1. Dusina - Count 1: Murder (the Accused Hadzihasanovic)
As a result of the armed conflict between
the HVO and AbiH in early 1993 in Central Bosnia, in the morning
of 26 January 1993 the 2nd Battalion and the 7th Brigade
were engaged in combat in Dusina, in the Lasva Valley.
At 05:00 or 06:00 hours, the 7th Brigade took the
village of Dusina and took Croatian civilians and several HVO
members prisoners.
However, in the hamlet of Brdo, near Dusina,
a group of HVO soldiers under the command of Zvonko Rajic continued
to resist the attack of the 7th Brigade. To force
them to surrender, the 7th Brigade soldiers threatened
to execute the civilians they had already captured. As a result
of the threats, Zvonko Rajic's unit surrendered. According to
the case file, Zvonko Rajic tried to escape, prompting the 7th Brigade
members to open fire. One 7th Brigade soldier drew
his automatic pistol and, in cold blood, fired several shots
into Zvonko Rajic, who was already wounded and begging for mercy.
(The murder of Niko Kegelj, Stipo Kegelj, Vinko
Kegelj, Pero Ljubičicc, Augustin Rados and Vojislav
Stanisic)
The Chamber therefore finds that Zvonko
Rajic, 5 other HVO members, and a Serbian civilian, none
of whom were taking active part in the hostilities, were executed
in Dusina on 26 January 1993 by members of the 7th Brigade.
(Zvonko Rajic, Niko Kegelj, Stipo Kegelj, Vinko Kegelj,
Pero Ljubičic, Augustin Rados and Vojislav Stanisic)
With regard to the individual responsability
of the Accused Hadzihasanovic for that crime, the Chamber
considers that he was informed of allegations of a massacre on
26 January 1993. The Chamber finds, in light of evidence in the
case file, that the duty judge of the Zenica District Military
Court was seized of the matter by the 3rd Corps and,
pursuant to Article 41 of the Military Security Service Guidelines
of the armed forces of the Republic of Bosnia and Herzegovina
and pursuant to Article 156 of the Code of Penal Procedure in
force at the time, the judge initiated an investigation. Consequently,
the Accused Hadzihasanovic, having referred the case
to the competent judicial authorities, cannot be held criminally
responsible for failing to take the necessary measures to punish
the crimes committed in Dusina on 26 January 1993.
2. Miletici (Count 1: Murder)
(The murder of Franjo Pavlovic, Tihomir
Pavlovic, Vlado Pavlovic and Anto Petrovic)
On 24 April 1993, an Arab Mujahedin was
wounded near Miletici - a small village in the Bila Valley
in the Travnik municipality. As a result, a dozen foreign Mujahedin
and 20 to 30 local Mujahedin attacked Miletici. Having been
warned of the arrival of the Mujahedin by their Muslim neighbours,
the Croatian villagers, fearing for their lives, took refuge
in the house of Stipo Pavlovic. When the Mujahedin tried
to force open the door of the house, Stipo Pavlovic killed
one of them. The Mujahedins responded by throwing a grenade into
the house, which killed Stipo Pavlovic. The Mujahedin captured
all the Croatian villagers and three Muslims from Miletici,
and took them to the camp in Poljanice. However, four Crotian
civilians of military age (Franjo Pavlovic, Tihomir Pavlovic,
Vlado Pavlovic and Anto Petrovic) were forced to remain
in the village. They were seen on their knees with their hands
tied behind their backs.
The next day, on 25 April 1993, the bodies
of 4 Croatian men were found mutilated and covered in blood.
Their hands were still tied behind their backs. The 4 men had
their throats slit open and their blood had been collected in
a pan.
Considering how the events unfolded, the
Chamber is satisfied that the four Croatian men were killed by
the foreign and local Mujahedins from the camp in Poljanice.
The Chamber has seen no evidence indicating that members of the
306th or 7th Brigades took part in the
crime. Since the Mujahedin based in the camp in Poljanice were
not under the effective control of the Accused Hadzihasanovic and
Kubura in April 1993, the Accused cannot be held criminally responsible
for the murder of the 4 Croatian men in Miletici.
3. Maline (Count 1: Murder)
On 8 June 1993, the village of Maline in the
Bila Valley was attacked by forces of the 1st Battalion
of the 306th Brigade. After the village was taken, the
captured Croatian civilians and HVO soldiers were rounded up in
the village centre.
According to witnesses, the wounded in the
truck abducted by the Mujahedin were taken towards Bikoci.
Not far from there, they were forced to leave the truck and continue
on foot. They were joined by the column of 20 men and the young
woman. Escorted by around 10 foreign and local Mujahedin, they
all moved ahead, their heads bowed. Suddenly, one of the prisoners
had an epileptic fit and started shouting. At that point in time,
the Mujahedin opened fire on the prisoners, first with machine-guns
and then with single shots. One witness who escaped the massacre
stated that he hid under the body of a killed prisoner to avoid
being shot. He testified that he saw the Mujahedin finish off the
Croats with single bullets to their heads.
