1 Wednesday, 5 December 2007
2 [Appeals Hearing]
3 [Open session]
4 [The appellant Kubura entered court]
5 --- Upon commencing at 8.33 a.m.
6 [Appeals Chamber and legal officer confer]
7 [The appellant Hadzihasanovic entered court]
8 JUDGE POCAR: So good morning to everybody. We resume the hearing
9 in -- that was adjourned yesterday in the case Prosecutor versus
10 Hadzihasanovic and Kubura.
11 We heard yesterday the appeal from Kubura and the appeal from the
12 Prosecution. We will hear today the appeal from Hadzihasanovic and we'll
13 give the floor to counsel for Hadzihasanovic for their submissions.
14 You have the floor.
15 MR. BOURGON: Thank you very much, Mr. President.
16 Good morning, Mr. President. Good morning, Judges.
17 Allow me to begin by withdrawing our urgent motion, which was
18 filed on 3 December on the basis of information which was received from
19 the Chamber's legal officer. This was a motion dealing with last-minute
21 My submissions this morning concerning the appeal of
22 General Hadzihasanovic will be presented as follows: Firstly, the third
23 ground of appeal, related to counts 3 and 4 for events in Bugojno;
24 secondly, the fifth ground of appeal, related to grounds 3 and 4 for
25 events in Orasac. I will then address specific issues in the fourth
1 ground of appeal very briefly, concerning events which -- for count 4, in
2 music school.
3 As for grounds 1 and 2, which refer to the fairness of the trial,
4 we stand by our written pleadings. If the Judges have any questions
5 concerning these two grounds, I will be glad to answer.
6 Time permitting, Mr. President, I will address one further issue
7 at the end; and namely, the Trial Chamber's adjudication on the
8 appellant's Rule 98 bis motion at the end of the Prosecution case.
9 Before moving on to my first topic, there are three preliminary
10 remarks which we submit have a bearing on the adjudication of this appeal.
11 Firstly, it is our submission that the multiple measures taken by
12 General Hadzihasanovic to prevent his subordinates from committing crimes
13 or to punish them, as they appear on the record, must be taken into
14 consideration when assessing the findings of the Trial Chamber as part of
15 this appeal.
16 Secondly, it is our submission that in this case the Prosecution
17 had the burden to prove beyond a reasonable doubt the failure to take
18 necessary and reasonable measures and that at no time it was for the
19 appellant to show that measures were indeed taken.
20 Thirdly, we take the view that fair trial issues raised as part of
21 our second ground of appeal did have a bearing and should be considered in
22 assessing the Trial Chamber's findings in this appeal.
23 I move to the third ground of appeal, related to counts 3 and 4
24 for the events in Bugojno. My submissions on this ground will comprise
25 four parts: First, the question posed by the Appeals Chamber in the
1 Scheduling Order; second, the errors committed by the Trial Chamber which
2 we submit they -- the Trial Chamber committed, concerning the measures as
3 they were taken in Bugojno by 307 Brigade and the municipal public
4 prosecutor in response to criminal acts committed by soldiers of the 307
5 Brigade. The third part will address the alleged errors committed by the
6 Trial Chamber concerning the measures taken by General Hadzihasanovic at
7 the 3rd Corps command, those for which he has been found guilty, upon
8 being informed of the measures taken in Bugojno in response to criminal
9 acts committed on the 5th of August. Finally, in part 4 I will address
10 briefly the Trial Chamber's incorrect assessment, in our view, of the
11 responsibility of General Hadzihasanovic in relation to the possibility
12 that similar criminal acts would be committed - and here the date is
13 important - after 18 August 1993, both in the furniture salon, as well as
14 in other detention facilities.
15 I now move specifically to the question posed by the Appeals
16 Chamber. The question was: Could military disciplinary courts or
17 superiors exercising disciplinary powers impose a sanction in excess of 60
18 days of imprisonment?
19 The quick answer to the Appeals Chamber question is that military
20 disciplinary courts or superiors exercising disciplinary powers could not
21 impose a sanction in excess of 60 days imprisonment. However, this answer
22 would be incomplete if I did not mention the following: Firstly, the
23 power to impose a prison sentence of up to 60 days, as opposed to a
24 sentence of detention - and there is a distinction and a difference -
25 applies only to the brigade commanders and higher. This stems from the
1 rules on military discipline, Articles 7, 8, 11, and 24, as well as from
2 the decree law on the service in the army of the Bosnia-Herzegovina,
3 Exhibit P120, Article 66.
4 THE INTERPRETER: Could counsel please be asked to slow down.
5 Thank you.
6 MR. BOURGON: Thank you. Will do. I apologise.
7 A prison sentence, Mr. President, of up to 60 days, according to
8 the rules, can only be issued in respect of breaches of discipline which
9 are listed in Articles 7 and 8 of the rules. It should also be noted that
10 looking at the list of breaches in Articles 7 and 8, some pursuant to the
11 rules can also constitute criminal offences. It is not surprising then
12 that criminal acts, such as murder or grievous bodily injury, would not be
13 included in the listed breaches of discipline. Accordingly, it would be
14 illegal and contrary to the rules of military discipline for a superior to
15 use only disciplinary powers of punishment in respect of a subordinate who
16 committed the criminal act of murder or grievous bodily injury.
17 On the other hand, pursuant to Article 6 of the same rules, the
18 accountability of a serviceman for a criminal offence does not exclude his
19 being held accountable for the same offence, in relation to the same
20 offence, for a breach of military discipline too - that's the word used in
21 the rules - alongside, if according to these rules a military offence also
22 constitutes a breach of military discipline.
23 It follows that in respect of a soldier suspected of having
24 committed the crime of murder or grievous bodily injury, for example, in
25 addition to the applicable criminal proceedings according to the law a
1 brigade commander could, for example, impose a prison sentence of up to 60
2 days imprisonment for the disciplinary breach of disobeying a lawful
3 command or committing a criminal act for vile reasons.
4 This is especially important in times of war where immediate
5 response to any offence committed by a soldier is necessary. This is the
6 best deterrent to ensure and maintain discipline, and this is in line with
7 Article 68 of the rules, which provides that decisions on disciplinary
8 accountability shall be taken as a matter of urgency.
9 This was my first observation concerning the question posed by the
10 Trial Chamber.
11 The second observation is the following: In addition to
12 disciplinary powers of punishment superiors had other means available to
13 ensure that criminal acts committed by their subordinates would not go
14 unpunished and would be treated in accordance with the law. The proper
15 mechanism available to ensure that this would take place would be dealt
16 with by filing and submitting a criminal report to the relevant judicial
17 authorities. It is known and accepted in the jurisprudence of the
18 International Tribunal that once a criminal report has been filed, the
19 matter is in the hands of justice and the commander has fulfilled its
20 duty -- his duty pursuant to Article 7(3) of the Statute.
21 In this regard, I refer quickly the Appeals Chamber to the
22 following Prosecution submission of 19 May 2004, transcript page 7704.
23 "Once the commander has conducted an investigation and referred the matter
24 to the relevant court authorities, his duty ends."
25 I also refer the Appeals Chamber to the ICRC commentary of
1 Additional Protocol 1, paragraph 3562.
2 In closing on this specific point, Mr. President, I take the
3 opportunity to refer the Appeals Chamber to the testimony of Sead Zeric,
4 who was the Travnik military prosecutor at the time, regarding the manner
5 in which a prosecutor could be seized of a case.
6 Witness Zeric confirmed that a prosecutor could be seized of a
7 case upon discovering -- sorry, upon receiving a criminal report. He said
8 the criminal report can be oral or written, and he said that he could also
9 discover the crime on his own. That was at page 5538-5539 of the
11 Witness Zeric also confirmed that criminal reports could be filed
12 by various bodies: By military bodies, civilian police, and by citizens
13 directly. This is at the same pages.
14 Witness Zeric went on to testify the following concerning the
15 duties of prosecutors, including municipal public prosecutors, and he said
16 that once they are seized of a criminal complaint which they feel is not
17 within their jurisdiction, they have an obligation in this regard.
18 Here I will quote from the transcript, lines 6 to 14 of page 5594.
19 The question was -- or the answer was:
20 "If a report was filed against a member of the army, every
21 prosecutor's office is obliged to pass on the case to the competent
22 prosecutor's office. And if it feels that it is not within a
23 jurisdiction, it would pass it on to another prosecutor's office. So if
24 it was filed with the basic prosecutor's office in Travnik or Bugojno" -
25 meaning the municipal prosecutor - "and if they were army personnel, it
1 was their obligation to pass on that case to us for further processing,
2 and vice versa."
3 This was not only a matter of opinion. It's also a matter of law.
4 And I refer you to Exhibit DH337, Article 8 of the Yugoslav Law on
5 Criminal Procedure.
6 Finally, concerning the possibility for the military disciplinary
7 system to work in parallel with the prosecutor's office, I would like to
8 refer you to the testimony of the same witness regarding the practice at
9 the time whereby a soldier would be given a disciplinary sentence or
10 punishment while further investigations were carried out.
11 I read from lines 13 to 20, and that is on page 5638 of the
13 "Well, let me tell you about the practice at the time. The
14 officer, each officer of every unit, of brigades, of corps could issue a
15 decision on disciplinary detention for 15 or 30 days. Such was the
16 practice. These soldiers would be detained for 15 or -- rather, for 30
17 days when disciplinary measures were taken against them. And during that
18 period of time, we could carry out other investigations in order to
19 support the detention or justify the detention of the person concerned."
20 Although this witness referred to 30 days' detention, it is given
21 in the rules a brigade commander could give up to 60 days' imprisonment.
22 This concludes my part 1. I move to part 2, which deals with the
23 nature of the measures taken in Bugojno in response to the criminal acts
24 of 5 August in the furniture salon.
25 To begin with, I wish to draw the attention of the facts as they
1 were established in the trial record on the basis of the testimony of
2 Witnesses HF, Zlotrg, Muratovic.
3 JUDGE POCAR: Judge Meron.
4 JUDGE MERON: Mr. Bourgon, I was very much interested in the tour
5 de raison you made of the relevant regulations. But what would interest
6 me is the bottom line on that. How many such criminal reports were
7 actually filed?
8 MR. BOURGON: Well --
9 JUDGE MERON: You spoke about the possibility of filing those
10 reports. I would like to know what --
11 MR. BOURGON: Judge, yesterday I referred the Appeals Chamber to
12 three different exhibits. One exhibit is in -- from -- comes from
13 Travnik, from the district military prosecutor's office, with more than
14 800 criminal reports. One exhibit dealt with Zenica, the Zenica District
15 Military Court, and included more than 900 complaints. And all of these
16 complaints, according to the evidence on the record, are -- were filed
17 because of the policy of the 3rd Corps, because of what
18 General Hadzihasanovic was doing; and more importantly, the evidence on
19 the record shows that the Military Police Battalion did not let anything
20 go unpunished on the records and at the instigation of the appellant
21 General Hadzihasanovic.
22 JUDGE MERON: Thank you very much.
23 MR. BOURGON: Thank you for your question, Judge.
24 I move on to part 2, which deals with the nature based on this law
25 and based on those facts. And I look at the testimony of three witnesses.
1 I said their name, HF, Zlotrg, and Muratovic, and also Exhibit P203, which
2 is public security station information dated 20 August, and Exhibit 1392,
3 a 3rd Corps security report dated 18 August. On the basis of this
4 evidence, it is established firstly that the alleged perpetrators were
5 arrested and taken into custody; secondly, that proceedings were
6 instituted against them, DH1392; that a criminal report was filed by 307
7 Brigade against them, Zlotrg, 1497, corrected version; appropriate legal
8 measures were taken in accordance with the policy of the 3rd Corps,
9 Muratovic, 15039, corrected version; legal proceedings were underway,
10 Muratovic, 15040, corrected version.
11 Thirdly, it is established that after 5 August but no later than
12 18 August, criminal proceedings had been instigated against the
13 perpetrators, and the municipal public prosecutor in Bugojno was seized of
14 the matter. Exhibit P203.
15 Fourthly, looking at the involvement of the Bugojno authorities,
16 while the perpetrators were imprisoned, the Public Security Station, the
17 municipal public prosecutor, the State Security Service Detachment, the
18 security organ of the 307 Brigade, as well as the Bugojno Defence Staff
19 were all aware of the situation and working together on this case.
20 On the basis of these established facts, it is our submission,
21 Mr. President, that the matter was in the hands of justice in that the
22 municipal prosecutor was seized of the matter, and accordingly he had two
23 options: The municipal public prosecutor could either exercise
24 jurisdiction if he believed he had so; and to act upon it. His second
25 choice: If he believed he did not have jurisdiction, then it was his
1 obligation to pass on the case to the Travnik district military
2 prosecutor, or, depending, of course, on the qualification of the crime,
3 the crime could also go to the Zenica high public prosecutor.
4 Consequently, it is our respectful submission that no reasonable
5 trier of fact could conclude beyond a reasonable doubt on the basis of the
6 evidence on the record that the measures taken in Bugojno by the 307
7 Brigade and all the other players I mentioned were only disciplinary in
9 It is significant in this respect that in analysing the measures
10 taken the Trial Chamber did not refer to the involvement of the Bugojno
11 municipal public prosecutor.
12 At paragraphs 1771 to 1776 of the judgement, the Trial Chamber
13 provided four reasons for its conclusion that the 3rd Corps had initiated
14 no investigation or criminal proceedings and that the measures were only
16 The Defence submits that a reasonable trier of fact could not
17 arrive at this conclusion on the basis of the evidence referred to. It is
18 clear, in our view, that the testimony of Muratovic taken as a whole, in
19 light of Exhibit 1392 and in light of the testimony of Witness Zlotrg, who
20 accompanied him in Bugojno and who is the one who drafted the Exhibit
21 1392, it cannot be concluded that the measures he reported to
22 General Hadzihasanovic were solely disciplinary in nature.
23 Secondly, regarding the testimony of Sead Zeric, the Chamber
24 omitted in the judgement to take into consideration that this witness
25 confirmed that he did not deal with all cases which numbered between 7 and
1 900 in 1993 and that he could not be sure whether he received or not a
2 criminal report for this incident.
3 Thirdly, the investigation conducted by Peter Hackshaw, the
4 Defence recalls that in addition to the lack of probative value of his
5 evidence, this witness did not go to Bugojno to search any files and there
6 are many documents about the events in this case which we succeeded in
7 locating on the public records: Example, in relation to Dusina - and this
8 is documented on the record - which he did not -- or was not able to find.
9 Lastly, regarding Witness Zrinko Alvir, the proceedings before the
10 high court in 2004 refer to his testimony do not exclude the possibility
11 that they were the result of the criminal proceedings which were initiated
12 by the municipal public prosecutor in Bugojno in 1993. The statement
13 given by this witness in 1994, when returning to Bugojno for the first
14 time, is evidence which allows for this possibility.
15 In any event, what is important is that the Bugojno municipal
16 public prosecutor was seized of the matter as of 18 August at the latest
17 and that it was his duty to act upon it or to pass on the case to the
18 Travnik district military prosecutor. There is no evidence whatsoever on
19 the record as to what happened after 18 August 1993, and consequently it
20 is our submission that the Prosecution failed to prove that no measures
21 were taken after this date.
