1.Initial Appearance, 27 Sep ’01, T. 2. The Trial Chamber notes that all dates referred to in this Judgement refer to the year 1993, unless otherwise stated.
2.Sefko Hodzic, 23 Mar ’05, T. 106 ; Vahid Karavelic, 21 Apr ’05, T. 84.
3.Vahid Kravelic, 18 Apr ’05, T. 138.
4.Ex. 102, Decision of the RBiH Presidency on restructuring of the RBiH Supreme Command Headquarters, 8 June 1993. See infra Section IV.A.1(a).
5.Ex. 263, Order of the RBiH Presidency, 1 November 1993. See infra Section IV.F, para. 720. 
6.Jusuf Jasarevic, 02 Mar ’05, T.  17-18; Mirko Pejanovic, Ex. 456, 01 Mar ’05, p. 4; Initial Appearance, 27 Sept ’01, T. 2; Defence Final Brief, para. 760.
7.Indictment, para. 3.
8.Indictment, para. 4.
9.In B/C/S, Istureno Komandno Mesto.
10.Indictment, para. 4.
11.Indictment, paras 5 and 6.
12.Indictment, paras 8 and 9.
13.Indictment, para. 10.
14.Indictment, para. 10.
15.Indictment, para. 21.
16.Indictment, para. 15.
17.Indictment, para. 24.
18.Indictment, para. 24.
19.Indictment, paras 27 and 29.
20.Indictment, para. 38.
21.Indictment, para. 34.
22.Rule 89(B) of the Rules. See also Guidelines on the Standards Governing the Admission of Evidence, 16 Feb ’05, with Annex (“Guidelines”).
23.This provision is in accordance with all major human rights instruments. See, e.g., European Convention on Human Rights, Art. 6(2); International Covenant on Civil and Political Rights, Art. 14(2).
24.Krnojelac Trial Judgement, para. 66. The fact that the Defence has not challenged certain factual allegations contained in the Indictment does not mean that the Trial Chamber has accepted these facts to be proven. The burden of proof remains with the Prosecution for each allegation. The Trial Chamber interprets the standard “beyond reasonable doubt” to mean a high degree of probability; it does not mean certainty or proof beyond the shadow of doubt. See Criminal Evidence (4th Ed.), Richard May, London: Sweet & Maxwell Ltd., London, 1999, pp. 64-65.
25.Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time -Limit and Admission of Additional Evidence, dated 15 October 1998, filed 16 October 1998, para. 73, holding that: “[…] any doubt should be resolved in favour of the Appellant in accordance with the principle in dubio pro reo”; Celebici Trial Judgement, para. 601: “at the conclusion of the case the accused is entitled to the benefit of the doubt as to whether the offence has been proved”; Akayesu Trial Judgement, para. 319: “[…] the general principles of law stipulate that, in criminal matters, the version favourable to the Accused should be selected.”
26.Rule 89(F) of the Rules. See also Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, para. 19.
27.Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999 (“Aleksovski Decision”), para. 14: “the statement of a person made otherwise than in the proceedings in which it is being tendered, but nevertheless being tendered in those proceedings in order to establish the truth of what that person says.”
28.Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Decision on Defence Motion on Hearsay, 5 Aug 1996, para. 16. See also Aleksovski Decision, para. 15. The Appeals Chamber in Aleksovski case clarified that: “The absence of the opportunity to cross-examine the person who made the statements, and whether the hearsay is "first-hand" or more removed, are also relevant to the probative value of the evidence. The fact that the evidence is hearsay does not necessarily deprive it of probative value, but it is acknowledged that the weight or probative value to be afforded to that evidence will usually be less than that given to the testimony of a Witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which surround hearsay evidence, ibid., also referred to in Guidelines, Annex, para. 7.
29.Brðanin Trial Judgement, para. 35, citing Criminal Evidence (3rd Ed.), Richard May, London: Sweet & Maxwell Ltd., London, 1995.
30.Celibici Appeal Judgement, para. 458.
31.See Procedural History, Annex II, paras 19 and 21.
32.The Trial Chamber heard evidence indicating that witnesses had contacts before giving testimony at Trial. Nedzad Mehanovic testified that he had contacts with Erdin Arnautovic and Witness D in The Hague before and during the time he gave evidence before the Trial Chamber, Nedzad Mehanovic, 16 Feb ’05, T. 77-93. In relation to possible similarities between parts of these three witnesses’ accounts, see also Witness D, 21 Feb ’05, T. 65-69.
33.Krnojelac Trial Judgement, para. 69. See also Kupreskic Appeal Judgement, para. 31.
34.The Trial Chamber is referring in particular to Ramiz Delalic, Salko Gusic, Bakir Alispahic, Erdin Arnautovic, Nedzad Mehanovic, and Witness D.
35.Tadic Appeal Judgement, para. 65; Krnojelac Trial Judgement, para. 71; Aleksovski Appeal Judgement, para. 62; Kupreskic Appeal Judgement, para. 33.
36.Oral Decision on Prosecution Motion on admission of statements of witnesses pursuant to Rule 92 bis, 18 March ’05, T. 79; Oral Decision on Defence Motion on admission of statements of witnesses pursuant to Rule 92 bis, 5 July ’05, T. 9-12; and Oral Decision on Defence Motion on admission of statements of witnesses pursuant to Rule 2 bis, 08 July ’05, T. 66-67; and Oral Decision on Defence Motion on admission of abridged statement of Witness pursuant to Rule 92 bis, 14 July ’05, T. 4-5; Decision on Motion for admission of written statement of deceased Witness pursuant to Rule  92 bis (C), 25 July ’05; and Decision on Further Defence Rule 92 bis Motion, 25 July ’05.
37.Prosecutor v. Stanislav Galic, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal concerning Rule  92 bis (C), 7 June ’02, fn. 34, referring to Judgements of the European Court for Human Rights.
38.Oral Decision on Motion re Agreed Facts and Motion for Withdrawal of “Motion for Judicial Notice”, 12 May ’05, T.  10-11; and Decision on Motion Concerning Further Agreed Facts, 25 July ’05.
39.Simic Trial Judgement, para. 21.
