duties as a commander. But this is a totally
7 different situation, and it is very difficult when we need to establish
8 the mens rea, did they have -- did they know or have reason to know or --
9 and consequently did they act and implement reasonable and necessary
11 As the deposition adopted by the Prosecution -- I'm speeding up
12 here a little bit because I see the clock is ticking. The Prosecution
13 made their point by giving us a selection of various statements that they
14 appreciated and that they found in 16 different decisions or, rather, 11
15 decisions of the Chamber of first instance and 16 of the Appeals Chamber
16 with regard to Article 7(3). Any statement that they like they just put
17 together. They pasted them together and they presented them to you. We,
18 on our part, have not done that. Why? Because we have made an attempt to
19 give you a point of view which would reflect both the case law before the
20 International Tribunal in its entirety but which would also be consistent
21 from the beginning to the end with the application of the provisions of
22 Article 7(3).
23 What is the last sentence passed with regard to that Article? It
24 is case Strugar and the sentence was passed in the month of January, 2005.
25 The accused, Strugar, was faced with acquisitions with regard to 7(1)
1 and 7(3), but he was only recognised guilty on the basis of Article 7(3).
2 And I believe that this is where we have -- we can compare the two cases.
3 I mean, we all agree on the three basic elements in 7(3); that is to say,
4 the existence of a subordination link, the knowledge on the part of the
5 accused; that is to say, we must prove beyond reasonable doubt that the
6 accused knew or had reason to know, and finally failure to act on the part
7 of the accused; that is to say, it must be proved beyond reasonable doubt
8 that the accused failed to implement the necessary measures in order to
9 prevent such crimes being committed or to punish the perpetrators. There
10 are no major differences of opinion between the two parties on this level.
11 The differences do arise when this comes to the actual implementation
12 and application of these three criteria.
13 The decisive criterion concerning the existence of a link of
14 subordination between the accused and the perpetrators of a crime is the
15 actual effective control being exercised by the commander over his men.
16 On this point we do agree with the Trial Chamber. We are also of the view
17 that this control may be a control de jure or a control de facto. We've
18 already explained this in our final brief.
19 It goes without saying following a decision of the Appeals Chamber
20 in this very case that that control must be exercised by the commander on
21 the very time when those crimes are about to be committed or have been
23 Where we do have a difference of opinions is the interpretation of
24 this term "effective control." In our view it is quite clear and
25 unambiguous. There has to be control and that control must be effective.
1 What does that mean in practice? First of all, the Appeals
2 Chamber recognised the need to prove beyond any reasonable doubt that the
3 perpetrator of a crime was subordinated to the accused. The Appeals
4 Chamber added in the Blaskic ruling that this is more a matter of proving
5 facts rather than a matter of law, of the legal situation.
6 According to the Appeals Chamber, it must be proven beyond any
7 reasonable doubt that the accused had the authority to prevent, punish, or
8 introduce measures leading to procedures to be implemented with regard to
9 the perpetrators. Such authority must be a real authority and in practice
10 and not just a theoretical one. It is simply not sufficient,
11 Mr. President, for a commander to be a commander on paper; in other words,
12 to have this de jure authority. We still need to prove that the commander
13 did indeed exercise this effective control in practice.
14 What does it mean to exercise actual control in practice? Our
15 reply to this question is that a commander has the authority to prevent
16 when he has the material possibility to issue orders to those subordinated
17 to him, a group of people or an individual, and that those individuals
18 have to carry out those orders, and unless they do they would be liable to
19 incur disciplinary measures or even face criminal proceedings. So there
20 is this actual authority when orders can be issued in full knowledge that
21 the people he's issuing the orders to must carry them out. This was
22 explained by General Sir Martin Garrod in a very succinct manner but a
23 precise manner as well.
24 The Chamber asked him a question: "In your capacity as a
25 high-level officer, what do you think that this motion means?"
1 He replied, and I quote: [In English] The elements of the forces
2 in your area were carrying out your orders and that you knew exactly what
3 they were doing and they were not doing anything that was unacceptable to
5 [Interpretation] This was an off-the-cuff answer from a
6 high-ranking general.
7 Now, the point in which General Garrod did not have -- tended to
8 elaborate very much is the following: Why do the forces carry out orders,
9 and why does he know what his forces do? I mean, how did this come about
10 in a real-life situation? Now, the reply is very simple, in fact. The
11 first possibility, the forces in question, the troops subordinated to a
12 general must carry out orders, and they also must inform the commander in
13 the course of any controls of their -- of whatever has been done. The
14 second possibility, because they accept the idea that the commander has
15 control over them. And in both cases, Mr. President, the forces in
16 question carrying out those orders, because they feel that it is their
17 duty and their obligation to do that or because they accept to carry out
18 orders, in both cases, Mr. President, those troops are fully aware of the
19 fact that unless they do carry out those orders they would be liable to
20 incur certain measures which might be imposed by the commander. And this
21 leads us to the next question; that is to say, what does it mean to have
22 the material, the actual possibility to impose measures about those
23 subordinated to a commander?
24 The Appeals Chamber answered that question as well by saying it
25 means to implement the necessary measures in order to ensure that the
1 perpetrators of a crime will have to -- will be held accountable for their
2 actions before a court of justice.
3 In the Strugar case, the accused was a commander of the
4 2nd Operational Group. It is not the same sort of operational group that
5 we've heard about in the course of this case. I believe that in as far as
6 the Serb army was concerned, the operational group was considered to be at
7 a somewhat higher level.
8 The units responsible for crimes in this case, we're talking about
9 the attacks and the legal shelling of the old town of Dubrovnik, and it
10 was the 3rd Battalion of the 472nd Motorised Brigade. At first site that
11 battalion was part of a brigade which was a part of an operational group
12 over which the accused Strugar had command.
13 The Trial Chamber proceeded to carry out a detailed analysis,
14 first of all, of the actual command structure, the existing command
15 structure. Secondly, of the authority of the accused, the authority that
16 he had in order to prevent the legal shelling of the old town of
17 Dubrovnik. And thirdly, the material possibility that he had to punish
18 the perpetrators of such illegal shelling.
19 It was a lengthy exercise on the part of the Chamber of first
20 instance, and the conclusion was reached that the legal authority was
21 there and that the accused also had the material possibility to issue
22 orders to the 3rd Battalion of the 472nd Brigade, in order to prevent this
23 attack as well as to implement other measures to ensure that that order
24 was acted upon, or that if the town had been shelled, he also had the
25 authority to issue orders in order for that attack to stop.
1 The Chamber declared itself satisfied that the accused had the
2 legal authority and the material possibility to start an inquiry and to
3 impose disciplinary, administrative measures against officers responsible
4 for that shelling.
5 We respectfully submit to you, Mr. President, that this is the
6 same sort of exercise that this Trial Chamber could perhaps carry out in
7 this case in order to determine whether there was indeed a link of
8 subordination between General Hadzihasanovic and those notorious
9 Mujahedin. We still don't know who they are, but at any rate, the
10 Mujahedin who are supposed to have carried out the crimes referred to in
11 the indictment.
12 We are confident that the Chamber will recognise that at no time
13 in the course of 1993 General Hadzihasanovic had such control over such
14 individuals no matter who they were.
15 Let me take this opportunity to draw the Trial Chamber's attention
16 to the decision of the Appeals Chamber in the Blaskic case. This is
17 something which has already been referred to in what we said with regard
18 to Article 98 bis. We are talking about the 98 bis motion.
19 We had General Blaskic who had the material possibility to issue
20 orders to the 4th Battalion of the military police. The 4th Battalion of
21 the military police was a unit which was a part - I do apologise - a part
22 of the HVO group in its BOZ in Central Bosnia. The Operational Zone
23 called Central Bosnia. I do apologise, Mr. President. So at any rate,
24 they were a part of that, of the formations under Colonel Blaskic's
1 He did, in fact, issue a number of orders to the military police
2 battalion, and in fact, that battalion did carry out quite a few of those
3 orders. Orders were being issued and were being acted upon. And we're
4 talking about the communication between Colonel Blaskic and the
5 4th Military Police Battalion.
6 However, in its assessment in order to establish whether there was
7 such a link of subordination between Colonel Blaskic and the military
8 police battalion at the time of the attack on Ahmici on the 16th of April,
9 1993, the Appeals Chamber said no, Colonel Blaskic did not at that
10 particular moment exercise effective control over such units.
11 If we look at that example and take it as our point of departure,
12 and if we look at the analysis carry out by the first -- by the Chamber of
13 first instance in the Blaskic case, and if we try and apply this to those
14 notorious Mujahedin, well, Mr. Chairman -- Mr. President, we really don't
15 see how we can reach a conclusion on the basis of a number of documents or
16 examples where Mujahedin was found in someplace or the commander heard
17 about the death of three Mujahedin following combat activity. We really
18 don't see how the elements of proof provided by the Prosecution so far
19 could lead you to establish such a link and to find that such a link of
20 subordination did indeed exist between General Hadzihasanovic and the
22 And with regard to the second element, knowledge, it must be
23 proven beyond any reasonable doubt, and we've stressed it once again in
24 our final brief, that the accused knew or had reason to know. Let us draw
25 the Chamber's attention once again to the fact that Article 7(3) does not
1 introduce a form of absolute responsibility here or a form of
2 responsibility strictly speaking.
3 The second element must be separated in two parts: Did the
4 accused know, or did he have reason to know? As to whether he knew, that
5 is to say this is something that can be established on the basis of a
6 direct proof, but the Prosecution did indeed say they did not have such
7 proof, or we could have circumstantial evidence. What is more important
8 is to see how can we properly interpret the expression "had reason to
10 The Appeals Chamber clearly established that a commander would
11 know -- not know it unless specific information had actually been in his
12 possession and that that information was of such nature as to lead the
13 commander to conclude that an infringement or a crime had been committed
14 or was about to be committed by his subordinates and that it was his duty
15 to start an inquiry.
16 When arguing on the basis of Article 7(3), the Prosecution
17 elaborated at length on the issue of risk. There is a distinction between
18 the Prosecution and the Defence as far as this is concerned. The
19 Prosecution says that risk in itself is sufficient to arrive at the
20 conclusion that a commander had reason to know.
21 We do not accept such a broad interpretation that would be
22 synonymous to absolute -- synonymous with absolute responsibility or
23 responsibility in the strict sense of the term. There's always the risk
24 that one's subordinates will commit crimes. That's more than just a risk.
25 In our opinion, the idea of risk can perhaps be applied in the case of
1 Article 7(1) of the Statute. In that case, mens rea can be established on
2 the basis of the doctrine dolus eventualis.
3 The Appeals Chamber in the Blaskic case decided that an accused
4 could have the -- have acquired mens rea given the violation of having
5 ordered that a crime be committed, but when an attack is being ordered,
6 there has to be a significant possibility or a substantial likelihood that
7 a violation will be committed when the order issued is being carried out.
8 This is why there was a huge difference in the final decision of the
9 Appeals Chamber in the Blaskic case and the Trial Chamber's decision.
10 As a result, Mr. President, if the evidence has to prove that
11 there is a significant risk that a violation might be committed, this is
12 the dolus eventualis for the Prosecution pursuant to 7(1) of the article,
13 it is our opinion that the simple risk that a violation may be committed
14 is not sufficient to arrive at the conclusion that a commander had reason
15 to know pursuant to Article 7(3) of the Statute.