The Trial Chamber finds that on 8 June 1993,
23 Croatian men and one young woman were executed in Bikoci
while they were being held prisoner. The Trial Chamber finds that
the perpetrators of the massacre were foreign and local Mujahedin
based in Poljanice camp who, on 8 June 1993, were not under the
effective control of the 3rd Corps and the 7th Brigade.
Furthermore, the Chamber is not satisfied that members of the 306th and
7th Brigades participated in the massacre. Accordingly,
the Trial Chamber finds that the Accused cannot be held criminally
responsible for the murders committed in Maline.
B. Counts 3 and 4: Murder and Cruel Treatment (crimes linked
to detention)
1. Zenica Music School: (Crimes committed at the Zenica
Music School)
The evidence presented before the Trial
Chamber shows that Bosnian Croat and Bosnian Serb civilian men
and HVO members were detained in the Music School by members
of the 7th Brigade on three separate occasions: first,
at the end of January 1993 after fighting in Dusina; second,
in the latter half of April 1993 after fighting in the region
of Zenica, Vitez and Busovača; and third, in June 1993 after
hostilities in Kakanj broke out.
The Chamber finds that from 26 January 1993
to 20 August 1993 and on 20 September 1993 the prisoners in the
Music School, who were taking no active part in the hostilities,
were victims of cruel treatment and physical and psychological
abuse, and from April to June 1993 they were victims of conditions
of detention inflicted on them by the members of the 7th Brigade.
The Chamber notes that during that period more than one hundred
detainees were imprisoned at the Music School. The Chamber heard
some 10 detainees describe the violence they were subjected to.
In its Judgement the Chamber describes in detail the cruelties
the victims suffered, however, given the time constraints, it
shall limit itself today to the testimony of one witness. That
witness told how during the night, detainees were taken out one
by one from their cells upstairs at the Music School and that,
with the lights out, they had to go through a line of soldiers
who beat them with wooden shovel handles. The same witness stated
that one day a military policeman ordered a father to beat his
mentally handicapped son. When the father refused to do so, another
detainee was forced to carry out the order. He said that on another
occasion his arms were broken as he had to protect his head from
the blows. This witness described how the detainees did not get
enough food which consisted mainly of mouldy bread. Only three
or four wooden planks were provided for their accommodation.
Other witnesses also stated that they lacked adequate sanitary
facilities and medical care.
The Chamber finds beyond all reasonable
doubt that as of 8 May 1993 the Accused Hadzihasanovic had
at his disposal alarming information that his subordinates carried
out physical and psychological violence against the detainees
at the Zenica Music School, violence which constitutes cruel
treatment. On the other hand, the Chamber finds that the Accused
Hadzihasanovic did not know of the poor living conditions
at the Music School. It was established that the Accused Hadzihasanovic failed
in his duty as a superior to take the necessary and reasonable
measures called for in this case to prevent and punish these
crimes. The Accused Hadzihasanovic did not make sufficient
efforts to open an appropriate investigation into the allegations
of cruel treatment which would have helped him identify those
responsible for the cruel treatment. Moreover, he failed to carry
out his duty and take all necessary measures to put an end to
the cruel treatment his subordinates inflicted on the detainees.
He also failed to carry out his duty to punish those soldiers
who, had he opened an investigation, would have been identified
as those responsible for the cruel treatment and to take measures
to have them punished. Finally, by failing to punish the perpetrators
of the committed crimes, the Accused Hadzihasanovic failed
to discharge his duty and prevent the further commission, in
the Music School, of the crime of cruel treatment of prisoners
detained in the Music School.
However, the Chamber finds that the Prosecution
failed to prove beyond reasonable doubt that the Accused Amir
Kubura knew of the crimes committed by his subordinates at the
Zenica Music School given that he was in no way informed of what
had happened there.
2. Former JNA barracks in Travnik
According to evidence in the case, the Chamber
finds that from May to October 1993 Bosnian Croat and Bosnian
Serb civilians as well as HVO members were detained in the cellar
of the former JNA barracks in Travnik.
The Chamber finds that it was established
beyond reasonable doubt that during that period prisoners
who were taking no active part in the hostilities were victims
of cruel treatment inflicted on them by members of the 17th Brigade
military police. Witness statements show that the guards in the
Barracks beat, repeatedly and for several hours, the detainees
by hitting them with different objects and kicking them. For
example, a witness stated that on the first night of his detention
he was beaten with such violence by three or four soldiers that
he lost consciousness. The next 50 days he went through the same
ordeal and he is even today suffering from the consequences of
the cruel treatment he was exposed to during his detention in
the Barracks. Another witness stated that from his cell he could
hear the cries and moans of the other detainees as well as the
kicking of the guards. The Chamber finds that the acts perpetrated
against the detainees in the former JNA barracks are constitutive
of cruel treatment.
However, based on assessment of the evidence
in the case, the Chamber finds that the Prosecution has failed
to prove beyond reasonable doubt that the Accused Enver Hadzihasanovic knew
of the cruel treatment committed by his subordinates in the former
JNA barracks in Travnik, given that he was not informed of the
said facts.