22 I now move to part 3 and the issue in the following section is the
23 following: Further to the written and oral information that the appellant
24 received. He's sitting in the 3rd Corps. He gets a visit and he gets a
25 report. Following this information, what was his understanding of the
1 nature of the measures taken in Bugojno in response to the acts of 5
2 August? Well, the evidence demonstrates that the measures taken, as we
3 have shown, were not only disciplinary in nature. Our argument is the
4 following: Even if they were disciplinary in nature, based on the
5 information he received, if his understanding was that appropriate legal
6 measures were taken in accordance with the law and if there is no specific
7 reasons for him to question or challenge this information, then it was
8 reasonable for him to be satisfied. And the proper conclusion is he did
9 take necessary and reasonable measures in the circumstances ruling at the
11 Looking at the reverse perspective, it would be unreasonable if
12 this was not the case. This would impose on the commander of a corps the
13 obligation to challenge and to investigate the measures taken in Bugojno,
14 for example, no matter what information he received from his subordinates.
15 Based on the evidence on the record, and including, more specifically, the
16 testimony in the report of the defence military expert witness regarding
17 the duties and responsibilities of a corps commander, it simply cannot be
18 that corps commanders are expected to challenge all information they
20 Moreover, the Appeals Chamber has held, pursuant to Article 7(3),
21 that a commander bears no responsibility for failing to obtain information
22 from his subordinates. Celebici appeal, judgement, paragraph 226.
23 We submit that this holding of the Appeals Chamber applies to the
24 present scenario and that the responsibility of General Hadzihasanovic
25 must be assessed on the basis of the information in his possession.
1 With a view to assessing his understanding of the nature of the
2 measures, we submit that the following must be taken into consideration:
3 Not only the text of the written report, not only the text or the words of
4 the testimony, but also the orders he issued concerning the prevention and
5 punishment of criminal acts and breaches of discipline.
6 We must bear into consideration the fact that the 3rd Corps policy
7 in this respect had been disseminated to the Bugojno units. We must also
8 bear -- take into consideration that the qualifications and employment of
9 Witnesses Muratovic and Zlotrg, these two witnesses had knowledge of the
10 related corps -- 3rd Corps policy. They knew the applicable law. They
11 knew the rules on military discipline. And they knew the difference
12 between the applicable procedure for breaches of discipline and those
13 applicable to criminal acts.
14 We must also take into consideration the duties and
15 responsibilities of a corps commander for the detention of prisoners and
16 related issues.
17 Finally, then we look at the contents of the reports.
18 Assessing the commander's understanding, in light of these
19 considerations, leads to the following observation: First,
20 General Hadzihasanovic could trust that 307 Brigade was informed of the
21 difference between breaches of discipline and criminal acts and was
22 informed of the policy of the 3rd Corps. He could trust that Muratovic
23 and Zlotrg, working in the 3rd Corps command security sector, knew the
24 law, knew the policy, knew the difference between criminal and
25 disciplinary measures. And on this basis, the words they use in their
1 written and oral reports were to be interpreted and assessed in that
2 context. He knew that pursuant to the 3rd Corps policy measures for the
3 repression of all breaches, whether disciplinary and/or criminal alike,
4 would be and were taken at each level in the chain of command from the
5 battalion, to the brigade, to the operational group, to the appellant in
6 the 3rd Corps command.
7 In the absence of specific information to the contrary,
8 General Hadzihasanovic was entitled to trust that his subordinates at
9 every level were acting in accordance with the policy.
10 General Hadzihasanovic, as commander of a corps comprising between 30 and
11 40 thousand soldiers simply cannot be expected -- could not be expected to
12 do everything himself.
13 On this basis, we submit that the wording in the reports, both
14 oral and written, make it clear, contrary to the Trial Chamber's
15 conclusion, that the measures taken in Bugojno were not only disciplinary
16 in nature.
17 THE INTERPRETER: Could counsel please be asked to slow down.
18 MR. BOURGON: I apologise once again. I'm sorry.
19 The alleged perpetrators, according to the wording of the reports,
20 were arrested, were taken into custody. Appropriate legal measures were
21 taken in accordance with the law. Measures were taken in accordance with
22 the policy of the 3rd Corps. And a criminal report had been filed, was
23 being, or would be filed.
24 The general received no report from his officers that the measures
25 taken were insufficient. The general received no report from his officers
1 that the measures taken in Bugojno were illegal. The general received no
2 information from his officers which would require his immediate attention
3 as commander of the 3rd Corps. He received no information which would
4 create a doubt in his mind as to what took place in Bugojno. He was also
5 aware that the information concerning this incident, based on the
6 evidence, had been covered by three levels in the chain of command: By
7 the brigade witness -- or not witness, but Mr. Handzic, the security
8 officer; at the operational group level, OG Zapad, that was Dzafic,
9 security officer for the operation group; as well as in the command
10 itself, by Muratovic, Zlotrg, and HF.
11 In conclusion, General Hadzihasanovic had every reason to believe
12 in the circumstances ruling at the time that measures taken were
13 appropriate and legal and there was no reason to believe that they were
14 insufficient or illegal.
15 Mr. President, even if it was the case that the Witnesses HF,
16 Muratovic, and Zlotrg made a mistake and provided incorrect information to
17 him, General Hadzihasanovic should not bear responsibility for that.
18 Even if it was the case that Witness -- that Mr. Handzic, the
19 security officer from the brigade provided wrong information to the
20 officers which were sent to investigate, it would not be for
21 General Hadzihasanovic to bear responsibility for that.
22 And even if it was the case that the security level -- security
23 officer at the operational group level, Dzafic, even if he had wrong
24 information or if he communicated wrong information,
25 General Hadzihasanovic should not bear responsibility for that.
1 Consequently, the only possible conclusion is that he took -- the
2 appellant took the necessary and reasonable measures in response to
3 criminal acts committed by his subordinates and that the convictions for
4 counts 3 and 4, Bugojno, must be reversed and a verdict of acquittal
6 At this point, Mr. President, I address one issue: If there is
7 any doubt in the Appeals Chamber in respect to our arguments that he must
8 be acquitted for these counts, then the only other option, in our view, is
9 to order a new trial for this count. This is based on the nature and
10 insufficiency of the measures taken in Bugojno. That's an issue which was
11 never raised by the Trial Chamber during the testimony of Witnesses HF,
12 Zlotrg, and Muratovic, nor under -- nor during final arguments.
13 The nature or insufficiency of the measures was never raised by
14 the Prosecution either at the 98 bis stage, during the testimony of these
15 witnesses, or during the testimony of other witnesses, such as Gerritsen,
16 or during final arguments, or in its final brief. This issue was raised
17 proprio motu by the Trial Chamber during deliberations.
18 The Prosecution did not meet its burden of proof in relation that
19 these counts and there are just too many unknowns which should have been
20 addressed by the Prosecution in the evidence.
21 Therefore, the Trial Chamber was right in concluding that
22 General Hadzihasanovic had knowledge -- had no evidence to show that he
23 had knowledge of the 5 August incident and that he should have been
24 acquitted at that time.
25 I now refer to the -- in the judgement where the Trial Chamber
1 says, We have no direct evidence that he was aware of the 5 August
2 incident unless -- until the Defence witnesses came and we got those
3 reports. That shows to us that he should have been acquitted at the end
4 of the Prosecution's case.
5 After the case for the Defence, if the Prosecution was surprised
6 by the evidence that we led, by those witnesses and those documents, all
7 the evidence that we brought forward, it could have led evidence in
8 rebuttal, but it did not. And during the appeal, if the Prosecution was
9 surprised with our arguments, then they could also ask for fresh evidence
10 and do further investigations in Bugojno. They did not.
11 The entire adjudication of this issue centres uniquely on evidence
12 put forward by the Defence, when there was really no case to answer.
13 For all these reasons, it would be wholly unfair in the event the
14 a Appeals Chamber is not convinced by our arguments that he should be
15 acquitted, to confirm this conviction without ordering a new trial on this
17 I now move to part 4, the last part under counts 3 and 4,
18 furniture salon and other detention facilities.
19 In this part, I address briefly the Trial Chamber's guilty verdict
20 for count 4 in relation to the period after 18 August 1993 - and the dates
21 are very important here - for the furniture salon and for also other
22 detention facilities in Bugojno.
23 THE INTERPRETER: Kindly slow down for the interpreters. Thank
24 you very much.
25 JUDGE POCAR: Mr. Bourgon, Judge Shahabuddeen would like to put to
1 you a question.
2 JUDGE SHAHABUDDEEN: Mr. -- Counsel, I read here that you are --
3 you have submitted that in certain circumstances you are inviting the
4 Appeals Chamber to confirm this conviction by not ordering a new trial on
5 this count; is that correct?
6 MR. BOURGON: That's incorrect, Mr. -- Incorrect, Judge. They're
7 both -- both are to be looked in the opposite way. We want to reverse the
8 conviction and that conviction should not stand.
9 If you have any idea or any doubt into -- in your mind as to not
10 reversing the count, then we say we need a new trial.
11 JUDGE SHAHABUDDEEN: All right.
12 MR. BOURGON: Because of what happened. Thank you, Judge.
13 The last part of my argument deals with the period after 18
14 August. I'd like to come back on this to paragraph 251 of the appeal
15 brief, which clearly highlights the unreasonable character of the Trial
16 Chamber's verdicts.
17 The rationale behind the Trial Chamber's verdict is that because
18 Hadzihasanovic failed to take appropriate measures in respect of the 5
19 August incident, then he had reason to know that the commission of similar
20 illicit acts after 18 August was a real and reasonable risk. And
21 accordingly, the Trial Chamber says he created a situation conducive to
22 the repetition of similar criminal acts after 18 August, not only at the
23 furniture salon but also at other detention facilities.
24 The furniture salon, Mr. President, dear Judges, was never
25 mentioned in any report to General Hadzihasanovic. What was reported to
1 him was a situation involving two soldiers who had beaten up HVO
3 Secondly, the Trial Chamber found that General Hadzihasanovic -
4 and here it's very important - did not have knowledge of the poor
5 detention conditions whether at the furniture salon or at the other
6 detention facilities.
7 Then comes some crucial findings of the Trial Chamber at
8 paragraphs 1759, 60, 61, 83, 84, and 85. In these paragraphs, the Trial
9 Chamber established the following: General Hadzihasanovic did not have
10 any alarming information that would have warned him that similar criminal
11 acts had been committed by soldiers of 307 Brigade at other detention
12 centres in Bugojno.
13 Secondly, when he learned of the 5 August incident, the Trial
14 Chamber states he did not have reason to know that his subordinates had
15 committed other crimes of mistreatment, whether at the furniture salon or
16 at other detention facilities.
17 The information communicated to General Hadzihasanovic did not
18 reveal, according to the Trial Chamber, a repeated practice of
19 mistreatment but, rather, one incident which had taken place on one
20 occasion, on 5 August 1993. The information communicated to
21 General Hadzihasanovic was not enough for him to believe, according to the
22 Trial Chamber - that's very important - that this incident was preceded or
23 followed by other criminal acts of the same nature.
24 In other words, this is what the Trial Chamber concluded: One,
25 there was a serious incident on 5 August; two, there were no similar
1 incidents before 5 August; three, there were no similar incidents during
2 the period between 5 August and 18 August.
3 Consequently, it is our submission that no reasonable trier of law
4 and fact - because we believe that this is a misapplication of
5 Article 7(3) mens rea - could conclude that General Hadzihasanovic had
6 reason to know that his subordinates were about to commit similar criminal
7 acts at any of the detention facilities in Bugojno.
8 It follows that the conviction entered for count 4, in respect of
9 potential cruel treatment after 18 August at the furniture salon, the
10 Gimnazija, the FC Iskra Stadium, and the Vojin Paleksic school, must be
11 reversed. In relation to all the other issues raised in relation to the
12 third ground of appeal, we stand by our submissions.
13 And I move to the fifth ground, Orasac.
14 The events, Mr. President, which took place in Orasac deal
15 specifically, as you know, with the actions of the so-called Mujahedin, or
16 El Mujahid Detachment, the main issue being whether a
17 superior-to-subordinate relationship existed between
18 General Hadzihasanovic, as commander of the 3rd Corps, and these forces.
19 Our fifth ground of appeal on this topic comprises no less than seven
20 sub-grounds of appeal. Each of those is, in our view, part of a logical
21 sequence, from the issue of control to the issue of measures. At the same
22 time, each of these grounds is a stand-alone and only one needs to be
23 successful, in our submission, to justify the reversals of the conviction
24 entered by the Trial Chamber for counts 3 and 4, Orasac.
25 My submissions will be divided in three parts -- or three
2 THE INTERPRETER: Could counsel please be asked to slow down.
3 Thank you.
4 MR. BOURGON: Once again, I apologise. I'm doing my best.
5 In section 1, I will respond to the question posed by the Appeals
6 Chamber to the Prosecution in the Scheduling Order. In section 2, I will
7 address in some detail our first and sixth sub-grounds of appeal. And
8 then these grounds deal with the issue of the use of force by a commander
9 against his own subordinates and the sixth sub-ground deals with the
10 criteria which must be fulfilled for effective control to exist if the
11 Appeals Chamber comes to the conclusion that this is included in his
12 material ability to prevent or punish.
13 Finally, in section 3, I will address the remaining five
14 sub-grounds, focusing on a few important issues in each case.
15 The question put to the Prosecution in the Scheduling Order is
16 divided in two parts. First, to point the evidence in the trial record
17 pertaining to the failure of General Hadzihasanovic to provide Mujahedin
18 with international humanitarian law - which I will refer to as IHL -
19 training and to set up a disciplinary system to ensure compliance with the
21 Secondly, to explain whether such failure would be sufficient in
22 itself for General Hadzihasanovic to incur criminal responsibility for
23 failure to prevent the crimes of cruel treatment and the crime of murder
24 of Dragan Popovic.
25 I'll answer these questions in the reverse order. First, it is
1 our submission that failure to provide the Mujahedin with IHL training and
2 to set up a disciplinary system is not sufficiently in itself for the
3 appellant to incur criminal responsibility for failure to prevent cruel
4 treatment and murder of Popovic.
5 Failure to provide IHL training and to set up a disciplinary
6 system only becomes relevant, moreover, in the presence of a
7 superior-to-subordinate relationship between the commander and the group
9 If General Hadzihasanovic did not exercise effective control over
10 Mujahedin, then the issue is moot.
11 Secondly, it is our submission that providing IHL training and
12 setting up a disciplinary system are included in the responsibilities and
13 duties of a commander from the moment he assumes command. These duties
14 and responsibilities are a standing obligation for the commander pursuant
15 to customary international law, even if he does not have reason to know
16 that a subordinate is committing or is about to commit a crime. This is
17 something he does at all times.
18 In this case, Mr. President, we have never undermined the
19 importance of the duties and responsibilities of a corps commander. On
20 the contrary, we have proven in many respects that he was a good commander
21 and that he did fulfil his responsibilities and obligations.
22 These responsibilities, Mr. President, are, in our view, part of
23 his general duty of prevention, as well as to his duty to ensure that
24 subordinates will comply with the dictates of IHL.
25 This is different from the commander's duty if he knows or had
1 reason to know that a subordinate was committing or about to commit a
2 crime. Then he must take necessary and reasonable measures to prevent
3 this crime.
4 The difference between the two is supported by the fact that if
5 the crime is committed or about to be committed, it is very unlikely at
6 this point that training in IHL will be sufficient to prevent this crime
7 from happening.
8 Consequently, while the commander who fails to train subordinates
9 or to set up a disciplinary system is certainly in breach of his general
10 duty of prevention, providing, of course, that he was able to do so, this
11 is insufficient to attract criminal responsibility for a crime committed
12 by a subordinate. In other words, his responsibility for a crime
13 committed by a subordinate will be and must be assessed on the measures he
14 took once he knew or had reason to know that the crime was being committed
15 or about to be committed.
16 Looking at the same situation from the reverse perspective, a
17 commander who failed to take necessary and reasonable measures to prevent
18 a crime by a subordinate, in our -- in our submission, could not say --
19 could not say, I'm not guilty, because I provided IHL training to my
20 troops before I ever had any reason to know about the crime which was
21 being committed or about to be committed.