16 The Trial Chamber in the Strugar case reached the same conclusion.
17 In legal terms, the Trial Chamber confirmed that a commander will incur
18 criminal liability only if specific information was really available to
19 him and this information allowed him to come to the conclusion that
20 violations had been committed by a subordinate. This is the decision of
21 the Appeals Chamber. But they Strugar had to apply these criteria to a
22 specific situation. First of all, they set aside the notion of risk, the
23 possibility of risk or to use the English expression, the idea that a
24 violation might be committed. They said no. When we simply read through
25 Article 7(3), this eliminates the idea that a violation might be
2 Nevertheless, the Chamber also dismissed the idea of certainty.
3 They said, "We cannot interpret Article 7(3) in the following way: We
4 can't say that a commander has to be certain that a crime was committed or
5 might be committed before he can take measures." So the two extremes were
6 dismissed, the risk that has been suggested by the Prosecution and
7 certainty that would -- the idea of certainty that would go against
8 Article 7(3).
9 As a result, the Trial Chamber came to the conclusion that
10 information available to the commander must allow the commander to come to
11 the conclusion that there is a real possibility of a violation being
13 Once again, this is my translation. I believe that the English
14 term is "a clear prospect." And this is the result the Chamber arrived
16 The town of Dubrovnik was illegally shelled in October 1991. The
17 town of Dubrovnik was shelled illegally again in November of 1991. So
18 first there was the illegal shelling of Dubrovnik in October and then in
19 November. No one was prosecuted for these two criminal acts.
20 On the 6th of December orders were issued by the accused Strugar
21 to order an attack on the town of Srd, S-r-d, which is in the vicinity of
22 the old town of Dubrovnik. The Chamber reached the conclusion that there
23 was the real possibility that in the course of the shelling the same
24 troops that had illegally shelled the town in October and November might
25 engage in the illegal shelling of the old town of Dubrovnik. In spite of
1 these conclusions, the Chamber decided that this was not sufficient to say
2 that the accused had reason to know. In our opinion, this is an important
3 example, one which we support.
4 In the same case, according to the facts, the accused refused
5 information or dismissed information in the course of the day according to
6 which the town was being shelled on the 6th of December. And this was at
7 the time when this attack on Srd that had been ordered by Strugar was
8 taking place. The Chamber concluded that the line had just been crossed
9 at that point in time. Even if one did not know who was shelling the old
10 town, at that point in time he had sufficient information to say, "I
11 should carry out investigations to make sure that these are not my
12 subordinates who are attacking the town of Dubrovnik." At that point in
13 time, the line had been crossed and he had reason to know. So it was his
14 duty to carry out investigations.
15 This example suffices to demonstrate the level and nature of
16 information that a commander has to have in order to have reason to know.
17 The third criteria -- the third criterion, Mr. President, taking
18 reasonable measures to ensure that subordinates do not commit crimes, is a
19 criterion I will deal with when I deal with the issue of the measures
20 taken by General Hadzihasanovic. I don't want to repeat all of the
21 details that are contained in our final trial brief. However, there is
22 one subject I would like to address before the Chamber. When my colleague
23 dealings with the charges levelled against the General, the subject is,
24 the issue is that the position of an individual in the hierarchy is very
25 important because it is on this position that the nature of measures taken
2 According to the case law, the type of measures that can be taken
3 include reports on activities of units including issuing orders to prevent
4 violations from being committed include issuing orders to ensure that
5 violations ended, include protests against violations, include
6 disciplinary measures. This also involves insisting, emphasising to one
7 superior's that measures should be taken. One must also ensure that one's
8 subordinates know what their obligations are.
9 Mr. President, as far as this is concerned, I would simply like to
10 remind you of what General Cordy-Simpson said before you. The following
11 question was put to him: "General, I would like to know whether you can
12 see any difference between the responsibility of a battalion commander and
13 the responsibility of a corps commander with regard to their men and to
14 what extent does a commander have to be personally involved in the
16 I don't want to mistranslate this. I'll quote General
17 Cordy-Simpson's answer in English: "[In English] It is my belief that
18 battalion command is the last time an officer will directly influence how
19 his soldiers perform on the battlefield. He is responsible. He is the
20 man they see. He can will them to fight better than any other person in
21 the battalion.
22 "Once you become a brigade commander or a divisional commander or
23 a corps commander, that direct influence is lost. As a brigade commander,
24 you would tell your battalion commanders what you require them to do, but
25 you cannot permanently influence the individual soldiers within that
1 battalion to fight harder, fight better, or anything else. Certainly when
2 you become a divisional commander, you have totally lost the ability to
3 influence the battle of how people fight, and as a corps commander you are
4 way above that. You are directing the battle at the high tactical, I
5 would put it, level, but you are not directly influencing how soldiers
6 fight on the ground at that particular moment."
7 [Interpretation] And the following question: "... what should a
8 corps commander do to prevent violations from happening, bearing in mind
9 what you just said as to what he can and cannot do?"
10 [Interpretation] General Cordy-Simpson's answer: "[In English]
11 He can only lay down to his battalion commanders, or in the case of a
12 corps commander to his divisional commanders and his brigade commanders,
13 how he wishes operations to be conducted and on what sort of code of
14 behaviour. Having passed that information, he must either expect that his
15 subordinates will carry out his orders, or if he finds subsequent that
16 they haven't carried out his orders, then he must order an investigation
17 into why that has not happened. But he cannot influence the individual
18 actions of soldiers on the ground at a particular moment in time."
19 [Interpretation] This testimony given by General Cordy-Simpson, if
20 we examine it in the light of paragraph 375 of the Trial Chamber's
21 decision in the Strugar case, and they quote paragraph 3.560 and 3.561 in
22 this regard, the comments on the first additional protocol to the Geneva
23 Conventions, then we immediately see that the measures in question are
24 different depending on the level and position of a commander.
25 I'll stop here, Mr. President. I think that it is time for a
1 break now, and after the break I will immediately address factual issues
2 that concern the lack of relationship of subordination between General
3 Hadzihasanovic or the 3rd Corps of the ABiH and the so-called Mujahedin.
4 Thank you, Mr. President.
5 JUDGE ANTONETTI: [Interpretation] Very well. We'll have our break
6 now, and we will resume not at 11.00 but at ten to 11.00 in order to try
7 and make up for the time that we lost at the beginning of the session.
8 So we will resume at ten to 11.00.
9 --- Recess taken at 10.31 a.m.
10 --- On resuming at 10.53 a.m.
11 JUDGE ANTONETTI: [Interpretation] We will now resume.
12 MR. BOURGON: [Interpretation] May it please the Court.
13 Mr. President, Madam Judge, Your Honour, I will now deal with the absence
14 of a relationship of subordination between the Mujahedin and the
15 3rd Corps. The time has come, Mr. President, to distinguish between
16 fiction and reality, to make a distinction between the fabrications of the
17 Prosecution and the actual situation such as it was experienced by General
18 Hadzihasanovic in the field in 1993.
19 Mr. President, what is most surprising at this stage is that in
20 the course of presenting its closing arguments the Prosecution failed to
21 present a coherent theory which would establish this supposed relationship
22 of subordination between the 3rd Corps and the Mujahedin. On the one hand
23 since Monday the Prosecution has a new battle horse, namely the joint
24 combat operations between the Mujahedin and the ABiH in 1992 and 1993. On
25 the other hand, and this is more interesting, there is the approach of my
1 colleague who presented the arguments for the Prosecution with regard to
2 the first count that concerns the events in Dusina, Miletici and Maline.
3 My colleague from the Prosecution then demonstrated what the Prosecution's
4 actual theory was, and I quote in English: [In English] "I don't want to
5 go over it. The Mujahedins are all over. They are acknowledged. They
6 are taken into account. They will are a factor. They acknowledge that
7 they were there, and they had influence to the very least over these
8 Mujahedin and could change their behaviour." [Interpretation] 12th of
9 July, transcript page 52 to 53.
10 Mr. President, this is the Prosecution's real position. The
11 Mujahedin were there. The army knew that the Mujahedin were there. The
12 army at any point of time could have exercised or could have influenced
13 them in order to make them change their behaviour. There is no doubt that
14 we are light years away from establishing effective -- the existence of
15 effective control over the Mujahedin in accordance with the criteria that
16 have been recognised by the case law of the International Tribunal.
17 The Defence has presented you with a lot of evidence that
18 demonstrates that the commander of the 3rd Corps had absolutely no
19 influence over the Mujahedin. The Mujahedin didn't want -- wanted nothing
20 to do with General Hadzihasanovic. The evidence shows that there was a
21 real desire to solve the problem.
22 A first comment should be made before I deal with the evidence in
23 the case. In order to establish a relationship of subordination between
24 the 3rd Corps and the so-called Mujahedin, Mr. President, it is necessary
25 to assess the evidence in the light of the applicable law in relation to
1 effective control such as it has already been elaborated. Our position is
2 very clear and contrary to the Prosecution position, our position has not
4 In 1993, there was no relationship of subordination pursuant to
5 Article 7(3) of the Statute between the 3rd Corps and the Mujahedin. On
6 the other hand, what has been quite clearly established, this is something
7 I have already mentioned, is the fact that the 3rd Corps commanders as
8 well as the leaders of the ABiH realised the sort of problem caused by the
9 presence of the so-called Mujahedin, and throughout 1993, they tried to
10 solve the problem on a number of occasions and in a number of ways.
11 However, they failed to do so. We are aware of the fact, and the evidence
12 demonstrates this fact.
13 It's necessary to make another comment at this point.
14 Mr. President, it is essential to assess the evidence with regard to the
15 so-called Mujahedin in the light of the situation that prevailed in 1993
16 and not in the light of everything that has come to light, everything that
17 the international community has discovered with regard to terrorism and
18 al Qaeda and with regard to the Mujahedin in the year 2005.
19 In 1993, when these foreigners appeared in Central Bosnia, the
20 Bosniaks soon noticed that they were different, but initially they were
21 not perceived as being a possible source of crime. A number of witnesses
22 have said that the term "Mujahedin" or "holy warrior" was a term they were
23 not familiar with at the time. So it is through the eyes of Bosniaks in
24 1993 that one should assess the situation.
25 Today we are more familiar with the phenomenon of terrorism and
1 with the phenomenon of the Mujahedin. We are well aware of what happened
2 in London a few days ago. We are all aware of the existence of al Qaeda
3 throughout the world. We are aware of the events in New York. We are
4 aware of the war in Iraq. We know that things took place in Afghanistan.
5 We are familiar with Mujahedin being held at the American base in Cuba.
6 We are all aware of this, and we see Mujahedin every day with explosives
7 stopped to their bodies. We are aware of these individuals who blow
8 themselves up for reasons unknown to us. We are familiar with these cases
9 of violence, and it is certain today that if the same Mujahedin arrived in
10 Bosnia today, the Bosniaks would react differently, but this was not
11 knowledge available to them at the time, not in 1992 and 1993.
12 It is our respectful submission, Mr. President, that had it not
13 been for the foresight of General Hadzihasanovic in 1993, General
14 Hadzihasanovic had realised what the problem was and tried to find a
15 solution without compromising his mission. It is our submission that if
16 it had not been for such foresight, the results of the conflict could have
17 been catastrophic. I'm not referring necessarily to the conflict
18 involving the Mujahedin. I'm referring to the conflict in Central Bosnia.
19 As far as the Prosecution's theory on the so-called Mujahedin is
20 concerned, there is a second point I would like to make. Having
21 investigated, having carried out investigations for over five years and in
22 spite of the fact that the Prosecution decided that the Mujahedin should
23 be a priority target in their investigations, and this has been confirmed
24 by the investigator, in spite of this fact the Prosecution has not managed
25 to establish the existence of a relationship of subordination between the
1 3rd Corps and the so-called Mujahedin pursuant to the provisions of
2 Article 7(3).
3 Now, Mr. President, I'll return to this subject a little later,
4 but it is quite clear for us that had it not been for the existence of
5 these notorious Mujahedin, General Hadzihasanovic would not be here today
6 because he would not have been indicted by this Tribunal. It appears
7 quite clear to us that the Prosecution has tried to use General
8 Hadzihasanovic in order to punish the crimes committed by the so-called
9 Mujahedin in Central Bosnia in 1993.
10 And the Prosecution's new battle horse relates to joint combat
11 operations. Mr. President, one should note from the outset that a joint
12 combat operation does not entail necessarily a relationship of
13 subordination between the participants in such an operation. On the other
14 hand, or to the contrary, joint combat operation involves planning,
15 organisation, issuing orders, precise orders, in order to avoid incidents
16 occurring when two forces are involved in joint action.
17 Mr. President, if there is -- if there are joint operations, this
18 involves the presence of individuals who have not been invited. They're
19 acting independently in the course of a planned action. The Defence's
20 military expert said in the course of his testimony that there were
21 certain risks involved if individuals appeared and participated in an
22 attack without this having been planned, without this having been
23 expected. This relates to the notion of joint combat operations. That
24 proved that the appearance of the Mujahedin in the course of such combat
25 was planned and perhaps there was joint action at that point in time. To
1 do this it is necessary to provide evidence relating to the planning of
2 the combat action, the organisation of the combat action. But in this
3 case, the Prosecution have provided a number of examples to us in which
4 the Mujahedin or the Arabs or Turks whose identity and origin we are
5 unaware of were observed in the course of combat operations or in other
6 circumstances. But they have not presented any evidence that would show
7 that there was planning, preparation, organisation of such action.