3. The Mehurici Elementary School and the
Mehurici Blacksmith Shop:
The Chamber finds that on two occasions
around 250 Bosnian Croat civilians and 20 to 30 HVO soldiers
were detained by the 306th Brigade in the Mehurici
Elementary School and the Mehurici Blacksmith Shop: on 6
June 1993 after the sporadic fighting in Velika Bukovica and
Ričice, and on 8 June 1993 after another outbreak of hostilities
between the HVO and ABiH in Maline. The Mehurici Elementary
School was guarded and managed by the 1st Battalion
of the 306th Brigade.
The Prosecution failed to prove beyond reasonable
doubt that the Croatian civilians locked up in the Mehiruci
Elementary School were victims of grave physical abuse and conditions
of detention constituting cruel treatment. However, the detainees
locked up in the Mehurici Blacksmith Shop, mainly HVO members,
were beaten by members of the 1st Battalion of the
306th Brigade. With regard to the conditions of detention,
a witness stated that he shared a cell with 10 to 15 other prisoners.
They were crammed in such a small space, two by three metres,
that it was impossible for them to sleep. The only source of
light in the cell was obstructed in such a way that the prisoners
were left in the dark. During the first days of their imprisonment
in the Blacksmith Shop, practically no water or food was distributed.
After that, the detainees in the Blacksmith Shop received, from
time to time, a can of food and some bread to share among themselves.
These conditions of detention lasted for around a month. It has
been demonstrated that such deprivation was the result of a deliberate
decision and not a necessity. The Chamber has no doubt that the
treatment of the Blacksmith Shop prisoners, who were taking no
active part in the hostilities, constitutes cruel treatment.
Nevertheless, the Chamber finds that it
has not been established beyond reasonable doubt that the Accused
Hadzihasanovic knew of the cruel treatment committed
by his subordinates in the Mehurici Blacksmith Shop, given
that he was not informed of the facts.
4. Motel Sretno
The Chamber finds that on 18 May 1993, immediately
after the signing of a cease-fire agreement between the HVO and
the ABiH, new hostilities between the two armed forces broke out
in Kakanj. After the HVO ambushed and captured several military
police of the 7th Brigade, 16 Bosnian Croat and Bosnian
Serb civilians and HVO members were arrested by members of the
7th Brigade military police and local soldiers of the
3rd Battalion of the 7th Brigade. The 16
Croats and Serbs were detained in Motel Sretno which housed the
3rd Battalion of the 7th Brigade.
The Chamber finds beyond reasonable doubt
that the 16 persons taken to Motel Sretno on 18 May 1993, who were
taking no active part in the hostilities, were beaten several times
until the next morning, 19 May 1993, when they were set free. In
the first phase of the interrogation, they were kicked with boots
and beaten with rifle butts and fists. In the second phase, the
detainees were forced to hit each other. In the third phase, they
were forced to go through a row of soldiers who beat them with
rifle butts. A witness told how he did not get up and how he lost
consciousness after being beaten a dozen times by a truncheon on
the head. In the fourth and last phase, the detainees were made
to place their heads between the bars of their cells and were then
beaten by pieces of wood. Evidence has indicated that after such
brutalities some of the victims suffered several broken ribs, dislocated
kidneys, and damaged spinal columns. The Chamber finds that soldiers
of the 3rd Battalion of the 7th Brigade were
among the perpetrators of that cruel treatment.
It has been proven beyond reasonable doubt
that between 18 and 21 June 1993 a Bosnian Serb also suffered serious
physical abuse but it has not been established that it was carried
out by the members of the 3rd Battalion of the 7th Brigade.
The Chamber finds that the Accused Hadzihasanovic knew
of the cruel treatment committed on 18 and 19 May 1993 by his subordinates
in Motel Sretno. However, the Chamber finds that the Prosecution
failed to meet its burden to prove that the Accused Hadzihasanovic failed
to act on crimes at Motel Sretno and, consequently, failed to prove
that the Accused Hadzihasanovic failed to take measures.
The Prosecution failed to submit sufficiently probative evidence
to show that the Accused Hadzihasanovic failed to impose
punitive measures after the crimes committed in Motel Sretno.
With regard to the Accused Kubura, the Chamber
is not satisfied beyond reasonable doubt that he knew of the crimes
committed by his subordinates in Motel Sretno, given that he was
not informed of the said facts.
5. Detention facilities at Bugojno
In July 1993 hostilities broke out between
the HVO and ABiH in Bugojno. On 24 July 1993 about 100 HVO soldiers
and 150 civilians were captured by soldiers of the 307th Brigade
in Bugojno. Most of them were transferred to the various detention
facilities identified in the Indictment, i.e. the Slavonija Furniture
Salon, the Bugojno Convent Building, the Gimnazija School
Building, the Vojin Paleksic Elementary School
Building, the FC Iskra Stadium and the BH Banka Building.
The Trial Chamber notes that minors and families were among the
civilian prisoners.
