Page 19332
1 Wednesday, 15 March 2006
2 [Judgement]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 2.15 p.m.
6 JUDGE ANTONETTI: [Interpretation] I am going to turn to the Deputy
7 Registrar for the last time for him to call the case.
8 THE REGISTRAR: Yes. Thank you, Mr. President. Case IT-01-47-T,
9 the Prosecutor versus Hadzihasanovic and Amir Kubura.
10 JUDGE ANTONETTI: [Interpretation] Very well. Let me turn to the
11 Prosecution, who is fully represented, and I'll ask for their appearances.
12 MR. MUNDIS: Thank you, Mr. President. Good afternoon, Your
13 Honours, counsel and to everyone in and around the courtroom. For the
14 Prosecution, Tecla Henry-Benjamin, Matthias Neuner, Daryl Mundis, and our
15 case manager, Andres Vatter.
16 JUDGE ANTONETTI: [Interpretation] Very well. Now to the Defence.
17 I'll ask for the appearances.
18 MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honours. On
19 behalf of Mr. Hadzihasanovic, Edina Residovic, lead counsel, Mr. Stephane
20 Bourgon, co-counsel, and our case manager, Ms. Muriel Chauvin. Thank
21 you.
22 MR. IBRISIMOVIC: [Interpretation] Good afternoon, Your Honours.
23 On behalf of Mr. Kubura, Mr. Rodney Dixon, Fahrudin Ibrisimovic, and
24 Mr. Nermin Mulalic, our case manager.
25 JUDGE ANTONETTI: [Interpretation] Thank you. I wish to greet all
Page 19333
1 the people present on behalf of the Trial Chamber, the Prosecution, all
2 the counsel present here, as well as General Hadzihasanovic and General
3 Kubura. You know it, today the Chamber is sitting in order to render its
4 judgement in the case we have been dealing with for over two years.
5 Before I read the summary of the judgement, I wish to thank the
6 parties, the counsel and the Prosecution representatives for their input
7 throughout the trial. I want to thank especially the Deputy Registrar who
8 has been assisting us all these years at the level of admitting evidence,
9 for instance. My thanks to the usher who has always been helping us
10 during the hearings. I have a special thought for the court reporter who
11 enables me to read in realtime what is being said in the courtroom. And
12 my thoughts go to the interpreters, from B/C/S into English or French, or
13 from -- into B/C/S, into French, whichever way you want. The
14 interpreters were also very helpful during these many months.
15 My thanks also go to the technical staff, the court management
16 staff who helped us whenever there were incidents or problems, and I hope
17 today there will be no hitch, thanks to them.
18 Of course, last but not least, the security service. The guards
19 have accompanied the accused for these many months as well.
20 The Judges want to thank for the translation services. They often
21 had to step in, and they were able to provide us with translations
22 whenever we required them.
23 I also want to thank the witness and victims section because they
24 accompanied all the witnesses that came to testify during the trial.
25 Allow me to have a very special thought for the legal officer of
Page 19334
1 this Chamber who helped us, and also for all the associate legal officers
2 of Trial Chamber II who were very, very special and precious in helping
3 the Chamber with their work. You be assured of our gratitude.
4 I now come to reading the summary of the judgement.
5 Trial Chamber II, section B, is sitting today in order to render
6 its judgement in the case of the Prosecutor versus Enver Hadzihasanovic
7 and Amir Kubura.
8 During today's hearing, through me, the Trial Chamber will give a
9 summary of its observations and findings. The authoritative version of
10 the Trial Chamber's findings may be found only in the written judgement,
11 copies of which will be made available to the parties and the public only
12 tomorrow, for material reasons, because the document must be registered,
13 copied and bound. This document is the judgement and is over 750 pages
14 long, with some 5.000 footnotes.
15 The Trial Chamber will first present the procedural background and
16 then will deal with the crimes alleged against the accused Enver
17 Hadzihasanovic and Amir Kubura in the indictment. After a summary of the
18 accused's background, the Chamber will recall the principles governing
19 command responsibility. The Chamber will then examine the issue of Amir
20 Kubura's de jure command. Finally, before reviewing each of the counts,
21 the Chamber will summarise the analysis given in its judgement on the
22 Mujahedin, their role in the crimes alleged against the accused, and the
23 relationship they had with the army of the Republic of Bosnia and
24 Herzegovina, ABiH. Finally, the Chamber will read its disposition.
25 Procedural background. The trial of the accused Enver
Page 19335
1 Hadzihasanovic and Amir Kubura commenced on the 2nd of December, 2003, and
2 closed on the 15th of July, 2005. During the trial, the Trial Chamber
3 heard 172 witnesses and admitted 33 written witness statements under
4 Rule 92 bis of the Rules of Procedure and Evidence, as well as three
5 stipulations. In all, 2.949 exhibits were tendered into evidence at the
6 trial and we had nearly 20.000 pages of transcript.
7 Crimes alleged in the indictment. According to the Prosecution,
8 in 1993 and until the 18th of March, 1994, the army of Bosnia and
9 Herzegovina, the ABiH, participated in an armed conflict with the Croatian
10 Defence Council, the HVO, in Central Bosnia, namely in the municipalities
11 of Travnik, Zenica, Bugojno, Kakanj and Vares. The Prosecution alleges
12 that units subordinated to the 3rd Corps, including the 7th Brigade under
13 the command of the accused Kubura, attacked towns and villages mainly
14 inhabited by Bosnian Croats. As a result of the attacks, Bosnian Croat
15 predominantly but also Bosnian Serb civilians were subjected to wilful
16 killings and serious injury.
17 The Prosecution further alleges that Bosnian Croats and Bosnian
18 Serbs were unlawfully imprisoned or otherwise detained in facilities
19 controlled by units subordinated to the accused. While they were
20 imprisoned, they allegedly were subjected to physical and psychological
21 abuse. Prison conditions were allegedly overcrowded and unsanitary, and
22 detainees lacked medical care and were inhumanely deprived of food, water
23 and clothing.
24 Furthermore, the Prosecution alleges that units subordinated to
25 the accused plundered and destroyed Bosnian Croat and Bosnian Serb
Page 19336
1 property with no military justification. In addition, Croat buildings,
2 sites and institutions dedicated to religion were allegedly destroyed or
3 otherwise damaged or desecrated.
4 The Prosecution alleges that the accused knew or had reason to
5 know that their subordinates were about to commit such acts or had done so
6 and that they failed to take the necessary and reasonable measures to
7 present such acts or to punish the perpetrators thereof.
8 By these omissions, the accused are alleged to be criminally
9 responsible for murder and cruel treatment, violation of the laws or
10 customs of war punishable under Articles 3 and 7(3) of the Statute of the
11 Tribunal and recognised by Article 3(1)(a) of the Geneva Conventions;
12 wanton destruction of cities, towns or villages, not justified by military
13 necessity, a violation of the laws or customs of war punishable under
14 Articles 3(b) and 7(3) of the Statute of the Tribunal; plunder of public
15 or private property, a violation of the laws or customs of war punishable
16 under Articles 3(e) and 7(3) of the Statute of the Tribunal; and
17 destruction of or wilful damage to institutions dedicated to religion, a
18 violation of the laws or customs of war punishable under Articles 3(d)
19 and 7(3) of the Statute of the Tribunal.
20 The accused. Enver Hadzihasanovic: In early April 1992, after
21 leaving the JNA, the accused Hadzihasanovic joined the Territorial
22 Defence, TO, of the Republic of Bosnia and Herzegovina. On the 1st of
23 September, 1992, Sefer Halilovic, chief of the ABiH Supreme Command Staff,
24 appointed Enver Hadzihasanovic Chief of Staff of the ABiH 1st Corps. As
25 part of his mission to consolidate and organise, from Zenica, units from
Page 19337
1 Central Bosnia, Sefer Halilovic appointed Hadzihasanovic commander of the
2 3rd Corps around mid-November 1992. The accused Hadzihasanovic held this
3 position until the 1st of November, 1993, when he was promoted by the
4 president of the Republic of Bosnia-Herzegovina, Alija Izetbegovic, to
5 chief and deputy commander of the ABiH Supreme Command Staff.