8 One of the examples used by the Prosecution concerns Witness HF, a
9 Defence witness who mentioned the presence of the Mujahedin at the front
10 line in Bijela Buca. This witness said: "[In English] They would go
11 there on their own initiative and carry out some operations that were more
12 disadvantaged to us than any real use, because they would only provoke
13 artillery fire.
14 [Interpretation] The Prosecution can say as many times as they
15 like that they don't believe that witness. It's not useful for as long as
16 they don't have any proof to the contrary.
17 So in conclusion, there has not even been any joint combat
18 activity. And even if there had been such a joint combat activity, it was
19 not done under an effective control of the commander here.
20 As to combat operations in April 1993 in the area of Zmajevac, we
21 have three sources of information with regard to this evidence, but in the
22 light of the actual analysis of those documents and in the light of the
23 statement made by the witness on behalf of the co-accused, it is simply
24 not possible, Mr. President, to conclude that there had indeed been some
25 joint combat activity with Arabs, Turks, or the Mujahedin. And even less
1 so as to the existence of effective control of the 3rd Corps over those
3 As to taking of arms in Mravinjac in the second half of June, we
4 had three sources of information there, and it is indicated that the
5 3rd Battalion of the 17th Brigade, Mountain Brigade called Krajina, got a
6 tank and a number of weapons in B790. It is about the seizing of combat
7 or assault tank and armaments and -- by three brigades, 307th, 308th,
8 17th, and the 7th. And this is mentioned by the commander of the
9 Operational Group Zapad.
10 Finally, we have two contradictory references in P798 -- P598,
11 sorry. Arabs apparently captured an assault tank at Mravinac, and further
12 on in the same document there was a reference to people from Novi Travnik
13 who were supposed to have seized such a tank and some more weapons at
14 Mravinac. On the basis of those documents, it is simply not possible to
15 conclude that there was indeed some joint combat activity and even less so
16 that there was an existence of effective control on the part of the
17 3rd Corps of Arabs, Turks, or the Mujahedin.
18 On top of that it is also important to analyse document P598 in
19 the light of the conclusion drawn by the Witness ZP with regard to Ramo
20 Abu Dzihad. As to the activities of the 333rd Brigade, between the 10th
21 and the 14th of July, 1993, and we've got the documentary evidence P434,
22 P924 part 4, which is part of the C section, I believe, then P603, P605,
23 and C16.
24 The Trial Chamber heard from General Merdan on this topic, and he
25 provided his own explanations. In the light of the witness statement on
1 the part of Merdan and on the basis of our analysis of all the possible
2 correlations between these documents, we are of the view that it is not
3 possible to conclude that there was any joint combat activity, and
4 especially that there was some kind of effective control on the part of
5 the 3rd Corps over the Arabs or the unknown unit which is referred to in
6 one of those documents.
7 Since we are indeed talking about an unknown unit, it is quite
8 significant in this context to mention that the 333rd Brigade had never
9 participate -- participated in any operation required by 3rd Corps with
10 regard to the contents of the document P603. So the suggestion is quite
11 simple. The 3rd Corps said no, and then this unit that we don't know what
12 it is, it is not a unit which is within the framework of our army, and
13 they said, "We can't issue orders to them because it is not within the
14 framework of the BH army." If this unit were to be included, it would
15 have to be referred to in the combat report. And if you look at the
16 combat reports of the 333rd Brigade and all the documents of the
17 333rd Brigade following that period, there is no reference whatsoever to
18 the use of this unknown unit. We also respectfully submit that this
19 unknown unit might be something totally different from the Arabs referred
20 to in another document.
21 With regard to P477, which is a report drawn up by General
22 Hadzihasanovic mentioning the fact that the Mujahedin had refused to
23 participate in the combat activity, it is a document or an event which
24 took place just before the order from the high command aimed at setting up
25 an El Mujahid unit. It doesn't really matter for what reason the
1 Mujahedin refused to participate in combat activity. It goes to show very
2 clearly that there was a clear lack of control over those elements whose
3 identity - and let me just remind you of this - is still unknown.
4 Our viewpoint on this has not changed. It was a part of the
5 approach undertaken with the aim to solve the Mujahedin problem. As we
6 know in the light of all evidence, this approach actually failed.
7 Now, this conclusion leads us to the period of time between the
8 3rd of August, 1993, the date when the order was issued to set up the
9 El Mujahedin unit until September 1993, and the actual evidence does not
10 allow us to establish with any degree of precision what exact approaches
11 and activities had been undertaken in order to carry out the order which
12 was issued on the 13th of August.
13 Where do the members of the El Mujahid come from? We still don't
14 know. Where do the locals who are supposed to have joined El Mujahid come
15 from? We still don't know. Have any orders been issued in order to
16 appoint the commander and the deputy commander of El Mujahid? No
17 documents on this. And we do know the appointment of a commander must go
18 through the high command.
19 Had any documents been issued concerning the organisation, the
20 equipment, the make-up, the geographical area of this El Mujahid unit,
21 there again we have no documents whatsoever in this respect.
22 The Prosecution claims that Alagic had witnessed the setting up of
23 El Mujahid on the basis of one of the propaganda videos obtained from an
24 unknown source representing an unknown place on an unknown day. This
25 evidence does not allow us to draw such a conclusion. Where is the
1 command and General Staff of El Mujahid at Podbrezje, at Orasac, Arnauti,
2 Zenica, Poljanice? No idea, Mr. President.
3 According to Witness HF, the presence of Mujahedin has been
4 recorded, is supposed to have been recorded in those places at different
5 points in time. How many Mujahedin are there? How many had there been in
6 Central Bosnia? What is the total number, and where were they? We don't
7 know. How many locals wearing such clothes were there in those areas? We
8 still don't know. What we do know, though, is the fact that there had
9 been attempts made at placing them under the control of 306th Brigade, but
10 it did not work. My colleague supplied the information in this regard
12 The 3rd Corps also tried to place El Mujahid under the operational
13 control, the operational group at Grabica, and we know what happened
14 afterwards. That is to say under the operational control of OGBK, and we
15 know what happened afterwards. And especially combat activity was
16 organised by the 17th KBBR, and Commander Cuskic talked about this
17 activity of having an operation with the El Mujahid. And he talked about
18 implications of engaging in an operation with the Mujahedin, and he said
19 to what extent such combat activity has led to disastrous results and
20 that, as far as he was concerned, he never ever wanted to repeat the
22 Afterwards, no other similar activity had been either planned or
23 organised, at least not until the date at which General Hadzihasanovic
24 left his post as commander of the 3rd Corps on the 1st of November, 1993.
25 Finally, as is explained in our brief, we do know that an
1 large-scale operation was carried out in order to dismantle the Turkish
2 guerrilla under the command of Kemal. We also refer to the witness
3 statements of Muratovic and Witness HD. And we also know that even in
4 February 1994, this matter of Mujahedin still had not been solved.
5 By way of conclusion as to the joint combat activities alleged by
6 the Prosecution, I would like to also take this opportunity to refer to
7 the use of Mujahedin in terms of them heading combat activity. Our
8 position in this respect is quite clear. No Mujahedin were used in order
9 to spearhead any combat activity of the 3rd Corps. This is with regard to
10 the witness statement by General Reinhardt, and he was talking about a
11 topic on which he had a certain amount of expertise. General Reinhardt
12 confirmed that the use of such combat unit as -- in this respect would
13 require the maximum level of coordination.
14 Now, it is obvious in the light of the evidence we've got that
15 there had never been such a coordination or such planning or organisation
16 between the 3rd Corps and the Arabs, Turks, or the Mujahedin.
17 What did Major Bower have to say about this? The answer is quite
18 simple. The conclusion that he's reached on this topic, and that is the
19 statement used by the Prosecution, well, it concerned the 7th Brigade. He
20 simply confused the 7th Brigade and the Mujahedin. If we re-read this
21 quote, we can see that references to the 7th Brigade. He's not talking
22 about this brigade committing atrocities. He was talking about a brigade
23 engaged in combat activity which was there where the activity was most
24 intense. That brigade had participated, was one of the mobile brigades,
25 as many other brigades of the 3rd Corps. He saw that brigade and he
1 simply confused that brigade with the existence of the Mujahedin, and this
2 is an altogether different matter.
3 Without trying to go through the details of all the international
4 witnesses once again, but especially with regard to what the Prosecution
5 has said in order to support their assumptions, but it is quite clear that
6 they had nothing to base their impressions on, no concrete, tangible,
7 practical facts that had been observed by these witnesses.
8 The Prosecution seems to have forgotten a key witness when it
9 comes to the absence of the link of subordination between the Mujahedin
10 and the 3rd Corps. The witness HI was a privileged witness with regard to
11 all the events taking place in Central Bosnia up until the month of
12 September 1993. As we do know, this witness was everywhere at that time.
13 And what was his conclusion with regard to the Mujahedin? He said, "In
14 the course of my mandate in Central Bosnia, there was no indication
15 whatsoever that foreign combatants or fighters or Mujahedin were
16 subordinated to the armed forces of the Republic of Bosnia and
17 Herzegovina, and there was no indication whatsoever that they were
18 cooperating with them."
19 In their closing brief, the Prosecution refers to additional
20 indications which in their view should lead us to conclude that the
21 Mujahedin were indeed an integral part of the 3rd Corps units. According
22 to the Prosecution, the Mujahedin are supposed to have trained members and
23 units of the 3rd Corps or would have supplied some logistical support to
24 them. As to any logistical support that is supposed to have been
25 supplied, the Prosecution has provided no evidence to support that claim.
1 The evidence tends to suggest the contrary, rather. As we had
2 pointed out, the Mujahedin had never provided any logistical support, and
3 the 3rd Corps could not supply the Mujahedin with any logistical support
4 either. The evidence suggests furthermore that the Mujahedin had never
5 trained any members of the 3rd Corps.
6 The witnesses Jasarevic, Husic, Siljak, Jusufspahic, and the
7 witness HB, Caber confirmed that members of the 3rd Corps had not been
8 trained by the Mujahedin.
9 The Prosecution confers -- refers to the bad treatment that the
10 Mujahedin had been subjected to. Quite interestingly, in paragraphs 156
11 to 159 of their brief, the Prosecution claims that there had been
12 complaints lodged to the HVO with regard to the detention of foreign
13 citizens and that that makes it possible to conclude that between February
14 and the 12th of April, 1993, at least 24 Mujahedin members of the
15 7th Brigade would have been captured or arrested by the HVO.
16 Those documents, Mr. President, do not, quite simply, allow us to
17 draw such a conclusion. It is simply impossible in the light of this
18 document to conclude that those foreigners who were apprehended or
19 arrested were members of any unit at all of the 3rd Corps.
20 Had the General Hadzihasanovic wanted to lodge a complaint with
21 Colonel Blaskic with regard to the arrests and the illegal detention of
22 his subordinates, members of the 3rd Corps, he would certainly not have
23 envisaged any diplomatic channels through which to do it.
24 The implication of the Mujahedin in the kidnapping of Totic, we've
25 been able to demonstrate this in the course of the trial that they were
1 not at all involved in the kidnapping of Totic and even less so with
2 regard to his military police battalion. The reference is to Witness HD,
3 Witness HF, Witness Saric, ZP, Mahir, Ibrakovic, as well as Witness HI who
4 was an international witness. The 3rd Corps, more specifically Merdan,
5 had never been involved in any negotiations between the Mujahedin, the
6 European Community Monitoring Mission and the HVO, and especially we have
7 to consider the witness statement made by Merdan.
8 And finally, the commander of the 3rd Corps implemented all
9 possible missions in order to -- measures to engage in cooperation with
10 all local authorities in order to solve the problem, such as, for example,
11 the cooperation with the military police of the HVO as well as the
12 civilian police. For example, they set up joint patrols, set up a joint
13 commission, provided assistance within the framework of the work of that
14 commission, and security measures were ensured by the battalion at the
15 time of exchanges.