The Trial Chamber considers that with the
exception of the BH Banka detention facility, it has been
established beyond reasonable doubt that the detainees imprisoned
in each of these facilities, who had not participated directly
in the hostilities, were subjected to cruel treatment. The evidence
presented has made it possible to establish that the detention
conditions were insufficient and inadequate. Depending on the detention
facility, the food was insufficient, at times even nonexistent,
and inadequate; access to proper sanitary facilities was limited
without good reason or nonexistent; accommodation conditions were
poor or nonexistent; detention facilities lacked light or were
too small in relation to the number of detainees. Furthermore,
evidence has shown that the prisoners were subjected to repeated
physical violence during their detention. In late July or early
August 1993, several detainees, including Mario Zrno, a prisoner
of war, were taken outside the Bugojno Convent and subjected to
severe beatings. Mario Zrno did not survive. On the night of 5
August 1993, five or six prisoners, including Mladen Havranek,
a prisoner of war, were severely beaten on the upper floor of the
Slavonija Furniture Salon. Several witnesses stated that from the
cell in the basement they heard Mladen Havranek screaming and begging
for the beatings to cease. After repeated beatings, Mladen Havranek
was unable to walk and was dragged down the stairs to the cell
in the basement. Malden Havranek died as a result of his injuries
that same night. The Trial Chamber finds that the killings of Mario
Zrno and Mladen Havranek have been established beyond reasonable
doubt.
The Trial Chamber concludes that it has been
established that the cruel treatment to which the detainees in
the above-mentioned detention facilities were subjected was inflicted
by members of the 307th Brigade. It considers, however,
that it has not been established that the men who beat the detainees
taken outside of the Bugojno Convent and who murdered Mario Zrno
were members of the 307th Brigade, and that the 307th Brigade
guards who were present at the crime scene could have prevented
these crimes.
The Defence for the Accused Hadzihasanovic alleges
that the interference of the Bugojno War Presidency in the running
of the detention centres in Bugojno had the effect of altering
the command exercised by the Accused Enver Hadzihasanovic over
OG Zapad and the 307th Brigade. The Trial Chamber
notes that the 3rd Corps was in fact the authority having
the power to detain, keep in detention, and transfer persons who
were held in the detention centres set up in Bugojno. Although
there was some coordination between the civilian and military authorities
in order to regulate certain aspects of the operation of these
detention centres, the Trial Chamber is of the opinion that responsibility
for the prisoners lay entirely with the 3rd Crops.
The evidence presented has made it possible
to establish beyond reasonable doubt that, as of 18 August 1993,
the Accused Hadzihasanovic had knowledge of a report
denouncing the cruel treatment of five or six prisoners of war
and the murder of one of them, Mladen Havranek, in the Slavonija
Furniture Salon. The information available to him at the time,
however, could not lead the Accused Hadzihasanovic to
conclude that other crimes of mistreatment had been committed by
his subordinates before 18 August 1993, or that detention conditions
were unsatisfactory.
The Trial Chamber considers that it has been
established that, in spite of his knowledge of the cruel treatment
of six prisoners of war in the Slavonija Furniture Salon and of
the murder of one of them, the Accused Hadzihasanovic applied
no more than disciplinary measures to punish the perpetrators of
these crimes. In failing to take the necessary measures in this
instance, the Trial Chamber believes that the Accused Hadzihasanovic failed
to intervene in order to prevent any mistreatment from occurring
after 18 August 1993 in the Slavonija Furniture Salon, the Vojin
Paleksic Elementary School, the Gimnazija School
Building and the FC Iskra Stadium.
6. The Orasac Camp
As indicated previously, the El Mujahed detachment
was incorporated into the ABiH in August 1993. This unit had a
camp at Orasac. Evidence has made it possible to establish
that after the death of several Mujahedin and the detention of
a Mujahedin wounded during an HVO ambush, members of the El Mujahed
detachment abducted five Croatian civilians in the centre of Travnik
on 15 October 1993 and took them to the Orasac camp. The
last prisoners from this first wave of abductions were released
on 20 October 1993. On 19 October 1993, members of the detachment
abducted five other civilians from the Croatian and Serbian community
in Travnik. They released one prisoner several days later, two
on 6 November 1993 and the last prisoner, who was a minor at the
time, around 7 December 1993.
The Trial Chamber considers that it has not
been established beyond reasonable doubt that the prisoners from
the first wave of abductions were subjected to cruel treatment.
However, the evidence presented has made it possible to establish
that the prisoners from the second wave of abductions, who did
not participate directly in the hostilities, were subjected to
severe beatings and psychological abuse inflicted by members of
the El Mujahed detachment. The Trial Chamber considers furthermore
that it has been proven beyond reasonable doubt that, on 21 October
1993, Dragan Popovic, who was not actively involved in the
hostilities, was executed by members of this detachment. The Trial
Chamber notes that this murder was particularly heinous. Dragan
Popovic was taken with three other prisoners to a meadow where
a pit had been dug. About 50 to 100 soldiers from the El Mujahed
detachment stood around the pit shouting. Dragan Popovic was
pushed to the edge of the pit and fell on his side after being
tripped. One soldier then tried unsuccessfully to behead him with
a hatchet, so another soldier had to finish the execution. The
other prisoners were then forced to kiss the head of the deceased
while the soldiers shouted in ritual celebration.