40.Guidelines, Annex, para. 4.
41.Guidelines, Annex, para. 5.
42.Ex. 315, book “Uzdol and all its victims”.
43.Kazo Zelenika, 5 Apr '05, T. 8 -11.
44.Kazo Zelenika, 5 Apr '05, T. 10.
45.Indictment, Count 1.
46.Common Article 3, in its relevant parts, reads as follows:
In case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions;
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; S…C
47.Prosecutor v. Dusko Tadic, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 89 (“Tadic Jurisdiction Decision”); re-affirmed in Celebici Appeal Judgement, para. 136. The other violations of humanitarian law expressed in these decisions are: “(i) violations of the Hague law on international conflicts; (ii) infringements of provisions of the Geneva Conventions other than those classified as “grave breaches” by those Conventions; […] and (iv) violations of agreements binding upon the parties to the conflict, considered qua treaty law, i.e. agreements which have not turned into customary international law.”
48.Tadic Jurisdiction Decision, paras 67-70; Brdjanin Trial Judgement, para. 127.
49.Tadic Jurisdiction Decision, para. 94. See also Kunarac Appeal Judgement, para. 66.
50.Tadic Jurisdiction Decision, para. 70. The term “protracted” is significant in excluding mere cases of civil unrest or single acts of terrorism in cases of non-international conflicts, see Kordic and Cerkez Appeal Judgement, para. 341.
51.Tadic Jurisdiction Decision, para. 137; Celebici Appeal Judgement, paras 140, 150.
52.ICRC Commentaries (GC IV ), p. 34.
53.Nicaragua v. U.S., Merits, I.C.J. Reports 1986, para. 218.
54.Celebici Appeal Judgement, para. 149.
55.Celebici Appeal Judgement, paras 147-150 and 420, where the Appeals Chamber held that the provisions of Common Article are applicable to international and non-international conflicts alike.
56.Tadic Jurisdiction Decision, para. 70 (emphasis added). See also Kunarac Appeal Judgement, paras 57, 64. In para. 64, the Appeals Chamber held that: “the Prosecutor did not have to prove that there was an armed conflict in each and every square inch of the general area. The state of armed conflict is not limited to the areas of actual military combat but exists across the entire territory under the control of the warring parties.”
57.Defence Final Brief, footnote 5, referring to the Statute of the International Criminal Court and the Ministries case. The Defence further argued that the Prosecution failed to plead the existence of a sufficient nexus between the conduct of the Accused and the armed conflict and failed to plead any material fact in the Indictment relevant to establishing that nexus. The Defence submitted that it has been prejudiced by the Prosecution failure to plead its case with any precision, which has resulted an unfairness in that the Defence has had to guess the Prosecution case on that point. See Defence Final Brief, para. 6. The Trial Chamber notes in this respect the Decision on Defence Motion for Particulars, 16 December 2003.
58.See infra Section IV.D.
59.Defence Final Brief, para. 8. The Defence argues that the crimes were contrary to the implementation of the overall policy of the ABiH, namely a multi-ethnic country. The Defence further argues that the victims in Grabovica were not limited to Bosnian Croat victims, but also included Bosnian Muslim refugees and a soldier of another ABiH unit, ibid.
60.See infra Section IV.E.
61.Defence Final Brief, para. 13, referring to Kayishema Trial Judgement, para. 623.
62.Tadic Jurisdiction Decision, para. 70. The Trial Chamber notes that the Defence in its Final Brief argued that the required nexus should be established between the conduct of the Accused and the armed conflict. In this respect, the Trial Chamber notes that generally, in cases before the Tribunal where it has been found that the required nexus ought to be between the acts of the accused and the armed conflict, the accused was directly participating in the crimes, see, e.g., Vasiljevic Appeal Judgement, para. 27; Kunarac Appeal Judgement, para. 58; Furundzija Trial Judgement, para. 65.
63.Kunarac Appeal Judgement, para. 57; Tadic Jurisdiction Decision, para. 70.
64.Kunarac Appeal Judgement, para. 58.
65.Kunarac Appeal Judgement, para. 58.
66.These conditions are that the treaty (i) was unquestionable binding on the parties at the time of the alleged offence; and (ii) was not in conflict with or derogated from peremptory norms of international law, as are most customary rules of international humanitarian law. See Tadic Jurisdiction Decision, para. 143. The Appeals Chamber in Kordic and Cerkez upheld the approach of the Trial Chamber in that case, that when it is found that a provision of treaty law is applicable in a case, the question whether that provision reflects customary law at the relevant time is beside the point, Kordic and Cerkez Appeal Judgement, paras 41-46.
67.Tadic Jurisdiction Decision, para. 94. See also Kunarac Appeal Judgement, para. 66.
68.Tadic Jurisdiction Decision, para. 89; Celebici Appeal Judgement, paras133-136; Kunarac Appeal Judgement, para. 68.
69.Tadic Jurisdiction Decision, para. 89; Celebici Appeal Judgement, para. 143; Kunarac Appeal Judgement, para. 68.
70.Tadic Trial Judgement, para. 612, referring to the Nicaragua case.
71.Tadic Jurisdiction Decision, para. 129, confirmed by Celebici Appeal Judgement, para 153-174, in particular para. 167; see also Kordic and Cerkez, IT-95-14/2-PT, Decision on the Joint Motion to Dismiss the Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of Articles 2 and 3, 2 March 1999, paras 32-33.
72.The Trial Chamber notes that the term “hostilities” is not synonymous to the term “armed conflict.” An armed conflict may continue to exist after the hostilities in an area have ceased. The state of armed conflict ends when a peace agreement has been achieved or – in case of an non-international conflict – if a peaceful settlement has been reached. See Tadic Jurisdiction Decision, para. 70: “International humanitarian law applies from the initiation of S…C armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.” See also ICRC Commentaries GC III, p. 37: “Speaking generally, it must be recognised that the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged in hostilities ”(emphasis omitted).
73.Celebici Appeal Judgement, para. 420.
74.Tadic Trial Judgement, para. 615. The Trial Chamber continued with holding that “if the answer to that question is negative, the victim will enjoy the protection of the proscriptions contained in Common Article 3.” See also Blaskic Trial Judgement, para. 177, referring to the Tadic Trial Judgement.