16 The witness statement of Mr. Mujezinovic is quite valuable in this
17 respect. The same goes for Merdan's witness statement, that of HF, as
18 well as the press communique of the 3rd Corps dated the 15th of April.
19 You should also refer to the conclusions approved by the War Presidency in
20 Zenica dealing with the said situation.
21 The effects are quite clear, Mr. President. There had been no
22 advantage, no reason for the 3rd Corps to even envisage such an activity.
23 What followed, Mr. President, was detrimental to the 3rd Corps, and it is
24 for this reason that measures were undertaken in order to try and solve
25 that situation as swiftly as possible. Why? Because as we have heard,
1 one of the top priorities for General Hadzihasanovic was not to engage in
2 any conflict with the HVO. It was a priority mission from his point of
4 When the Prosecution says that those measures were aimed at
5 obtaining more efficient control over the Mujahedin, well, we say the
6 opposite. That is to say, that the evidence suggests that the Mujahedin
7 on the territory of the 3rd Corps in 1993 were elements outside anyone's
8 control, that they were loose cannons basically, and that the general was
9 trying to find the best possible way to solve the problem under the
10 prevailing circumstances at that particular moment in time.
11 In order to just briefly refer to some of the measures implemented
12 by General Hadzihasanovic, let me mention the security bodies of the
13 3rd Corps. They never stopped looking for information about these
14 elements outside anyone's control and their activities in the course of
15 the entire year, in the course of 1993. And the kidnapping of Totic
16 triggered off a whole range of measures undertaken by the 3rd Corps in
17 this respect.
18 According to witnesses HF and HD, in spite of all their efforts in
19 trying to gather as much as -- as much information as possible, everything
20 they did was still insufficient. After the 15th of April, it was not
21 possible for General Hadzihasanovic to solve this problem on his own
22 considering the prevailing circumstances at the time. Witness Merdan,
23 Witness ZB, Witness HD.
24 On the 24th of April we had the events at Miletici. The problem
25 of the Mujahedin was raised with the Supreme Command. Witness statement
1 by Merdan.
2 Measures were undertaken in order to obtain more information about
3 those elements outside anyone's control. Witness statements by Sipic and
4 Delalic, amongst others.
5 In the month of May, the problem was once again raised with the
6 Supreme Command in order to get some assistance. Witness ZB, Witness
8 The evidence suggests that the Mujahedin based at Poljanice were
9 in touch with the Supreme Command with the aim of establishing a brigade
10 which would be placed under the direct command of the Supreme Command.
11 DH 278, DH 1007; Witness HF, Sipic and Delalic.
12 The 8th of June, Maline. The security services implement other
13 measures in order to obtain information in addition to all the measures
14 what had already been implemented in order to determine who was
15 responsible for the activities and crimes committed on that day.
16 On the 13th of June, General Hadzihasanovic, since he was not
17 happy with the lack of measures and lack of efficiency draws up a written
18 report and asks for assistance in order to solve the problem of the
19 Mujahedins. Witnesses Merdan, ZP; document DH 167.1 -- 165, sorry.
20 Then the reflections of Colonel Stewart when reading this
21 document. He was an experienced military man who had experience in
22 Bosnia, who was quite marked by that, and he was familiar with the
23 military terminology. When he looked at that report. He said this is an
24 exoneration basically. He understood as a military man under how much
25 stress General Hadzihasanovic had to work, what was the burden he was
1 carrying on his shoulders, and he reacted by asking for measures to be
2 implemented in order to do away with the problem of the Mujahedin.
3 The question of the 3rd front is something that we'll come back
4 to. The Mujahedin, on the other hand, and we know it on the basis of this
5 evidence, refused to negotiate with the 3rd Corps. They refused to
6 negotiate with General Hadzihasanovic. They wanted to deal with someone
7 who was higher up. Who is higher up? We're not certain.
8 Witness ZB, on the 25th of June -- on the 27th of June, said that
9 the Mujahedin were not under effective control and the Presidency's
10 dealing with the problem.
11 As opposed to what I said yesterday with regard to the press talks
12 and press encounter, it was not something which had been prepared
13 beforehand. It happened by chance the witness was going through Zenica,
14 and he thought he recognised the witness ZP. He wanted to ask him some
15 questions and he got an answer immediately, on the spot. The
16 authorisation from the Supreme Command issued to a person called Mahmuljin
17 to try and get in touch with the Mujahedin and start negotiating with
18 them. And then there was a proposal on the part of this Mahmuljin in
19 order to set up the El Mujahid detachment and the order was issued by the
20 Supreme Command in order for such a unit to be set up, and then there were
21 certain difficulties in carrying out that order. All those events are
22 described in great detail by witnesses Poparic, Merdan, ZP. And then we
23 had resubordination of 336th Brigade which had not been carried out
24 according to witnesses Merdan, Siljak, ZP, and HF. And so that concludes
25 what we have to say on this issue.
1 Mr. President, when I first made my opening statement, I did say
2 that we are not denying that there were certain foreign elements present
3 in Bosnia. You heard witnesses who saw them, but we also said that you
4 would hear those witnesses tell you that those foreign elements were not
5 under the actual and effective control of the 3rd Corps, that they were
6 not a part of the armed forces of the Republic of Bosnia and Herzegovina
7 but that measures had been implemented in order to try and sort out this
8 problem. We kept our word. The witnesses came along. The documents had
9 been filed and the theory put forward by the Prosecution is -- by the
10 Defence, sorry, is compatible with everything you have heard and
11 everything you saw in those documents. There had never been any effective
12 control over the Mujahedin.
13 And the last witness statement, Cordy-Simpson, with regard to a
14 question asked of him: "[In English] What do you expect a corps commander
15 to do for crimes committed by people who are not your subordinates?"
16 [Interpretation] And General Cordy-Simpson thought about his
17 answer and said: "[In English] ... report the matter higher, that there
18 is some force that is behaving outside his control in his area. He has no
19 ability because he has no command function over someone who is not under
20 his command.
21 "It is a fundamental military principle and one that we,
22 certainly where I have been, you have to establish exactly your command
23 relationships with everyone in your area. And I don't want to confuse
24 people, but there's a huge difference in being opcon," [Interpretation]
25 which means operational control, "[In English] ... operational command,
1 and for me it would be one of the first things that I would establish,
2 whether forces in my area were opcom or not.
3 "Now, that's easy because I come from an organisation that has
4 brought up under Staff College trainings and all the rest of. It isn't
5 quite so easy in the confused situation that we are talking about in
6 Bosnia and Herzegovina.
7 "I don't believe that if a force is operating which is not under
8 your operational command there is much you can do when they get out of
10 [Interpretation] In spite of this answer, Mr. President, which
11 corresponds to Stewart's reaction and the report sent by General
12 Hadzihasanovic to the Supreme Command, he sent this report. He asked for
13 assistance. He asked for a reaction on the part of the Supreme Command.
14 He asked his superiors to find a solution to the problem, what are your
15 stances and opinion.
16 All the measures were taken. Everyone was involved in the matter,
17 and contrary to what the Prosecution claims, the purpose of all this work
18 was to find a solution to the problem. The measures taken demonstrate the
19 extent to which one attempted to solve a problem. To what extent one
20 attempted to prevent these elements which were outside of control to have
21 an adverse affect on the 3rd Corps and on the war.
22 General Karavelic analysed the situation and reached the same
23 conclusion. First, he said no, initially there is no problem. There is
24 information. And then Totic appears. The matter became a little more
25 serious. Perhaps that would affect the mission. And then we have the
1 events in Miletici, and in that case it was something that had to be
2 considered. The HVO was involved. The general had to react, and he
3 explain the manner which the general reacted.
4 Then we have the events in Maline, Guca Gora, and on each
5 occasion, as the problem grows more serious, the measures taken by the 3rd
6 Corps and the Supreme Command on all levels are more serious. They try to
7 take more serious measures to deal with a problem that is increasingly
9 The general, General Karavelic, said that he had reached an
10 interesting conclusion. "[In English] The creation of this detachment,"
11 [Interpretation] he's referring to El Mujahid, "[In English] What other
12 measures taken by the 3rd Corps appeared to have ended the perpetration of
13 crimes by these foreigners. Without compromising the accomplishment of
14 the mission the 3rd Corps, I am of the opinion that this is a striking
15 example of very effective exercise of command at the strategic operative
17 [Interpretation] What is a commander of an army corps demanded to
18 do, especially when the corps does not even exist? He is asked to create
19 the corps and to put in place a certain system, to have a deputy commander
20 for security who will be involved in security matters, to have an
21 assistant commander for operations who will be involved in operations. He
22 is demanded to have assistant commander for logistics, to have an
23 assistant commander for morale. He is demanded to have an assistant
24 commander for legal affairs. He is demanded to create a legal department
25 and establish permanent guidelines and instructions. He must sure there
1 is an exchange of information within the 3rd Corps. He must ensure that
2 subordinates are trained. The subordinate commanders must also be
3 answerable to the corps commander. I can't think of the English term; I
4 apologise. That is what a corps commander is requested to do. He must do
5 all these things in order to accomplish his mission, when accomplishing
6 his commission, and at the same time his legal obligations must be
7 respected, and this is what General Hadzihasanovic did throughout 1993.
8 And General Karavelic concluded by making a comparison with what
9 he did in Sarajevo. He said that he went a little further. He took armed
10 measures against a certain brigade, but he added: "[In English] While I
11 was able to take measures regarding this brigade, it should be noted that
12 it was officially in the composition of the 1st Corps," [Interpretation]
13 an official brigade. "[In English] This happened on a very small area,"
14 [Interpretation] the town of Sarajevo that was under siege, "[In English]
15 More information and my actions were approved by the Presidency of the
16 republic and performed in cooperation with civilian authorities."
17 [Interpretation] All of these elements were present in Sarajevo, and he
18 went a little further when taking action when compared to the action taken
19 by General Hadzihasanovic, but he also explained that in the territory of
20 the 3rd Corps, given all the elements present and the context in which the
21 3rd Corps operated, he explained that such measures could not be
22 envisaged, and this has been confirmed when one talks about plans for a
23 month that are secret in order to face up to certain foreign elements. So
24 this is the real situation.
25 Mr. President, this is not just a theory. This is what took place
1 in the field. This is what is supported by the evidence. There was no
2 effective control. The notorious Mujahedin were not under the control of
3 the 3rd Corps. And if a unit is not under the control of the 3rd Corps in
4 order to try and respond to the arguments presented by the Prosecution or,
5 rather, to contradict their arguments, if a crime is committed, it is the
6 commander's responsibility to carry out an investigation. He carries out
7 an investigation. He's satisfied that the individuals who committed the
8 crime are not his subordinates. If this is done, then legally speaking
9 that is the end of the matter. In terms of operational matters, he can go
10 further, he can decide to go further, and he did go further. But as far
11 as legal matters are concerned, that's the end of the affair unless the
12 Chamber thinks that his decision was completely unreasonable. But if you
13 have a look at the information that he had at that time, since he takes
14 the reasonable decision that the crimes were not committed by his
15 subordinates, well, as soon as this is done, then in legal terms that's
16 the end of the matter.
17 When we refer to the Mujahedin attacks -- well, on numerous
18 occasions we have discussed the matter with witnesses. It was said that
19 the Mujahedin had to be attacked. But if one needs to attack the
20 Mujahedin, well, then, the conclusion to be drawn is that they're not
21 under our control. If one believes that it's necessary to attack them,
22 that means that they're not under his control. And the decision to attack
23 them or not is not a legal decision, it is not a legal obligation. This
24 is part of the operational mission, and this is why high-level commanders
25 take decisions at a high level, decisions on whether having evaluated the
1 situation one should conclude that's a third front, and I'm not capable of
2 dealing with this. Is that a fabricated argument, or is this an argument
3 that we can support by evidence?
4 He has spoken to his superior and said, "It's my third front," and
5 this is not an excuse invented by the Defence in the course of these
6 proceedings. This is contained in the evidence, and it is supported by
7 witness testimony.
8 Thank you, Mr. President. I will now give the floor to my
9 colleague who will deal with the charges in the indictment.