The Trial Chamber considers that it has been
proven beyond reasonable doubt that, on 20 October 1993, the Accused
Enver Hadzihasanovic knew that five Croat and Serb civilians
had been abducted the day before by his subordinates. He also had
reason to know that the said subordinates were about to mistreat
and murder the abducted civilians or had already committed these
crimes. He had knowledge that the Mujahedin had massacred Croatian
civilians in Maline, Miletici and abducted Živko Totic.
He also knew that the Mujahedin had not received any instruction
whatsoever on the most fundamental rules of international humanitarian
law. Evidence has also made it possible to prove that, on 20 October
1993, the Accused Hadzihasanovic had been informed of
the measures taken until then by Mehmed Alagic, the commander
of OG Bosanska Krajina, to resolve the ongoing crisis.
He knew that Mehmed Alagic had threatened the Mujahedin that
he would use force against them if they did not release the abducted
civilians and that these threats had failed.
Despite the real risk of his subordinates
repeating their previous crimes, the Accused Hadzihasanovic decided
in favour of passive negotiations with his subordinates to obtain
the release of the abducted civilians. It has been established
that the ABiH 3rd Corps never intended to use military
means against the El Mujahed detachment. The Trial Chamber considers
that the circumstances were such that, as of 20 October 1993, the
3rd Corps should have used force as the sole necessary
and reasonable means to prevent the crimes committed at Orasac.
The Trial Chamber concludes that the Accused Hadzihasanovic had
the material capacity to use force against his subordinates and
had sufficient time to put concrete and specific measures into
effect in order to obtain the release of the abducted civilians.
The Trial Chamber is furthermore of the opinion
that, as soon as the El Mujahed detachment was incorporated into
his forces, the Accused Hadzihasanovic had information
allowing him to conclude that there was a real and reasonably foreseeable
risk of violations by members of the El Mujahed detachment. He
was familiar with their violent and dangerous behaviour. He did
not instruct the members of the detachment in complying with the
most basic rules of international humanitarian law. In spite of
this alarming information, he decided to gain military advantage
with the detachment although nothing compelled the 3rd Corps
to use the Mujahedin in combat. It is clear, in the opinion of
the Trial Chamber, that the Accused Hadzihasanovic put
himself in a situation where he ran the risk of not being able
to take appropriate measures as and when required. However, he
will not be found guilty of having failed to punish the perpetrators
of this crime since he only became aware of it on 6 November 1993
when he had already left his post.
C. Count 5: Wanton destruction in the municipalities
of Zenica, Travnik and Vares not justified by military necessity
According to the Indictment, unlawful and
arbitrary destruction not justified by military necessity was committed
against Bosnian Croat and Bosnian Serb dwellings, buildings and
civilian personal property by the forces of the 3rd Corps
in Guča Gora, Maline, Šusanj, Ovnak, Brajkovici,
Grahovčici and Čukle in June 1993.
According to the case file, although the Trial
Chamber considers it has been established that certain buildings
and dwellings belonging to the Croatian Community in Bosnia were
destroyed or damaged during combat operations in Guča Gora,
Maline, Šusanj, Ovnak, Brajkovici, Grahovčici
and Čukle on 8 June 1993, the Prosecution has not proved beyond
reasonable doubt that the destruction was extensive and was not
justified by military necessity.
International observers who were present during
the hostilities only noted several burning or destroyed houses.
They considered that this damage was not intentional but had been
caused by shrapnel. The Trial Chamber considers, in view of all
the evidence, that it has not been established that the destruction
was extensive and that it was not justified by military necessity.
Furthermore, the Trial Chamber notes that the evidence in the case
file concerning the destruction that took place after the combat
operations does not make it possible to identify the perpetrators,
the dates or the circumstances in which property was destroyed.
The Trial Chamber therefore finds that the
Accused Hadzihasanovic and the Accused Amir Kubura cannot
incur responsibility on this count for the locations concerned.
The Prosecution also alleged that 7th Brigade
units were responsible for destruction in the village of Vares during
November 1993.
According to the evidence, when the 2nd and
3rd battalions of the 7th Brigade entered
the town of Vares on 4 November 1993, the residents had
fled. HVO forces had also left the town.
According to the international observers present
in Vares on 4 November 1993, chaos reigned: soldiers of
the 7th Brigade first fired shots in the air to uncover
possible ambushes, and then in celebration. They broke windows,
broke down doors in order to seize property inside the houses and
shops of the Croatian inhabitants of Vares; almost all the
shop windows were broken.
The Trial Chamber considers, therefore, that
the partial or total destruction of buildings and dwellings was
extensive. Furthermore, evidence makes it possible to establish
that the destruction was in no way justified by military necessity
and that it was committed deliberately by the soldiers of the 7th Brigade,
with the specific aim of plundering property.
The Trial Chamber considers, however, that
the Prosecution has not proved beyond reasonable doubt that the
Accused Kubura had knowledge of the destruction committed by his
subordinates in Vares on 4 November 1993, as he was not
informed of the destruction.