6 Amir Kubura: In 1992, the accused Kubura joined the ABiH after
7 leaving the JNA. On the 11th of December, 1992, he was posted to the
8 7th Muslim Mountain Brigade of the 3rd Corps of the ABiH as assistant
9 Chief of Staff for operations and training. On the 12th of March, 1993,
10 Sefer Halilovic appointed him Chief of Staff and deputy commander of the
11 7th Brigade. On the 6th of August, 1993, Rasim Delic, commander of the
12 ABiH Supreme Command Staff, appointed him commander of the 7th Brigade.
13 He held this position until the 16th of March, 1994, when he was made
14 commander of the 1st Muslim Mountain Brigade of the 1st Corps of the ABiH.
15 Command responsibility. The Chamber recalls the importance
16 accorded by international humanitarian law to the role of a superior in
17 armed conflicts. This role is recognised as being determinant for the
18 proper application of the Geneva Conventions. Given the authority they
19 have, superiors are qualified to exercise control over the troops they
20 command and the weapons they use. Nevertheless, the criminal command
21 responsibility under Article 7(3) of the Statute of the Tribunal is not
22 unlimited. A superior may be held criminally responsible only when three
23 conditions are met. Firstly, he must exercise at the time the alleged
24 were committed effective control over the alleged perpetrators of such
25 illegal acts. Secondly, a superior must have known or at least had reason
Page 19338
1 to know that his subordinates were about to commit such acts or had done
2 so. Thirdly, the superior must have failed to take necessary and
3 reasonable measures to prevent or punish the crimes. Furthermore, the
4 Chamber recalls that a superior incurs command responsibility on the basis
5 of his material capacity to prevent or punish the illegal acts and not on
6 the sole basis of his official position as a superior.
7 The command of Amir Kubura. The Trial Chamber notes that on the
8 12th of March, 1993, the accused Kubura was appointed Chief of Staff and
9 deputy commander of the 7th Brigade, while Asim Koricic was appointed
10 commander of the 7th Brigade. On the 6th of August, 1993, Amir Kubura
11 succeeded Asim Koricic was the official commander of the 7th Brigade. The
12 Judges have examined the question as to whether the accused Kubura acted
13 as commander of the 7th Brigade prior to his official appointment to the
14 post on the 6th of August, 1993.
15 The evidence shows that Asim Koricic, who was appointed official
16 commander of the 7th Brigade on 12 March 1993, left Bosnia and Herzegovina
17 around the 12th of April, 1993, and no longer held this position after
18 that date. On the basis, among other evidence, of the review of the
19 orders given in the absence of Asim Koricic, the Trial Chamber finds that
20 the accused Kubura was the de facto commander of the 7th Brigade from
21 the 12th of April, 1993, at the latest. He commanded all units of the
22 7th Brigade, including the security organ and the military police of the
23 brigade.
24 The Mujahedin. Several cases before this Tribunal occurred in the
25 context of the armed conflict between the ABiH and the HVO in Central
Page 19339
1 Bosnia in 1992 and 1993. However, the instant case is the first to deal
2 with the question of the presence of foreign Muslim or Mujahedin
3 combatants in Central Bosnia in 1992 and 1993 and of their subordination
4 to the ABiH, specifically to the 3rd Corps and the 7th Brigade in 1993.
5 The evidence shows that foreign Mujahedin arrived in Central
6 Bosnia in the second half of 1992 with the aim of helping their Muslim
7 brothers against the Serbian aggressors. Mostly they came from North
8 Africa, the Near East, and the Middle East. The foreign Mujahedin
9 differed considerably from the local population, not only because of their
10 physical appearance and the language they spoke, but also because of their
11 fighting methods. Initially, the foreign Mujahedin gave food and other
12 basic necessities to the local Muslim population. Once hostilities broke
13 out between the ABiH and the HVO, they also participated in combat
14 operations against the HVO alongside ABiH units.
15 Lacking basic necessities, most of the Muslim people were grateful
16 for the assistance given to them by the foreign Mujahedin. The foreign
17 Mujahedin actively recruited local young men, offering them military
18 training, uniforms, and weapons. As a result, local people joined the
19 foreign Mujahedin and in the process became local Mujahedin. They
20 imitated the foreigners in both the way they dressed and behaved, so that
21 it was sometimes difficult to distinguish between the two groups, and this
22 is the reason why in the Judgement the Trial Chamber shall used
23 word "Mujahedin" to designate foreigners from Arab countries, but also
24 local Muslims who joined the Mujahedin units.
25 The first Mujahedin training camp was located in Poljanice, next
Page 19340
1 to the village of Mehurici, in the Bila valley, in Travnik municipality.
2 The Mujahedin group established there included both Mujahedin from the --
3 from Arab countries and local people. Among the local Bosnians were
4 former members of the Muslim forces of Travnik and soldiers who were
5 de jure members of the units from the 1st Corps, namely of the 7th and the
6 306th Brigades.
7 The Mujahedin from Poljanice camp were also established in the
8 towns of Zenica and Travnik, and from the second half of 1993 onwards, in
9 the village of Orasac, also located in the Bila Valley.
10 The Trial Chamber has considered whether the group of Mujahedin
11 was subordinated to the accused. In order to do so, the Trial Chamber
12 made a distinction between two time periods. On the one hand, the period
13 before the establishment of an independent Mujahedin detachment, the
14 so-called El Mujahid, on 13th of August 1993; and on the other hand, the
15 period following the establishment of the El Mujahid detachment.
16 During the months preceding the establishment of the El Mujahid
17 detachment, the Trial Chamber finds that the foreign Mujahedin established
18 at Poljanice camp were not officially part of the 3rd Corps or the
19 7th Brigade of the ABiH. Accordingly, the Prosecution failed to prove
20 beyond reasonable doubt that the foreign Mujahedin officially joined the
21 ABiH and that they were de jure subordinated to the accused Enver
22 Hadzihasanovic and Amir Kubura.
23 However, as regards the local Mujahedin, the Chamber finds that
24 some of them belonged de jure to units of the 3rd Corps. The same is true
25 for members of the 7th and of the 306th Brigades who left their own units
Page 19341
1 to join the Mujahedin at Poljanice camp, such as Ramo Durmis.
2 The Trial Chamber has examined the de facto relationship between
3 the Mujahedin and the 3rd Corps in a section of the Judgement that is
4 about 100 pages long. In this summary, the Chamber will limit itself to
5 the essential points of the analysis.
6 The Trial Chamber points out that there are significant indicia of
7 a relationship of subordination between the Mujahedin and the accused
8 prior to the 13th of August, 1993. Testimony heard by the Trial Chamber
9 and, in particular, documents tendered into evidence demonstrate that the
10 ABiH maintained a close relationship with the foreign Mujahedin as soon as
11 these arrived in Central Bosnia in 1992. Joint combat operations are one
12 illustration of this. In Karaula and Visoko in 1992, at Mount Zmajevac
13 around mid-April 1993, or in the Bila Valley in June 1993, the Mujahedin
14 fought alongside ABiH units against Bosnian Serb and Bosnian Croat forces.
15 However, the Trial Chamber could not establish that the accused
16 Hadzihasanovic or the accused Kubura gave any orders to the Mujahedin and
17 that the orders were implemented. Moreover, in the 3.000 or so documents
18 the Trial Chamber has analysed, there is no combat report from the
19 Mujahedin to the accused, nor is there any other document indicating that
20 the Mujahedin were answerable to the accused. However, in their combat
21 reports, the commanders of the 3rd Corps units often complained of the
22 undisciplined behaviour of the Mujahedin during joint combat operations.
23 The Trial Chamber also notes that prior to the 13th of August, 1993, the
24 3rd Corps war diaries hardly ever mention the Mujahedin.
25 Regarding specifically the relationship between the Mujahedin and
Page 19342
1 the 3rd Corps brigades, the evidence does not confirm that there was a
2 close relationship between the Mujahedin and the 306th Brigade. Moreover,
3 a close analysis of the possible links between the Mujahedin and the
4 7th Brigade fails to establish beyond reasonable doubt that the Mujahedin
5 were under the effective control of the 7th Brigade command.
6 For these reasons in particular, the Trial Chamber is unable to
7 conclude beyond reasonable doubt that the accused exercised effective
8 control over the Mujahedin prior to the establishment of the El Mujahid
9 detachment on the 13th of August, 1993.