75.Tadic Trial Judgement, para. 616. The Trial Chamber notes that ‘SactiveC participation in hostilities’ has been defined by the delegates as “acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces,” ICRC Commentary to AP I, para. 1944 and ICRC Commentary to AP II, para. 4788. See also Musema Trial Judgement, para. 279; Semanza Trial Judgement, para. 366. The Trial Chamber further takes note of the Commentaries, where it is stated that “to restrict Sthe concept of participating directly in hostilitiesC to combat and to active military operations would be too narrow, while extending it to the entire war effort would be too broad”, ICRC Commentaries to Additional Protocol I, para. 1679. The quoted sentence continues: “as in modern warfare the whole population participates in the war effort to some extent, albeit indirectly,” and that “SactiveC participation in hostilities implies a direct causal relationship between the activity engaged in and the harm done to the enemy at the time and the place where the activity takes place,” ICRC Commentary to Additional Protocol I, para. 1679.
76.See ICRC Commentaries GC III, p. 39: “The discussions at the Conference brought out clearly that it is not necessary for an armed force as a whole to have laid down its arms for its members to be entitled to protection under [Article 3]. The Convention refers to individuals and not to units of troops, and a man who has surrendered individually is entitled to the same humane treatment as he would receive if the whole army to which he belongs had capitulated. The important thing is that the man in question will be taking no further part in the fighting.”
77.Galic Trial Judgement, para. 50.
78.The Trial Chamber notes that a person may be listed as a member of an armed force, without being mobilised. Furthermore, it is possible that in a state of war, the civilian police by law become part of the armed forces.
79.The Defence submits that “the spontaneous reaction of the population and soldiers living in the area of Uzdol at the time may be said to constitute a levée en masse. As such, all members of that levée lost their status as civilians which they might otherwise have enjoyed for as long as the levée en masse operates”, Defence Final Brief, para. 47. The Trial Chamber notes that “Levée en masse” is regulated in Article 4 (A) (6) of GC III, which reads in its relevant parts:
Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy. […]
inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
The Trial Chamber recalls, as stated above, that anyone, who is “taking no active part in the hostilities” is entitled to the protection under Common Article 3, and that it is the specific situation of the victim at the time of the crime, which must be taken into account in determining his or her protection under Common Article 3.
80.Kvocka Appeal Judgement, para. 261, with further references. The crimes of murder under Article 3 and of wilful killing set forth in Article 85(3) of Additional Protocol I and punishable under Article 2 of the Statute contain similar elements. The Trial Chamber therefore considers that the Commentary to Article 85(3) of Additional Protocol I is relevant. See the Appeals Chamber’s discussion in Celebici concerning cumulative convictions in relation to Articles 2 and 3, paras 414-426. With regard to the word “wilfully” in Article 85(3) of Additional Protocol I, the Commentary reads:
the accused must have acted consciously and with intent, i.e. with his mind on the act and its consequences, and willing them (‘criminal intent’ or ‘malic aforethought’ ); this encompasses the concepts of ‘wrongful intent’ or ‘recklessness’, viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences.
In this respect, the Trial Chamber agrees with the Trial Chamber in the Strugar case, which found that “(i(t is now settled that the mens rea is not confined to cases where the accused has a direct intent to kill or to cause serious bodily harm, but also extends to cases where the accused has what is often referred to as an indirect intent”, Strugar Trial Judgement, para. 235.
81.The Defence raised this point in its Final Brief, para. 55, submitting that:
the perpetrators – and, in turn, Mr Halilovic – were aware of (the( civilian status (of the victims( at the time of the crime (for the perpetrators) and the time of the alleged failure (in the case of the accused) and that, (ii) with that awareness, the perpetrator killed the victim deliberately and Mr Halilovic deliberately failed to prevent/punish them.
However, the Trial Chamber notes that, by referring in this context to the Accused’s mens rea, the Defence appears to have confused the requirements of Article 7(3) and those of Article 3 of the Statute. The Trial Chamber will therefore, in this context, disregard the Defence submission in relation to the Accused’s mens rea. The Prosecution did not make any submission with regard to whether the mens rea of the direct perpetrator must also include knowledge of the status of the victim as a person taking no active part in hostilities. Rather, the Prosecution limits itself to submitting that “(m(urder under Article 3 requires proof that the victims were persons taking no active part in the hostilities”, Prosecution Final Brief, para. 20, footnote excluded.
82.See supra III.A.2.
83.In this respect, the Trial Chamber notes that the knowledge of the status of the victims is one aspect of the mens rea that needs to be proven for the conviction on any Article 3 charge based on Common Article 3.
84.See supra III.A.2.
85.Kvocka Appeal Judgement, para. 260. See also Tadic Trial Judgement, para. 240 (“Since these were not times of normalcy, it is inappropriate to apply rules of some national systems that require the production of a body as proof to death. However, there must be evidence to link injuries received to a resulting death”) and Krnojelac Trial Judgement, para. 326.
86.See for example Celebici Trial Judgement, para. 334, which reads:
?ags is most clearly evidenced in the case of military commanders by Article 87 of Additional Protocol I, international law imposes an affirmative duty on superiors to prevent persons under their control from committing violations of international humanitarian law, and it is ultimately this duty that provides the basis for, and defines the contours of, the imputed criminal responsibility under Article 7(3) of the Statute.