D. Count 6: Plunder of private or public
property in the municipalities of Zenica, Travnik and Vares
The Prosecution alleges that the 7th Brigade
and the 306th Brigade plundered Bosnian Croat and Bosnian
Serb dwellings, buildings and civilian personal property in Miletici
in April 1993.
Evidence indicates that plundering took place
in Miletici in April 1993. The Trial Chamber notes, however,
that neither the units of the 7th Brigade nor those
of the 306th Brigade were present in Miletici during
the attack and that they did not take part in the plundering.
The Indictment alleges that 3rd Corps
forces plundered Bosnian Croat and Bosnian Serb dwellings, buildings
and personal property in Guča Gora, Maline, Čukle, Šusanj,
Ovnak, Brajkovici and Grahovčici in June 1993.
Evidence indicates that plundering was committed
by members of the 306th Brigade in Guča Gora and
Maline, by members of the 7th Brigade in Čukle
and by members of the 314th and 7th Brigades
in Šusanj, Ovnak, Brajkovici and Grahovčici
- following the fighting that took place in June 1993.
Numerous witnesses have stated that the dwellings
of the Croats and Serbs in the region had been searched and that
ABiH soldiers loaded property from the dwellings onto trucks. When
they returned home, the residents saw that their houses had been
vandalised. Property such as household appliances, furniture, clothing,
cars, food, livestock and construction material were stolen from
the residents of the towns and villages referred to in the Indictment.
The Trial Chamber is of the opinion that this
plundering was repeated and widespread. Furthermore, the Trial
Chamber considers that property was seized illegally and deliberately.
The Trial Chamber is of the view that the
Accused Hadzihasanovic had knowledge of the plundering
committed by his subordinates in June 1993 in Guča Gora, Maline, Čukle, Šusanj,
Ovnak, Brajkovici and Grahovčici. However, the Trial
Chamber considers that the Prosecution has not proved that the
Accused Hadzihasanovic failed to take preventive and
punitive measures against the perpetrators of this plundering.
The Trial Chamber considers, furthermore, that the Accused Hadzihasanovic was
not indifferent to the problem he faced in June 1993 and that he
clearly intended to find an effective solution to this matter with
the means available to him.
The Trial Chamber is of the opinion that the
Accused Kubura cannot be held responsible for the plundering which
took place in Maline, since the Prosecution has not proved beyond
reasonable doubt that the 7th Brigade was present in
Maline.
However, with regard to the plundering in
the towns of Šusanj, Ovnak, Brajkovici and Grahovčici,
the Trial Chamber is of the opinion that the Accused Kubura had
knowledge of the plundering committed by the 7th Brigade
military police in June 1993, and that he gave his consent to members
of the 7th Brigade to share the plundered goods. The
Accused Kubura failed to punish the perpetrators of these crimes.
The Prosecution alleges that the 7th Brigade
plundered Bosnian Croat and Bosnian Serb dwellings, buildings and
personal property in Vares in November 1993.
According to the evidence, the Trial Chamber
notes that this plundering was committed by soldiers of the 7th Brigade
in Vares on 4 November 1993. All international observers
reported random plundering. The soldiers of the 7th Brigade
plundered everything they found: cars, food, household appliances
and furniture.
The Trial Chamber is therefore in no doubt
that the plundering was extensive and repeated. Furthermore, the
Trial Chamber considers that property was seized illegally and
deliberately. The evidence shows in particular that the appropriation
of food supplies was a logistical matter for the 7th Brigade
and that the collection of goods was organised by the command of
the 7th Brigade.
The Trial Chamber is satisfied beyond reasonable
doubt that, as of 4 November 1993, the Accused Kubura had information
that his subordinates were plundering in Vares. It has been
established that the Accused Kubura, in failing to take punitive
measures against the perpetrators of the plundering committed in
June 1993 of which he had knowledge, failed to prevent plundering
in Vares in November 1993. Furthermore, the Accused Kubura
also failed to take action against the perpetrators of these crimes
and even organised the distribution of the plundered goods.
E. Count 7: Destruction or wilful damage of
institutions dedicated to religion in the municipality of Travnik
Evidence presented to the Trial Chamber indicates
that the Monastery of Guča Gora and the Church of St. John
the Baptist in Travnik were damaged in June 1993. Members of the
306th Brigade Military Police and international observers
noted that in the Monastery of Guča Gora - which was both
a sacred and historical site for the Croatian Catholic community
- steles and the organ were destroyed, and the frescoes and walls
were partially covered with inscriptions in Arabic. Similar destruction
and damage was recorded at the church in Travnik: paintings, organs
and windows were destroyed or vandalised and the statues of saints
were decapitated.
The Trial Chamber is in no doubt that this
damage amounts to acts of profanation. According to the case file,
however, the perpetrators of these acts were the Mujahedin. As
the Trial Chamber noted, the Prosecution was unable to establish
that the Mujahedin were at the relevant time subordinated to the
3rd Corps.
The Trial Chamber will now read out the disposition.