10 However, on the 13th of August, 1993, Rasim Delic, who was then
11 commander of the Supreme Command Staff of the ABiH, gave the order for the
12 establishment of the El Mujahid detachment. The order provided that the
13 El Mujahid detachment would operate in the 3rd Corps zone of -- area of
14 responsibility and would be made up of foreign volunteers present in the
15 territory. By virtue of the order, the Mujahedin established at the
16 Poljanice camp were officially incorporated into the ranks of the
17 3rd Corps.
18 Moreover, the Chamber finds that from the 13th of August, 1993,
19 the accused Hadzihasanovic had effective control over the Mujahedin. He
20 gave them combat orders which they carried out. Following those orders,
21 the Mujahedin participated in combat operations with 3rd Corps units,
22 especially in Vitez in September and October 1993.
23 Similarly, as from the 13th of August, 1993, the El Mujahid
24 detachment began to appear in the war journals of the 3rd Corps.
25 Let me now move to the findings of the Trial Chamber on the crimes
Page 19343
1 alleged and on the individual criminal responsibility of the accused. To
2 that end, I will review the various counts of the indictment.
3 The first count is a count of murder related to Dusina. I would
4 like to remind you that the accused Hadzihasanovic is being indicted under
5 that count, and this is related to the murder of Zvonko Rajic.
6 As a result of the armed conflict between the HVO and ABiH in
7 early 1993 in Central Bosnia, in the morning of 26 January 1993, the
8 2nd Battalion and the 7th Brigade were engaged in combat in Dusina, in the
9 Lasva Valley. At 5.00 or 6.00 in the morning, the 7th Brigade took the
10 village of Dusina and took Croatian civilians and several HVO members
11 prisoners.
12 However, in the hamlet of Brdo near Dusina, a group of HVO
13 soldiers under the command of Zvonko Rajic continued to resist the attack
14 of the 7th Brigade. To force them to surrender, the 7th Brigade soldiers
15 threatened to execute the civilians they had already captured. As a
16 result of the threats, Zvonko Rajic's unit surrendered. According to the
17 case file, Zvonko Rajic tried to escape, prompting the 7th Brigade members
18 to open fire. One of the 7th Brigade soldiers drew his automatic pistol
19 and, in cold blood, fired several shots into Zvonko Rajic, who was already
20 wounded and begging for mercy.
21 As regards the murder of Niko Kegelj, Stipo Kegelj, Vinko Kegelj,
22 Pero Ljubicic, Augustin Rados, and Vojislav Stanisic, at the same time,
23 the 7th Brigade was holding some 45 prisoners in a house in Dusina. A
24 witness recounted how Vehid Subotic, a member of the 7th Brigade, had
25 ordered the execution of six of these prisoners. On that day in Dusina,
Page 19344
1 five captured HVO members and a Serbian civilian were executed by
2 machine-gun fire.
3 The Chamber therefore finds that Zvonko Rajic, as well as five
4 other HVO members and a Serbian civilian, none of whom were taking active
5 part in the hostilities, were executed in Dusina on the 26th of January,
6 1993, by members of the 7th Brigade. The victims are Zvonko Rajic, Niko
7 Kegelj, Stipo Kegelj, Vinko Kegelj, Pero Ljubicic, Augustin Rados, and
8 Vojislav Stanisic.
9 With regard to the individual responsibility of the accused
10 Hadzihasanovic for that particular crime, the Trial Chamber considers that
11 he was informed of allegations of a massacre on the 26th of January, 1993.
12 The Trial Chamber finds, in light of evidence in the case file, that the
13 duty judge of the Zenica District Military Court was seized of the matter
14 by the 3rd Corps, and pursuant to Article 41 of the Military Security
15 Service Guidelines of the armed forces of the Republic of Bosnia and
16 Herzegovina, and pursuant to Article 156 of the Code of Penal Procedure in
17 force at the time, the judge initiated an investigation. Consequently,
18 the accused Hadzihasanovic, having referred the case to the competent
19 judicial authorities, cannot be held criminally responsible for failing to
20 take the necessary measures to punish the crimes committed in Dusina on
21 the 26th of January, 1993.
22 Miletici, murder. In relation to the murder of Franjo Pavlovic,
23 Tihomir Pavlovic, Vlado Pavlovic, and Anto Petrovic.
24 On the 24th of April, 1993, an Arab Mujahedin was wounded near
25 Miletici. Miletici is a small village in the Bila Valley in the Travnik
Page 19345
1 municipality. As a result, a dozen foreign Mujahedin and 20 to 30 local
2 Mujahedin attacked Miletici. Having been warned of the arrival of the
3 Mujahedin by their Muslim neighbours, the Croatian villagers, fearing for
4 their lives, took refuge in the house of Stipo Pavlovic. When the
5 Mujahedin tried to force open the door of the house, Stipo Pavlovic killed
6 one of them. The Mujahedins responded by throwing a grenade into the
7 house killing Stipo Pavlovic. They captured all the Croatian villagers
8 and three Muslims from Miletici and took them to the camp of Poljanice.
9 However, four Croatian civilians of military age, Franjo Pavlovic, Tihomir
10 Pavlovic, Vlado Pavlovic, and Anto Petrovic, were forced to remain in the
11 village. They were seen on their knees with their hands tied behind their
12 backs.
13 Following negotiations between the commander of the 1st battalion
14 of the 306th Brigade stationed in Mehurici and the Mujahedin, the
15 prisoners were released in the evening. The next day, on the 25th of
16 April, 1993, the bodies of the four Croatian men were found mutilated and
17 covered in blood. Their hands were still tied behind their backs. The
18 four Croatian men had their throats slit open and their blood had been
19 collected in a saucepan.
20 Considering how the events unfolded, the Trial Chamber is
21 satisfied that the four Croatian men were killed by the foreign and local
22 Mujahedins from the camp of Poljanice. The Chamber has seen no evidence
23 indicating that members of the 306th or 7th Brigades took part in the
24 crime. Since the Mujahedin based in the camp in Poljanice were not under
25 the effective control of the accused Hadzihasanovic and Kubura in April
Page 19346
1 1993, the accused cannot be held criminally responsible for the murder of
2 the four Croatian men in Miletici.
3 Still under Count 1, Maline, in relation to the murder of 24
4 Croats listed in the Judgement. On the 8th of June, 1993, the village of
5 Maline in the Bila Valley was attacked by forces of the 1st Battalion of
6 the 306th Brigade. After the village was taken, the captured Croatian
7 civilians and HVO soldiers were rounded up in the village centre.
8 At around 10.00 a.m., a military police unit of the 306th Brigade
9 arrived in Maline. According to the Defence, these policemen were to
10 evacuate and protect the civilians in the villages taken by the ABiH. The
11 wounded were left on site and around 200 people, including civilians and
12 HVO soldiers, were taken by the police towards Mehurici. The commander of
13 the 306th Brigade authorised the wounded to be put onto a truck and
14 transported to Mehurici. Suddenly, a number of Mujahedin stormed the
15 village of Maline. Even though the commander of the 306th Brigade forbade
16 them to approach, the Mujahedin commandeered the truck and left with eight
17 of the wounded, making signs that they would cut their throats.
18 As for the 200 villagers who were being escorted to Mehurici by
19 the 306th Brigade military police, they were intercepted by masked and
20 armed foreign and local Mujahedins at the Mujahedin camp in Poljanice.
21 The Mujahedins took 20 military-aged Croats and a young woman wearing a
22 Red Cross armband. The prisoners were taken to Bikosi, located between
23 Maline and Mehurici.
24 According to witnesses, the wounded in the truck abducted by the
25 Mujahedin were taken towards Bikosi. Not far from there, they were forced
Page 19347
1 to leave the truck and to continue on foot. At this moment, they were
2 joined by the column of 20 men and the young woman. Escorted by around 10
3 foreign and local Mujahedins, they all moved ahead, their heads bowed.
4 Suddenly, one of the prisoners had an epileptic fit and started shouting.
5 At that point in time, the Mujahedin opened fire on the prisoners, first
6 with machine-guns and then with single shots. One witness who escaped the
7 massacre stated that he hid under the body of a killed prisoner to avoid
8 being shot. He testified that he saw the Mujahedin finish off the Croats
9 by shooting single bullets into their heads.