10 Thank you, Mr. President.
11 MS. RESIDOVIC: [Interpretation] Thank you, Mr. President.
12 As we said yesterday, the Prosecution in this case has tried to
13 take a narrow approach in relation to the entire case. My colleague has
14 presented the Defence's opinion with regard to the duties of a commander
15 and with regard to his responsibilities and the measures he has to take
16 when crimes are committed in his territory. And this is not in dispute.
17 It's accepted by the Defence in the territory of the 3rd Corps, and you
18 have visited some of this territory. Crimes were committed. There were
19 victims. We are aware of the fact today.
20 In our trial brief, Mr. President, we provided a detailed analysis
21 of all of the counts contained in the indictment, and we pointed out
22 certain evidence that demonstrates that with regard to the charges in the
23 indictment, the Prosecution has not provided sufficient evidence that
24 would show that Commander Hadzihasanovic failed to carry out his
25 obligations as a commander, the obligations he should have carried out
1 since he was legally bound to do so in terms of local and international
3 When presenting the facts today, I intend to focus only on some
4 issues raised by the Prosecution in its brief or in its oral submissions.
5 I'll start with Dusina.
6 Your Honours, many witnesses have testified about Dusina, and the
7 Defence and the Prosecution have presented a lot of written evidence to
8 you with regard to Dusina. You know about the context in which the events
9 in Dusina took place. You have before you evidence about the situation
10 that Commander Hadzihasanovic found himself in as soon as he arrive in the
12 He came from Sarajevo and believed that he would be an integral
13 part of the armed forces of the Bosnia and Herzegovina together with the
14 HVO. He was aware of the fact that given that the army had not been
15 established and was scattered around the territory that he had arrived in.
16 I will remind you of the fact that the witness Ibrakovic said in Zenica
17 alone there were 134 armed groups, and he was aware of the fact that as a
18 professional soldier he should suggest to his colleague Colonel Blaskic
19 that they should create a professional force in order to discipline the
20 troops. He immediately had a problem. His request was rejected. That is
21 in the evidence. And the entire state of Bosnia and Herzegovina wanted to
22 lift the blockade of Sarajevo.
23 His request to the commander of the operative zone was rejected,
24 so the reaction was identical to the reaction of the HVO. He could have
25 been very disappointed. The commander could have been very disappointed,
1 but the commander was subjected to fierce attacks from the territory of
2 Gornji Vakuf, from the territory of Prozor, and from the Zenica area.
3 Many witnesses have testified about the context, but I will
4 mention Edin Husic, who was the deputy commander for intelligence, the
5 assistant commander for intelligence, and he spoke about large forces
6 coming from Western Herzegovina to the Lasva Valley territory. He then
7 mentioned the attack on Busovaca, and he mention add new wave of refugees
8 moving in the direction of Zenica.
9 Commander Hadzihasanovic's priority task was to protect the Lasva
10 junction at that point in time. That was the only route that could be
11 used to establish communication with the other free territory in Bosnia
12 and Herzegovina. At that time, the HVO had already blocked the main road,
13 thinking Zenica to Travnik in the Lasva Valley not far from the Lasva
14 junction, they had attacked Busovaca. They started expelling the
15 population from those areas. And on the 25th of January, Merdani was also
16 attacked, which was located only a few kilometres from Lasva.
17 Given such a situation, we agree with the Prosecution's position.
18 Commander Hadzihasanovic, although had not it not been for the Lasva
19 junction then the battle might not be a battle that would require the
20 engagement of Commander Hadzihasanovic, but Commander Hadzihasanovic did
21 all he could to ensure that the junction was protected. I won't mention
22 evidence that has been shown to witnesses on numerous occasions, but he
23 issued orders in order to secure the only small route that we have used in
24 order to make it possible for troops and people to move around freely.
25 But the lines that had not been taken by the enemy, elevation 852 and the
1 Dusina-Sudine route, should be secured without engaging in combat.
2 We have heard the witness Barucija, the witness Begic who took
3 those forces through a route that didn't pass through five checkpoints
4 established by the HVO from the railway station in Vlasenica towards the
5 village of Dusina. This was done in order to avoid any clashes, so as not
6 to provoke any clashes.
7 So General Hadzihasanovic performed his duties, tried to
8 accomplish his mission, and he did everything he could do to avoid
9 provoking a conflict with the HVO. Unfortunately, a conflict did break
10 out after one of the commanders of the 7th Muslim Brigade, Camdzic, was
11 killed. And I won't say anything else about this matter.
12 I will now go back to what the Prosecutor said in his closing
13 argument. The Prosecutor said that Commander Hadzihasanovic immediately
14 found out about the murders and didn't take the necessary measures
15 although he had all the resources that he required to do so.
16 Firstly, he referred to Exhibit P135, public announcement, and he
17 said that he saw that Zvonko Rajic, the commander of the Lasva HVO, had
18 been killed. He had such information.
19 Mr. President, we have already had translation problems. In our
20 language there is a quite clear distinction between the word "kill" and
21 die a violent death. Someone can be killed with a certain intention or
22 accidentally. To die a violent death is something that can happen in a
23 traffic accident or in the course of combat.
24 So this public announcement only stated that Zvonko Rajic died a
25 violent death in the course of combat on that day in Lasva. The
1 Prosecution -- the Prosecution arguments with regard to this document are
2 not founded. However, nothing says that Commander Hadzihasanovic was not
3 aware of the event. His deputy, General Merdan who attended the meeting
4 together with the HVO that evening, a meeting at which Commander Blaskic
5 expressed suspicion that the delegation had been killed, and he said that
6 village with Croatian population had been torched, the population had been
7 expelled, et cetera, and he did not want to sign a cease-fire agreement,
8 an agreement on a cease-fire in Busovaca. His deputy informed him of the
9 fact, and this can be seen from the information that he also provided to
10 the Supreme Command Staff. The information was quite identical. The
11 commander found out about the allegations made by the enemy. And as a
12 reasonable commander, he gathered all information from his units that
13 participated in that combat, and all the information that we have in
14 evidence shows that combat broke out, this had not been planned or
15 ordered. In the course of that combat, a number of individuals died a
16 violent death in -- on both sides.
17 There are certain contradictions contained in those reports, but
18 since the corps was only just being established, only had a month had
19 passed since he assumed his duties, well, if we take into consideration
20 the difficulty of providing the information, and if we take in
21 consideration the difficulties of the work of the operations centre and
22 the difficulty of communications, witnesses have testified about this, if
23 we take all this into consideration, then if there are certain things that
24 don't tally in the reports, this is not surprising.
25 Reports from his own units that should be trusted by a commander,
1 but a commander should also check such reports, well, General Merdan
2 provided such reports on the following day at the meeting, and there were
3 no issues raised by the HVO with regard to that event.
4 What measures did the commander take? Not because he didn't have
5 information according to which the suspicions of the enemy were not
6 correct, it's not as if he thought he could stop -- well, the witnesses
7 before this court have explained what kind of information he had. The
8 witness General Merdan said that we took this seriously into consideration
9 because this was the first time that there was -- that the members of the
10 ABiH were suspected of having committed a crime, and as a result we paid
11 particular attention to this problem. And General Merdan, together with
12 the HVO members and members of the internationality community, went into
13 the field.
14 From the witness Barucija, who has testified here, and from other
15 soldiers in that area, he heard the same story that had been conveyed to
16 him in reports from subordinate units. They saw people there, Bosniaks
17 and Croats, people who were afraid as recorded in an HVO report which
18 stated at that Mr. Fleming said that it seemed that something had
19 happened. General Merdan said, yes, it was quite certain that they were
20 afraid. That was the first time that the war actually entered their
21 houses and there were victims. But no one said that any sort of crime had
22 been committed.
23 The next step taken -- Dusina and Merdan continued to be shelled
24 from HVO positions on the next day, but the next step taken was the
25 sanitation of the area, and as one of the witness's has testified, bodies
1 were taken to the Zenica morgue. The investigative judge was informed.
2 He immediately went to the site, and according to the evidence two judges
3 went there, Mirsad Strika and Vlado Adamovic, investigative judges.
4 Given the fact that a military police battalion was only formed in
5 mid-January 1993, although there is a decision that was taken in December,
6 so to take -- to carry out investigations, on-site investigations, to
7 carry out investigations in Zenica, which is not the actual site, well,
8 with regard to these investigations the judge did everything he could. An
9 external examination of the bodies was performed. The paraffin glove test
10 was carried out. The bodies were identified. An order was issued to
11 military police members according to which they should take interviews
12 from individuals, interrogate individuals who had been brought in. The
13 witness Saric has testified here and said that he personally interrogated
14 Zvonko Rajic's brother.
15 None of this evidence with regard to how the people died a violent
16 death, with regard to the wounds, with regard to the paraffin glove test,
17 et cetera. None of the evidence obtained when the legal procedure was
18 followed, the legal procedure of which the judge was in charge and not
19 someone from the ABiH or Commander Hadzihasanovic. None of the evidence
20 showed that the previous reports from the units of the ABiH were not
21 correct. All the material was provided to the prosecutor, and it was then
22 for the prosecutor to act. It was for the prosecutor to decide whether
23 there were any other elements that had to be checked. It's quite obvious
24 that at the time the prosecutor did not believe that anything else should
25 be checked. When there were any doubts, he shelved that.
1 So everything that is provided for by a legal system, by the
2 criminal procedure, all the roles that had to be played by the various
3 bodies at that point of time were played. Everything was checked. All
4 the doubts that the enemy had were checked. Nothing was found that would
5 contradict what people in the field said. Nothing contradicted the
6 statements, the written statements made by the units that participated in
7 the combat.
8 So today in 2005, not in 1995 but today in 2005, if the same
9 bodies were involved in such an affair and obtained the same information,
10 a prosecutor in any country would probably act in a similar way.
11 Why were eye-witnesses not interrogated? It's difficult to say
12 who the eye-witnesses were. The people who were frightened had already
13 left and went to Zenica. A few days later they went to a territory under
14 the control of the HVO, and there was not a single ABiH organ or a single
15 civilian body or body of power that took charge of the matter. Not a
16 single such body had access to that territory. So these people could only
17 be interrogated by the competent state organ of the HVO.
18 The Prosecutor presented evidence according to which the HVO and
19 its security services only one year later filed a criminal report against
20 a certain number of individuals, although they had access to all those who
21 could have provided other information that couldn't be obtained by the
22 official authorities in Zenica, couldn't be obtained by the police or by
23 the judicial bodies.
24 The Prosecutor goes on to say that the information that was taken
25 from prisoners or detainees was just the usual information that you take
1 from any detainee. We don't know on the basis of what facts regarding
2 this case the Prosecution managed to draw this conclusion. We heard two
3 witnesses here, Witness Izet Mahir who was ferrying the detainees from
4 Lasva to KP Dom, and he took an interest in their condition, but he never
5 heard from anyone that they were mistreated or anything about what had
6 happened. And as to the question: Is it normal that somebody who is
7 detained is afraid of those who detain him and don't want to say anything,
8 he answered that question in an affirmative. He said that it was normal.
9 So it is indeed normal that those people, even if they had the knowledge
10 of certain facts, would not tell the police officers interrogating them of
11 those facts. But you can't blame the police officers for that.
12 You also know that one of the witnesses said that at the school he
13 met with his wife and that he whispered to her and told her about this
14 event and asked her not to tell anyone, and he just said this to her in
15 order to be informed in case anything happened to him.
16 So under realistic conditions, the investigation had been carried
17 out in line with the legal provisions of Bosnia and Herzegovina. No body,
18 either the accords or the prosecutors or anyone else could have reached
19 that conclusion. And Commander Hadzihasanovic who was the one who
20 actually initiated all this flurry of activity had no further competence
21 to start interfering with the proceedings of the judiciary without an
22 express request on the part of the judiciary for the armed forces to start
23 implementing any new additional measures.
24 Because of the fact that you do have information about the
25 criminal code of Bosnia and Herzegovina and the law on the judiciary and
1 you are familiar with all that, it is simply unbelievable that the
2 Prosecution still sticks to its original position according to which
3 nothing whatsoever had been done.