[The Accused Enver Hadzihasanovic, please
stand up]
(IX) DISPOSITION
FOR THE FOREGOING REASONS, THE TRIAL CHAMBER,
ruling unanimously,
CONSIDERING Articles 23 and 24 of the Statute
and Rules 98 ter, 101, 102, and 103 of the Rules of Procedure
and Evidence,
SITTING in open session,
FINDS the Accused Hadzihasanovic, as
a superior pursuant to Articles 3 and 7 (3) of the Statute:
COUNT 1
COUNT 1: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish the murder of seven
Bosnian Croat and Bosnian Serb men in Dusina on 26 January 1993;
Count 1: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish the murder of four
Bosnian Croat men in Miletici on 24 April 1993;
Count 1: NOT GUILTY of failing to take
necessary and reasonable measures to prevent or punish the murder
of 23 Bosnian Croat men and a Bosnian Croat girl in Maline on
8 June 1993.
COUNT 2:
RECALLS that the Trial Chamber, in its
27 September 2004 Decision on Motions for Acquittal found the Accused
Hadzihasanovic:
Count 2: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish the cruel treatment
of seven Bosnian Croat and Bosnian Serb men in Dusina on 26 January
1993;
Count 2: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish the cruel treatment
of four Bosnian Croat men in Miletici on 24 April 1993;
Count 2: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish the cruel treatment
of 27 Bosnian Croat men and a Bosnian Croat girl in Maline on
8 June 1993.
COUNT 3
RECALLS that the Trial Chamber, in its
27 September 2004 Decision on Motions for Acquittal found the Accused
Hadzihasanovic:
Count 3: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish the murder of a Croatian
detainee in the former JNA Barracks in Travnik in May 1993;
Count 3: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish the murder of Jozo
Maračic at the Zenica Music School on 18 June
1993.
Now finds the Accused Hadzihasanovic:
Count 3: NOT GUILTY of failing to take necessary
and reasonable measures to prevent the murder of Mladen Havranek
at the Slavonija Furniture Salon in Bugojno on 5 August
1993;
Count 3: GUILTY of failing to take necessary
and reasonable measures to punish the murder of Mladen Havranek
at the Slavonija Furniture Salon in Bugojno on 5 August
1993;
Count 3: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish the murder of Mario
Zrno at the Bugojno Convent in early August 1993;
Count 3: GUILTY of failing to take necessary
and reasonable measures to prevent the murder of Dragan Popovic by
ritual beheading at the Orasac camp on 21 October 1993;
Count 3: NOT GUILTY of failing to take necessary
and reasonable measures to punish the murder of Dragan Popovic by
ritual beheading at the Orasac camp on 21 October 1993.
COUNT 4
Count 4: GUILTY of failing to take necessary and reasonable
measures to prevent or punish cruel treatment at the Zenica music
school from around 26 January 1993 to 31 October 1993;
Count 4: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish cruel treatment
at the former JNA Barracks in Travnik from around May 1993 to
31 October 1993;
Count 4: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish cruel treatment
at the Mehurici Elementary School from around 6 June 1993
until at least 24 June 1993;
Count 4: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish cruel treatment
at the Mehurici Blacksmith Shop from around 6 June 1993
until at least 13 July 1993;
Count 4: GUILTY of failing to take necessary
and reasonable measures to prevent cruel treatment at the Orasac
camp from 15 October to 31 October 1993;
Count 4: NOT GUILTY of failing to take necessary
and reasonable measures to punish cruel treatment at the Orasac
camp from around 15 October 1993 to 31 October 1993;
Count 4: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish cruel treatment at the
Motel Sretno from around 15 May 1993 until at least 21 June 1993;
Count 4: GUILTY of failing to take necessary
and reasonable measures to prevent or punish cruel treatment
at the Lycée Gimnazija in Bugojno, from around
18 July 1993 until at least 13 October 1993;
Count 4: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish cruel treatment
at the Bugojno Convent from around 24 July 1993 until at least
early August 1993;
Count 4: GUILTY of failing to take necessary
and reasonable measures to prevent or punish cruel treatment
at the Slavonija Furniture Salon in Bugojno from around
24 July 1993 until at least 18 August 1993;
Count 4: GUILTY of failing to take necessary
and reasonable measures to prevent or punish cruel treatment
at the Iskra FC Stadium in Bugojno from around 30 July
1993 to 31 October 1993;
Count 4: GUILTY of failing to take necessary
and reasonable measures to prevent or punish cruel treatment
at the Vojin Paleksic Elementary School from around 31 July
1993 until at least September 1993;
Count 4: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish cruel treatment
at the BH Banka in Bugojno from around September 1993 until
31 October 1993.
COUNT 5
RECALLS that the Trial Chamber, in its
27 September 2004 Decision on Motions for Acquittal, took note
of the Prosecution’s withdrawal of:
Count 5: in respect of the responsibility of the Accused
Hadzihasanovic for failing to take necessary and reasonable
measures to prevent or punish the wanton destruction of towns
and villages not justified by military necessity in Dusina in
January 1993.
AND FOUND on that occasion the Accused Hadzihasanovic:
Count 5: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish the wanton destruction
of towns and villages not justified by military necessity in
Miletici in April 1993.