10 The Trial Chamber finds that on the 8th of June, 1993, 23 Croatian
11 men and one young woman were executed in Bikosi while they were being held
12 prisoner. The Trial Chamber finds that the perpetrators of the massacre
13 were foreign and local Mujahedins based in Poljanice camp who were not
14 under the effective control of the 3rd Corps and the 7th Brigade on
15 the 8th of June, 1993. Furthermore, the Trial Chamber is not satisfied
16 that members of the 306th and 7th Brigades participated in the massacre.
17 Accordingly, the Trial Chamber finds that the accused cannot be held
18 criminally responsible for the murders committed in Maline.
19 Let me now move to Counts 3 and 4 of the indictment, murder and
20 cruel treatment, crimes linked to detention.
21 The Zenica Music School. As for the crimes committed at the
22 Zenica Music School, the evidence presented before the Trial Chamber shows
23 that Bosnian Croat and Bosnian Serb civilian men and HVO members were
24 detained in the music school by members of the 7th Brigade on three
25 separate occasions: First, after fighting took place in Dusina at the end
Page 19348
1 of January 1993; second time in the latter half of April 1993 after
2 fighting in the region of Zenica, Vitez and Busovaca; and on a third
3 occasion after hostilities in Kakanj broke out in June 1993.
4 The Trial Chamber finds that prisoners in the music school who
5 were taking no active part in the hostilities were victims of cruel
6 treatment and physical and psychological abuse inflicted on them by the
7 members of the 7th Brigade from the 26th of January, 1993, to the 20th of
8 August, 1993, as for cruel treatment and psychological abuse, and from
9 April to June 1993 as for conditions of detention.
10 The Chamber notes that during that period more than 100 detainees
11 were imprisoned in the music school. The Chamber heard some ten detainees
12 describe the violence they were subjected to. In its Judgement, the
13 Chamber describes in detail the violence the victims suffered. However,
14 given the time constraints, it shall limit itself today to the testimony
15 of one witness. That witness told how during the night detainees were
16 taken out one by one from their cells upstairs at the music school and
17 that, whilst the lights were out, they had to go through a line of
18 soldiers who beat them up with wooden shovel handles. The same witness
19 stated that one day a military police ordered a father to beat his
20 mentally handicapped son. When the father refused to do so, another
21 detainee was forced to carry out the order. He said that on another
22 occasion his hands were broken as he had to protect his head from the
23 blows. This witness described how the detainees did not get enough food,
24 which consisted mainly of mouldy bread. Only three or four wooden planks
25 were provided for their accommodation.
Page 19349
1 Other witnesses also stated that they lacked adequate sanitary
2 facilities and medical care.
3 The Chamber finds beyond all reasonable doubt that as of 8 May
4 1993 the accused Hadzihasanovic had at his disposal alarming information
5 that his subordinates carried out physical and psychological violence
6 against the detainees at the Zenica Music School, violence which
7 constitutes cruel treatment. On the other hand, the Trial Chamber finds
8 that the accused Hadzihasanovic did not know of the poor living conditions
9 at the music school. It was established that the accused Hadzihasanovic
10 failed in his duty as a superior to take the necessary and reasonable
11 measures called for in this case to prevent and punish these crimes. The
12 accused Hadzihasanovic did not make sufficient efforts to open an
13 appropriate investigation into the allegations of cruel treatment which
14 would have helped him identify those responsible for the cruel treatment.
15 Moreover, he failed to carry out his duty and take all necessary measures
16 to put an end to the cruel treatment his subordinates inflicted on the
17 detainees. He also failed to carry out his duty to punish those soldiers
18 who, had he opened an investigation, would have been identified as those
19 responsible for the cruel treatment and to take measures to have them
20 punished. Finally, by failing to punish the perpetrators of the committed
21 crimes, the accused Hadzihasanovic failed to discharge his duty and
22 prevent the further commission in the music school of the crime of cruel
23 treatment of prisoners detained in that location.
24 However, the Trial Chamber finds that the Prosecution failed to
25 prove beyond reasonable doubt that the accused Amir Kubura knew of the
Page 19350
1 crimes committed by his subordinates at the Zenica Music School, given
2 that he was in no way informed about what had happened there.
3 Let me now move to the former JNA barracks in Travnik.
4 According to evidence in the case, the Chamber finds that Bosnian
5 Croat and Bosnian Serb civilians, as well as HVO members, were detained in
6 the cellar of the former JNA barracks in Travnik from May to October 1993.
7 The Chamber finds that it was established beyond reasonable doubt
8 that during that period prisoners -- those prisoners who were taking no
9 active part in the hostilities were victims of cruel treatment inflicted
10 on them by members of the 17th Brigade military police. Witness
11 statements show that the guards in the barracks beat repeatedly, and for
12 several hours in some instances, the detainees by hitting them with
13 different objects and by kicking them. For example, a witness stated that
14 on the very first night of his detention, he was beaten with such violence
15 by three or four soldiers that he lost consciousness. The next 50 days he
16 went through the same ordeal, and even today he is suffering from the
17 consequences of the cruel treatment he was exposed to during his detention
18 in the barracks. Another witness stated that from his cell he could hear
19 the cries and moans of other detainees as well as the kicking of the
20 guards.
21 The Trial Chamber finds that the acts perpetrated against the
22 detainees in the former JNA barracks are constitutive of cruel treatment.
23 However, based on the assessment of the evidence in this case, the Trial
24 Chamber finds that the Prosecution has failed to prove beyond reasonable
25 doubt that the accused Enver Hadzihasanovic knew of the cruel treatment
Page 19351
1 committed by his subordinates in the former JNA barracks in Travnik, given
2 that he was not informed of the said facts.
3 The Mehurici Elementary School and the Mehurici blacksmith shop.
4 The Chamber finds that on two occasions around 250 Bosnian Croat civilians
5 and 20 to 30 HVO soldiers were detained by the 306th Brigade in the
6 Mehurici Elementary School and the Mehurici blacksmith shop. On the 6th
7 of June, 1993, after the sporadic fighting in Velika, Bukovica and Ricice,
8 and on the 8th of June, 1993, after another outbreak of hostilities
9 between the HVO and ABiH in Maline. The Mehurici Elementary School was
10 guarded and managed by the 1st Battalion of the 306th Brigade.
11 The Prosecution failed to prove beyond reasonable doubt that the
12 Croatian civilians locked up in the Mehurici Elementary School were
13 victims of grave physical abuse and conditions of detention constituting
14 cruel treatment. However, the detainees locked up in the Mehurici
15 blacksmith shop, mainly HVO members, were beaten by members of the
16 1st Battalion of the 306th Brigade.
17 With regard to the conditions of detention, a witness stated that
18 he shared a cell with 10 to 15 other prisoners. They were crammed in such
19 a small place, two by three metres, that it was impossible for them to
20 sleep. The only source of light in the cell was obstructed in such a way
21 that the prisoners were left in the dark. During the first days of their
22 imprisonment in the blacksmith shop, practically no water or food was
23 distributed to them. After that, the detainees received from time to time
24 a can of food and some bread to share amongst themselves.
25 These conditions of detention lasted for around a month. It has
Page 19352
1 been demonstrated that such deprivation was the result of a deliberate
2 decision and not a necessity. The Chamber has no doubt that the treatment
3 of the blacksmith shop prisoners who were taking no active part in the
4 hostilities constitutes cruel treatment.
5 Nevertheless, the Trial Chamber finds that it has not been
6 established beyond reasonable doubt that the accused Hadzihasanovic knew
7 of the cruel treatment committed by subordinates in the Mehurici
8 blacksmith shop, given that he was not informed of the facts.
9 Motel Sretno. The Chamber finds that on the 18th of May, 1993,
10 immediately after the signing of a cease-fire agreement between the HVO
11 and the ABiH, new hostilities between the two armed forces broke out in
12 Kakanj. After the HVO ambushed and captured several military police of
13 the 7th Brigade, 16 Bosnian Croats and Bosnian Serb civilians and HVO
14 members were arrested by members of the 7th Brigade military police and
15 local soldiers of the 3rd Battalion of the 7th Brigade. The 16 Croats and
16 Serbs were detained in Motel Sretno, which housed the 3rd Battalion of the
17 7th Brigade.