22 Finally, a further argument is that even though providing IHL
23 training to subordinates and setting up a disciplinary system is included
24 in the responsibilities of a commander, pursuant to Article 87 of
25 Additional Protocol 1, failure to do so is not a breach which attracts
1 criminal responsibility in relation to a crime which had been committed by
2 a subordinate as, for example, in Article 86 of Additional Protocol 1.
3 In response to the second part of the question, a comprehensive
4 review of the evidence of the trial record reveals, in our respectful
5 submission, that both issues, failure to provide IHL training to
6 Mujahedin, and failure to set up a disciplinary system for Mujahedin, were
7 not addressed, whether in witness testimony or documentary evidence. This
8 is in fact confirmed by the Trial Chamber at paragraphs 1434 of the
10 On the other hand, the trial record is replete with examples of
11 the numerous measures taken by General Hadzihasanovic to stress, amongst
12 other things, the importance of training for his troops, to distribute
13 Geneva Conventions to his troops, to draw their attention to the
14 obligations they entail, to instruct his officers concerning their legal
15 obligations, and to train his troops in military discipline.
16 If General Hadzihasanovic did this for the units under his
17 command, the question becomes: Why then would he not do so for Mujahedin
18 if they were under his command?
19 The evidence is silent on this question.
20 I turn to section 2 of my submission, which addresses the first
21 and sixth ground of appeal, six sub-grounds.
22 It is our submission, Mr. President, that the obligation for a
23 commander to use military force against a group of fighters --
24 JUDGE MERON: Mr. Bourgon, I would like to stay for a moment on
25 this question of the authority of Mr. Hadzihasanovic over the Mujahedin.
1 And there are, of course, legally, two questions there. The first one is
2 the question of de jure superior relationship between the 3rd Corps and
3 the Mujahedin. And the second question is the question of effective
5 Do I understand you to argue that there was no de jure authority
6 and no de facto authority?
7 MR. BOURGON: This is --
8 JUDGE MERON: Both of these.
9 MR. BOURGON: This is exactly the case, Judge. We argue that
10 there is a mistake which led to an error on the part of the Trial Chamber
11 about de jure control, which we say never existed; sub-ground of appeal 2.
12 And that the effective control never existed; sub-ground of appeal 3.
13 JUDGE MERON: You are, of course, aware of the fact that the trial
14 judgement in paragraph 853, I believe, reached the conclusion that there
15 was effective control over the Mujahedin. Would you say that no
16 reasonable trier of fact could have reached the conclusion that
17 Hadzihasanovic had de facto control over the Mujahedin?
18 MR. BOURGON: Absolutely, Judge. And later on in my argument I
19 will refer to the holdings of the Appeals Chamber in the Blaskic case.
20 And I will say if we look at the facts in this case and the way the
21 Appeals Chamber applied the effective control test in the Blaskic case or
22 in the Blaskic appeal, then there is absolutely no way that the
23 relationship which existed between General Hadzihasanovic and the
24 Mujahedin can be even considered to come close to effective control.
25 JUDGE MERON: So we will be returning to this point, sir?
1 MR. BOURGON: Absolutely, Judge.
2 JUDGE MERON: My second question - and I don't know whether this
3 is the best time to ask you that, but I would not mind if you would return
4 to it later on - you mentioned in your argument today the
5 had-reason-to-know test. And you, of course, know that this test draws
6 importantly on the Krnojelac appeals decision.
7 If the Trial Chamber applied that test, had-reason-to-know, in an
8 impermissible fashion, I would like you at one point during your argument
9 to point specifically to parts of the judgements which would be
10 invalidated as a result of that.
11 MR. BOURGON: Thank you, Judge.
12 Did I understand Krnojelac judgement from the from the Appeals
14 It is our submission, Judge, that if the Appeals Chamber follows
15 the same route with the had-reason-to-know, it would find that there is no
16 had-reason-to-know in the previous circumstances.
17 JUDGE MERON: No, I understand that. But what I meant is do you
18 argue that the standard of Krnojelac was incorrectly applied?
19 MR. BOURGON: That's exactly the case. We feel that the -- the
20 Trial Chamber in the judgement went over the Krnojelac judgement and
21 decided to depart from the Appeals Chamber holdings, whereas the Appeals
22 Chamber had conducted a very detailed review of the circumstances
23 involving Mr. Krnojelac, the fact that he was at the prison, that he saw
24 beatings that -- and all the facts surrounding his situation. The Appeals
25 Chamber conducted that on the whole he had such alarming information that
1 he had reason to know. The Trial Chamber, on the other hand, went to say
2 that if -- if the general knows that in the same brigade in the same
3 general geographical area a crime was committed, it has reason to know
4 about all the other crimes committed by the same brigade in the same area,
5 he has reason to know.
6 JUDGE MERON: And --
7 MR. BOURGON: And we believe that this is wrong.
8 JUDGE MERON: And if this standard was impermissibly applied --
9 MR. BOURGON: Yes.
10 JUDGE MERON: -- which parts of the judgement would be affected by
11 that? Could you tell us that during the day.
12 MR. BOURGON: Well, Judges, the part that I referred to earlier
13 on. It's the conclusions that if -- if the Trial Chamber says: One
14 incident, 5 August, nothing happened before, nothing happened between 5
15 and 18 but then there's suddenly had-reason-to-know that pops up on the
16 18th. For us, that's where it went wrong.
17 JUDGE MERON: Thank you.
18 JUDGE POCAR: Judge Liu.
19 JUDGE LIU: Thank you, Mr. President. I have just a follow-up
20 question with Judge Meron's question concerning with the effective
22 I would like to know, was your position on Mr. Hadzihasanovic's
23 material ability to prevent or punish the members of the Mujahedin at that
24 moment? You may answer this question now, but if you come across this
25 question at a later stage, I could wait.
1 MR. BOURGON: Thank you very much, Judge. This is exactly the
2 point I'm addressing now. And we feel there are two ways to address this
3 question in our arguments. We have a detailed ground of appeal, which we
4 say, had the Trial Chamber correctly analysed all the evidence on the
5 record, then it would come to the conclusion that there was no material
6 ability to prevent or punish.
7 But for now I want to address the Trial Chamber's own finding,
8 which makes that, in our view, very clear. And that is the fact that the
9 Trial Chamber said that a commander, as part of his material ability to
10 punish, is in a position where he must use force to do so.
11 So the Trial Chamber included the use of military assets and
12 attacking subordinates as a manner to apply effective control.
13 In our view, this makes no sense. And this is what I get into at
14 this part.
15 The importance of this issue stems from the Trial Chamber's
16 finding at paragraph 1459, which reads as follows: "The only way in which
17 the 3rd Corps could deal with the situation it faced was to use military
18 assets against the El Mujahedin Detachment immediately."
19 The situation in this quote refers to the seriousness of offences
20 which took place, to the fact that past threats to use force had not had
21 the deterrent effect counted on, on the lack of discipline shown by the El
22 Mujahid Detachment, and by the fact that initiating talks at that stage
23 was useless. These are all Trial Chamber conclusions.
24 We respectfully submit that this finding most accurately reflects
25 the totality of the evidence on the record concerning the state of affairs
1 related to Mujahedin during the period from August to December 1993. It
2 shows, in our view, that the Mujahedins were uncontrolled elements which
3 did not accept to be under command and control of the 3rd Corps.
4 Strikingly, the Prosecutor has not addressed this specific finding
5 of the Trial Chamber in its response, which, in our view, is revealing.
6 On the basis of this finding, we submit that in such a situation a
7 superior-to-subordinate relationship in the sense of Article 7(3) cannot
8 be said to exist.
9 If a group of fighters refuses to carry out the orders of a
10 commander and the only way to bring them into submission is to use
11 military force and to attack them, surely it cannot be said that this
12 commander exercises effective control over this group.
13 The question at this stage is whether or not -- is not whether or
14 not the commander is able to use force to attack the group. It is,
15 rather, whether the commander has the material ability to prevent or
16 punish --
17 THE INTERPRETER: Could counsel please be asked to slow down.
18 MR. BOURGON: Will do. Thank you.
19 So the question, Mr. President, is not whether he has the material
20 assets to attack; the question is whether he has the material ability to
21 prevent or punish acts committed by this group which refuses to obey his
23 To us, there's no confusion, contrary to the Prosecution argument,
24 between the first and third elements of command responsibility. The
25 meaning of effective control --
1 JUDGE POCAR: Judge Shahabuddeen.
2 JUDGE SHAHABUDDEEN: Mr. Bourgon, I understand your proposition
3 that the issue turns on proof of effective control. Well, is there a
4 principle in military organisations which says that a military commander
5 in a given sector has to have control of all personnel in that area? In
6 other words, is there a principle of unity of --
7 MR. BOURGON: Thank you very much for your question, Judge. To me
8 the answer is very simple.
9 JUDGE SHAHABUDDEEN: Yes.
10 MR. BOURGON: In times of occupation, a commander may have some
11 kind of a geographical responsibility for what happens in that area.
12 JUDGE SHAHABUDDEEN: Yes.
13 MR. BOURGON: If it's not times of occupation, that simply is not
14 the case. The military commander is only responsible for everything that
15 is -- his soldiers do. And that's effective control. No effective
16 control, no responsibility.
17 JUDGE SHAHABUDDEEN: Thank you. Thank you.
18 MR. BOURGON: The Trial Chamber's analysis, the meaning of
19 effective control, as I was saying, is well-defined in the jurisprudence
20 of the International Tribunal.
21 It is our submission that the use of military force to attack a
22 group who will not carry out orders is at odds with this concept as set
23 out in our military pleadings -- in our written pleadings. Sorry.
24 The Trial Chamber's analysis of the issue at paragraphs 85 to 87,
25 without providing any authority for -- in support, is both important and
2 With all due respect for the Trial Chamber, I believe it may -- it
3 may have confused the following two terms: "Material ability to prevent
4 or punish," as defined in the jurisprudence of the International Tribunal
5 with "the possession of military assets and the possibility to use them"
6 because of the French definition, "capacite materielle de faire usage de
7 la force," which is a different concept altogether.
8 In this regard, we disagree with the last sentence of paragraph 86
9 of the judgement, which must be looked at, in our view, by the Appeals
11 In our view, the only situation in which a commander may be
12 compelled to use force to enforce international humanitarian law is when
13 the use of force is required against the enemy as a means of reprisal, not
14 in the context referred to by the -- by the Trial Chamber.
15 We also disagree with the second sentence of paragraph 87 of the
16 judgement that because orders must be obeyed for an army to function -
17 everybody agrees with that - a commander would not hesitate to use force
18 in cases where they refused to obey a combat order.
19 This simply cannot be the case, Mr. President.
20 Moreover, the same reasoning applies to the third sentence, where
21 the only occasion, in our respectful opinion, a commander may find himself
22 in a position where he must order the execution of a soldier who refuses
23 to obey his orders is when this soldier was tried and convicted in
24 accordance with applicable international norms.
25 It simply cannot be the case that a commander -- You refuse to
1 obey my order; I shoot you.
2 That's my reading of the trial judgement. I may be wrong. But I
3 think the Appeals Chamber must look at such holdings in the trial
5 In the end, Mr. President, perhaps there is a situation when a
6 commander may be compelled to use force against his subordinates. That
7 is, if they join the enemy and they begin firing at his unit. But then
8 again, they are no longer subordinates; they are former subordinates.
9 While these conclusions of the Trial Chamber may explain the
10 finding that General Hadzihasanovic exercise effective control over
11 Mujahedin, even though the only way for him was to attack them, we
12 respectfully believe that this finding which is contrary to the
13 jurisprudence of the International Tribunal, cannot stand.
14 I referred you earlier to the case of Blaskic, which was
15 adjudicated by the Appeals Chamber. In that case, the Appeals Chamber
16 held that Blaskic did not exercise effective control over the 4 Military
17 Police Battalion, concerning the HVO attack on Ahmici, even though the 4
18 Military Police Battalion was a regular HVO unit, was present and included
19 in the Central Bosnia operative zone, which was under the command of
20 Colonel Blaskic, and this 4 Military Police Battalion could be attached to
21 him for ad hoc missions pursuant to specific requests.
22 Despite all this, the Appeals Chamber said, no effective control.
23 Our submission is, when we compare the facts of both cases, the
24 situation prevailing at the time between the commander of the 3rd Corps
25 and the Mujahedin does not even come close to the kind of relationship
1 which existed between Blaskic and the 4 Military Police Battalion.
2 In these circumstances, we take the view that our first sub-ground
3 of appeal must succeed and we respectfully request that the convictions
4 entered against General Hadzihasanovic for counts 3 and 4, Mujahedin and
5 Orasac, be reversed and a verdict of acquittal entered.
6 I now move on to our sixth sub-ground of appeal set out --
7 JUDGE POCAR: Counsel, can you try to slow down.
8 MR. BOURGON: Will do, Mr. President. I'm looking at the time and
9 I'm ...
10 The sixth sub-ground of appeal is set out in paragraphs 371 and
11 373 of the appellant brief.
12 In the event the Appeals Chamber disagrees with our submission on
13 the previous issue, that is, if the Appeals Chamber holds that use of
14 military assets and attacking subordinates in order as a means to prevent
15 and punish, then and only then our sixth sub-ground of appeal becomes
17 If it's the fact that having to attack a subordinate does not
18 automatically negate any effective control the commander exercises over
19 his troops, then, in our view, it must still fulfil the criteria had the
20 material ability to prevent or punish. And in such a case, this would
21 require three criteria to be -- to be fulfilled. In other words, we
22 submit that if the use of force and military assets, which we say is not,
23 is included in the material ability to prevent or punish, then the
24 commander will only have effective control if he has the legal authority
25 under domestic law to attack his subordinates; if he has the necessary
1 military authority; and if he possesses the military assets necessary to
2 launch such an attack.
3 In respect of these submissions, we refer the Appeals Chamber to
4 our written pleadings in paragraphs 373 to 394.
5 JUDGE POCAR: Judge Guney would like to put a question.
6 JUDGE GUNEY: [Interpretation] Mr. Bourgon, there is the -- the
7 exercise of the authority of effective control, but there's also the de
8 jure control. That's on the one hand. And then also there is the
9 material capability to prevent and punish. Is it possible to have the
10 material capacity to prevent and punish without having effective control,
11 be it that or the de jure control?
12 So I'd like to know your view on this.
13 MR. BOURGON: [Interpretation] Thank you very much, Your Honour.
14 The answer is very simple: The Appeals Chamber clearly established that
15 for a commander to have the material capability -- or ability to prevent
16 or punish, he must exert effective control. But the relationship between
17 effective and de jure control, in both cases you must have evidence of
18 effective control [In English] to prevent and punish. An effective
19 control to prevent and punish includes or has been defined as the material
20 ability to prevent and punish. And the material ability to prevent and
21 punish, if that is not there, then this is the end of the matter. You
22 need either de jure or effective control. But even with de jure, this
23 would not be sufficient, according to our submissions and the holdings of
24 the Appeals Chamber.
25 I now move to simply my conclusion, and that is that whether the
1 Appeals Chamber adopts the position where using military assets and
2 attacking does not negate effective control. And if you look at it the
3 other way, the criteria I have just mentioned, domestic legal authority
4 and military authority and possession of military assets is not there. Is
5 simply, it cannot be that the Trial Chamber would find, that a
6 reasonable -- a reasonable trier of fact would find the material ability
7 to prevent or punish.
8 I now move quickly to some of our arguments in grounds 2 to 5. In
9 our view, these are determining arguments which can facilitate
10 adjudication by the Appeals Chamber.