NOW FINDS the Accused Hadzihasanovic:
Count 5: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish the wanton destruction
of towns and villages not justified by military necessity in
Guča Gora in June 1993;
Count 5: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish the wanton destruction
of towns and villages not justified by military necessity in
Maline in June 1993;
Count 5: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish the wanton destruction
of towns and villages not justified by military necessity in Čukle
in June 1993;
Count 5: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish the wanton destruction
of towns and villages not justified by military necessity in
the villages of Šusanj/Ovnak/Brajkovici/Grahovčici
in June 1993.
COUNT 6
RECALLS that the Trial Chamber, in its
27 September 2004 Decision on Motions for Acquittal, took note
of the Prosecution’s withdrawal of:
Count 6: in respect of the responsibility of the Accused
Hadzihasanovic for failing to take necessary and reasonable
measures to prevent or punish plundering in Dusina in January
1993.
NOW FINDS the Accused Hadzihasanovic:
Count 6: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish plundering in Miletici
in April 1993;
Count 6: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish plundering in Gusa
Gora in June 1993;
Count 6: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish plundering in Maline
in June 1993;
Count 6: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish plundering in Čukle
in June 1993;
Count 6: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish plundering in the villages
of Šusanj/Ovnak/Brajkovici/Grahovčici
in June 1993.
COUNT 7
Count 7: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish the destruction of or
wilful damage to institutions dedicated to religion in Guča
Gora and Travnik in June 1993.
SENTENCES the Accused Hadzihasanovic to
a term of imprisonment of 5 years to run as of this day, subject
to credit that shall be given, pursuant to Rule 101 (C) of the
Rules, for the 828 days in total that the Accused Hadzihasanovic has
already spent in detention.
You may be seated.
The Accused Amir Kubura, please stand up.
FINDS the Accused Kubura, as a superior
pursuant to Articles 3 and 7 (3) of the Statute:
COUNT 1
Count 1: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish the murder of four
Bosnian Croat men in Miletici on 24 April 1993;
Count 1: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish the murder of 23 Bosnian
Croat men and a Bosnian Croat girl in Maline on 8 June 1993.
COUNT 2
RECALLS that the Trial Chamber, in its
27 September 2004 Decision on Motions for Acquittal, found the
Accused Kubura:
Count 2: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish the cruel treatment
of four Bosnian Croat men in Miletici on 24 April 1993;
Count 2: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish the cruel treatment
of 27 Bosnian Croat men and a Bosnian Croat girl in Maline on
8 June 1993.
COUNT 3
RECALLS that the Trial Chamber, in its
27 September 2004 Decision on Motions for Acquittal, found the
Accused Kubura:
Count 3: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish the murder of Jozo Maračic at
the Zenica Music School on 18 June 1993.
COUNT 4
NOW FINDS the Accused Kubura,
Count 4: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish cruel treatment at the
Zenica music school from 1 April 1993 until at least January
1994;
Count 4: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish cruel treatment at the
Motel Sretno from around 15 May 1993 until at least 21 June
1993.
COUNT 5
RECALLS that the Trial Chamber, in its
27 September 2004 Decision on Motions for Acquittal, found the
Accused Kubura:
Count 5: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish the wanton destruction
of towns and villages not justified by military necessity in
Miletici in April 1993.
NOW FINDS the Accused Kubura,
Count 5: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish the wanton destruction
of towns and villages not justified by military necessity in
Maline in June 1993;
Count 5: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish the wanton destruction
of towns and villages not justified by military necessity in
the villages of Šusanj/Ovnak/Brajkovici/Grahovčici
in June 1993;
Count 5: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish the wanton destruction
of towns and villages not justified by military necessity in
Vares in November 1993.
COUNT 6
NOW FINDS the Accused Kubura,
Count 6: NOT GUILTY of failing to take necessary
and reasonable measures to prevent or punish plundering in Miletici
in April 1993;
Count 6: NOT GUILTY of failing to take necessary and
reasonable measures to prevent or punish plundering in Maline
in June 1993;
Count 6: NOT GUILTY of failing to take necessary and
reasonable measures to prevent plundering in the villages of Šusanj/Ovnak/Brajkovici/Grahovčici
in June 1993;
Count 6: GUILTY of failing to take necessary and reasonable
measures to punish plundering in the villages of Šusanj/Ovnak/Brajkovici/Grahovčici
in June 1993;
Count 6: GUILTY of failing to take necessary
and reasonable measures to prevent or punish plundering in the
village of Vares in November 1993.
AND SENTENCES the Accused Kubura to a term
of imprisonment of 2 and a half years to run as of this day,
subject to credit that shall be given, pursuant to Rule 101 (C)
of the Rules, for the 828 days in total that the Accused Kubura
has already spent in detention.
You may be seated.
Pursuant to Rule 103 of the Rules, pending an agreement for
the transfer of the convicted persons to a State where they will
serve their sentence, the convicted persons shall remain in the
custody of the Tribunal.
These proceedings are adjourned.
*****
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