87.Article 86 of Additional Protocol I to the 1949 Geneva Conventions, entitled “failure to act”, in paragraph 1 imposes responsibility for grave breaches which result from a “failure to act when under a duty to do so”. The Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1986) (“ICRC Commentary onto the Additional Protocols”) states with regards to Article 86 of Additional Protocol I that “responsibility for a breach consisting of a failure to act can only be established if the person failed to act when he had a duty to do so” (p. 1010, para 3537). Similarly the Trial Chamber in the Celebici case noted “criminal responsibility for omissions is incurred only where there exists a legal obligation to act,” citing ILC Commentary on the 1996 Draft Code of Crimes Against the Peace and Security of Mankind, Report of the International Law Commission on the work of its 48th session, UN doc. A/51/10 (“ILC Commentary”). This basis can also be seen in the post-World War II trials, for example, the wording of Count 55 of the Indictment of the International Military Tribunal for the Far East (“Tokyo Trial”) highlights the focus of that trial on the duty of commanders to act. It charged the accused with failure in a duty to act, stating that they “recklessly disregarded their legal duty by virtue of their offices to take adequate steps to ensure the observance and prevent breaches of the laws and customs of war”, The Tokyo Judgement, The Complete Transcripts of the Proceedings in the International Military Tribunal for the Far East, reprinted in: R. John Pritchard and S. Magbauna Zaide (eds.), The Tokyo War Crimes Trial, New-York - London 1981, p. 48, 424, (emphasis added). In a later part of the Judgement, this charge was described as “failure to take adequate steps to secure the observance and prevent breaches of conventions and laws of war”, ibid. p. 49, 772.
88.This interpretation can also been inferred from the ICRC Commentary to Article 86 of Additional Protocol I, which states that “the direct link which must exist between the superior and the subordinate clearly follows from the duty to act laid down in paragraph 1.” ICRC Commentary to the Additional Protocols, p. 1013, para. 3544 (emphasis added).
89.Prosecutor v. Dragan Obrenovic, Case No. IT-02-60/2, Sentencing Judgement, 10 Dec ’03 (“Obrenovic Sentencing Judgement”) para. 100, citing Prosecutor v. Hadzihasanovic et. al. Case No. IT-01-47-PT, Decision on Joint Challenge to Jurisdiction, 12 Nov ’02 (“Hadzihasanovic Decision on Joint Challenge to Jurisdiction”), para. 66.
90.See also J-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, ICRC, Cambridge University Press, 2005, Vol. I, Introduction, p. XXV; and F. Kalshoven and L. Zegveld, Constraints on the Waging of War, ICRC, Mar ’01. pp. 53-54.
91.The ICRC Commentary to Article  87 states that “the role of commanders is decisive[…] the necessary measures for the proper application of the Conventions and the Protocol must be taken at the level of the troops, so that a fatal gap between the undertakings entered into by Parties to the conflict and the conduct of individuals is avoided. At this level everything depends on commanders, and without their conscientious supervision, general legal requirements are unlikely to be effective.” ICRC Commentary to the Additional Protocols, p. 1018, para. 3550. See infra paras 81-88.
92.Prosecutor v. Hadzihasanovic et al., Case No IT-01-47-AR72, Appeals Chamber Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July ’03 (“ Hadzihasanovic Appeals Chamber Decision”), para. 22.
93.Ibid. para. 23.
94.See, e.g., Order of Charles VII of France of 1439 which held that a captain “shall be responsible for the offence as if he had committed it himself and shall be punished in the same way as the offender would have been.” Similarly the Massachusetts Provisional Congress stated in 1775 that any commander who failed to punish his officers or soldiers would be punished “in such a manner as if he himself had committed the crimes or disorders complained of”, cited in Hendin, Stuart E., Command Responsibility and Superior Orders in the Twentieth Century – A Century of Evolution, Murdoch University Electronic Journal of Law, 10(2003):1, paras 6-8.
95.Hague Convention (IV) respecting the Laws and Customs of War on Land and the Regulations annexed thereto, 18 October 1907. In its report presented to the Preliminary Peace Conference in 1919, the International Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties recommended that a tribunal be established for the prosecution of, inter alia, all those who “ordered, or with knowledge thereof and with power to intervene, abstained from preventing or taking measures to prevent, putting an end to or repressing violations of the laws or customs of war”. Such a tribunal was never realised. See Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties - Report Presented to the Preliminary Peace Conference, Versailles, 29 March 1919, reprinted in 14 AJIL, 95 (1920), p. 121, cited in Celebici Trial Judgement, para. 335.
96.See infra paras 44-47.
97.Article 86, Failure to act:
1. The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so.
2. The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.
Article 87, Duty of commanders:
1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol.
2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.
3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.
In this regard, the Trial Chamber notes the finding of the Appeals Chamber in Hadzihasanovic that Articles 86 and 87 of Additional Protocol I are applicable to both international and non-international armed conflicts, Hadzihasanovic Appeals Chamber Decision, paras 29-31.
98.Regulation 10 of the Canadian Act respecting War Crimes 1946 provided (Law Reports, Vol. IV, pp. 128-129):
Where there is evidence that more than one war crime has been committed by members of a formation, unit, body, or group while under the command of a single commander, the court may receive that evidence as prima facie evidence of the responsibility of the commander for those crimes. Where there is evidence that a war crime has been committed by members of a formation, unit, body, or group and that an officer or non-commissioned officer was present at or immediately before the time when such offence was committed, the court may receive that evidence as prima facie evidence of the responsibility of such officer or non-commissioned officer, and of the commander of such commander, unit, body, or group, for that crime.
99.Article 4 of the French Ordinance of 28 August 1944 provided (Law Reports, Vol. IV, p. 87):
Where a subordinate is prosecuted as the actual perpetrator of a war crime, and his superiors cannot be indicted as being equally responsible, they shall be considered as accomplices in so far as they have tolerated the criminal acts of their subordinates.
100.Regulation 8(ii) of the British Royal Warrant of 14 June 1945 (Army Order 81/45) for military courts provided (Law Reports, Vol. I, pp. 108-109):
Where there is evidence that a war crime has been the result of concerted action upon the part of a unit or group of men, then evidence given upon any charge relating to that crime against any member of such unit or group may be received as prima facie evidence of the responsibility of each member of that unit or group for that crime. In any such case all or any members of any such unit or group may be charged and tried jointly in respect of any such war crime and no application by any of them to be tried separately shall be allowed by the Court.
101.In Re Yamashita, 327 US 1, para. 13.
102.Ibid., paras 15-16
103.Ibid., para. 37.
104.Ibid., para. 39, citing cases arising out of the Philippine Insurrection in 1900 and 1901.