4 And this is not all. They go back to an image of the legal system
5 which has been turned upside down. For example, they keep telling us
6 about this famous cow, somebody coming from Switzerland, they would have
7 nothing against it. I mean, they're asking why no investigation had been
8 carried out here and that the investigation had been carried out.
9 And we heard from the witness Veseljak. And what he was trying to
10 say was that the armed forces of Bosnia-Herzegovina and the 3rd Corps were
11 ready and willing, and this happened even after the disarming of 306th
12 Brigade. They were willing to undertake any measures against their
13 soldiers in case they were found to be putting the lives of Croat
14 population in jeopardy or endangering their property. They set up
15 checkpoints. They brought in reinforcements. And even if we look at
16 something which is from our point of view perhaps a minor affair, but for
17 any farmer a cow is not a minor affair. So it doesn't really matter what
18 they did. But what does matter was that they were willing to impose
19 force. They were willing to even shoot their own soldiers because they
20 put the lives of their fellow citizens into jeopardy because they were
21 fighting for a multi-ethnic state of Bosnia, and this fight was
22 incorporated in every single policy of the 3rd Corps, that everything had
23 to be done in order to make sure that their soldiers in no way could
24 endanger civilians.
25 Religious leaders, religious facilities, in case they were found
1 to be doing so, strict measures had to be imposed. And it is for this
2 reason that with regard to the case of Dusina, the case that we referred
3 to earlier on, let me just reiterate the position that in this case,
4 following the information that perhaps a crime might have been committed
5 by members of the armed forces, the commander of the 3rd Corps in line
6 with the legal provisions of Bosnia and Herzegovina undertook all the
7 necessary and indispensable measures and even more than that, and that at
8 the time he did not obtain any information indicating that there was
9 reasonable suspicion that such a crime had been perpetrated.
10 We are simply reiterating what we already put to you in writing.
11 The Prosecution did not even manage to prove that Serif Patkovic did
12 indeed kill Zvonko Rajic. The witnesses who spoke about that did not know
13 Serif Patkovic, Zeljko Cvijanovic. Cvijanovic is a person you cannot
14 trust, quite apart from the fact that he is a suspect for having killed
15 another person and having thus provoked the conflict in Dusina. And he
16 contradicted himself on a number of occasions, so you can tell immediately
17 that it's not a credible witness. So nobody who was an eye-witness
18 recognised Patkovic.
19 In the Blaskic case, Rajic's wife claimed that she saw Patkovic.
20 Patkovic testified before the same Trial Chamber, and he said that he
21 wasn't there and that he did not commit that murder. And there is a case
22 at Zenica, and Judge Adamovic is in charge of that case, and he came and
23 testified here. And the wife of Zvonko Rajic did testify before that
24 judge. And Kozaric mentioned this, and that's why I'm mentioning this,
25 not because I've heard it from any other source. And she said that the
1 wife of Zvonko Rajic before the court of Zenica said clearly that her
2 husband had not been killed by Serif Patkovic.
3 So as to the first count of the indictment, the Defence, with all
4 due respect, states that there is not a single piece of evidence pointing
5 to any responsibility that should be borne by the commander of the
6 3rd Corps.
7 The situation is fairly similar when it comes to Miletici. In
8 relation to Miletici, all I'm going to say is the following: All evidence
9 that we have seen here does not provide us with an even -- with even a
10 shred of suspicion that the armed forces of Bosnia and Herzegovina might
11 have participated in this. The evidence provided for in -- from
12 international staff and a part of that evidence was provided by the HVO,
13 and especially the evidence that the Defence presented here through
14 witnesses, indicates that everything was done in order to save the lives
15 of the Croat population and all evidence indicates that that crime was
16 perpetrated by the Mujahedin.
17 As my learned colleague has said, at that moment the legal
18 obligation when it came to any military commander starting from Zukanovic
19 at Mehurici all the way to Commander Hadzihasanovic actually ceased. He
20 was accountable for the deeds of those subordinated to him over whom he
21 had an effective command and control. However, as in no other case, here
22 too we can say that Commander Hadzihasanovic and the subordinated units
23 were not satisfied with the situation because it tarnished the image of
24 the armed forces, and it had a negative effect on the morale of their
25 soldiers, and it was for this reason that he undertook other measures and
1 actions, not because he had a legal obligation to do so or because he had
2 failed to do anything he was supposed to do, because there is no failure
3 to act on his part.
4 So he informed his superiors of that event. He asked for
5 authorisation to gather information about those groups who were creating
6 problems for him in that area. He employed special security officers who
7 were entrusted with the fact of dealing with African elements only. And
8 also his chief of security in the 306th Brigade was instructed to start
9 gathering information on those individuals and to keep him posted at all
11 According to what Dedo Suljic said in his statement of 92 bis,
12 some individuals came along and asked him for information as to what had
13 happened, and he told him everything he told us in 92 bis.
14 Commander Sipic, together with his chief of security, attempted to
15 enter the camp at Poljanice and to find out who those people were and what
16 they were up to in an area inhabited by his people but he never managed to
17 do so. So with regard to this event, too, even though after the
18 indisputable fact confirming that this crime was perpetrated by the
19 Mujahedin, a number of other measures had been undertaken, had been
20 implemented, in order to prevent them from acting in the same way again.
21 The fact is that they were not end an effective command of control
22 as proven by witnesses Siljak and Sulejman who mentioned the fact that had
23 they been within the framework of the armed forces of Bosnia and
24 Herzegovina we wouldn't have had to negotiate with them. We would have
25 been able to issue orders to them.
1 As to the events at Maline, I would also like to draw Your
2 Honours' attention to everything you have heard from the witnesses and to
3 the exhibits which had been filed, the evidence that has been accepted by
4 you, in fact.
5 A man came here who had been faced with the perpetrators of that
6 crime. He was actually not an eye-witness to the crime itself, but he was
7 the person who had been in a situation whereby a number of people who he
8 had been taking from Maline to Mehurici had been taken away by force and
9 kidnapped. Now, the question arises as to whether he was acting with a
10 lack of caution by taking 200 people near Poljanice.
11 When we visited the area, we did see that any shortcut to Mehurici
12 went passed Poljanice. The only other way was through Han Bila about ten
13 kilometres further through an area where there was fighting going on. And
14 anyone in their right mind would have taken those people by the shortest
15 possible route to a safe place. And as the witness replied in answer to
16 your question, "I don't know even today whether I made the right decision,
17 but I couldn't even imagine, couldn't even dream of those Mujahedin
18 attacking us." So he was of the view that the armed forces of
19 Bosnia-Herzegovina were guaranteeing the safety of that Croat population,
20 and that's why they were taking them there. Had they left them in the
21 village, they might have been in danger. That was his assessment of the
22 situation. As to what criterion, what conditions reigned is indicated in
23 the evidence and in our written brief. And the situation is identical
25 It is quite clear, Your Honours, on the basis all evidence that
1 the Mujahedin and those who joined them, those locals who joined them, who
2 were in disguise basically and who were not under the control of
3 Bosnia-Herzegovina perpetrated that crime. So legally speaking, once
4 again, at that particular point in time any obligation for any further
5 investigation would have ceased. However, we do have evidence to indicate
6 that Commander Hadzihasanovic and those subordinated to him went even
7 beyond the call of duty.
8 We have heard what the commander -- the police commander Zukanovic
9 had to say. Throughout the following fortnight they were setting traps,
10 so to say, and they were taken written statements from people who had been
11 leading that group of people that had been taken by force, and they were
12 looking for any other information in order to find out what had happened,
13 where it had happened, and how it had happened in order to be able to make
14 a suggestion to the competent authorities as to what measures should be
15 implemented and in what way. But they also had a clear attitude from the
16 corps commander, and General Cuskic testified about that here. He
17 actually asked for that problem to be solved and to establish whether
18 anyone who was a member of the armed forces had any part in it and, if so,
19 for that person to be severely punished. So all efforts were made by the
21 And if we think of the events at Guca Gora, further measures were
22 implemented in the direction of the Supreme Command Staff in order for
23 this problem to be solved as soon as possible, because it was beginning to
24 have serious consequences to the detriment of the mission of Commander
1 In relation to this event and other latter events, the Prosecutor
2 established an assumption of a possible cover-up, because later on in the
3 month of October when Mr. Mazowiecki asked the president of the Presidency
4 and he in his turn asked through the Supreme Command Staff to investigate
5 the situation at Maline, and the answer given was not quite in line with
6 the facts established previously.
7 General Merdan, who testified before this Trial Chamber and who
8 sent the answer on behalf of the 3rd Corps to the Supreme Command Staff,
9 was unable to tell us exactly for what reason he did that. Was it because
10 Commander Hadzihasanovic was absent or away or otherwise engaged? But we
11 do know that it was General Merdan who supplied the answer.
12 General Merdan encountered this problem of the deaths at Maline on
13 the 3rd of August for the first time, according to his testimony. It was
14 on that occasion that some people in the area, and he was accompanied by
15 the representatives of the European Community, and some people showed them
16 the burial sites, the graves where these people were buried, and they said
17 that they lost their lives in combat. And when he got the report from the
18 brigade repeating the statement that he heard on the spot, he therefore
19 had no doubt as to the truthfulness of that statement, and he felt no need
20 to check it out any further. As to whether he should have been in touch
21 with his security officers or not, but he received two identical pieces of
22 information, and that's what was the basis for his answer. You can't
23 qualify it as a cover-up.
24 And as to whether the 306th Brigade was trying to cover it up in
25 the period between the 8th of June, that is say, the time when the event
1 happened, well, there had been quite a few organisational and other
2 changes in the meantime in the area of responsibility of the
3 306th Brigade. On the basis of the war diaries you will see on the 19th
4 of August there was a new commander who was replaced, and instead of
5 Commander Sipic who was familiar with the facts a new commander came along
6 who had no knowledge of the event. He asked for information from the
7 security services, and as testified by witness Delalic here, he did not
8 give that information in person, and he could not recognise the person who
9 was briefing the then new commander Jusufspahic about the facts, and that
10 was the information that was relayed to the 3rd Corps.
11 The commander of the 306th Brigade was unable to check himself the
12 events at Mehurici because the 1st Battalion of the 306th Brigade, which
13 at the time of events was at Mehurici was no longer within the framework
14 of the 306th Brigade. It was an integral part of the 27th Brigade which
15 was set up in the middle of August. Unfortunately, considering the
16 circumstances, this was the reason basically for the difference between
17 the information in June and the information obtained later on. And
18 General Merdan testified to the fact that he had never seen the letter
19 that was addressed to the Supreme Command Staff, but he did know that
20 there was a letter from them to the 3rd Corps and he tried to give an
21 answer to the best of his ability and to the best of his knowledge, and he
22 tried to give such an answer to every question asked by the Supreme
23 Command Staff.
24 This state of affairs which follows from the evidence in this case
25 tell us once again that the Prosecution, in relation to this event in much
1 the same way as in relation to the events taking place -- that took place
2 at Miletici, did not manage to prove beyond reasonable doubt that those
3 crimes were perpetrated by the armed forces of Bosnia and Herzegovina or
4 individuals who were under effective control and command of General
5 Hadzihasanovic. All the measures that we have described earlier indicate
6 that the commander and his officers and his services did even much more
7 than was their legal obligation either according to the domestic or the
8 international law.
9 Your Honours, in relation to events which also have to do with
10 Mehurici, I would just like to note for the sake of the transcript that
11 even though in the written briefs the Prosecution referred to that as well
12 as the prison at the JNA barracks in Travnik in the course of their oral
13 presentation, they made no reference to those events. As to what the
14 reasons are, they probably know best.
15 And I would just like to refer to two crimes perpetrated by the
16 Mujahedin, that is to say, the Guca Gora incident and the Travnik incident
17 which took place at the Sveti Ilija church.
18 The Prosecution also has certain claims about measures not taken
19 here, and the commander is aware of what happened. If we listen to the
20 witnesses Cusic and Mesanovic, we could see that not only at the time of
21 the events but even prior to the events and in accordance with the general
22 policies according to which religious buildings and members of the clergy
23 should be protected, the municipal defence staff in Travnik ensured that
24 the Catholic church was permanently protected as well as the house in
25 which the priests lived, and they in fact showed that the attack on the
1 church and their entry into the house and the attack on the soldiers
2 guarding the priests was carried out by the Mujahedin. That is not in
4 The civilian police also went to the site of the crime and filed a
5 criminal report against unidentified perpetrators. So you can quite
6 clearly see that it was for the civilian police to act at that point in
7 time. However, the military organs also went to the site and provided
8 assistance, and everything they did, they subsequently repaired the
9 church, provided assistance, everything they did quite clearly shows that
10 although this did not fall within their competence the army did more than
11 was possible.
