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

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

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

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

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

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

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

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

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

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

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

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,

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

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

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

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

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.

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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,

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

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

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

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

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

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

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.

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.

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

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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