18 The Trial Chamber finds beyond reasonable doubt that the 16
19 persons taken to Motel Sretno on the 18th of May, 1993, and who were
20 taking no active part in the hostilities were beaten several times until
21 the morning, 19th of May, 1993, when they were set free. In the first
22 phase of the detention -- of the interrogation, they were kicked with
23 boots and beaten with rifle-butts and fists. In the second phase, the
24 detainees were forced to hit each other. In the third phase, they were
25 forced to go through a row of soldiers who beat them with rifle-butts. A
Page 19353
1 witness told how he did not get up and lost consciousness by being beaten
2 a dozen times by a truncheon on the head. In the fourth and last phase,
3 the detainees were made to place their heads between the bars of their
4 cells and were then beaten by pieces of wood. Evidence has indicated that
5 after such brutalities some of the victims several broken ribs, dislocated
6 kidneys, and damaged spinal columns.
7 The Chamber finds that the soldiers of the 3rd Battalion of the
8 7th Brigade were among the perpetrators of that cruel treatment.
9 It has been proven beyond reasonable doubt that a Bosnian Serb
10 also suffered serious physical abuse between the 18th and the 21st of
11 June, 1993, but it has not been established that this was carried out by
12 the members of the 3rd Battalion of the 7th Brigade.
13 The Trial Chamber finds that the accused Hadzihasanovic knew of
14 the cruel treatment committed by his subordinates in Motel Sretno on
15 the 18th and on the 19th of May, 1993. However, the Trial Chamber finds
16 that the Prosecution failed to meet its burden and prove that the accused
17 Hadzihasanovic failed to act on crimes at Motel Sretno and consequently
18 failed to prove that the accused Hadzihasanovic failed to take measures.
19 The Prosecution failed to submit sufficiently probative evidence to show
20 that the accused Hadzihasanovic failed to impose punitive measures after
21 the crimes committed in Motel Sretno.
22 With regard to the accused Kubura, the Chamber is not satisfied
23 beyond reasonable doubt that he knew of the crimes committed by his
24 subordinates in Motel Sretno, given that he was not informed of the said
25 facts.
Page 19354
1 Detention facilities at Bugojno. In July 1993, hostilities broke
2 out between the HVO and the ABiH in Bugojno. On the 24th of July, 1993,
3 about 100 HVO soldiers and 150 civilians were captured by soldiers of the
4 307th Brigade in Bugojno. Most of them were transferred to the various
5 detention facilities identified in the indictment; the Slavonia furniture
6 salon, the Bugojno convent, the Gimnazija school building, the Vojin
7 Paleksic Elementary School, the FC Iskra stadium, and the BH Banka
8 building. The Trial Chamber notes that among the civilian prisoners there
9 were minors and families.
10 The Trial Chamber considers that with the exception of the
11 BH Banka detention facility, it has been established beyond reasonable
12 doubt that the detainees imprisoned in each of these facilities who had
13 not participated directly in the hostilities were subjected to cruel
14 treatment. The evidence presented has made it possible to establish that
15 the defence conditions were insufficient and inadequate. Depending on the
16 detention facility, the food was insufficient, at times were even
17 non-existent and inadequate. Access to proper sanitary facilities was
18 limited without good reason, or non-existent. Accommodation conditions
19 were poor or non-existent. Detention facilities lacked light or were too
20 small in relation to the number of detainees. Furthermore, evidence has
21 shown that the prisoners were subjected to repeated physical violence
22 during their detention.
23 In late July or early August 1993, several detainees, including
24 Mario Zrno, a prisoner of war, were taken outside the Bugojno convent and
25 were subjected to severe beatings. Mario Zrno did not survive the
Page 19355
1 beatings. In the night of the 5th of August, 1993, five or six prisoners,
2 including Mladen Havranek, a prisoner of war, were severely beaten on the
3 upper floor of the Slavonija Furniture Salon. Several witnesses stated
4 that from the cell in the basement, they heard Mladen Havranek screaming
5 and begging for the beatings to cease. After repeated beatings, Mladen
6 Havranek was unable to walk, and he was dragged down the stairs to the
7 cell in the basement. He died as a result of his injuries that same
8 night.
9 The Trial Chamber finds that the killings of Mario Zrno and Mladen
10 Havranek have been established beyond reasonable doubt. The Trial Chamber
11 concludes that it has been established that the cruel treatment to which
12 the detainees in the above-mentioned detention facilities were subjected
13 was inflicted by members of the 307th Brigade. It considers, however,
14 that it has not been established that the men who beat the detainees taken
15 outside of the Bugojno convent and who murdered Mario Zrno were members of
16 the 307th Brigade and that the 307th Brigade guards who were present at
17 the crime scene could have prevented those crimes.
18 The Defence for the accused Hadzihasanovic alleges that the
19 interference of the Bugojno War Presidency in the running of the detention
20 centres in Bugojno had the effect of altering the command exercised by the
21 accused Hadzihasanovic over the OG Zapad and the 307th Brigade.
22 The Trial Chamber notes that the 3rd Corps was in fact the
23 authority having the power to detain, keep in detention and transfer
24 individuals who were held in the detention centres set up in Bugojno.
25 Although there was some degree of coordination between the civilian and
Page 19356
1 military authorities in order to regulate certain aspects of the operation
2 of the detention centres, the Trial Chamber is of the opinion that the
3 responsibility for the prisoners lay entirely with the 3rd Corps.
4 The evidence presented has made it possible to establish beyond
5 reasonable doubt that, as of 18 August 1993, the accused Hadzihasanovic
6 had knowledge of a report denouncing the cruel treatment of five or six
7 war prisoners and the murder of one of them, Mladen Havranek in the
8 Slavonija Furniture Salon. The information available to him at the time,
9 so on the 18th of August, 1993, however, could not lead him to conclude
10 that other crimes of mistreatment had been committed by his subordinates
11 before that date, before the 18th of August, 1993, or that detention
12 conditions were unsatisfactory.
13 The Trial Chamber finds that it has been established that in spite
14 of his knowledge of cruel treatment of six prisoners of war in the
15 Slavonija Furniture Salon and of the murder of one of them, the accused
16 Hadzihasanovic applied no more than disciplinary measures to punish the
17 perpetrators of these crimes. In failing to take the necessary measures
18 in this instance, in the view of the Trial Chamber he failed to intervene
19 in order to prevent any mistreatment from occurring after 18th of August,
20 1993 in the Slavonija Furniture Salon, in the Vojin Paleksic Elementary
21 School, in the Gimnazija school building, and in the FC Iskra stadium.
22 The Orasac camp. As indicated previously, the El Mujahid
23 detachment was incorporated into the ABiH in August 1993. This unit had a
24 camp at Orasac. Evidence established that after the death of several
25 Mujahedin and the detention of a Mujahedin who had been wounded in an HVO
Page 19357
1 ambush, members of the El Mujahid detachment abducted five Croatian
2 civilians in the very centre of Travnik on the 15th of October, 1993 and
3 took them to the Orasac camp. The last prisoners from this first wave of
4 abductions were released on the 20th of October, 1993. On the 19th of
5 October, 1993, members of the detachment abducted five other civilians
6 from the Croatian and Serbian community in Travnik. They released a first
7 prisoner several days later, two on the 6th of November, 1993, and the
8 last prisoner to be released was then a minor. He was released on the 7th
9 of December, 1993.
10 The Trial Chamber finds that it was not established beyond
11 reasonable doubt that the prisoners from the first wave of abductions were
12 subjected to cruel treatment. However, the evidence adduced has shown
13 that the prisoners from the second wave of abductions who did not
14 participate directly in the hostilities were subjected to severe abuse and
15 to severe psychological abuse inflicted by members of the El Mujahid
16 detachment.
17 The Trial Chamber further finds that it has been proven beyond
18 reasonable doubt that on the 21st of October, 1993 Dragan Popovic, who was
19 not involved actively in the hostilities, was executed by members of the
20 detachment. The Trial Chamber notes that this murder was particularly
21 heinous.
22 Dragan Popovic was taken with three other prisoners to a meadow
23 where a pit had been dug. About 50 to 100 soldiers from the El Mujahid
24 detachment stood around the pit shouting. Dragan Popovic was pushed to
25 the edge of the pit. He fell on his side after being tripped. One
Page 19358
1 soldier then tried unsuccessfully to behead him with a hatchet but he
2 didn't manage to, so another soldier had to finish the execution. The
3 other prisoners were then forced to kiss the head of the deceased whilst
4 the soldiers shouted in ritual celebration.