105.Ibid., para. 39 (emphasis added). Similarly, Justice Rutledge in his dissent stated (327 US 1, paras 43-44 ):
mass guilt we do not impute to individuals, perhaps in any case, but certainly in none where the person is not charged or shown actively to have participated in or knowingly to have failed in taking action to prevent the wrongs done by others, having both the duty and the power to do so.
106.Hostage case, p. 1256.
107.Ibid., p. 1271 (emphasis added).
108.Ibid., p. 1272.
109.The Court examined defendant Von Leeb’s responsibility for the crimes of those within his area of command in relation to, for example, crimes against prisoners of war, High Command case, pp. 558-559; illegal execution of Red Army soldiers, ibid., pp. 559-560 ; crimes against civilians, ibid., pp. 561-562. It also noted that in relation to Chiefs of Staff “in the absence of participation in criminal orders or their execution within a command, a chief of staff does not become criminally responsible for criminal acts occurring therein”, ibid., p. 530 (emphasis added ).
110.The SD was the “State Security Service of the SS” and the “SIPO” was the “State Security Police”, see High Command case. High Command case p. 702 “Glossary of Abbreviations and Terms”.
111.Ibid., p. 549.
112.Ibid. p. 543-544.
113.Toyoda case, p. 5006 (emphasis added). The Tribunal continued; “(i(n determining the guilt or innocence of an accused, charged with dereliction of his duty as a commander, consideration must be given to many factors”, ibid.
114.ICRC Commentary to the Additional Protocols, p. 1011, para. 3541.
115.Ibid., p. 1011, para.  3540.
116.Ibid., p. 1012, para.  3542.
117.Report of the Secretary General pursuant to paragraph 2 of the Security Council Resolution 808 (1993). UN doc. S /25704 (1993) (“Secretary General’s Report”). However, in this regard, the Trial Chamber notes that the Trial Chamber Judgement in Celebici relied upon the report of the Secretary General to find that command responsibility under Article  7(3) attaches responsibility for the crimes of subordinates. See Celebici Trial Judgement, para. 333.
118.Secretary General’s Report, p. 15
119.Final Report of the Commission of Experts, UN doc. S/1994/674 (“United Nations Commission of Experts Report”), p. 16.
120.Ibid.
121.Ibid.
122.ILC Commentary to the Additional Protocols, p. 35.
123.Ibid., p. 37 (emphasis added).
124.Ibid., p. 36 (emphasis added). The most recent codification of the concept, in Article 28 of the Rome Statute of the International Criminal Court, provides that military commanders and superiors shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his command or control, Rome Statute of the ICC, Article  28.
125.Celebici Trial Judgement, para. 331 (emphasis added). This was part of the Trial Chamber’s discussion as to whether command responsibility was part of customary international law.
126.Celebici Trial Judgement, para. 333.
127.Celebici Appeal Judgement, para. 198.
128.Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement, 25 June 1999 (“Aleksovski Trial Judgement ”), para. 67. The Trial Chamber notes that this statement was not challenged in the Appeals Judgement.
129.Hadzihasanovic Appeals Chamber Decision, para. 32.
130.The Trial Chamber notes that different forms of expression than “for” the crimes of subordinates have been used, for example, the Hadzihasanovic Appeals Chamber Decision, used the term “in respect of”, ibid., para. 18.
131.See, e.g., Celebici Appeal Judgement para. 195; Celebici Trial Judgement, para. 343.
132.For application of the principle of command responsibility to both international and non-international armed conflicts, see Hadzihasanovic Appeals Chamber Decision, para. 31. The Appeals Chamber has held that customary international law recognises that there can be command responsibility in respect of some war crimes committed by a member of an organised military force in the course of an non-international armed conflict, ibid., para. 18.
133.Celebici Trial Judgement, para. 346, Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Judgement, 29 Jul ’04 (“Blaskic Appeal Judgement”), para. 484; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (“Aleksovski Appeal Judgement”), para. 72. See also Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-A, Judgement, 17 Dec ’04 (“Kordic and Cerkez Appeal Judgement”), para. 827; Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 03 Mar 2000 (“Blaskic Trial Judgement”), para. 294; Prosecutor v. Miroslav Kvocka, Milojica Kos, Mlado Radic, Zoran Zigic and Dragoljub Prcac, Case No. IT-98-30/1-T, 02 Nov ’01 (“Kovcka Trial Judgement”), para. 401.
134.Aleksovski Appeal Judgement, para. 76. See also ICRC Commentary to the Additional Protocols, which states that “responsibility for a breach consisting of a failure to act can only be established if the person failed to act when he had a duty to do so”, p. 1010. See also the ILC Commentary, p. 36.
135.Celebici Trial Judgement, para. 377. It is well established that command responsibility is applicable to both military and civilian superiors, Celebici Appeal Judgement, paras 195 -96 and 240; Aleksovski Appeal Judgement, para. 76.
136.Celebici Trial Judgement, para. 370.
137.Celebici Appeal Judgement, para. 256.
138.See Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001(“Kordic and Cerkez Trial Judgement”), paras 418-424.
139.Blaskic Appeal Judgement, para. 69.
140.Celebici Appeal Judgement, para. 266.
141.Celebici Appeal Judgement, para. 193.
142.Celebici Appeal Judgement, para. 195. The Appeal Chamber in Celebici stated that a superior vested with de jure authority who does not have effective control over his or her subordinates would therefore not incur criminal responsibility pursuant to the doctrine of superior responsibility, whereas a de facto superior who lacks formal letters of appointment or commission but, in reality, has effective control over the perpetrators of offences would incur criminal responsibility where he failed to prevent or punish such criminal conduct, ibid., para. 197.
143.Celebici Appeal Judgement, para. 303 (emphasis in the original). See also High Command case, pp. 543 -544.
144.Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No. IT-96-22&23-/1-T, Judgement, 21  Feb ’01,(“Kunarac Trial Judgement”), para. 399. The temporary nature of a military unit is not, in itself, sufficient to exclude a relationship of subordination, ibid.
145.ICRC Commentary to the Additional Protocols, para. 3554.
146.Kunarac Trial Chamber para. 399, citing Celebici Appeal Judgement paras 197-198 and 256.
147.Blaskic Trial Judgement, para. 303, referring to Aleksovski Trial Judgement, para. 106.