11 With respect to sub-ground 2, we maintain, as set out in our
12 written pleadings, that the Trial Chamber committed numerous incorrect
13 conclusions of facts which have occasioned a miscarriage of justice.
14 It is our submission that no reasonable trier of fact could have
15 concluded on its analysis of the evidence on the record that the Mujahedin
16 were under de jure command of the 3rd Corps.
17 Considering that this sub-ground deals with de jure -- and
18 specifically with de jure control, we submit that the testimony of Poparic
19 was especially important and respectfully submit that the Trial Chamber
20 was incorrect in setting it aside as being an administrative matter.
21 As for the documents involved or used by the Trial Chamber -
22 namely, some orders and letters - it is significant that the sole document
23 amongst these six letters and orders is the 28 August 1993 order which
24 bears the mention "not carried out."
25 The related testimony of Kulenovic at pages 13953 and 13961 is
1 also important in respect of these documents.
2 Finally, the incorrect inference drawn by the Trial Chamber from
3 what we say is -- was an unreliable, even totally unreliable Mujahedin
4 propaganda video, the Trial Chamber drew an inference concerning the
5 existence of an agreement between the Mujahedin and the Bosnian army
6 leadership which was incorrect.
7 Moving on to the sub-ground 3. We submit, as set out in our
8 written pleadings, that the Trial Chamber -- or that no reasonable trier
9 of fact could have concluded from its analysis of the evidence on the
10 record that the Mujahedin were under effective control of the 3rd Corps.
11 In addition to the fact that a large amount of evidence, which, in
12 our view, has high probative value, was not attributed any weight, as
13 described in our pleadings, we invite the Trial -- the Appeals Chamber to
14 take a close look at the analysis of effective control which was performed
15 by the Trial Chamber for the period before 13 August 1993 and after 13
16 August 1993. In this regard, over and above the fact that the Trial
17 Chamber, we say, incorrectly attributed weight to unreliable evidence for
18 the period after 13 August 1993 - and I refer here to the Mujahedin
19 propaganda video, P482, as well as to the war diaries and operational
20 logbooks, C11 to C20 - in our view, it stands from the evidence on the
21 record that other than that the Delic order of 13 August 1993, which was
22 used as a separation point by the Trial Chamber and for which there is no
23 response on the record, nothing had really changed regarding the lack of
24 effective control over the Mujahedin after 13 August.
25 One of the Trial Chamber's errors, in our submission - this one
1 was conceded by the Prosecution in its response at paragraph 257 - has
2 special importance: That is, the conclusion that members of Mujahedin
3 were in fact tried by the municipal court in Travnik and not, as the Trial
4 Chamber held, by the district military court.
5 Another of the Trial Chamber's errors, which we say has
6 significant importance, is the incorrect inference which was drawn from
7 the war diaries C11 and C13 for 7 September 1993. Contrary to the Trial
8 Chamber's finding, these entries do not show that the Mujahedin
9 participated in combat activities at the request of 325 Brigade. On that
10 occasion, 325 Brigade was in fact assisted by the Military Police
11 Battalion -- or Military Police Platoon of operational group Bosanska
12 Krajina, OG BK, and 27 Brigade.
13 I move to the fourth sub-ground, which deals with the
14 had-reason-to-know criteria. It is our submission that no reasonable
15 trier of fact could conclude that General Hadzihasanovic had knowledge of
16 the abduction of five Croat civilians in Travnik of 20 October 1993.
17 The Trial Chamber started its analysis from the absence of
18 evidence, establishing direct knowledge. Then the Trial Chamber went on,
19 in our respectful view, to search and to find on the basis of a series of
20 unverified deductions and assumptions that General Hadzihasanovic had
22 I thought there was a question.
23 It is important to note what the Trial Chamber held. It held all
24 of the following on the basis of a few pieces of evidence: It held that
25 General Hadzihasanovic knew that five civilians were abducted by Mujahedin
1 on 19 October; that he knew what measures and steps had already been taken
2 by Operational Group Bosanska Krajina, OG BK, to resolve the crisis; that
3 he knew that in response to threats by one Mujahedin, Alagic, the
4 commander of OG BK, had forbidden Mujahedin to abduct civilians. That he
5 knew that despite these threats a first group of five civilians was
6 kidnapped on 16 October; that he knew that following the first abductions,
7 OG BK had threatened the Mujahedin that they would attack them. All of
8 these findings, everything I've just mentioned, was established entirely
9 on the basis of constructive knowledge.
10 In our submission, one of the incorrect inferences by the Trial
11 Chamber in this regard tells it all. Contrary to the Trial Chamber's
12 finding, the support received from the corps commander mentioned by
13 Witness HE referred to, in fact, to the situation after he learned about
14 the killing of Popovic in early November 1993. At that time, Alagic was
15 the new commander of the 3rd Corps and not Hadzihasanovic.
16 You take this part out of the equation, and in our view, the
17 playing cards castle falls apart.
18 Moving to the fifth sub-ground of appeal set out in paragraph 360.
19 It is our submission that the Trial Chamber erred in law by concluding at
20 paragraphs 1463 and 1465 that there exist an implicit causal link between
21 the failure to act to prevent a crime and the commission of that crime and
22 that such an implicit causal link could be presumed.
23 In our respectful submission, this is straightforward contrary to
24 the jurisprudence of the International Tribunal. We only mention this at
25 this time to highlight the fact that, in our respectful submission, the
1 aim of the Trial Chamber in finding the existence of such a causal link
2 was to shift the burden on the accused to prove the feasibility of the
3 measures which he should have used. Consequently, we take the view that
4 this error of law invalidates the trial's analysis of the measures which,
5 in its view, should have been taken by General Hadzihasanovic.
6 Mr. President, I note I have ten minutes left, according to my
7 legal assistant. Would you like to take the break now and give me ten
8 minutes at the end or to -- for me to conclude in ten minutes?
9 JUDGE POCAR: I believe I prefer you conclude in ten minutes now.
10 MR. BOURGON: Thank you, Mr. President.
11 It is our submission with respect to the final sub-ground at
12 paragraphs 395 to 407 that no reasonable trier of fact, having properly
13 assessed the evidence on the record, could conclude that launching an
14 attack against the El Mujahid Detachment, with a view to securing the
15 release of five civilians kidnapped by the Mujahedin, was a necessary and
16 reasonable measure in the circumstances ruling at the time.
17 In this regard, the only point we'd like to raise relates to the
18 issues which were not addressed by the Trial Chamber in its analysis as to
19 whether or not launching an attack against the Mujahedin was a necessary
20 and reasonable measure.
21 These issues include the impact of the attack on the
22 accomplishment of the mission, the likely collateral damage, the chances
23 of success of the attack, and the rule of proportionality.
24 We note in this regard that the Prosecution did not even attempt
25 to address these criteria, but it's not surprising --
1 THE INTERPRETER: Please kindly slow down. Thank you.
2 MR. BOURGON: They did not even enter into this area. And in our
3 view, the Appeals Chamber does not need to do so either because it will be
4 determined from the get-go that there was no effective control.
5 In light of all these submissions, Mr. President, we respectfully
6 request the convictions entered against General Hadzihasanovic for counts
7 3 and 4, Mujahedin and Orasac, to be reversed and a verdict of acquittal
9 Finally, in my last minutes I move to the fourth ground of appeal,
10 related to music school. And I refer the Appeals Chamber to paragraph 409
11 to 483 in the appeals brief.
12 It is our submission that no necessary -- no reasonable trier of
13 fact could conclude that General Hadzihasanovic failed in his duty as a
14 superior to take the necessary and reasonable measures to punish the
15 perpetrators and to prevent treatment at the music school, and very
16 importantly, in the circumstances ruling at the time.
17 The Trial Chamber, firstly, erred in the disposition of the
18 judgement, which does not reflect its findings. Also, the Trial Chamber
19 erred by failing to properly consider and attach probative value to the
20 evidence provided by Witness Merdan and HF concerning their investigation
21 of the situation at the music school when necessary.
22 I mentioned at the beginning that this ground only deals with
23 cruel treatment and there was no murder. Nobody died in the music school,
24 and only cruel treatment.
25 Witness Merdan was the deputy commander of the 3rd Corps, a
1 witness who has testified in many cases before this Tribunal. He
2 testified for many days, during which he was extensively questioned by the
3 Trial Chamber. There was no objective reason, in our view, for the
4 Trial Chamber to set aside his testimony as it did. This relates to a
5 further ground of appeal. We would have liked to hear Witness Merdan here
6 again if the Appeals Chamber had any doubt. It was decided not to call
7 him again to testify, but we do feel that his testimony must bear close
8 scrutiny by the Appeals Chamber.
9 Thirdly, the Trial Chamber erred by failing to consider and attach
10 probative value to the evidence related to the fact that both the
11 detention and the mistreatment of prisoners was voluntarily concealed from
12 the 3rd Corps command.
13 And lastly, it is our submission that the evaluation of the
14 evidence on the record was incorrect because the situation was not
15 appreciated on the basis of in the circumstances ruling at the time, and
16 also from the perspective of the appellant, as commander of a corps, in
17 the circumstances.
18 This brings us to two conclusions. It stems from the evidence
19 that the detention and mistreatment of prisoners was concealed from the
20 3rd Corps. Nonetheless, that General Hadzihasanovic was put on notice of
21 the possibility that prisoners were detained. On those occasions,
22 General Hadzihasanovic investigated the matter, sending his most serious
23 officers to investigate. The reality of what was happening at the music
24 school at the time was unfortunately not uncovered.
25 On this basis, no reasonable trier of fact could be satisfied
1 beyond a reasonable doubt that the appellant failed to take necessary and
2 reasonable measures. Such a conclusion would be entirely inconsistent
3 with the evidence on the record concerning the manner in which
4 General Hadzihasanovic exercised his command.
5 Consequently, the Defence respectfully requests the Appeals
6 Chamber to overturn the judgement and return a verdict of not guilty for
7 count 4, failure to punish, cruel treatment at the music school.
8 And this puts an end to my submissions, Mr. President. If you
9 have any questions, I will be glad to answer.
10 JUDGE POCAR: I thank you, Mr. Bourgon.
11 Any questions from the Bench?
12 No, that's not the case.
13 So we can break now for 20 minutes, as in the schedule, and
14 reconvene at 10.20.
15 --- Recess taken at 10.00 a.m.
16 --- On resuming at 10.22 a.m.
17 JUDGE POCAR: Well, I give now the floor to the Prosecution for
18 their submissions. Please.
19 MS. GOY: Thank you, Your Honours.
20 Before beginning with the Prosecution's response, we need to
21 correct one error in yesterday's submissions regarding the sentence of
23 When addressing the gravity of the crime, I referred to Witness
24 ZH's experience of being beaten at his arrival in the Gimnazija school.
25 That is transcript page 68, line 19 and following.
1 While this event on the 23rd of July, 1993 falls within the time
2 frame set out in the disposition, in its brief the Prosecution agreed that
3 the disposition is incorrect and should read 18 August to 8 October 1993.
4 Therefore, the beating of ZH on 23 July is not something we ask
5 you to take into account when assessing the gravity.
6 However, the Trial Chamber also found that the same witness, ZH,
7 suffered further beating of a similar nature on the 17th of September
8 within the time period. That is trial judgement, paragraph 1665. We ask
9 Your Honours to take that into account. And in 1666, the Trial Chamber
10 sets out the injuries resulting from the treatment at the Gimnazija
12 I will now -- we will now proceed with our response. I will first
13 deal with question 1 Your Honours have asked, and then address the ground
14 relating to Bugojno. Mr. Kremer will after that address the ground
15 relating to Orasac. And after that, Mr. Tracol will address the Zenica
16 music school.
17 Regarding the first question, Your Honours have asked whether
18 based on the rules of military discipline or any other relevant provision,
19 could military disciplinary courts or superiors exercising disciplinary
20 powers impose a sanction in excess of 60 days imprisonment.
21 We agree with the Defence that the answer is "no," both military
22 disciplinary courts and military superiors, the highest punishment for
23 them was 60 days imprisonment.
24 The sanctioning powers are regulated in Article 11 of rules on
25 military discipline, P325, read together with Article 66 of the decree law
1 on service in the Army of the Republic of Bosnia and Herzegovina, P120.
2 Article 11 provides that for the errors of discipline and military
3 infractions, disciplinary measures and disciplinary punishment stipulated
4 in Article 66 of the decree law on service in the armed forces may be
5 imposed. And Article 65 of the decree distinguishes between an error of
6 discipline, the minor breach, and the disciplinary offence, the severe
7 breach. And according sanctions are then listed in Article 66, for which
8 then the minor breaches and the major breaches have as the maximum
9 punishment 60 days' imprisonment.
10 The organ in charge of imposing the punishment is again set out in
11 the rules of military discipline, Exhibit P325. Under these rules, the
12 military superiors shall have the authority to establish responsibility
13 for the minor offence, the errors of discipline, Article 22; and the
14 military courts have the authority to try the major ones, the military
15 infractions, Article 44.
16 This answers -- this is our submission to the question. And
17 unless Your Honours have questions regarding this, I would move on to our
18 response to the ground of appeal regarding Bugojno.
19 JUDGE POCAR: Please proceed.
20 MS. GOY: With regard to the ground relating to Bugojno, I will
21 first address the measures that were taken at Bugojno and the awareness of
22 General Hadzihasanovic of the kind of measures taken, and will then move
23 to his mens rea regarding the failure to prevent of future crimes.
24 With regard to the measures taken, Hadzihasanovic failed to show
25 that it was unreasonable for the Trial Chamber to conclude, first, that
1 the measures taken against the perpetrators of cruel treatment and murder
2 on 5 August were only disciplinary; and second, had -- that Hadzihasanovic
3 was only informed about disciplinary measures and expressed his
4 satisfaction in this regard.
5 The Trial Chamber carefully analysed the evidence of the types of
6 measures taken, referring to one exhibit, the inspection report, 13 --
7 DH1392, and the testimony of six witnesses, Witness Muratovic, Zlotrg, HF,
8 Zeric, Hackshaw, and Alvir, and it reached a conclusion that was not
10 Hadzihasanovic now raises concerns with regard to the translation
11 of two testimonies, the one of Muratovic and Zlotrg, but our position is
12 that the change between the English and French transcript and the official
13 translation does not render the Trial Chamber's ultimate conclusion
15 The Trial Chamber first concluded that neither the inspection
16 report nor the testimony of Witness HF made it explicit what kind of
17 measures were taken. And regarding Witness Zlotrg, the Trial Chamber
18 finds in paragraph 1768 that he seems to indicate that the actions taken
19 were criminal in nature and the official translation makes clear that he
20 talks about a criminal report which, according to transcript page 1946 in
21 the official version, has -- had been filed and which, according to his
22 testimony in cross-examination on transcript page 14999, was going to be
24 But in any event, Hadzihasanovic still failed to show that it was
25 unreasonable for the Trial Chamber to conclude, despite this testimony,
1 that measures taken were only disciplinary, in light of the other evidence
2 looked at.
3 The Trial Chamber next looked at the testimony of Muratovic and
4 concluded that he specified that the measures were disciplinary in nature.
5 The -- even the change of his testimony through the revised translation
6 does not reveal that he talks about a criminal report being filed or
7 criminal measures being taken. The only thing he says is that "We
8 received an oral report when we were in Bugojno and were told that legal
9 proceedings were underway."
10 But we say it's reasonable for the Trial Chamber to conclude that
11 he was not talking about two things, disciplinary proceedings and criminal
12 proceedings, but only about disciplinary proceedings, in light of the fact
13 that when he was asked, "Are you aware that a trial was ever conducted,"
14 he said, "They were brought before the military disciplinary organ in
15 Bugojno and were punished."
16 Therefore, it's reasonable for the Trial Chamber to conclude that
17 he was only talking about disciplinary measures.