5 The Trial Chamber finds that it has been proven beyond reasonable
6 doubt that as of the 20th of October, 1993, the accused Enver
7 Hadzihasanovic knew that five Croat and Serb civilians had been abducted
8 the day before by his subordinates. He also had reason to know that the
9 said subordinates were about to mistreat and murder the abducted civilians
10 or had already committed these crimes. He had knowledge that the
11 Mujahedin had massacred Croatian civilians in Maline, Miletici, and
12 abducted Zivko Totic. He also knew that the Mujahedin had not received
13 any instruction whatsoever on the most fundamental rules of international
14 humanitarian law. Evidence has also shown that on the 20th of October,
15 1993, he had been informed of the measures taken until then by Mehmed
16 Alagic, the commander of the Operational Group Bosanska Krajina, to
17 resolve the ongoing crisis. He knew that the Mehmed Alagic had threatened
18 the Mujahedin that he would use force against them if they did not release
19 the abducted civilians and that these threats had failed.
20 Despite the real risk of his subordinates repeating their previous
21 crimes, the accused Hadzihasanovic decided in favour of passive
22 negotiations with his subordinates in order to obtain the release of the
23 abducted civilians. It has been established that the ABiH 3rd Corps never
24 intended to use military means against the El Mujahid detachment. The
25 Trial Chamber considers that the circumstances were such that as of
Page 19359
1 the 20th of October, 1993, the 3rd Corps should have used force as the
2 sole necessary and reasonable means to prevent the crimes committed in
3 Orasac. The Trial Chamber concludes that the accused Hadzihasanovic had
4 the material capacity to use force against his subordinates and had
5 sufficient time to put concrete and specific measures into effect in order
6 to obtain the release of the abducted civilians.
7 The Trial Chamber is furthermore of the opinion that, as soon as
8 the El Mujahid detachment was incorporated into his forces, the accused
9 Hadzihasanovic had information allowing him to conclude that there was a
10 real and reasonably foreseeable risk of violations by members of the
11 El Mujahid detachment. He was familiar with their violent and dangerous
12 behaviour. He did not instruct the members of the detachment in complying
13 with the most basic rules of international humanitarian law. In spite of
14 this alarming information, he decided to gain military advantage with this
15 detachment, although nothing compelled the 3rd Corps to use the Mujahedin
16 in combat.
17 It is clear, in the opinion of the Trial Chamber, that the accused
18 Hadzihasanovic put himself in a position where he ran the risk of not
19 being able to take appropriate measures as and when required. However, he
20 will not be found guilty of having failed to punish the perpetrators of
21 this crime since he only became aware of it on the 6th of November, 1993,
22 when he had already left his post.
23 Count 5: Wanton destruction in the municipalities of Zenica,
24 Travnik and Vares not justified by military necessity.
25 According to the indictment, unlawful and arbitrary destruction
Page 19360
1 not justified by military necessity was committed against Bosnian Croat
2 and Bosnian Serb dwellings, buildings, and civilian personal property by
3 the forces of the 3rd Corps in Guca Gora, Maline, Susanj, Ovnak,
4 Brajkovici, Grahovcici, and Cukle in June 1993.
5 However, according to the case file, although the Trial Chamber
6 considers that it has been established that certain buildings and
7 dwellings belonging to the Croatian community in Bosnia were destroyed or
8 damaged during combat operations in Guca Gora, Maline, Susanj, Ovnak,
9 Brajkovici, Grahovcici, and Cukle on the 8th of June, 1993, the
10 Prosecution has not proved beyond reasonable doubt that the destruction
11 was extensive and was not justified by military necessity.
12 International observers who were present during the hostilities
13 only noted several burning or destroyed houses. They considered that this
14 damage was not intentional but had been caused by shrapnel. The Trial
15 Chamber considers in view of all the evidence that it has not been
16 established that the destruction was extensive and that it was not
17 justified by military necessity. Furthermore, the Trial Chamber notes
18 that the evidence in the case file concerning the destruction that took
19 place after the combat operation does not make it possible to identify the
20 perpetrators, the dates or the circumstances in which property was
21 destroyed.
22 The Trial Chamber therefore finds that the accused Hadzihasanovic
23 and the accused Amir Kubura cannot incur responsibility on this count for
24 the locations concerned.
25 The Prosecution also alleged that there were -- there was
Page 19361
1 destruction in the village of Vares during November 1993 by units of the
2 7th Brigade.
3 According to the evidence, when the 2nd and the 3rd Battalions of
4 the 7th Brigade entered the town of Vares on the 4th of November, 1993,
5 the residents had fled. HVO forces had also left the town.
6 According to the international observers, present in Vares on
7 the 4th of November, 1993, chaos reigned. Soldiers of the 7th Brigade
8 fired in the air to uncover possible ambushes and then they fired to
9 celebrate. They broke windows, broke down doors in order to seize
10 property inside the -- of houses and shops in Vares. Almost all of the
11 shop windows were broken.
12 The Trial Chamber therefore considers that the partial or total
13 destruction of buildings and dwellings was extensive. Furthermore, the
14 evidence shows that the destruction was in no way justified by military
15 necessity and that it was committed deliberately by the soldiers of the
16 7th Brigade with the specific aim of plundering property.
17 However, the Trial Chamber considers that the Prosecution has not
18 proved beyond reasonable doubt that the accused Kubura had knowledge of
19 the destruction committed by his subordinates in Vares on the 4th of
20 November, 1993, as he was not informed of the destruction.
21 Count 6: Plunder of private or public property in the
22 municipalities of Zenica, Travnik, and Vares. Thereafter, I'll move to
23 Count 7, and depending on what the court deputy will tell us, we might
24 have to make a break. You know that we need to change tapes. Very well.
25 Count 6: Plunder of private or public property in the
Page 19362
1 municipalities of Zenica, Travnik, and Vares.
2 The Prosecution alleges that the 7th Brigade and the 306th Brigade
3 plundered Bosnian Croat and Bosnian Serb dwellings, buildings, and
4 civilian personal property in Miletici in April 1993.
5 Evidence indicates that plundering took place in Miletici in April
6 1993. However, the Trial Chamber notes that neither the units of the
7 7th Brigade nor those of the 306th Brigade were present in Miletici during
8 the attack and that they did not take part in the plundering.
9 The indictment alleges that 3rd Corps forces plundered Bosnian
10 Croat and Bosnian Serb dwellings, buildings and personal property in
11 Guca Gora, Maline, Cukle, Susanj, Ovnak, Brajkovici and Grahovcici in June
12 1993.
13 Evidence indicates that plundering was committed after the
14 fighting in June 1993 in Guca Gora and Maline by members of the
15 306th Brigade; in Cukle by members of the 7th Brigade; and by members of
16 the 314th and 7th Brigades in Susanj, Ovnak, Brajkovici and Grahovcici.
17 Numerous witnesses have stated that the dwellings of the Croats
18 and Serbs in the region had been searched and that ABiH soldiers loaded
19 property from the dwellings onto trucks. When they returned home, the
20 residents saw that their houses had been vandalised. Property such as
21 household appliances, furniture, clothing, cars, food, livestock, and
22 construction material were stolen from the residents of the towns and
23 villages referred to in the indictment.
24 The Trial Chamber is of the opinion that this plundering was
25 repeated and widespread. Furthermore, the Trial Chamber considers that
Page 19363
1 property was seized illegally and deliberately.
2 The Trial Chamber is of the view that the accused Hadzihasanovic
3 had knowledge of the plundering committed by his subordinates in June 1993
4 in Guca Gora, Maline, Cukle, Susanj, Ovnak, Brajkovici, and Grahovcici.
5 However, the Trial Chamber considers that the Prosecution has not proved
6 that the accused Hadzihasanovic failed to take preventative and punitive
7 measures against the perpetrators of the plundering. The Trial Chamber
8 further finds that the accused Hadzihasanovic was not indifferent to the
9 problem he faced in June 1993 and that he clearly intended to find a good
10 and effective solution to this matter with the means available to him.