12 As far as Guca Gora is concerned -- as far as Guca Gora is
13 concerned, the evidence is also quite clear as well as the measures taken
14 by the 3rd Corps. Although they were no longer legally obliged to take
15 such measures, witnesses quite clearly stated that such measures were
16 taken. But I would just like to comment on the Prosecution's position
17 with regard to the army taking measures when religious buildings and
18 cultural buildings belonging to the Croatian people are concerned.
19 With regard to Guca Gora, they say that no measures were taken.
20 Well, we didn't take measures. We didn't even photograph it. We first
21 wanted to clean it up, but--
22 JUDGE ANTONETTI: [Interpretation] I'm going to have to interrupt
23 you now because we have been working for over an hour and a half and we
24 might have technical problems because it's necessary to change the tape.
25 It's 25 to 1.00. We will resume at five to 1.00.
1 --- Recess taken at 12.34 p.m.
2 --- On resuming at 1.04 p.m.
3 JUDGE ANTONETTI: [Interpretation] Very well. We will now resume.
4 It's five past 1.00. According to my calculations, the Defence has
5 another one hour so please use your time as you see fit, but I should
6 point out that we have to adjourn at quarter to because another trial is
7 scheduled for 2.15.
8 You have another hour available and you may use it as you see fit.
9 MS. RESIDOVIC: [Interpretation] Mr. President, there was something
10 that I wanted to say before the break about the evidence with regard to
11 item 7, the destruction or damage of buildings dedicated to religion.
12 With regard to the other counts -- as in the case of the other counts in
13 the indictment, I won't be analysing the evidence here. What is concerned
14 is the monastery in Guca Gora and the church in Travnik. I have already
15 addressed these matters to certain extent.
16 As far as Guca Gora is concerned, Your Honours, I would like to
17 draw your attention to what our expert in history has said and the expert
18 in constitutional matters has said. This had to do with a certain
19 tradition in Bosnia-Herzegovina that was such that the inhabitants of
20 Bosnia and Herzegovina and the Bosniaks had a particular relationship when
21 it came to protecting the buildings of other ethnic groups, that they
22 would treat them as if they belonged to their own culture.
23 A draft -- a report has been drafted about this by a
24 representative of the United Nations, by Mr. Kaiser. As far as this
25 relationship of the ABiH towards the religious buildings of other ethnic
1 buildings are concerned, his statements were the same.
2 You also have evidence according to which the commander issued
3 special orders in which he attempted to protect the cultural and religious
4 buildings of his co-inhabitants in order to accomplish the mission that he
5 was assigned with in Bosnia and Herzegovina and in order to protect the
6 multi-ethnic character of Bosnia and Herzegovina.
7 As far as the monastery in Guca Gora is concerned, we dispose of
8 facts according to which the items of value in the monastery were moved to
9 Croatia in December 1992. It's also not in dispute that the Mujahedin
10 entered the building. At one point in time they destroyed certain things
11 in the monastery: The frescos, the organ and the statue in front of the
12 monastery. The books were scattered around -- the remaining books from
13 the library that hadn't been taken to the Republic of Croatia were
14 scattered around. And you have heard witnesses who put all those books in
15 order when the army entered the monastery. Library in order was also
16 found by the delegation that Stjepan Radic was a member of on the 3rd of
17 August. And the witness Franjo Krizanovic said that when in spring 1994
18 he took charge of the monastery and took over from General Alagic, he said
19 that at that time the library was still in place.
20 All of our inhabitants and citizens and especially the commander
21 regret the fact that certain damage was inflicted on the church in Travnik
22 and on the monastery in Guca Gora. And as a result of that damage, the
23 religious and national sentiments of our co-inhabitants were offended, but
24 what we heard from witnesses and what we saw at the site in legal terms
25 does not amount to the destruction or wilful damage inflicted on religious
1 buildings as provided for by international law. On the contrary. All the
2 evidence points to the fact that the utmost measures were taken. A
3 special military police battalion was engaged and a police force from that
4 area was engaged to prevent other damage from being inflicted. And as the
5 witness Karic has stated, when the roof was damaged from HVO positions,
6 the ABiH carried out the necessary repairs.
7 All of these efforts made, and this is part of our culture, and
8 all of the obligations and duties of the commander. All of these efforts,
9 all of the obligations and duties of the commander were misrepresented in
10 the Prosecution's closing argument when they addressed the protection of
11 religious buildings in Bosnia-Herzegovina. The question was put, "You
12 didn't photograph the monastery? You could have done so." But, Your
13 Honours, in order to distinguish those who committed crimes, the commander
14 issued an order according to which everyone had to have identity cards.
15 The witnesses then said that they were confronted with a problem because
16 there was no film, there was no paper in order to make such identity
17 cards. So in certain conditions when a religious building belonging to
18 the Croats was under threat, the army did everything to prevent it from
19 being destroyed and it wasn't destroyed. It's just that a threat was
20 posed to this building. And this was done when, during the very same
21 period, not far from that building, Muslim religious buildings were
22 completely destroyed. You will remember the testimony of witness
23 Kent-Payne who said that he went to Bandol and there was no indication on
24 the map of the location of the mosque. He found a pile of rubble there.
25 It was not far from Velika Bukovica. And one month earlier on the village
1 of Ahmici had been completely destroyed, together with the mosque.
2 It's not only that no revenge was taken, but additional efforts
3 were made to ensure that not a single individual, not a single member of
4 the ABiH should feel the desire to treat Croatian religious and cultural
5 buildings in a similar way.
6 In their address the Prosecution said -- in its opening statement
7 the Prosecution said the commander can do everything. He can ask why one
8 and a half litres of petrol was stolen or -- and a car in Kraljeva
9 Sutjeska. But naturally we always have to go back to the concrete
10 conditions in Bosnia and Herzegovina. The Kraljeva Sutjeska is the
11 best-known monument of the Croatian culture and religion in Bosnia and
12 Herzegovina. We have in evidence information, according to which when
13 conflict broke out in Kakanj, General Hadzihasanovic issued a special
14 order according to which if combat continued in the direction of Kraljeva
15 Sutjeska, everything should be done to protect to the monastery.
16 When he heard after the combat that not a litre and a half was
17 stolen but one and a half tonnes of oil was stolen, he asked for a
18 commission to be formed, for measures to be taken, and the commander of
19 the 3rd Muslim Brigade provided information and said that all the measures
20 had been taken and the commander who was engaged in combat in the area had
21 been replaced and all the resources had been returned to the monastery.
22 We don't know what the theory of the Prosecution is. Is it good
23 if we take all measures both before and after, or is it good when we do
24 not immediately manage to prevent partial damage from being inflicted? We
25 are not sure when a commander has complied with all his duties and when he
2 So as far as item 7 is concerned, count 7 is concerned, although I
3 regret the fact that the national and religious feelings of our
4 co-inhabitants have been offended, that the damage inflicted on these
5 buildings do not satisfy the criteria that would enable one to say that a
6 crime was committed. On the other hand, both crimes were committed by the
7 Mujahedin, and the 3rd Corps commander had no authority over them and they
8 were not his subordinate men and he did not have effective control over
9 them. In addition, he took all the necessary measures in order to protect
10 those buildings.
11 And for these reasons and with regard to this count in the
12 indictment, it is our belief that the Prosecution has failed to prove that
13 this act was actually committed.
14 I will now go back to counts 5 and 6, wanton destruction of towns,
15 villages, and that is not justified by necessity. Our legal position is
16 one that we have mentioned in our previous briefs, in our previous
17 submissions. But with regard to this count I would like to say the
18 following: In the course of proceedings and in the course of their
19 opening statement, the Prosecution has tried to provide the Chamber with
20 facts that are correct and that are not in dispute. The Prosecution has
21 presented us with a picture of the situation in the year 2000. We don't
22 know who made the situation such, but the Defence has brought individuals
23 before this Tribunal from the civilian protection in Travnik and in Zenica
24 whose responsibility it was to protect buildings in territory after
25 combat. And we have also provided documents from that time drafted on the
1 23rd of July, 1993. And on the basis of the information available at the
2 time there was a description for each village of the buildings that were
3 damaged and of the nature of the damage. And, Your Honours, in all of the
4 evidence that you have before you, the damage does not reach the level --
5 a level that could be described as wanton destruction in accordance with
6 international criteria.
7 If his subordinates had committed such acts, a commander would be
8 held responsible for them. On the other hand, given the way in which
9 torching was carried out, destruction was inflicted on property and
10 property was stolen, well, nothing has been proven by the Prosecution in
11 this respect.
12 In that very vast area that you have seen which is not very
13 accessible, we don't know where all the refugees went. We don't know the
14 routes that they used. We don't know where the troops went during the day
15 and at night. We don't know where the buildings were located or where the
16 civilian and military police tried to protect the area. We don't know who
17 acted and how they acted. We don't know why this destruction was
18 inflicted, what the destruction was a result was, whether it was a result
19 of the combat that was ongoing throughout the summer or whether it was the
20 result of certain individuals who were not unidentified acting on their
21 own. But you have heard from witnesses that efforts were made to shed
22 light on all of this, and the witness Saric has testified about this. We
23 showed him examples of two cases of houses being torched and army members
24 were held to account for these acts. But they were held responsible for
25 posing a general danger to individuals and property. This concerned
1 torching the property of Croatian inhabitants. So when the member of the
2 army was identified, he was prosecuted.
3 In the Strugar case, the Trial Chamber concluded that it was only
4 if destruction had been proved beyond a reasonable doubt that such
5 destruction is something that the commander could then be charged with.
6 The Prosecution hasn't provided us with any evidence that would prove
7 beyond any doubt that a member of the army set fire to a certain building.
8 So since the Prosecution has not provided such evidence, and since
9 there are a lot of doubts as to the identity of the individuals involved
10 in torching certain buildings, we believe that General Hadzihasanovic
11 should be acquitted on this count in the indictment. And why what was
12 detected wasn't qualified as a war crime is something that we have spoken
13 about on a number of occasions to our colleagues who have appeared before
14 this Tribunal, who said that you are prosecuted on the basis of an event
15 and the event concerned is something that is described or legally
16 qualified by a court.
17 In response to a question put to the judge, Veseljak, when he was
18 asked why such-and-such an act was described as a case of theft and not of
19 war crime pursuant to Article 142, he said that if someone's house was set
20 on fire he would use the house -- the roof or the window of another house
21 that had been abandoned. So from his point of view, he didn't understand
22 why we asked him why he wanted to take the roof from an abandoned house to
23 use for his own house.
24 We know that some people misappropriated property when this was
25 essential, but we prosecuted them in spite of the fact. And many of the
1 criminal reports that we have shown you relate to such events and such
2 individuals. This was a matter of necessity for them at the time. It was
3 necessary to investigate such crimes and to punish the perpetrators, and
4 this is the least that the 3rd Corps could do, and Commander
6 So, Your Honours, you have all the information regarding these
7 counts before you, and the Defence believes that the Prosecution has
8 failed to prove that General Hadzihasanovic is guilty on this count and he
9 should be acquitted on this count.
10 I'm still left with a couple of things I have to say about
11 prisons. First of all, Mr. President, in the course of our expert witness
12 testimony on military matters and in his report it was explained in great
13 detail what the responsibilities of a commander are with regard to any
14 detention facilities. He indicated the difference between the
15 responsibilities of the corps commander and commanders at different -- at
16 other, different levels of command. Similar questions were put to General
17 Merdan, and in an almost identical way General Merdan replied to those
18 questions. For these reasons -- I'm not going to go into all the various
19 legal duties and obligations for a corps commander, because the Defence
20 fully agrees with the reasons indicated in the expert witness report and
21 also indicated in his testimony before this Trial Chamber.