18 Particularly, it cannot be argued that the ultimate conclusion
19 that only disciplinary measures were taken was one which no reasonable
20 Trial Chamber could reach, taking into account the other three witnesses
21 the Trial Chamber relied upon, Witness Alvir and particularly
22 Witness Hackshaw, whom the Trial Chamber trusted with regard to murder -
23 that is paragraph 994 of the judgement - and Witness Zeric.
24 The Trial Chamber was entitled to put particular weight to the
25 clear evidence of Witness Zeric, the Travnik military prosecutor, during
1 the period the crimes were committed until February 1996. He gave a clear
2 answer on transcript page 5528 when asked, "Can you recall any reports
3 that you received in respect of ABiH soldiers killing prisoners of war or
4 any prisoners at all?"
5 Answer: "We never received any such report."
6 Question: "Did you receive any report alleging that ABiH soldiers
7 mistreated HVO prisoners of war?"
8 Answer: "I never received any such report."
9 Hadzihasanovic also mentioned that the evidence that a criminal
10 report was filed is contained in Exhibit P -- P203. The Trial Chamber
11 does not refer to this exhibit in this particular section of the
12 judgement, but it was well aware of it. It referred to it in several
13 other parts of the judgement, such as paragraph 1646 and 1671, and the
14 Trial Chamber does not have to refer to every piece of evidence as set out
15 in the Kupreskic appeal judgement, paragraph 293.
16 Regarding the content of Exhibit P203, it is a report dated 20
17 August 1993 which Senad Dautovic, the chief of the civilian police in
18 Bugojno sent inter alia to the 307th Brigade and relates to a meeting
19 attended by the municipal prosecutor and the European Community observers.
20 And the exhibit says that criminal proceedings had been instituted
21 against those who committed the crime and the annex refers to the murder
22 of Mladen Havranek, but it also says that the individuals had been
23 punished. Moreover, the Defence mentioned that since the military
24 prosecutor had attended the meeting, he would have either dealt with the
25 matter himself or sent it to the military prosecutor. However, the
1 municipal prosecutor is only competent, according to paragraph 1 -- 9 --
2 paragraph 954 of the judgement, to deal with matters regarding civilians
3 or when civilians were co-perpetrators with military officials, but here
4 the Trial Chamber found that the perpetrators were members of the 307th
5 Brigade. Therefore, he was not competent and would have to refer the
6 matter to the military prosecutor, who gave clear evidence that he had
7 never received such a report.
8 Consequently, the Trial Chamber's conclusion that no military
9 report was filed is a reasonable conclusion.
10 With regard to what Hadzihasanovic knew about the measures taken,
11 the trial judgement refers to the inspection report, which was addressed
12 to the 3rd Corps, but this report does not provide specific information
13 about the types of measures taken. It just says proceedings were
14 instituted. And the Trial Chamber, moreover, describes the conversation
15 between Muratovic and Hadzihasanovic, and Muratovic even in the official
16 corrected version does not talk about criminal measures being taken or a
17 criminal report being filed; he just talks about the appropriate legal
18 measures were taken, in accordance with the law.
19 From our point of view, therefore, it was not unreasonable for the
20 Trial Chamber to conclude that Hadzihasanovic was merely informed about
21 disciplinary measures.
22 This ends my submission on the measures taken and Hadzihasanovic's
23 knowledge thereof. And if Your Honours have no further questions, I would
24 move on to his mens rea regarding future crimes.
25 We have set out in our response brief, that the Trial Chamber did
1 not commit an error with its legal test that the awareness of a real and
2 reasonable risk is the correct mens rea standard, and I would now like to
3 address the factual question whether the fact that Hadzihasanovic was
4 aware of one serious incident of cruel treatment of six and the murder of
5 one prisoner of war in the furniture salon is sufficient to trigger his
6 awareness of a real and reasonable risk of other crimes, future crimes, in
7 the furniture salon, as well as in other detention facilities in Bugojno,
8 especially when coupled with the failure to take adequate measures to
9 punish the incident.
10 The answer is "yes," especially in light of the inadequate
11 measures taken. Not only did Hadzihasanovic know of the incident of cruel
12 treatment and murder; he also failed to adequately punish.
13 The Krnojelac appeals judgement supports this proposition. The
14 Krnojelac judgement endorses the notion that the awareness of one incident
15 may be sufficient to trigger had-reason-to-know.
16 The Appeals Chamber holds in paragraph 169 that while the fact
17 that Krnojelac witnessed the torture inflicted on one detainee is not
18 sufficient to constitute that he knew that future crimes would happen, but
19 it says it may nevertheless constitute sufficiently alarming information
20 as to alert him of the risk of other acts of torture being committed. In
21 other words, Krnojelac's awareness that one detainee was tortured may have
22 been sufficient to give him reason to know that his subordinates were
23 committing or were about to commit acts of torture against other
25 By contrast, the Trial Chamber seems to require in paragraph 1760
1 a situation of recurrent criminal acts to trigger the had-reason-to-know,
2 that the awareness of one incident is sufficient is also supported by the
3 Rauer case referred to by the Trial Chamber in paragraph 165, especially
4 the case note supports the proposition that after becoming aware of one
5 incident, Rauer he had a legal duty to take measures to prevent
7 Moreover, failure to take adequate measures to punish has an
8 encouraging effect, which means that the risk of future crimes is higher;
9 therefore, also the awareness of the risk increases.
10 Failure to punish has an implicit encouraging effect because the
11 subordinates believe that they can commit further crimes with impunity.
12 That is supported by the Celebici appeal judgement, para 739.
13 The same can be said, albeit to a lesser extent, with regard to
14 the failure to take appropriate measures, especially taking into account
15 the obvious discrepancy in punishment, maximum of 60 days for disciplinary
16 sanction and the minimum of five years for war crimes under the SFRY
17 Criminal Code.
18 In other words, if a superior takes inadequate measures, this can
19 still have an encouraging effect.
20 Therefore, Hadzihasanovic, by being aware of one serious incident,
21 plus his failure to take the adequate measures, had reason to know that
22 future crimes would be committed in the furniture salon and other
23 detention facilities in Bugojno which had the same group of people and
24 were in close geographic proximity.
25 This ends my submission on Bugojno, and unless Your Honours have
1 questions, I would pass on to Mr. Kremer.
2 MR. KREMER: Your Honours, let me begin the submissions on Orasac
3 by, first of all, pointing out that there is an error in the disposition.
4 The disposition refers to a period from the 15th of October to the 31st of
5 October, 1993. The proper disposition should have been, according to the
6 findings in the judgement, from the 19th of October to the 31st of
7 October, when the second group of Croat civilians was abducted by the
8 members of the El Mujahedin Detachment. That was overlooked when the
9 brief was prepared, and I thought I should correct that at this point.
10 I will not deal with all of the matters that Mr. Bourgon discussed
11 in his submissions to you this morning. I will deal with the question
12 that has been raised by the Chamber, question number 2. I will deal with
13 the use of force and its impact on effective control. And I will deal
14 with the question of de jure control.
15 The either questions, I believe, are adequately addressed in our
16 brief, and there's no need to respond further.
17 Let me begin by answering the question. The question, as
18 Mr. Bourgon properly pointed out, has two parts: First, identify the
19 evidence pointing to Hadzihasanovic's failure to provide IHL training and
20 to set up a disciplinary system to ensure compliance. And secondly, to
21 respond as to whether such failure can itself attract criminal
22 responsibility to Hadzihasanovic for failure to prevent the crimes of
23 cruel treatment and the murder of Dragan Popovic.
24 I, like Mr. Bourgon, will answer question -- part 2 of the
25 question first. And our submission is directly contrary to his. Our
1 submission is that on the facts of this case - and I stress that "on the
2 facts of this case" - from the 13th of August, 1993, when the El Mujahedin
3 Detachment became subordinated to Hadzihasanovic and the 3rd Corps, his
4 failure to provide IHL training and to set up a disciplinary system to
5 ensure compliance does itself attract criminal responsibility for failure
6 to prevent the crimes of cruel treatment and the murder of Dragan Popovic.
7 Why? First of all, reading from the judgement, paragraph 1479,
8 "Hadzihasanovic knew the members of the El Mujahedin Detachment
9 had a dangerous and violent temperament well before the detachment was
10 integrated into the ABiH. In fact, he knew those troops had already
11 committed heinous crimes, specifically the massacre of 24 Croats in Maline
12 in June 1993 and the execution of four Croatian civilians in Miletici in
13 April, in breach of IHL."
14 In addition, the risk that he was aware of was exacerbated because
15 the murders were never punished, because these crimes were not brought to
16 the attention of the military police or military judicial authorities and
17 unlikely to the civilian police and judiciary, given ongoing combat
18 activities in the area. That's found in trial judgement paragraph 1433.
19 The events that gave Hadzihasanovic knowledge of the risk of
20 incorporating and subordinating this group to his 3rd Corps command are
21 set out in paragraphs 1427 and 1435. And the Trial Chamber discussed
22 whether Hadzihasanovic had reason to know of -- I'm sorry, let me back up
23 for a second. These were -- these events are discussed and they became
24 relevant for the discussion by the Trial Chamber as to what Hadzihasanovic
25 had reason to know at the time of the October abductions. And during this
1 discussion, the Trial Chamber also referred to the Totic abduction and the
2 killing of his four bodyguards earlier in April.
3 Now, although the Trial Chamber was aware of the Maline massacre
4 and the killings in Miletici, he nevertheless recommended that the
5 Mujahedin in his zone of responsibility be integrated into the Army of
6 Bosnia-Herzegovina and re-subordinated to him as an independent unit with
7 special status so he could use them immediately for combat. He was keenly
8 aware of his accountability for their actions. In fact, he was concerned
9 about being held accountable for their actions when they were not yet
10 formally subordinated to him. And that's found in DH73 and trial
11 judgement 552.
12 Delic's response to Hadzihasanovic's concern on June the 13th
13 about his accountability was responded to quickly by Commander Delic to
14 the effect that:
15 "Send these groups to Mount Igman and merge them with the SVK
16 Independent Detachment in Zuka's unit. In case they do not accept, show
17 them no hospitality and eventually disarm them." And that's found at
18 paragraph 270 of -- or in the Exhibit P270.
19 The same day Hadzihasanovic protested to Sefer Halilovic and asked
20 that only the first part of the order be implemented. That's found in
21 trial judgement 555.
22 From this point forward, the 16th of June, 1993, Hadzihasanovic
23 was part of the discussions and negotiations leading to the creation of
24 the El Mujahedin Detachment and its subordination to the 3rd Corps. In
25 spite of his concern for accountability, his knowledge of the risk of
1 incorporating this group into the 3rd Corps, from the date of the
2 re-subordination he took no steps to identify and isolate the perpetrators
3 of the Miletici and Maline crimes and he took no steps to initiate
4 criminal proceedings against the perpetrators of those crimes. He allowed
5 the members of the El Mujahedin Detachment, including those responsible
6 for the crimes, to remain isolated in their camps, to which the military
7 police and security police had no access. Even access by commanders was
8 tenuous, according to the trial judgement.
9 And instead of taking even the most basic action, like training
10 and establishing discipline, he rushed them to combat. He failed to
11 address the risk of future crimes by the criminal members in the
12 El Mujahedin Detachment. And on these facts, he can be held criminally
14 The legal principles on which this submission is based are found
15 in the trial judgement starting at paragraph 145 and continuing to
16 paragraph 151.
17 And the evidence showed that Hadzihasanovic did accept that the
18 3rd Corps must be subject to an internal disciplinary system, enforcing
19 compliance with the rules of international humanitarian law and the law
20 applicable to armed conflict, and that he, as the commander, was
21 responsible for carrying out this task. And on this point, Mr. Bourgon
22 and the Prosecution agreed.
23 He also send his duty to disseminate those rules and to include
24 them in the study in the programmes of military instruction. We agree
25 there too.
1 Hadzihasanovic, as commander of the 3rd Corps, by virtue of the
2 authority vested in him, was qualified to exercise control over his troops
3 and the weapons they use. More than anyone else, he could have prevented
4 breaches by creating the appropriate frame of mind, ensuring rational use
5 of means of combat, and by maintaining discipline.
6 And he was aware, based on his concerns as early as June 13th,
7 1993, that criminal liability could attach for his failure to meet his
8 duty as commander in respect of his newly-formed El Mujahedin Detachment.
9 As commander of the 3rd Corps, he had choices. He could either
10 take measures to instil order and discipline, or not. In respect of the
11 newly-formed El Mujahedin Detachment, he chose not to take measures.
12 Aware of the risk presented by members of the newly-subordinated
13 El Mujahedin Detachment, Hadzihasanovic took the risk that his failures to
14 take even the most basic measures to prevent crimes by them while under
15 his command and the risk resulted in this conviction from which he's
16 appealed to you today.
17 While failure to take basic measures did not -- does not
18 necessarily result in criminal liability, on the facts of this case it
20 The Trial Chamber appreciated that failure to take general
21 measures may lead to criminal responsibility. It stated, and I believe
22 this is paragraph 161 [sic]: "Those general measures will, however, be
23 taken into consideration in the factual analysis and evaluation of efforts
24 made by the accused to fulfil their obligation to prevent, in view of the
25 circumstances of the case. In fact, it is much less foreseeable for
1 violations of international humanitarian law to occur when a commander has
2 taken a series of general preventative measures to instil order and
3 discipline in his troops than when a commander has not taken care to put
4 in place a system which instills respect for the law and discipline."
5 This statement is consistent with the recent Appeals Chamber
6 decision in Halilovic at paragraphs 63 and 64.
7 "What constitutes" - and I'm quoting - "What constitutes
8 necessary and reasonable measures to fulfil a commander's duty is not a
9 matter of substantive law but of evidence."
10 And continuing: "The correct legal standard is solely whether the
11 superior failed to take the necessary and reasonable measures to prevent
12 the criminal act or punish the perpetrator thereof. Of course, the single
13 standard will have to be applied differently in different circumstances."
14 Our position simply is that the Appeal Chamber's single standard
15 applied to Halilovic's failure to provide basic training and to set up a
16 disciplinary system for the El Mujahedin, in light of the knowledge that
17 he had of their past criminal conduct, and to ensure their compliance with
18 it, the disciplinary system and the rules that they would be taught, does
19 by itself on the special and unique circumstances of this case attract
20 criminal liability, as the Trial Chamber found. And therefore, he was
21 properly found to be guilty of failure to take necessary and reasonable
22 measures to prevent the crimes of cruel treatment and the murder of
23 Dragan Popovic on this basis.
24 This takes me to part 1 of the question. And this question flows
25 from the Trial Chamber's conclusions at paragraphs 1479 to 1484. These
1 conclusions were informed by what Hadzihasanovic knew about the
2 El Mujahedin before he recommended and accepted their integration into the
3 3rd Corps and subordination as an independent detachment of the 3rd Corps.
4 On August 13th, 1993, when Hadzihasanovic received the order
5 re-subordinating the El Mujahedin Detachment to the 3rd Corps, he knew it
6 included murderers of Croatian citizens and Croatian POWs in violation of
7 IHL. Given that in Hadzihasanovic's zone of responsibility the fighting
8 was against Croatian forces and for the territory -- for a territory with
9 Croatian residents, this knowledge alone, in combination with his
10 knowledge of their past crimes, required Hadzihasanovic to implement
11 measures to prevent the commission of similar crimes by his
12 newly-subordinated members while they remained under his command.