11 The Trial Chamber is of the opinion that with regard to the
12 plundering in Maline, the accused Kubura cannot be held responsible, since
13 the Prosecution has not proved beyond reasonable doubt that the
14 7th Brigade was present in Maline.
15 However, with regard to the plundering in the towns of Susanj,
16 Ovnak, Brajkovici, and Grahovcici, the Trial Chamber is of the opinion
17 that the accused Kubura had knowledge of the plundering committed by the
18 military police of the 7th Brigade in June 1993 and that he gave his
19 consent for the plundered goods to be shared among the members of the
20 7th Brigade. The accused Kubura failed to punish the perpetrators of
21 these crimes.
22 The Prosecution alleges that the 7th Brigade plundered Bosnian
23 Croat and Bosnian Serb dwellings, buildings and personal property in Vares
24 in November 1993.
25 According to the evidence, the Trial Chamber notes that plundering
Page 19364
1 was committed by soldiers of the 7th Brigade in Vares on the 4th of
2 November, 1993. All international observers recorded random plundering.
3 The soldiers of the 7th Brigade plundered everything they could find,
4 cars, food, household appliances and furniture.
5 Therefore, the Trial Chamber is in no doubt that the plundering
6 was extensive and repeated. Furthermore, the Trial Chamber considers that
7 property was seized illegally and deliberately. The evidence shows in
8 particular that the appropriation of food supplies was a logistical matter
9 for the 7th Brigade and that the collection of goods was organised by the
10 command of the 7th Brigade.
11 The Trial Chamber is satisfied beyond reasonable doubt that as of
12 the 4th of November, 1993, the accused Kubura had information that his
13 subordinates were plundering in Vares. It has been established that the
14 accused Kubura, in failing to take punitive measures against the
15 perpetrators of the plundering already committed in June 1993 of which he
16 had knowledge, failed to prevent plundering in Vares in November 1993.
17 Furthermore, the accused Kubura also failed to take action against the
18 perpetrators of the crimes and even organised the distribution of the
19 plundered goods.
20 Let me now come to Count 7, destruction or wilful damage of
21 institutions dedicated to religion in the municipality of Travnik.
22 The evidence presented to the Trial Chamber indicates that the
23 monastery of Guca Gora and the church of St. John the Baptist in Travnik
24 were damaged in June 1993. Members of the 306th Brigade military police
25 and international observers noted that in the monastery of Guca Gora,
Page 19365
1 which was both a sacred and historical site for the Croatian Catholic
2 community, steles and the organ were destroyed and the frescoes and walls
3 were partially covered with inscriptions in Arabic. Similar destruction
4 was damaged was recorded at the church in Travnik: Paintings, organs and
5 windows were destroyed or vandalised and the statues of saints were
6 decapitated.
7 The Trial Chamber is in no doubt that this damage amounts to acts
8 of profanation. According to the case file, however, the perpetrators of
9 these acts were Mujahedin. As the Trial Chamber noted, the Prosecution
10 was unable to establish that the Mujahedin were at the relevant time
11 subordinated to the 3rd Corps.
12 I still have to read the disposition. It's about eight pages
13 long. We have to have a break.
14 We are going to break for a couple of minutes, just long enough
15 for a change of tapes. We can stay in the courtroom apparently. So don't
16 move. As soon as I hear that the tapes have been changed, I can go on
17 reading.
18 Very well. The hearing is resumed. I will go on with this
19 hearing, and I will read the disposition. I will ask Mr. Hadzihasanovic to
20 stand up.
21 [The accused Hadzihasanovic stands up]
22 For the foregoing reasons, the Trial Chamber, ruling unanimously,
23 considering Articles 23 and 24 of the Statute, and Rules 98 ter, 101, 102,
24 and 103 of the Rules of Procedure and Evidence, sitting in open session,
25 finds the accused Hadzihasanovic as a superior pursuant to Articles 3
Page 19366
1 and 7(3) of the Statute, as for Count 1.
2 Count 1: Not guilty of failing to take necessary and reasonable
3 measures to prevent or punish the murder of seven Bosnian Croat and
4 Bosnian Serb men in Dusina on the 26th of January, 1993.
5 Not guilty of failing to take necessary and reasonable help
6 measures to prevent or punish the murder of four Bosnian Croat men in
7 Miletici on the 24th of April, 1993.
8 Not guilty of failing to take necessary and reasonable measures to
9 prevent or punish the murder of 23 Bosnian Croat men and a Bosnian Croat
10 girl in Maline on the 8th of June, 1993.
11 Count 2: The Trial Chamber recalls that in its 27th of September,
12 2004 decision on motions for acquittal it found the accused Hadzihasanovic
13 not guilty of failing to take necessary and reasonable measures to prevent
14 or punish the cruel treatment of seven Bosnian Croat and Bosnian Serb men
15 in Dusina on 26th January 1993.
16 Not guilty of failing to take necessary and reasonable measures to
17 prevent or punish the cruel treatment of four Bosnian Croat men in
18 Miletici on the 24th of April, 1993.
19 Not guilty of failing to take necessary and reasonable measures to
20 prevent or punish the cruel treatment of 27 Bosnian Croat men and a
21 Bosnian Croat girl in Maline on the 8th of June, 1993.
22 Count 3: The Trial Chamber recalls that in its decision of
23 27 September 2004 on motions for acquittal it found the accused
24 Hadzihasanovic not guilty of failing to take necessary and reasonable
25 measures to prevent or punish the murder of a Croatian detainee in the
Page 19367
1 former JNA barracks in Travnik in May 1993.
2 Not guilty of failing to take necessary and reasonable measures to
3 prevent or punish the murder of Jozo Maracic at the Zenica Music School on
4 the 18th of June, 1993.
5 The Trial Chamber now finds the accused Hadzihasanovic not guilty
6 of failing to take necessary and reasonable measures to prevent the murder
7 of Mladen Havranek at the Slavonija Furniture Salon in Bugojno on the 5th
8 of August, 1993.
9 Guilty of failing to take necessary and reasonable measures to
10 punish the murder of Mladen Havranek at the Slavonija Furniture Salon in
11 Bugojno on the 5th of August, 1993.
12 Not guilty of failing to take necessary and reasonable measures to
13 prevent or punish the murder of Mario Zrno at the Bugojno convent in early
14 August 1993.
15 Guilty of failing to take necessary and reasonable measures to
16 prevent the murder of Dragan Popovic by ritual beheading at the Orasac
17 camp on the 21st of October, 1993.
18 Not guilty of failing to take necessary and reasonable measures to
19 punish the murder of Dragan Popovic by ritual beheading at the Orasac camp
20 on the 21st of October, 1993.
21 Count 4: Guilty of failing to take necessary and reasonable
22 measures to prevent or punish cruel treatment at the Zenica Music School
23 from around the 26th of January, 1993 to the 31st of October, 1993.
24 Not guilty of failing to take necessary and reasonable measures to
25 prevent or punish cruel treatment at the former JNA barracks in Travnik
Page 19368
1 from around May 1993 to the 31st of October, 1993.
2 Not guilty of failing to take necessary and reasonable measures to
3 prevent or punish cruel treatment at the Mehurici Elementary School from
4 around the 6th of June, 1993 until at least 24th of June, 1993.
5 Not guilty of failing to take necessary and reasonable measures to
6 prevent or punish cruel treatment at the Mehurici blacksmith shop from
7 around the 6th of June, 1993 until at least the 13th of July, 1993.
8 Guilty of failing to take necessary and reasonable measures to
9 prevent cruel treatment at the Orasac camp from the 15th of October to
10 the 31st of October, 1993.
11 Not guilty of failing to take necessary and reasonable measures to
12 punish cruel treatment at the Orasac camp from around the 15th of October,
13 1993 to the 31st of October, 1993.
14 Not guilty of failing to take necessary and reasonable measures to
15 prevent or punish cruel treatment at the Motel Sretno from around the 15th
16 of May, 1993 until at least the 21st of June, 1993.
17 Guilty of failing to take necessary and reasonable measures to
18 prevent or punish cruel treatment at the Gimnazija high school in Bugojno
19 from around the 18th of July, 1993 until at least the 13th of October,
20 1993.
21 Not guilty of failing to take necessary and reasonable measures to
22 prevent or punish cruel treatment at the Bugojno convent from around
23 the 24th of July, 1993 until at least early August 1993.