148.Prosecutor v. Pavle Strugar, Case No. IT- 01-42-T, Judgement, 31 Jan ’05, (“Strugar Trial Judgement ”), para. 363.
149.The ICRC Commentary to the Additional Protocols, dealing with the concept of a “superior” within the meaning of Article  86 of Additional Protocol I, which provides the basis for the duty in Article 7( 3), emphasises that the term is not limited to immediate superiors. It states that (ICRC Commentary to the Additional Protocols, p. 1013, para. 3544):
?tghis is not a purely theoretical concept covering any superior in a line of command, but we are concerned only with the superior who has a personal responsibility with regard to the perpetrator of the acts concerned because the latter, being his subordinate, is under his control. The direct link which must exist between the superior and the subordinate clearly follows from the duty to act […]. Furthermore, only that superior is normally in the position of having information enabling him to conclude in the circumstances at the time that the subordinate has committed or is going to commit a breach. However, it should not be concluded from this that this position only concerns the commander under whose direct orders the subordinate is placed […]. The concept of the superior is broader and should be seen in terms of a hierarchy encompassing the concept of control.
Further support can be found in the judgement in the case against the Japanese Admiral Soemu Toyoda tried in the aftermath of World War II. The military tribunal in that case highlighted that subordination does not have to be direct and stated that ( Toyoda case, p. 5006, emphasis added):
?ign the simplest language it may be said that this Tribunal believes the principle of command responsibility to be that, if this accused knew, or should by the exercise of ordinary diligence have learned, of the commission by his subordinates, immediate or otherwise, of the atrocities proved beyond a shadow of a doubt before this Tribunal or of the existence of a routine which would countenance such, and, by his failure to take any action to punish the perpetrators, permitted the atrocities to continue, he has failed in his performance of his duty as a commander and must be punished.
See also the following finding of the Military Tribunal in the Hostage case in relation to the defendant Dehner (Hostage case, p. 1298):
The defendant excuses his indifference to all these killings by saying that it was the responsibility of the division commanders. We agree that the divisional commanders are responsible for ordering the commission of criminal acts. But the superior commander is also responsible if he orders, permits, or acquiesces in such criminal conduct. His duty and obligation is to prevent such acts, or if they have been already executed, to take steps to prevent their recurrence.
Reference may also be made to the ILC Commentary, which uses the term “superiors ” in the plural form in order to indicate that the doctrine of command responsibility “applies not only to the immediate superior of a subordinate, but also to his other superiors in the military chain of command or the governmental hierarchy if the necessary criteria are met”, ibid., p. 37.
150.As discussed above, the indicators of effective control depend on the specific circumstances of the case. See Strugar Trial Judgement, para. 392.
151.Celebici Appeal Judgement, para. 239.
152.Celebici Appeal Judgement, paras 223 and 241.
153.Celebici Trial Judgement, para. 386.
154. Celebici Trial Judgement, para. 386, citing United Nations Commission of Experts Report, para. 58. See also Kordic and Cerkez Trial Judgement, para. 427 and Blaskic Trial Judgement, para. 307.
155.Aleksovski Trial Judgement, para. 80.
156. Prosecutor v. Mladen Naletilic (a.k.a. “Tuta”), Vinko Martinovic (a.k.a. “Stela”), Case No. IT-98-34-T, Trial Judgement, 31 Mar ’03 (“Naletilic Trial Judgement”), para. 73. See also Kordic and Cerkez Trial Judgement, para. 428.
157.Blaskic Appeal Judgement, para. 62, citing Celebici Appeal Judgement, para. 241.
158.Celebici Appeal Judgement, para. 232.
159.Celebici Appeal Judgement, para. 238.
160.Celebici Appeal Judgement, para. 238.
161.Celebici Appeal Judgement, para. 238 (emphasis added), citing ICRC Commentary to the Additional Protocols, p. 1014, para. 3545. The factors listed in the United Nations Commission of Experts Report mentioned above have also been considered to be amongst those allowing inferences to be drawn concerning notice to the commander, although these factors are usually used to prove actual knowledge, Kordic and Cerkez Trial Judgement, para.  437. See supra para. 66.
162.Kordic and Cerkez Trial Judgement, para. 437.
163.Celebici Trial Judgement, para. 393.
164.Prosecutor v. Radoslav Brdjanin, Case No. IT-99-36-T, Judgement, 1 September 2004 (“Brdjanin Trial Judgement “) para. 278, referring to Celebici Appeal Judgement, paras 223 and 241. With regard to the criminal reputation of troops, see also the Israeli Commission of Inquiry into the Sabra and Shatilla Cases, which, when examining the responsibility of the Chief of Staff of the Israel Defence Forces, held that his knowledge of the feelings of hatred of the particular forces involved towards the Palestinians did not justify the conclusion that the entry of those forces into the camps posed no danger (Blaskic Trial Chamber, para. 331, citing Final Report of the Commission of Inquiry into the Events at the Refugee Camps in Beirut, February 7, 1983 (authorised translation), reproduced in 22 International Legal Materials 473-520 (1983 )). It stated that:
?tghe absence of a warning from experts cannot serve as an explanation for ignoring the danger of a massacre. The Chief of Staff should have known and foreseen – by virtue of common knowledge, as well as the special information at his disposal – that there was a possibility of harm to the population in the camps at the hands of the Phalangists. Even if the experts did not fulfil their obligation, this does not absolve the Chief of Staff of responsibility.
The Trial Chamber also notes the recent finding of the Trial Chamber in Strugar which considered that it is not sufficient that the information known to the commander at the time of the offence would have indicated the possibility that such offences might occur, but it is required that the information indicated that such crimes would occur, Strugar Trial Judgement, paras 417-419, 420. The Appeals Chamber in Krnojelac, having examined the case-law, found that with regard to a specific offence, the information available to the superior need not contain specific details on the unlawful acts which have been or are about to be committed. It may not, however, be inferred from the case-law that, where one offence has a material element in common with another which contains an additional element not present in the first, it would suffice for the commander to have alarming information regarding the first offence in order to be held responsible for failing to prevent or punish the second. Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement, 17 Sept ’03. (“Krnojelac Appeal Judgement”), para. 155. The Appeals Chamber mentioned the example of offences of cruel treatment and torture where torture subsumes the lesser offence of cruel treatment, ibid., para. 155.