13 Instead, Hadzihasanovic put military necessity over international
14 humanitarian law principles. He accepted their independent and special
15 status so that they could be used in combat. He permitted them to
16 maintain their two isolated camps near Mehurici, the Poljanice camp and
17 the Orasac camp, separate from the 3rd Corps and the OG BK main troops.
18 The location of the camps and separation made policing breaches of
19 discipline more difficult, because access and communication were
20 precarious. Reference trial judgement 833, 849, and 1405.
21 While the El Mujahedin recruits were being trained for 40 days at
22 these camps, the El Mujahedin were not part of the training offered by the
23 ABiH in the area. That's paragraph 598.
24 Hadzihasanovic accepted the order re-subordinating the
25 El Mujahedin Detachment and with three -- within three days acted to
1 re-subordinate them to the OG BK for immediate use in combat. And that is
2 Exhibit P671.
3 In spite of his knowledge of -- of the past violent and
4 dangerous -- dangerous temperament of some of the members of the
5 El Mujahedin Detachment, he did not include in his orders to the commander
6 of the OG BK any notice about the criminal propensity of the members he
7 was re-subordinating them to or proposing to, or instructions on measures
8 to prevent the commission of the crimes by them. The Trial Chamber was
9 correct to consider Hadzihasanovic's actions in the context of
10 Hadzihasanovic's steps before August 13th to make the ABiH a more
11 professional and disciplined army.
12 The steps included - and Mr. Bourgon has referred to it, and I'll
13 just summarise it - orders on training soldiers in IHL, orders on ensuring
14 military discipline prevailed. The military discipline orders demanded
15 more military police resources and reminded the military police of their
17 THE INTERPRETER: Thank you for slowing down.
18 MR. KREMER: I'm sorry.
19 Reminded the military police of their obligations within the
20 framework the Presidency has legislated. Paragraphs 859 and 872.
21 The Trial Chamber's conclusion that no IHL training and military
22 discipline system was created for the El Mujahedin Detachment is
23 summarised as 1434. Its analysis proceeds from the finding that the
24 El Mujahedin Detachment was integrated into the ABiH on August 13th, 1993.
25 Before this date, the Trial Chamber found that the El Mujahedin Detachment
1 was not integrated in the ABiH and therefore could not have benefitted
2 from the measures that Hadzihasanovic, as 3rd Corps commander, had
3 instructed and ordered for his nearly 30.000 troops under his command.
4 What was done before 13 August is detailed in paragraphs 1161 to
5 1167, under the heading "General Measures," and in 856 to 859 as to
7 Hadzihasanovic attempted to stress the importance of training the
8 troops, especially new recruits. He drew attention to IHL principles and
9 organised distribution of Geneva Conventions. Hadzihasanovic emphasised
10 the obligation to subordinates. He created a legal department to instruct
11 officers in legal obligations assigned to brigades during armed combat.
12 He issued orders prohibiting the detention of civilians and mistreatment
13 of POWs on pain of sanctions. He asked for investigations into reports on
14 alleged unlawful detentions and mistreatments, sometimes reports to him
16 In sum, Hadzihasanovic had the power to issue orders for training
17 and discipline and to have them enforced. Of course, as commander of the
18 3rd Corps, he had power over all aspects of the 3rd Corps as well,
19 including issuing combat orders, re-subordination orders, allocating
20 resources and equipment, et cetera.
21 In contrast to these previous positive measures to create and
22 enforce a functioning military discipline system that were taken before
23 the 13th of August, 1993, the system for some reason did not apply and
24 Hadzihasanovic did not make it apply to the El Mujahedin Detachment. He
25 ordered no -- he ordered no such measures for that detachment after their
1 re-subordination to and integration into the corps.
2 The Trial Chamber's finding at 1434 of a lack of training and an
3 absence of a military disciplinary system for the members of the
4 El Mujahedin Detachment after 13 August found further support in
5 Hadzihasanovic's rush to assign them to combat.
6 The Trial Chamber discussed this at paragraphs 18 -- 812, I'm
7 sorry, to 830. I'll just summarise what those paragraphs say.
8 On August 12th, Hadzihasanovic stressed the urgent need to
9 organise and make use of foreign volunteers. As early as August 16th,
10 Hadzihasanovic sent a letter to the commander of the OG BK advising that
11 50 members of the El Mujahedin Detachment were ready to go to the front at
12 Zavidovici and sought a reply the next day.
13 Then on August 28th he ordered the El Mujahedin re-subordinated to
14 the 306th Brigade. Its special status allowed it to refuse the order.
15 The El Mujahedin Detachment was officially re-subordinated to the OG BK on
16 September 6th, owing to imminent combat operations.
17 From this date, the El Mujahedin Detachment participated in
18 continuous combat as part of the OG BK until October 31st, when
19 Hadzihasanovic left his post as commander of the 3rd Corps.
20 The Trial Chamber noted that the September 6th re-subordination
21 order did not instruct or direct any training or solving of the problems
22 that were known to exist in the El Mujahedin Detachment and it contrasted
23 the order of September 6th with an order of December 4th, 1993,
24 re-subordinating the El Mujahedin to the OG BK, where greater clarity, in
25 terms of the measures to be taken in respect of their re-subordination,
1 were discussed.
2 The Trial Chamber at paragraph 1482 highlights that Hadzihasanovic
3 did not have to use untrained men in combat and concludes that he should
4 not have used them. And I -- and they're talking there about the use of
5 the El Mujahedin in combat prior to undergoing proper training and being
6 part of a discipline system.
7 Quoting from paragraph 1482:
8 "Furthermore, he accepted the special status of the El Mujahedin
9 Detachment as soon as it began working with the ABiH by deciding to derive
10 military benefit from the El Mujahedin Detachment in those conditions,
11 despite the alarming information at his disposal, Hadzihasanovic must have
12 foreseen, well before the Croatian civilians were abducted in October
13 1993, the potential consequences of that abduction."
14 In conclusion, there was ample evidence to support the
15 Trial Chamber's conclusion on the facts of this case that Hadzihasanovic's
16 failure to provide IHL training and to set up a disciplinary system for
17 the newly-recruited El Mujahedin Detachment attracted criminal
18 responsibility that resulted from his failure -- in his being convicted
19 for failure to prevent the crimes of cruel treatment and the murder of
20 Dragan Popovic in October of 1993.
21 I'll now move on to the use-of-force argument.
22 The appropriate measures to be taken by a commander are gauged by
23 considering the power of the superior. And the trial judgement gets this
24 correct, I would submit, at paragraph 170.
25 In his argument, Hadzihasanovic argues that his failure to
1 exercise his power to prevent his subordinates from committing or
2 continuing to commit crimes equates to lack of effective control and lack
3 of material ability to prevent or punish.
4 But I would -- the Prosecution would submit that his argument
5 confuses his power as commander of the 3rd Corps with his will to use this
6 power. His position as commander of the 3rd Corps vested in him the power
7 and the authority to control the troops subordinated to him. He
8 demonstrated his power and authority in issuing orders and instructions
9 and in having them enforced. His argument on this point accepts that he,
10 as commander, possessed the power and therefore the means to prevent by
11 use of force, but suggests that the -- having to resort to force to
12 prevent crimes negates his effective control.
13 Contrary to his argument, the object and purpose of the doctrine
14 of command responsibility and the theory of responsible command support
15 the use of force to prevent a crime when necessary, if exercised in a
16 reasonable manner.
17 Resort to force against subordinates committing or about to commit
18 is a reasonable and necessary measure consistent with the commander's
19 responsibility to prevent crimes by his subordinates. Whether it is
20 instructing officers to stop the commission of crimes on pain of being
21 forcibly arrested, on -- on pain of being detained, and if they resist the
22 arrest, on pain of perhaps being shot, if it's an armed resistance.
23 Hadzihasanovic argues that when a commander concludes that resort
24 to force is required to prevent a crime, his duty to prevent is suspended
25 and he is freed from any potential criminal responsibility for failing to
1 prevent his subordinates from committing the crime or being about to
2 commit the crime.
3 The Trial Chamber appreciated that a commander with only limited
4 number of soldiers and materials may find it difficult to use force
5 against his own troops who have breached IHL. As a result, they concluded
6 that he may be determined not to have the material ability to prevent or
7 punish for violations of IHL. But they found clearly - and I think it's
8 obvious, given his status as commander of the 3rd Corps with 30.000
9 soldiers at his disposal - that Hadzihasanovic had no such limitation.
10 In fact, Hadzihasanovic had at his disposal a police force, a
11 military police force of 400 to 450 members specifically attached to the
12 3rd Corps command. The 3rd Corps had substantial weaponry at its
13 disposal. He didn't lack the -- the power to take appropriate measures
14 the prevent the Orasac crimes; he lacked the will to act. His
15 unwillingness to act triggers his criminal responsibility. It does not
16 excuse it.
17 Finally, the Trial Chamber correctly held that a commander who
18 uses soldiers while knowing there is a serious risk that they will not
19 obey his orders to comply with IHL may not claim to have lacked effective
20 control over them to avoid responsibility under Article 7(3). They
21 found - and we support this, the position that led to this finding - that
22 his conduct before the crimes is relevant to establish that he accepted
23 the risk that the troops may not follow his orders.
24 And this takes us back to the extensive discussion of the Trial
25 Chamber, and a very discerning one, that there were many, many, many
1 pieces of evidence that indicated de facto control of the Mujahedin by the
2 3rd Corps command, but there were -- there was other evidence that raised
3 a reasonable doubt. But they were entitled to look at all of that
4 evidence in the context of what happened from June through to August,
5 preceding the August 13th re-subordination order and subsequent, to
6 conclude that Hadzihasanovic accepted the risk. He in fact encouraged the
7 re-subordination with full knowledge of what they had done or what some of
8 the members had done.
9 And on the basis of his acceptance, it can't be said that -- to
10 hide behind his acceptance and say, But things went terribly wrong and
11 therefore I had no effective control, particularly when he never made any
12 efforts during the course of the time that he was commander of the
13 3rd Corps, to ensure that this unit was properly controlled when it became
14 integrated into the 3rd Corps.
15 I now propose to move to the final point. And I've touched on --
16 JUDGE POCAR: Sorry, Mr. Kremer. Judge Meron would like to ask
18 MR. KREMER: Yes.
19 JUDGE MERON: Mr. Kremer, this question that you have now been
20 discussing of the obligation to use force or the capacity to use force is
21 a very hard one, in my view, and I would like to explore it with you
23 We heard your argument about it. We heard Mr. -- We heard
24 Mr. Bourgon's argument. His argument was that Mr. Hadzihasanovic, as
25 you -- you have heard, lacked both de jure and de facto effective control.
1 He argued that the acknowledgment by the Trial Court, the trial judgement,
2 that force would have to be used to establish control indicated that
3 whatever the de jure situation, effective control was lacking.
4 Now, I don't want to speak to the question of training. I just
5 want to focus on this question on -- on -- of the use of force. It seems
6 to me that both you and Mr. Bourgon are agreed about the criterion to be
7 applied. And the criterion is a military commander would have to take the
8 necessary and the reasonable measures.
9 MR. KREMER: Yes.
10 JUDGE MERON: So let's proceed on that basis.
11 So here you yourself spoke several times about the circumstances
12 of this case. So the approach has to be sort of contextual.
13 So here are a few questions that come to mind that I would be very
14 grateful if you would enlighten me on that, and I'm sure that my
15 colleagues from the Bench would benefit.
16 How large was the Mujahedin contingent in the two camps that you
17 have mentioned?
18 What casualties would be -- would have the force loyal to
19 Mr. Hadzihasanovic have to take to establish control?
20 How likely was success?
21 And how would then an attack on the Mujahedin forces affect the
22 overall campaign for Mr. -- which Mr. Hadzihasanovic was responsible of --
23 of conducting a war?
24 On a more abstract level, Mr. Kremer, how likely does it have to
25 be that any given measure would be successful before such a measure could
1 be considered necessary and reasonable?
2 I think I gave you enough questions.
3 MR. KREMER: Okay. I --
4 JUDGE POCAR: May I, in this context, before you answer, add a
5 question of a general nature maybe on this same point, and ask you how
6 much - it's related to the question - how much you feel there should be in
7 this -- in the use of force a proportionality test.
8 JUDGE MERON: Mr. Bourgon [sic], just to continue the President's
9 question, which I think is excellent, imagine that the force that -- that
10 the Mujahedin consist of five or ten Mujahedin. The argument for using
11 force would be, I think, overwhelming. Where does it -- where -- at which
12 point -- where is the -- the sort of threshold or parameters where this
13 thing becomes complicated, in terms of proportionality?
14 MR. KREMER: The issue rests with the commander that is confronted
15 with the situation of troops who are committing crimes. He has the duty
16 to prevent the commission of the crimes, and he has to make an assessment
17 based on what he knows as to what to do, because he is required by law to
18 take the necessary measures to prevent the crime and to take reasonable
19 measures to prevent the crime.
20 The problem that you've asked are -- or the -- the questions, the
21 first five questions, go to the question of reasonableness, as opposed to
22 necessary measures.
23 I remind the Appeals Chamber that the discussion by the
24 Trial Chamber on this question rested with the fact that nothing was done
25 other than the passive negotiation with the Mujahedin in the unit who had
1 seized the Croatian civilians and that previous threats of violence,
2 mortar shelling their camp, pointing an artillery implement at their camp,
3 had led to more positive results than occurred in this particular case.
4 And the issue for Hadzihasanovic, which the Trial Chamber
5 discussed at considerable length, was what, if anything, should I do and
6 what can I do?
7 They concluded that he could not launch an attack, because he
8 didn't have the time. He had the means to launch an attack, should that
9 have been necessary, but it was never determined to have been necessary.
10 He -- he certainly had the means.
11 The assessment of reasonable and necessary would have to take
12 account, as Judge Meron properly points out, all of the relevant factors
13 for determining whether or not to take -- or what means to take, and are
14 they reasonable and necessary, including how large was the Mujahedin
15 contingent in the camp.
16 Mr. Bourgon can correct me if I'm wrong, but my understanding was,
17 based on the evidence, that there were about 100 to 150 Mujahedin in the
18 two camps in total, but at the time we should also remember that many of
19 them would have been in combat, outside of the area.
20 There is evidence by witnesses to the effect that at the time that
21 Alagic and his assistant went to the Orasac camp in order to start
22 negotiations, they saw there a number of armed men but several unarmed.
23 They saw, I think - and I had the evidence here, but I'll just go from
24 memory - approximately three armed men and ten unarmed men.
25 The -- there is evidence on the record from -- in the Poljanice
1 camp that on one of the visits by one of the witnesses there was one armed
2 guard at the entrance to the camp.
3 The question is: How large was the contingent? It could have
4 been as large as 100 to 150. Was it that large? We would submit probably
5 not. But it was up to Hadzihasanovic to inform himself of that
6 information and make the appropriate assessment.
7 What casualties would have resulted as a result of an armed
8 attack? The question [sic] is it depends on the resources of the two
9 forces. Whether the show of force, as the Trial Chamber, we would submit,
10 properly concluded, may have been sufficient to end the hostage-taking
11 there and then. But we don't know what the result would have been,
12 because nothing was done or very little was done.
13 What casual -- whether there would have been civilian casualties,
14 I think the evidence is that Mehurici was basically the -- an IKM and it
15 was basically military. There would not have been in those camps at
16 the -- at the very least, any collateral damage of -- to civilians or
17 civilian property.
18 How likely was it -- would it have been of success? It would
19 depend -- it would depend on the measure that was taken, whether it was --
20 the Trial Chamber concluded that the -- the display or the -- the display
21 of force -- the intention to use force or, at least, mounting the
22 resources in order to use force, accompanying with a threat, may have been
23 successful. That's where they say he failed to act reasonably and
24 necessarily. They didn't say that using force against this group was the
25 only measure that he could take. In fact, they said there -- there were a
1 number of reasonable necessary measures that might have been successful.