24 Guilty of failing to take necessary and reasonable measures to
25 prevent or punish cruel treatment at the Slavonija Furniture Salon in
Page 19369
1 Bugojno from around the 24th of July until at least the 18th of August,
2 1993.
3 Guilty of failing to take necessary and reasonable measures to
4 prevent or punish cruel treatment at the Iskra FC stadium in Bugojno from
5 around the 30th of July, 1993 to the 31st of October, 1993.
6 Guilty of failing to take necessary and reasonable measures to
7 prevent or punish cruel treatment at the Vojin Paleksic Elementary School
8 from around the 31st of July, 1993 until at least September 1993.
9 Not guilty of failing to take necessary and reasonable measures to
10 prevent or punish cruel treatment at the BH Banka in Bugojno from around
11 September 1993 until the 31st of October, 1993.
12 As for Count 5, the Trial Chamber recalls that in its decision on
13 motions for acquittal issued on the 27th of September, 2004, the Chamber
14 had taken note of the Prosecution's withdrawal of Count 5 in respect of
15 the responsibility of the accused Hadzihasanovic for failing to take
16 necessary and reasonable measures to prevent or punish the wanton
17 destruction of towns and villages not justified by military necessity in
18 Dusina in January 1993.
19 On that occasion, the Trial Chamber found the accused
20 Hadzihasanovic not guilty of failing to take necessary and reasonable
21 measures to prevent or punish the wanton destruction of towns and villages
22 not justified by military necessity in Miletici in April 1993.
23 The Trial Chamber now finds, as for Count 5, it finds the accused
24 not guilty of failing to take necessary and reasonable measures to prevent
25 or punish the wanton destruction of towns and villages not justified by
Page 19370
1 military necessity in Guca Gora in June 1993.
2 Not guilty of failing to take necessary and reasonable measures to
3 prevent or punish the wanton destruction of towns and villages not
4 justified by military necessity in Maline in June 1993.
5 Not guilty of failing to take necessary and reasonable measures to
6 prevent or punish the wanton destruction of towns and villages not
7 justified by military necessity in the Cukle in June 1993.
8 Not guilty of failing to take necessary and reasonable measures to
9 prevent or punish the wanton destruction of towns and villages not
10 justified by military necessity in the villages of Susanj, Ovnak,
11 Brajkovici, Grahovcici in June 1993.
12 As for Count 6, the Trial Chamber recalls that in its decision on
13 motions for acquittal issued on 27th of September, 2004, the Trial Chamber
14 took note of the Prosecution's withdrawal of Count 6 in respect of the
15 responsibility of the accused Hadzihasanovic for failing to take necessary
16 and reasonable measures to prevent or punish plundering in Dusina in
17 January 1993.
18 The Trial Chamber now finds the accused Hadzihasanovic, as for
19 Count 6, not guilty for failing to take necessary and reasonable measures
20 to prevent or punish plundering in Miletici in April 1993.
21 Not guilty of failing to take necessary and reasonable measures to
22 prevent or punish plundering in Guca Gora in June 1993.
23 Not guilty of failing to take necessary and reasonable measures to
24 prevent or punish plundering in Maline in June 1993.
25 Not guilty of failing to take necessary and reasonable measures to
Page 19371
1 prevent or punish plundering in Cukle in June 1993.
2 Not guilty of failing to take necessary and reasonable measures to
3 prevent or punish plundering in the villages of Susanj, Ovnak, Brajkovici,
4 Grahovcici in June 1993.
5 Finally, as for Count 7, not guilty of failing to take necessary
6 and reasonable measures to prevent or punish the destruction or wilful
7 damage to institutions dedicated to religion in Guca Gora in Travnik in
8 June 1993.
9 As for these findings, the Trial Chamber sentences the accused
10 Hadzihasanovic to a term of imprisonment of 5 years to run as of this day,
11 subject to credit that shall be given pursuant to Rule 101(C) of the Rules
12 for the period the accused Hadzihasanovic has already spent in detention,
13 a total of 828 days.
14 You may be seated.
15 [The accused Hadzihasanovic sits down]
16 Accused Amir Kubura, please stand up.
17 [The accused Kubura stands up]
18 The Trial Chamber finds the accused Kubura, as a superior pursuant
19 to Articles 3 and 7(3) of the Statute, Count 1:
20 Not guilty of failing to take necessary and reasonable measures to
21 prevent or punish the murder in Miletici on the 24th of April of 1993 of
22 four Bosnian Croat men.
23 Not guilty of failing to take necessary and reasonable measures to
24 prevent or punish the murder in Maline on the 8th of June, 1993 of 23
25 Bosnian Croat men and a Bosnian Croat girl.
Page 19372
1 Count 2: The Trial Chamber recalls, then, that in its
2 27 September 2004 decision on motions for acquittal it had found the
3 accused Kubura not guilty of failing to take necessary and reasonable
4 measures to prevent or punish the cruel treatment of four Bosnian Croat
5 men in Miletici on the 24th of April, 1993.
6 And not guilty of failing to take necessary and reasonable
7 measures to prevent or punish the cruel treatment in Maline on the 8th of
8 June, 1993 of 27 Bosnian Croat men and a Bosnian Croat girl.
9 As for Count 3, the Trial Chamber recalls that in its 27 September
10 2004 decision on motions for acquittal, it had found the accused Kubura
11 not guilty of failing to take necessary and reasonable measures to prevent
12 or punish the murder of Jozo Maracic at the Zenica Music School on
13 the 18th of June, 1993.
14 Count 4: The Trial Chamber now finds the accused Kubura not
15 guilty of failing to take necessary and reasonable measures to prevent or
16 punish the cruel treatment at the Zenica Music School from the 1st of
17 April, 1993 until at least January 1994.
18 Not guilty of failing to take necessary and reasonable measures to
19 prevent or punish cruel treatment at the Motel Sretno from around the
20 15th of May, 1993 until at least the 21st of June, 1993.
21 As for Count 5, the Trial Chamber recalls that in its 27 September
22 2004 decision on motions for acquittal, it had found the accused Kubura
23 not guilty of failing to take necessary and reasonable measures to prevent
24 or punish the wanton destruction of towns and villages not justified by
25 military necessity in Miletici in April 1993.
Page 19373
1 It now finds the accused Kubura not guilty of failing to take
2 necessary and reasonable measures to prevent or punish the wanton
3 destruction of towns and villages not justified by military necessity in
4 Maline in June 1993.
5 Not guilty of failing to take necessary and reasonable measures to
6 prevent or punish the wanton destruction of towns and villages not
7 justified by military necessity in the villages of Susanj, Ovnak,
8 Brajkovici, Grahovcici in June 1993.
9 Not guilty of failing to take necessary and reasonable measures to
10 prevent or punish the wanton destruction of towns and villages not
11 justified by military necessity in Vares in November 1993.
12 Count 6: The Trial Chamber now finds the accused Kubura not
13 guilty of failing to take necessary and reasonable measures to prevent or
14 punish plundering in Miletici in April 1993.
15 Not guilty of failing to take necessary and reasonable measures to
16 prevent plundering in Maline -- plundering -- in Susanj, Ovnak,
17 Brajkovici, Grahovcici in June 1993.
18 Guilty of failing to take necessary and reasonable measures to
19 punish plundering in the villages of Susanj, Ovnak, Brajkovici, Grahovcici
20 in June 1993.
21 Guilty of failing to take necessary and reasonable measures to
22 prevent or punish plundering in the village of Vares in November 1993.
23 As to the two findings of guilty, the Trial Chamber sentences the
24 accused Kubura to a term of imprisonment of two and a half years to run as
25 of this day, subject to credit that shall be given, pursuant to
Page 19374
1 Rule 101(C) of the Rules, for the 828 days in total that the accused
2 Kubura has already spent in detention.
3 You may be seated.
4 [The accused Kubura sits down]
5 Pursuant to Rule 103 of the Rules, pending an agreement for the
6 transfer of the convicted persons to a state where they will serve their
7 sentence, the convicted persons shall remain in the custody of the
8 Tribunal.
9 I have finished reading out the summary of the Judgement, and the
10 hearing now stands adjourned.
11 --- Whereupon the hearing adjourned at 4.17 p.m.
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