165.Celebici Appeal Judgement, para. 226; Blaskic Appeals Judgement, para. 62.
166.Celebici Appeal Judgement, para. 226.
167.The Trial Chamber in Celebici held that (Celebici Trial Judgement, para. 387):
a superior is not permitted to remain wilfully blind to the acts of his subordinates. There can be no doubt that a superior who simply ignores information within his actual possession compelling the conclusion that criminal offences are being committed, or are about to be committed, by his subordinates commits a most serious dereliction of duty for which he may be held criminally responsible under the doctrine of superior responsibility.
168.Celebici Appeal Judgement, para. 239.
169.Blaskic Appeal Judgement, para. 63, citing Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A- A, Judgement, 3 July ’02, para. 34-35.
170.Blaskic Appeal Judgement, para. 83.
171.Blaskic Appeal Judgement, para. 83; Kordic and Cerkez Trial Judgement, paras 445-446.
172.Blaskic Trial Judgement, para. 336. The Strugar Trial Chamber held that (Strugar Trial Judgement, para. 373):
?…g if a superior has knowledge or has reason to know that a crime is being or is about to be committed he has a duty to take necessary and reasonable measures to prevent the crime from happening and is not entitled to wait and punish afterwards.
173.Celebici Trial Judgement, para. 395.
174.Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement, 15 March 2002 (“Krnojelac Trial Judgement ”), para. 95. The Trial Chamber in Celebici stated that “lack of formal legal competence on the part of the commander will not necessarily preclude his criminal responsibility”, Celebici Trial Judgement, para. 395.
175.Celebici Trial Judgement, para. 395 (footnotes omitted). See also Kordic and Cerkez Trial Judgement, para. 443.
176.Blaskic Appeal Judgement, para. 72. In this respect the Celebici Trial Chamber stated that (Celebici Trial Judgement, para. 394):
It is the view of the Trial Chamber that any evaluation of the action taken by a superior to determine whether this duty has been met is so inextricably linked to the facts of each particular situation that any attempt to formulate a general standard in abstracto would not be meaningful.
177.Blaskic Appeal Judgement, para. 72. It is a commander’s degree of effective control, his material ability, that may guide a Trial Chamber in determining whether he reasonably took the measures required either to prevent the commission of a crime or to punish the perpetrator thereof. See Blaskic Trial Judgement, para. 335.
178.Blaskic Appeal Judgement, para. 72, referring to Aleksovski Appeal Judgement, paras 73-74; and Celebici Appeal Judgement, para. 206.
179.Strugar Trial Judgement, para. 378.
180.Celebici Trial Judgement, para. 398. The one authority cited by the Defence in the Celebici case was M. Cherif Bassiouni, in The Law of the International Criminal Tribunal for the Former Yugoslavia, Transnational Publisher, 1996, pp. 350-351, where the author suggests the existence of causation as “the essential element” in cases of command responsibility.
181.Celebici Trial Judgement, para. 399.
182.Celebici Trial Judgement, para. 400.
183.Kordic and Cerkez Trial Judgement, para. 445.
184.Blaskic Appeal Judgement, para. 77.
185.Kordic and Cerkez Trial Judgement, para. 447.
186.See supra para. 39.
187.During the third session of the Committee I at the Geneva Conference, the Egyptian delegate (Mr. Abi-Saab) stated that his government always regarded “prevention as the most potent guarantee” of humanitarian law, but that repression had become necessary as a remedial action. See Official Records, Vol. IX, printed in Bern, 1978, p. 18, para. 14.
188.The Hostage case held Field Martial List had a positive obligation to maintain the protection of all persons within his territorial jurisdiction whether or not he had tactical command over all of the forces within that geographical area, ibid., p. 1230 and 1272. The subsequent High Command case found that that (ibid., p. 547):
One of the functions of an occupational commander endowed with executive power was to maintain order and protect the civilian population against illegal acts. In the absence of any official directives limiting his executive powers as to these illegal acts within his area, he had the right and duty to take action for their suppression.
Similarly, the Tokyo Judgement imposed a positive duty on those responsible for prisoners of war to ensure a system was in place to prevent their ill-treatment, ibid.,. pp. 48, 442 - 48, 444. Similarly, a United States Military Commission found that General Yamashita had failed in a duty to control the actions of his troops during the so-called “rape of Manila”; this was despite evidence that in fact he did not have de facto control of his troops and this finding was upheld on appeal to the US Supreme Court, In Re Yamashita, 327 US 1, p. 14. However, it may be argued that under the actual state of international humanitarian law the Yamashita standard would not be the appropriate standard to be followed since it appears from the circumstances of the case that he had no effective control over his troops and that he did not have knowledge of their crimes, therefore in the current state of international humanitarian law this would be considered as strict liability.
189.See Toyoda case, pp.  5005-5006, (emphasis added).
190.Additional Protocol I, Article  87, para. 2; Celebici Trial Judgement, para. 771.
191.ICRC Commentary to the Additional Protocols, p. 1023, para. 3563. The ICRC Commentary notes that this duty varies for each level of command, and by way of example, may imply that (ibid., p. 1022, paras 3560-3561):
a lieutenant must mark a protected place which he discovers in the course of his advance, a company commander must ensure that an attack is interrupted when he finds that the objective under attack is no longer a military objective, and a regimental commander must select objectives in such a way as to avoid indiscriminate attacks.
192.In examining the knowledge element of Article 86, the ICRC Commentary to the Additional Protocols notes that on the basis of post World War II jurisprudence a superior cannot claim to be ignorant about the level of training and instruction of subordinate officers and their troops, and their character traits and that “examples would be information on lack of any instruction for the troops on the Geneva Conventions and the Protocol”, this may include a preventative duty which attaches prior to knowledge that an offence is about to be committed, p. 1014, para. 3545.
193.ICRC Commentary to the Additional Protocols, p. 1018, para. 3550.