22 As to the music school, which is situated in the centre of the
23 city of Zenica not far from the civilian police station, the municipal and
24 higher civilian courts in the vicinity of the municipal offices and a
25 little bit further away from the 3rd Corps command, about two kilometres
1 away, it seems to follow from the evidence that some persons had been
2 detained and mistreated there.
3 The Prosecution seems to indicate that it happened before the eyes
4 of the 3rd Corps commander and that it was a widely known fact. Such a
5 position is based on the account of one witness, the judge Vlado Adamovic,
6 who supposedly was able to see all that from his windows, and we see when
7 we visited the location that it was in fact impossible for him to see any
8 such thing. And apparently it was also mentioned by family members of
9 those people who had been detained at the music school.
10 The Defence does not argue against the fact that some people were
11 indeed detained at the music school, and it is not really relevant that
12 Judge Vlado Adamovic knew about that, but as opposed to his testimony we
13 also have the testimony from witness Kulovic, from witness Jasarevic, from
14 witness Mirsad Mesic who told this Court that it wasn't a widely known
16 Witness Kulovic was a personal friend of Stipan Radic, and the
17 same applies to witness Mirsad Mesic, and they testified to the fact that
18 Stipan Radic never mentioned this problem to them.
19 Who would a member of the clergy confide in and ask for assistance
20 from if not from his friends who were extremely influential in Zenica in
21 spite of the fact that the Prosecution says that it would be inappropriate
22 for us to say that Judge Adamovic should have reported information that he
23 heard from people who complained to him. We continue to stick to the
24 position that we have explained before. Had the situation been as drastic
25 as Judge Vlado Adamovic says they had been, it would have been normal for
1 a judge not to discuss this over coffee with his colleague, the district
2 military prosecutor, but he would have to officially accept a criminal
3 report from the person who had informed him of the facts and follow this
5 In defence of the judge, Vlado Adamovic, even though we think it
6 would have been normal for him to start proceedings in this way, the
7 Prosecution actually is saying that not just him but anybody else, all the
8 other citizens and the commander would have been obliged to report a crime
9 had they known about it. Of course I do know that this is a widely
10 existing obligation for any citizen, but it is not just for the commander
11 to do. Just as according to the Prosecution the commander would have been
12 called upon to do that, it would have applied to the chief of police as
13 well and especially a judge. The fact that they did not proceed to do
14 that is the best possible piece of evidence we can get to indicate that
15 the problem was not so severe in Zenica as the Prosecution seems to claim,
16 together with Judge Adamovic and some other witnesses.
17 However, no matter what the scope of the problem, the Defence is
18 well aware of the fact that the witnesses did refer to the fact that they
19 had been detained there and mistreated there. Such information did in
20 fact reach the commander, and he implemented necessary and reasonable
21 measures. But those were rumours, not reports or complaints from any
22 actual person who had been detained and mistreated. Well, in that case he
23 would have checked the information. But as testified to by members of the
24 military police battalion and the military security services, the
25 information was sought and requested from the police whose offices were in
1 the vicinity. What they received by way of an answer was that some people
2 were indeed taken in in line with legal provisions, if they were suspected
3 of some infringement or crime, but that those people were not mistreated.
4 In the same way, measures were undertaken, the deputy commander, the
5 security chief of their own accord and together with the representatives
6 of the international community visited the music school on a number of
7 occasions, and they found no evidence of any mistreatment having taken
8 place there.
9 The international witness Baggesen testified to the fact that he
10 himself visited the entire premises of the school and that he found no
11 trace whatsoever of any such thing, and he did not actually see any
12 prisoners either, and especially no trace of any torture having taken
13 place there.
14 As to whether it might have been done in a -- some kind of illegal
15 and underhand way, I'm not going to speculate on that, but the commander
16 did undertake measures. And the representatives of the international
17 community did have access, and such checks as carried out by the
18 international community members did not point to the fact that any further
19 criminal proceedings had to be instituted against any of the people in
20 charge of the facility.
21 And as was testified here, apart from witness Baggesen, we've also
22 got the accepted facts claimed by Witness HI who in a way similar to that
23 adopted by Mr. Baggesen referred to his own visit to the music school.
24 And as we heard from the witness, since the policy of the 3rd Corps was to
25 institute criminal proceedings against anyone guilty of crime, had there
1 been any conditions justifying that, that is to say, if in 1993 the
2 commander and his staff had received information that anyone at all was
3 actually guilty of mistreatment and abused the prisoners at the music
4 school, criminal proceedings would have been instituted against
5 any such person.
6 As to the Mehurici school, even though as I've said before the
7 Prosecution has not referred to that in the course of their presentation,
8 we are of the view that the civilians were taken there for their own
9 safety and that the military was not in charge of them but the military
10 was doing all they possibly could in order to assist the civilian
11 authorities in providing housing and accommodation and anything else, and
12 they enabled the Red Cross staff to come and see them immediately. And as
13 we heard from witness Ivic, it would have been a shame to say that those
14 people were not given fair treatment.
15 As to Kovanica, the Prosecution did not offer a shred of evidence
16 to indicate that -- that General Hadzihasanovic had any knowledge of such
17 a place, that is to say, the blacksmith's shop even existing. It is quite
18 obvious that many bad things happened there.
19 Bugojno is the place which is geographically the farthest away
20 from the 3rd Corps, and it was really almost inaccessible. And in 1993 it
21 was a part of the area of responsibility of the 3rd Corps that could only
22 be reached by winding mountain path that we could only glimpse somewhere
23 far away in the mountains. And there was an operational group there of
24 the brigade of the armed forces of Bosnia and Herzegovina. As in all
25 other cases, it is clear here, too, that combat activity did not take
1 place in the way as the Prosecution is claiming, that is to say, that the
2 armed forces launched an all-out attack on Croat towns and villages, but
3 things happened in the way in which you were told about by witnesses.
4 More specifically, at Bugojno, in spite of all efforts to avoid
5 conflict after the events at Vrbanja, the conflict spread to the entire
6 city. Since the conflict was taking place in a town where there was no
7 prison or detention facility and large sections of the HVO had been
8 disarmed, considering all that, there was a need for some kind of a
9 facility where these people could be placed until they could be
10 transferred to the KP Dom at Zenica in line with the policies of the
11 3rd Corps.
12 However, this did not happen on the basis of the documentary
13 evidence that we've got, and that's for two reasons, one reason being one
14 of the protected witnesses who testified to that, who is an intellectual
15 from Bugojno, and he said that they wrote special letters to the fact that
16 they did not want people from Bugojno to be transferred to Zenica. If
17 they had to be tried, they had to be tried at Bugojno because they were
18 afraid that when travelling to Zenica they could come to grief.
19 On the other hand, there are objective reasons indicated in the
20 report, that is to say, that there were not sufficient means of transport
21 in order to transfer all those people.
22 And thirdly, when travelling to Zenica, they would have had to go
23 through areas where there was combat activity going on all the time.
24 And in line with the Geneva Convention about the protection of war
25 prisoners, the transfer of war prisoners can own be carried out if there
1 is full safety and security for that transport.
2 All of those were probably the reasons why in addition to the
3 reason at that particular time there was an agreement reached between the
4 three warring parties and that there would be a full-scale exchange
5 programme, and so the detained Croat members were therefore kept at
7 In relation to the evidence in our possession, we can claim with a
8 great deal of certainty that the grammar school facility which at a later
9 date was returned to the civilian authorities for their own use was at no
10 time under the control of the members of the armed forces of Bosnia and
12 As to the conditions in those facilities, we have two types of
13 information there. One type of information was provided by the former
14 detainees, and the other type was found in the reports drawn up by the
15 European Monitors, and they carried out assessments of the situation in
16 Bugojno on a regular basis. And we also have a report from Rudy Gerritsen
17 to which I would like to draw your attention to in particular, and he does
18 refer to satisfactory conditions, the fact that those people appeared to
19 be well. And where the situation was most dire at the furniture
20 warehouse, he did say that there was a couple of puddles of water on -- on
21 the -- on the floor of that furniture salon.
22 And then there were two cases of death. In relation to Mario
23 Zrno, we have proof that indicated clearly that he was carrying out
24 permissible and permitted duties for a prisoner at the cemetery at Zenica,
25 and the evidence indicates that the civilians had mistreated him quite
1 badly, civilians who were there to bury their relatives. And one of the
2 Prosecution witnesses testified to the fact that there were two military
3 police officers guarding him and that they were unable to -- to protect
4 the prisoners from those civilians.
5 Mario Zrno died of his injuries, but let me state the following:
6 He was not killed by any member of the armed forces that was subordinated
7 to General Hadzihasanovic; and secondly, in relation to that particular
8 event, there is nothing to indicate that General Hadzihasanovic knew
9 anything about it whatsoever. The Prosecutor claims that nothing was
10 done, and that on top of that the order issued by the commander of the
11 Supreme Command Rasim Delic was not obeyed to, that is to say, the order
12 to protect the civilian population. In spite of that, evidence obtained
13 in the course of this trial it indicates quite clearly that straight away
14 military police battalion visited Bugojno to check things out and to
15 possibly provide assistance in case units stationed at Bugojno needed any
16 assistance. There is a document from the command of the Operational Group
17 Zapad to the commander of the 3rd Corps indicating that they did not need
18 any assistance.
19 Immediately upon receiving the orders from the Supreme Command,
20 the chief of security went to Bugojno and together with the chief of
21 security of the Operational Group Zapad. He visited all areas inhabited
22 by the Croat population and issued special orders about strict compliance
23 with the Geneva Convention, and there is no reason why he should think
24 that the units would not obey those orders.
25 When it first transpired that there was some mistreatment of
1 prisoners, there was a special committee, Muratovic and Zlotrg testified
2 to that. It was a Verification Mission. And they realised that prisoner
3 Havranek was beaten to death, and the perpetrators were arrested and
4 criminal proceedings were instituted against them. So this is all that a
5 commander needs. His order as to how to treat prisoners can't rule out
6 bad behaviour on the part of any of his subordinates. But his information
7 was that on the one occasion that it did happen the measures were -- the
8 relevant measures were implemented and individuals guilty of that crime
9 were held accountable for their behaviour.
10 Awhile ago I said that attention should be paid to the report of
11 the ECMM and Rudy Gerritsen's testimony, and there is another problem.
12 Bugojno was under the influenced of the civilian organs in Bugojno.
13 According to the evidence we have, the communications were related to the
14 communications of the civilian Presidency and the War Presidency.
15 There's the decision of the Presidency to form the Iskra stadium.
16 There is an order issued to the 307th Brigade that confirms that the
17 events in Bugojno took place under the effective control to a large extent
18 of the organs in Bugojno.
19 With regard to the evidence and the analysis of the evidence, the
20 Chamber will take into consideration all the facts that I have mentioned.
21 The Defence believes that prisoners of war in Bugojno were inhumanely
22 treated. Defence also believes that the corps commander previously took
23 measures to prevent such acts. He did so by issuing orders on respecting
24 the Geneva Conventions and by sending members of the command to implement
25 these orders in the field.
1 After he had discovered about certain events, he -- the commander
2 took certain measures and found out that repressive measures were being
3 taken against individuals who had committed these acts. And in the case
4 of the gimnazija, for these reasons we believe that the commander should
5 be acquitted because the gimnazija was not under the ABiH.
6 As far as other events are concerned, the necessary and adequate
7 measures were taken for events that he was aware of, and individuals who
8 perpetrated these crimes were arrested and prosecuted. The commander had
9 no knowledge of other events. And it is for these reasons that we believe
10 that he should be acquitted on this count of the indictment.
11 Mr. President, as you suggested, we believe that it is now time to
12 adjourn. Tomorrow we'll have another 20 minutes, or half an hour perhaps,
13 and we will conclude our presentation during that time.
14 JUDGE ANTONETTI: [Interpretation] Very well. We'll calculate the
15 time that you still have, and I'll tell you how much time you have
16 tomorrow officially. As the Prosecution had six hours, you should have
17 the same number of hours.
18 Thank you. It's quarter to two, and I invite you to return for
19 the hearing that will start tomorrow at 9.00.
20 --- Whereupon the hearing adjourned at 1.44 p.m.,
21 to be reconvened on Friday, the 15th day
22 of July, 2005, at 9.00 a.m.