2 And what it escalates to, and if it escalates there, depends on
3 the circumstances. The -- the Trial Chamber, by my reading of the
4 judgement, does not say that that was the only measure and that was the
5 only reasonable measure. Far from it.
6 And I think, with respect to Mr. Bourgon's submission, he takes
7 the extreme example and attempts to weave it into a legal principle, and
8 it just -- it doesn't work.
9 I think I've answered the question of proportionality.
10 Proportionality depends on the circumstances as they continue along the --
11 the period of time, and it's based on the information that the commander
12 has and is continuing to obtain, that will inform his decisions and will
13 inform the -- the actions that he takes against the non -- the criminals
14 who are about to commit crimes or are in the process of committing crimes.
15 If there's a crime that's being committed, if -- if they know that they
16 are going to be murdered, then he would have to make an assessment.
17 In terms of my obligation to prevent these murders, what should I
18 do? Should I use force? How much force? And the use of force would be
19 chosen, having a regard to the risk. And so it's a risk/reward, as in any
20 hostage-taking, the facts are going to vary on a case-by-case basis.
21 On this case, we have the simple fact that not even a -- a more
22 serious threat was issued when the second group of hostages were taken.
23 That is what, I think, underlies the Trial Chamber's decision that
24 Hadzihasanovic is guilty for having to fail -- having failed to prevent
25 the crimes in Orasac.
1 Just on the de jure argument, the Trial Chamber's decision is, in
2 our submission, a very discerning one. They spent several hundred
3 paragraphs dealing with the question of de facto control prior to August
5 And as I've previously alluded to, there was substantial
6 discussion on measures that would point to de facto control and measures
7 that did not. And ultimately, the conclusion of the Trial Chamber was
8 that the evidence did not, beyond a reasonable doubt, establish effective
10 And they very -- I'm sorry. They very carefully analysed the
11 events leading to the August 13th subordination order by Rasim Delic,
12 which included, as I've already mentioned on a couple of occasions, the
13 involvement and recommendation of Hadzihasanovic.
14 The fact that the group, the El Mujahedin Detachment, was -- was
15 subordinated is supported by a lot of evidence before and after August
16 13th. We've outlined much of it in our appeal brief -- or our response
17 brief to Mr. Bourgon's submissions. But there is additional evidence.
18 During August of 1993, there was a -- there's evidence on the record to
19 the effect that soldiers from other units, as a result of a call put out
20 by the Mujahedin that they were conducting a training programme, started
21 to leave in order to be trained by them and to join the El Mujahedin
22 Detachment. And there was much made of this at -- at trial, that that was
23 having the effect of weakening some of the units because of the
25 But what that shows, in combination with the move to create an
1 El Mujahedin Detachment, is that the -- the interested parties were
2 starting to assemble at Mehurici for the official order, and in fact no
3 Mujahedin were joining in combat with the 3rd Corps during this period and
4 there was anticipation of the proposed order to create an independent
6 So the -- the evidence clearly shows that there is ample support
7 for the conclusion that on the 13th of August the de jure order was made
8 and the de jure order was made with the consent of the people who were --
9 the -- the focus of it, and it was made with the -- the consent and
10 affirmation of the commander, who would benefit from additional combat
11 troops after that date, combat troops which he proved he could subordinate
12 and proved he could command. The fact that he chose not to implement the
13 appropriate measures to prevent them from committing crimes and to prevent
14 them from -- and to punish them, should he want, was his personal choice
15 because of his willingness or desire to use them immediately in combat but
16 also because at that point military necessity overtook his obligations, or
17 what he believed his obligations were as a military commander.
18 Our position is he was properly found to be de jure commander at
19 that time. The proof of effective control as a result of the de jure
20 command was carefully analysed as well. The Trial Chamber looked at
21 several pieces of communication between Hadzihasanovic and others showing
22 that the El Mujahedin Detachment was referred to in the order itself,
23 something that was not common previous to August 13th. They spoke of and
24 found that there was -- it was clear that Hadzihasanovic had the final say
25 over where the unit would go. There's communication that's referred to in
1 the judgement between the commander of OG Istok and Hadzihasanovic
2 about -- about the issue.
3 There are reports in the war diaries referring to El Mujahedin
4 losses, which wasn't the case prior to August 13th. There are many, many
5 indicators that the El Mujahedin Detachment became incorporated.
6 Were they a problem? Yes. Were they -- were they not his
7 subordinates? The answer is "no." Did Hadzihasanovic have effective
8 control over them to the extent that he had the material ability to
9 prevent and punish? The answer is "yes." He was a commander of a
10 30.000-man army with military police at his disposal and the authority to
11 issue commands to all those under him in a combat situation where orders
12 mattered. He knew that at the time he accepted them into his unit, he did
13 nothing to ensure that they would abide by his orders, and the
14 consequences resulted in the cruel treatment of the Croatian civilians in
15 October and their -- the death of Dragan Popovic.
16 Subject to any questions that you may have, the remainder of my
17 response to Mr. Bourgon's submissions is found in our response brief.
18 MR. TRACOL: [Interpretation] Mr. President, Your Honours, I'm now
19 going to respond to the fourth ground of appeal of Hadzihasanovic, related
20 to the Zenica music school.
21 Hadzihasanovic has challenged the findings of the Trial Chamber
22 according to which he had reason to know of the serious physical abuse
23 committed by subordinates in the Zenica music school. And secondly, that
24 Hadzihasanovic failed to take all the reasonable and necessary measures to
25 prevent and punish his subordinates.
1 Your Honours, Hadzihasanovic has failed to show any error in the
2 judgement. The Prosecution relies on its response brief, which fully
3 supports our request to dismiss the fourth ground of appeal submitted by
5 With respect to the disposition of the judgement referred to by
6 Mr. Bourgon, we would like to refer you to paragraphs 179 and 180 of our
7 appeals brief. I have nothing to add to that.
8 But I would just like to respond to the submissions of
9 Hadzihasanovic related to the attempts of his subordinates to conceal the
10 serious physical abuse meted out to his -- to victims at the Zenica music
12 This fact, the fact that he tried to conceal the fact, is
13 irrelevant and it has no impact on his criminal liability. Mr. Bourgon
14 dedicated the bulk of his submissions to this attempt, but his submissions
15 are irrelevant because they ignore the fact that the Trial Chamber
16 correctly found that Hadzihasanovic had reason to know, since the 8th of
17 May, 1993, that his subordinates had committed serious physical abuse at
18 the Zenica music school but he took no action, because sources outside the
19 7th Brigade, such as the ECMM, the HVO, and Judge Vlado Adamovic, a
20 witness who was an investigating judge at the Zenica district military
21 court in 1993 and 1994, had provided him with, and I quote "alarming
22 information that his subordinates were committing mistreatment."
23 I would like to refer you to paragraphs 1230 and 1236 of the trial
24 judgement. The Prosecution has tendered a lot of evidence about
25 Hadzihasanovic's knowledge at trial, and I would like to outline two of
1 these examples that you will find at page 224 of its final trial brief.
2 First of all, Judge Adamovic testified about a meeting attended by
3 Hadzihasanovic and the ECMM, a meeting that was cochaired by Ambassador
4 Jean-Pierre Thebault of the ECMM, his deputy, and the president of the
5 Zenica military district court. The meeting took place at the Hotel
6 Internacional in Zenica.
7 During the meeting, Judge Adamovic stated that he raised the
8 mistreatment at the music school. Hadzihasanovic told him that he himself
9 had heard of people being beaten up with wooden bats; therefore,
10 Hadzihasanovic admitted knowledge. And I would like to refer you to
11 transcript 9482 to 9483 of 24th June 2004.
12 The Trial Chamber duly considered Judge Adamovic's warnings to
13 Hadzihasanovic, warnings referring to physical abuse suffered by
14 prisoners. At paragraph 1221 of the judgement.
15 A second example of evidence: On the 7th of May, 1993,
16 Hadzihasanovic was informed by a letter sent to him by Tihomir Blaskic,
17 who was complaining, and I quote, "of extreme mistreatments of detainees,"
18 and I'd like to quote the document in English: [In English] "People
19 brought to the KP Dom from the music school have been beaten up and are in
20 a very bad state." [Interpretation] And this is Exhibit P3593.
21 As a result, Hadzihasanovic was made aware of these serious
22 mistreatments on the 8th of May, 1993. Once again, the Trial Chamber duly
23 considered the specific information provided to Hadzihasanovic at
24 paragraph 1208 of the judgement.
25 Under these circumstances, the Trial Chamber duly and rightly
1 decided to ignore the testimony of HF, according to which Nesib Talic,
2 who was the 7th Brigade assistant commander in charge of military
3 security, was misusing the stamp of the 7th Brigade and was always
4 concealing things to Hadzihasanovic.
5 The findings of the Trial Chamber are therefore reasonable.
6 Contrary to Mr. Bourgon's submission this morning, the
7 Trial Chamber has not decided to ignore the testimony of Dzemal Merdan,
8 who was the 3rd Corps deputy commander, and of Witness HF, who was also a
9 senior officer of the 3rd Corps command. On the contrary, the
10 Trial Chamber has duly examined and considered these statements and they
11 questioned the exactitude of these statements.
12 First of all, Dzemal Merdan and HF failed to mention any specific
13 dates for their visits.
14 I would like to refer you to Dzemal Merdan's testimony on the 16th
15 of December, 2004, transcript page 13632.
16 The Trial Judges referred to these transcripts in footnote 2694 of
17 the judgement and Hadzihasanovic also referred to this in -- in his -- in
18 footnote 324 of his appeal brief.
19 The Trial Chamber referred to the testimony of Witness HF, page
20 17214 and 17215 of the transcript. The Trial Judges have duly considered
21 this testimony and have made no error in their assessment.
22 Secondly, the Trial Chamber questioned the exactitude of the
23 statements of Dzemal Merdan and HF, since these visits could not have been
24 concentrated between 11th and 15th of June, 1993. For this, they relied
25 on the statements of Dzemal Merdan and HF.
1 This demonstrates that the Trial Judges carefully analysed and
2 considered the testimonies of these witnesses in-depth and it also shows
3 that the Trial Chamber Judges provided a reasoned opinion for their
5 The Trial Chamber's reasons are not unreasonable because they gave
6 more weight to evidence from other witnesses about mistreatments.
7 Paragraph 1238 of the judgement.
8 The Trial Judges assessed the testimony of Dzemal Merdan and
9 Witness HF against the testimony of many former detainees held at the
10 music school in Zenica between 18th of April, 1993 and 20th of August,
11 1993. For example, at paragraph 1190 of the judgement. Their findings
12 are therefore reasonable, in light of a lack of specificity of Witnesses
13 Dzemal Merdan and HF.
14 In conclusion, Your Honours, first of all, there is no dispute
15 that serious physical abuse was committed against Bosnian Croats and
16 Bosnian Serbs and prisoners of war held at the Zenica music school.
17 Hadzihasanovic has admitted this, for example, at paragraph 110(a) of his
18 reply brief.
19 Secondly, there is no issue that Hadzihasanovic's subordinates
20 committed such serious physical abuse.
21 Thirdly, Hadzihasanovic had reason to know of the serious physical
22 abuse, since he received, and I quote, "alarming information pertaining to
23 this on the 8th of May, 1993."
24 Fourthly, and lastly, the Trial Chamber correctly found that
25 Hadzihasanovic, as a commander, failed to take the necessary and
1 reasonable measures commensurate with the situation. He did not make
2 genuine efforts to initiate an appropriate investigation into the
3 allegations of cruel treatments. These are the findings of the Trial
4 Chamber at paragraph 1240 of the judgement. That is the reason why the
5 Trial Chamber did not make any error in convicting Hadzihasanovic for his
6 failure to take all the necessary and reasonable measures to prevent and
7 punish crimes committed by his subordinates in the Zenica music school.
8 The Prosecution requests that Your Honours dismiss the fourth
9 ground of appeal raised by Hadzihasanovic. Of course, I am available for
10 any questions you may have.
11 JUDGE POCAR: [Interpretation] There seems to me no questions.
12 MR. TRACOL: [Interpretation] Well, so these are our submissions,
13 our final submissions to the appeal raised by Mr. Hadzihasanovic.
14 JUDGE POCAR: [Interpretation] Thank you very much. We're going to
15 break now for 20 minutes. Thereafter, we shall have the reply by the
17 --- Recess taken at 11.45 a.m.
18 --- On resuming at 12.10 p.m.
19 JUDGE POCAR: I will now give the floor to the Defence of
20 Mr. Hadzihasanovic for the reply.
21 MR. BOURGON: Thank you, Mr. President.
22 I will address the issues which we feel have a more important
23 bearing on the adjudication of this appeal. I will start with the
24 arguments which were raised in response by the Prosecution concerning the
25 events in Bugojno.
1 First of all, in light of the corrections which were brought to
2 the transcript, it is our submission that the Trial Chamber's conclusions
3 where it held that "seems to indicate" about Witness Muratovic is
4 incorrect. Moreover, the language in the corrected translations of the
5 original audio transcript make it clear, in light of the context mentioned
6 earlier, that a criminal report had been filed and measures taken in
7 accordance with the law.
8 Concerning the arguments raised about Witness Zeric that he did
9 not receive a criminal report, one, this is not a most important issue;
10 two, what this witness said when he testified is that he divided all the
11 reports he received. He only was responsible for part of the reports
12 which were sent to the Travnik district military prosecutor, and he also
13 said in response in cross-examination that he did not verify the record
14 before testifying and that he would have to do so in order to determine
15 whether in fact there was a report filed or not.
16 Regarding the jurisdiction of the municipal prosecutor, contrary
17 to the arguments of the Prosecution, the Bugojno municipal prosecutor
18 could have jurisdiction and that would happen if the offence was committed
19 jointly by civilians and soldiers together. The evidence reveals that we
20 know about the involvement of two soldiers and the evidence also reveals
21 that more perpetrators were involved. Were these civilians? We don't
22 know. But he could have jurisdiction and he could exercise it. Whether
23 himself, if it was a crime, anything below murder. And if it was murder,
24 he would have to transfer it to the Zenica high public prosecutor and the
25 Zenica high court.
1 But in any event, what the Prosecution said today is significant.
2 What my colleague said is that he was not -- he had not -- did not have
3 jurisdiction and in such a case he would have to refer the matter to the
4 district military court. But we agree, if he did not have jurisdiction,
5 it was his duty to transfer the case to the district military prosecutor.
6 But what bearing does this have on this case is that the military
7 took action. They put the people in gaol. They put the criminal report.
8 And now the military prosecutor has the matter and it's his responsibility
9 to transfer it. The military is aware and the duty of the commander at
10 all levels has been fulfilled to take necessary and reasonable measures.
11 Regarding the mens rea for after 18 August, the standard to be
12 applied is that developed by the Appeals Chamber in Celebici. We say the
13 Trial Chamber in this case departed from this standard.
14 If we follow the proper application of this standard in Krnojelac,
15 also by the Appeals Chamber, the careful analysis that was then performed
16 by the Appeals Chamber, who concluded that Krnojelac had alarming
17 information, well, in this case if we perform the same type of analysis
18 and we look at the Trial Chamber's findings, then we easily come to the
19 conclusion that General Hadzihasanovic did not have reason to know that
20 his soldiers would commit any similar criminal crimes after 18 August.
21 One important fact is important in this regard, is that in this
22 case, there was a measure taken by General Hadzihasanovic. There was a
23 measure taken from the 307 Brigade. The people were put in gaol. And
24 that is important when we put this into the equation and the analysis to
25 be performed, as the Appeals Chamber did in Krnojelac.
1 I recently attended a ICRC expert meeting on sanctions. A report
2 is about to come out pretty soon. The conclusions of that expert group
3 said - and of course, it's not binding law, but that's what they -- that's
4 what the experts were saying then - the best sanction to ensure the
5 application of international humanitarian law, it must be immediate, it
6 must be visible, and it must be close to the situation where the offence
8 In this case, everything that was done in this case fulfils that
9 definition and those requirements. The soldiers are in prison and a
10 criminal report has been filed. I don't see how can this be an
11 encouragement to do more deeds of the same type to anyone.
12 Moving on to the Mujahedin. First of all, I'd like to point out
13 for the record that it appears to me, from hearing my colleague, that he
14 cited many conclusions and many -- a lot of wording from the judgement,
15 but he did not cite the evidence that goes with it. It is when you look
16 at this evidence that you find that numerous conclusions of fact and the
17 numerous inferences drawn by the Trial Chamber that were simply incorrect
18 and that could not be drawn by a reasonable trier of fact.
19 On the training issue, the prior notice developed -- a theory
20 developed by my colleague is simply incorrect. If I listen to him, it
21 means that General Hadzihasanovic was responsible for anything that the
22 Mujahedin would do after 13 August 1993, because he did not train them.
23 The thing is there's a reason why and if they were not trained. It's that
24 it was not possible. According to the evidence, these people would not
25 even receive a phone call. According to the evidence, they would not let
1 access to their camps. According to the evidence, they didn't -- the
2 3rd Corps did not even know where one of the camps was, and that is the
3 Orasac camp. And it also ignores the issue that we have to also look at
4 the crime that was supposed to be prevented by this training. The theory
5 of the Prosecution simply doesn't hold ground.
6 On page 18, my colleague said that all what the General did
7 concerning training and setting up a disciplinary system -- and he was
8 very, for the first time I was glad to hear the Prosecution commenting so
9 highly on General Hadzihasanovic, because this is what the evidence on the
10 record reveals, a top-level commander who took measures at all times. If
11 he didn't do it, it's because it was not possible.
12 Then again, my colleague has avoided the question that there's no
13 evidence on the record specifically answering the question posed by the
14 Trial Chamber that he did not train the Mujahedin and that he did not put
15 in place a disciplinary system.
16 The most important part comes with the use of force. The use of
17 force; we believe that the Prosecution's theory, once again, is entirely
18 incorrect. Responsible command imposes obligations on the commander for
19 his subordinates. That's the basis of the complete responsible command
20 theory. A commander, he has subordinates and in respect of these
21 subordinates, he must train them, he must order them to apply the law, and
22 if they don't, then he has obligation towards them. The -- the basic
23 principle is subordination. This is why, according to Article 7(3) of the
24 Statute, we have existence of a superior-to-subordinate relationship. And
25 this relationship, according to the case-law of the Tribunal, is fulfilled
1 by showing effective control.
2 And the question here is very simple: Does effective control, as
3 been defined as the material ability to prevent or punish? And according
4 to the case-law of the International Tribunal, the use of force is not
5 included in this -- in the material ability to prevent or punish.
6 In the end, this shows that these Mujahedin, those rogue elements
7 who were present - it was not denied; they were there - but they were
8 never subordinates of General Hadzihasanovic.
9 Let's say we take the position that was argued with the
10 Prosecution with the fact that it -- use of force is included in material
11 ability. Then we say that if material ability in such a case includes
12 authority under domestic law, a commander can not just attack his
13 subordinates without any authority under domestic law. It is not the
14 same. Attacking the enemy is war; attacking your own is using force
15 against your own -- in your own army. You can't do that unless you have
16 domestic authority and the proper military authority.
17 Let's say, again, because this was discussed in the presentation
18 of my colleague, that it is the case that it can be -- it is possible to
19 use force and then the -- the question becomes whether the use of force
20 was reasonable and necessary in the circumstances.
21 In response to the questions which were posed by the Judges, how
22 large was the force to be attacked? We don't know from the evidence. We
23 can assume a whole bunch of things from what my colleague said. It cannot
24 be -- it cannot be established on the basis of the evidence how much force
25 were present, starting in 20 August 1993 -- or 20 October 1993 in Orasac.
1 Worse, they didn't even know where Orasac was. They didn't even
2 know that Orasac was a camp. How could they attack a location that they
3 don't even know exists? The chances of success, the Trial Chamber
4 concluded, were reasonable, or something like that. This is entirely
5 contrary to what the military expert said.
6 We've had some pretty high-level military officers testify in this
7 case. General Karavelic is the officer who defended Sarajevo against the
8 worst possible blockade in years. This guy came and he shared his
9 knowledge and he also shared his own experience when he had to attack
10 former subordinates, subordinates who were suddenly became out of control.
11 They were part of his army before, but they were completely out of
12 control. He went to see the president of Bosnia and he said, Let me -- I
13 need to attack these people, but I'm not going to do it unless I get the
14 proper authority, and the president said, Yes. He gave them the authority
15 after doing the proper political analysis.
16 The time required to plan such an operation was not addressed in
17 the judgement. In terms of the impact on the overall campaign, it was not
18 assessed in the evidence, whether it was possible to launch such an attack
19 at that time; whether there was enough soldiers. My colleague says, oh,
20 yes, he's commanding a force of 30.000 soldiers. It's impossible, he has
21 everything he can do. That's not what the evidence reveals,
22 Mr. President. The evidence reveals that they were short of soldiers.
23 Any one soldier employed to launch an attack on the Mujahedin in October
24 of 1993 would be sacrificing a part of his mission. And that is -- was
25 not addressed in terms of whether that was good or that was possible or
1 not. It's not in the evidence.
2 I could say it was and I really believe that it was, but who am I
3 to say? What matters is the evidence in this case.
4 The number of casualties that would result from such an attack,
5 not assessed in the case. No evidence on this. Proportionality, no
6 evidence on this. Proportionality is an obligation. If
7 General Hadzihasanovic was about to launch an attack in Orasac -- or first
8 he would like -- he would have to know where it is and that -- who is
9 there and what's happening there and how it's defended and what weapons
10 are used. Then he would have to you -- to evaluate proportionality and he
11 could not evaluate proportionality.
12 I'm told I have five minutes. I will make it quick.
13 JUDGE POCAR: Mr. Bourgon, before you move to that point, are you
14 moving to another issue. Are you going to move to another issue or
15 remaining on this issue?
16 MR. BOURGON: I'm moving to another issue.
17 JUDGE POCAR: So perhaps before you go to that issue, how would
18 you take the -- what would be your position if instead of putting the
19 question that you put of the authority to use force, in terms of domestic
20 law? You would have to deal with that in terms of international law,
21 because assessing command responsibility is not a matter for domestic law.
22 It is a matter for international law.
23 And what, if you were asked to see whether the use of force, the
24 authority had to be found in international law? How would you take the
1 MR. BOURGON: Mr. President, I respectfully disagree with your
2 position. I don't think international law would have to be assessed in
3 such a case, because now we are looking at whether he has the -- he -- it
4 was reasonable and necessary and where -- whether he has the material
5 ability, and the material ability is based on a national standard, not an
6 international standard. Whether a commander can use force against his
7 subordinates is different from whether he can use force against the enemy
8 in an armed conflict. It's two different concepts. The second one is
9 entirely international. The first one, against your own subordinates, we
10 submit, that you need this domestic authority.
11 JUDGE POCAR: Go on.
12 MR. BOURGON: Thank you, Mr. President. I move on.
13 Maybe I'd like to address one thing which I -- on this issue which
14 my colleague raised. He said it was a lack of will to attack the
15 Mujahedin, that he did not want.
16 Well, first of all, we say that the evidence does not reveal that
17 there was any lack of will to attack and that that is not -- that does not
18 stem from the evidence.
19 But whether he decides to attack, he may decide to attack. There
20 might be a need for him to attack, but not in any relationship to his
21 responsibility towards his subordinates.
22 If he decides to attack, it's because the presence of these
23 uncontrolled rogue elements is an impediment to his mission, and then he
24 says, To accomplish my mission, I've got to get rid of these people and I
25 will attack them. That's completely different. But it also shows, once
1 again, if he wants to get rid of some people, it's because they are
2 uncontrollable and not under the command and control of the 3rd Corps.
3 About the de jure order, very quickly. The Delic order. When the
4 Appeals Chamber will look at the evidence, it will see that there's no
5 formal follow-up to the Delic order, no stamps of approval. All the
6 procedure to enter a unit in the organisations were not followed. That's
7 what I was referring to when I mentioned Witness Poparic.
8 There was no order. And the order itself stated not 13 August as
9 a date. It started, We said that you start taking measures to enter them
10 into the organisation. And there was no agreement, and that video that my
11 colleague refers to simply is not reliable evidence and there was never
12 any agreement on the record where we can say there's an agreement between
13 the army and the Mujahedin.
14 I finish on music school very quickly. Simply by saying that what
15 my -- the argument raised by my colleague, with all due respect, is
16 circular and is not helpful in these circumstances. He said
17 General Hadzihasanovic had knowledge. Yeah, we say that. We agree. We
18 agree that some information was brought to the attention of
19 General Hadzihasanovic of potential mistreatment in the music school. The
20 issue is: What did he do? He sent his most senior officers. They go and
21 they find nothing. They testify and the Chamber doesn't believe them.
22 That's the issue.
23 Why did the Chamber -- Trial Chamber not believe the highest
24 senior officer he can send? That's the best he can do in the
25 circumstances. They come back and they are not there. Why? Because
1 there is concealment. And the efforts to conceal this information is on
2 the record. The record shows that there was an effort. They were taken
3 by bus to one of the close brigades -- a brigade that was close by.
4 The Trial Chamber's analysis as to when did this take place is
5 certainly not sufficient to disregard.
6 My colleague -- I'd like simply to say something about my
7 colleague raised an issue about Adamovic and about a meeting. The
8 evidence reveals that the date of this meeting is not sure. He doesn't
9 know when this meeting took place and if it was the meeting described by
10 my colleague. That's very important.
11 Finally, I just have one quick correction to make to something I
12 said during my main submission, and that was on page 7, line 8. I needed
13 to say I made a mistake concerning Exhibit DH337, it was Article 48 and
14 also at trial transcript page 36, lines 13 to 17. I mentioned the
15 documents which were used by the Trial Chamber in determining whether
16 there was de jure control. My colleague referred to these documents, but
17 he forgot to refer to the fact that there's only six of them. And what
18 I'm telling -- saying today is that out of these six documents, only one
19 was signed by General Hadzihasanovic; the others were not signed by him,
20 and there -- there is testimony, including that of Kulenovic, to explain
21 these documents on the record.
22 This concludes my submissions in response to the grounds -- to the
23 arguments raised by the Prosecution in response, and I would be glad to
24 answer any questions you may have.
25 JUDGE POCAR: I believe we have no questions.
1 This concludes, then, the submissions of the parties in this
3 According to the schedule, I will now turn to the appellants and
4 ask them, in turn, whether they wish to personally briefly address the --
5 the Chamber.
6 I will start with Mr. Kubura.
7 Mr. Kubura, do you wish to have a brief personal address to the --
8 to the Chamber in not more than ten minutes? You have the floor.
9 [The appellant stands up]
10 THE APPELLANT KUBURA: [Interpretation] Your Honours, I did speak a
11 few times in this courtroom. My lawyers submitted in writing all the
12 elements of my appeal, and yesterday they presented their arguments orally
13 as well.
14 In view of everything they said and they wrote, I have nothing to
15 add. I pointed out earlier on, and I'd like to point out now, that I have
16 always trusted this Tribunal, and I repeat that today as well.
17 Thank you for everything.
18 JUDGE POCAR: I thank you, Mr. Kubura. You may sit.
19 [The appellant sits down]
20 JUDGE POCAR: May I ask Mr. Hadzihasanovic if he wishes to address
21 the Chamber.
22 You have the floor.
23 THE APPELLANT HADZIHASANOVIC: [Interpretation] Yes, Your Honours,
24 I do wish to address you.
25 Good afternoon, Mr. President. Good afternoon, Your Honours. I
1 do thank you for making it possible for me to address you, and therefore I
2 shall be very brief.
3 The war that broke out in 1991 was a terrible one not only for
4 Bosnia-Herzegovina but for all the republics of the former Yugoslavia.
5 Bosnia and Herzegovina suffered a great deal because of this war, and
6 regrettably it is still suffering to this day. There were many victims in
7 this war, civilians and soldiers, on all sides. I am very sorry for all
8 of them. I am particularly sorry for the victims that pertain to the
9 operations of the Army of Bosnia-Herzegovina and also victims due to
10 actions taken by soldiers that were under my command.
11 I stand before you today as a corps commander who was sentenced by
12 a Trial Chamber because I did not punish, failed to punish soldiers under
13 my command who had committed crimes. Of course, to this day I cannot say
14 that I was a perfect commander in 1993. There are always things that can
15 be done differently, and I keep asking myself all the time whether I could
16 have done more, better.
17 What I can say is that I was a professional soldier who defended
18 his country without any religious, political, or ethnic partiality. I can
19 say that throughout the war I did the best to stop soldiers under my
20 command from committing crimes. Also, I did my best to punish them in
21 accordance with the law if they did commit crimes. Therefore,
22 Your Honours, when I was accused in July 2001 I did not hesitate. I was
23 prepared to appear before this court straight away.
24 I exercised my command in very difficult conditions. As a
25 professional soldier, I could not imagine that such a situation could crop
1 up. I asked my Defence counsel to show to the Court what difficult
2 conditions I had to contend with in the situation, in order to judge the
3 situation as it was then. I think that the Judges did understand up to a
4 degree the situation that I was in then; although, I believe it is very
5 difficult for anyone who was not there to understand what it was like.
6 The presence of Mujahedin in my area was very difficult for me.
7 Al-Qaeda is a well-known concept today, but at that time no one knew who
8 these people were in actual fact and what their real purpose was. I was
9 the first one to have raised that question with my superiors, and I truly
10 believed that they did constitute a great danger.
11 Since I am not a lawyer myself, I hope that you will also try to
12 understand the situation as it was in Central Bosnia in 1993, as well as
13 the measures that I took in order to keep strict discipline within the
14 3rd Corps that I was in the process of establishing while at the same time
16 However, although I was sentenced by the Trial Chamber, I still
17 believe in the work of this Tribunal that is good for my
18 Bosnia-Herzegovina. Before I was accused, I testified twice before this
19 Tribunal: In the Blaskic case and in the Krstic case. And before that, I
20 made a statement to Mr. Harmon, the Prosecutor.
21 My trial was a difficult experience for me as an accused person
22 and for my family as well. My life came to a halt when I stood accused.
23 On the other hand, I was always treated well and professionally here and
24 in detention. I was allowed provisional release, which meant a great deal
25 to me, and I wish to express my gratitude to all for that.
1 In conclusion, I can just say that I fully support all the
2 arguments and proposals made by my Defence here, and I do thank you once
4 JUDGE POCAR: I thank you, Mr. Hadzihasanovic. You can sit down.
5 [The appellant sits down]
6 JUDGE POCAR: Well, this concludes the appeals hearing in this
7 case. I wish to thank the parties, counsel for -- also for having kept
8 within the schedule as it was announced, and, of course, all those who
9 assisted in the -- in the hearing in different capacities, with a special
10 mention for the interpreters, whose help is always of primary importance
11 for our discussion.
12 The judgement will be rendered in due course. The Appeal Chamber
13 will now rise.
14 --- Whereupon the hearing adjourned at 12.40 p.m.