194.Ibid., p. 1022, para.  3560.
195.Ibid., p. 1021, para.  3558 (emphasis added).
196.Ibid.
197.Celebici Trial Judgement, para. 773.
198.Kvocka Trial Judgement, para. 412.
199.Strugar Trial Judgement, para. 421.
200.See for example Prosecutor  v. Anto Furundzija, Case No. IT-95-17/1-T, Judgement, 10 Dec 1998 (“Furundzija Trial Judgement”), para. 148 (referring to Soering v. United Kingdom, Judgement of 7 July 1989, Eur. Ct. H.R., Series A, No.161, para. 90):
States are bound to put in place all those measures that may pre-empt the perpetration of torture. As was authoritatively held by the European Court of Human Rights in Soering, international law intends to bar not only actual breaches but also potential breaches of the prohibition against torture (as well as any inhuman and degrading treatment). It follows that international rules prohibit not only torture but also (i) the failure to adopt the national measures necessary for implementing the prohibition and (ii) the maintenance in force or passage of laws which are contrary to the prohibition.
201.For example, the Trial Chamber in Strugar found that a failure on the part of the accused not to give a clarification on an order for attack was not sufficient to give rise to liability under Article 7(3), but that any such clarification would have been merely by way of wise precaution, however, it noted that “it remains relevant, however, when evaluating the events that followed, that no such precaution was taken”, Strugar Trial Judgement, para. 420.
202.Hostage case, p. 1290. The defendant Rendulic was held responsible for acts of his subordinates for reprisals against the population, in the light of, inter alia, the fact that he made no attempt to secure additional information (after receiving reports indicating that crimes have been committed). Similarly, in holding the defendant Dehner responsible, the military tribunal considered the fact that the defendant made no effort to require reports showing that hostages and reprisal prisoners were shot in accordance with international law, ibid. p. 1271. See also p. 1298.
203.Hostage case, p. 1311. With respect to the responsibility of the defendant Lanz for reprisal carried out by his subordinates the military tribunal held (ibid.):
(t(his defendant, with full knowledge of what was going on, did absolutely nothing about it. Nowhere an order appears which has for its purpose the bringing of the hostage and reprisal practice within the rules of war (…). As commander of the XXII Corps it was his duty to act and when he failed to do so and permitted these inhumane and unlawful killings to continue, he is criminally responsible.
204.The Tokyo Judgement, pp. 49,809. The Tokyo Judgement held with respect to the defendant Kimura that “(h(e took no disciplinary measures or other steps to prevent the commission of atrocities by the troops under his command”, ibid.
205.High Command case, p.  623. In finding the defendant Hans von Salmuth responsible, the military tribunal held inter alia that “it appears that in none of the documents or the testimony herein that the defendant in anyway protested against or criticized the action of the SD or requested their removal or punishment”, ibid. (emphasis added ). Similarly, in the Hostage case the military tribunal found the defendant Wilhelm List responsible inter alia in the light of the fact that “(n(ot once did he condemn such acts as unlawful. Not once did he call to account those responsible for these inhumane and barbarous acts”, ibid., p. 1272.
206.The Tokyo Judgement p. 49, 791. The Tokyo Judgement found that the defendant Hirota (ibid.):
was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented.
207.In particular, the Tokyo Judgement found that (ibid., p. 49, 80):
The duty of an Army commander in such circumstances is not discharged by the mere issue of routine orders […]. His duty is to take such steps and issue such orders as will prevent thereafter the commission of war crimes and to satisfy himself that such orders are being carried out.
208.ICRC Commentary to the Additional Protocols, p. 1007, para. 3528 (emphasis added).
209.ICRC Commentary to the Additional Protocols states that the “prevent or repress” element of paragraph 2 of Article  86 “deals with the central purpose of this paragraph: the superior who is responsible and who is aware of the facts must act to prevent or repress the breach”, ICRC Commentary to the Additional Protocols, p. 1015, para. 3547 (emphasis added). Article 86 does not refer to punishment at all, this arises in Article 87. The ICRC Commentary to Article 86(2) continues “the present provision merely poses the principle of the indictment of superiors who have tolerated breaches of the law of armed conflict ”, ibid. (emphasis added).
210.Strugar Trial Judgement, para. 416.
211.The Hostage case considered that a commander had a duty both to prevent and punish the crimes of his subordinates. The Court in that case stated that: “The primary responsibility for the prevention and punishment of crime lies with the commanding general; a responsibility from which he cannot escape by denying his authority over the perpetrators.” The Hostage case, p. 1272. It is also of note that defendant List was found guilty of murder, and not of any different offence of dereliction of his duty as a commander, ibid., p. 1274. That a commander was responsible for failure to punish can also be seen in the Toyoda judgement, which explicitly recognised that superiors have “?ag duty to control his troops, to take necessary steps to prevent commission ?…g of atrocities, and to punish offenders”, ibid., pp. 5005-5006. However, as noted above, the charge in the Toyoda trial was one of dereliction of duty. The Tokyo Judgement, in convicting former Prime Minister Tojo stated that “he took no adequate steps to punish offenders and to prevent the commission of similar offences in the future”, ibid., pp. 49, 845. In convicting defendant Kimura, the Judgement stated “he took no disciplinary measures or other steps to prevent the commission of atrocities by the troops under his command”, ibid.,. p. 49, 809.
212.ICRC Commentary to the Additional Protocols, p. 1015, para. 3548 (emphasis added).
213.ILC Commentary, p. 37.
214.Blaskic Appeal Judgement, para. 83.
215.Blaskic Appeal Judgement, para. 85. This conclusion is based on an analysis of some post-World War II cases, the relevant provisions of Additional Protocol I and the “Regulations concerning the Application of International Law to the Armed Forces of SFRY” (1998) referred to in the Celebici Trial Judgement. The question as to the existence of failure to punish as a separate mode of liability distinct from failure to prevent was considered by the Trial Chamber in its Decision in Blaskic. Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-PT, Decision on the Defence Motion to Strike Portions of the Amended Indictment Alleging “Failure to Punish” Liability, Case No. IT-95 -14-PT, 04 Apr 1997 (“Blaskic Decision”). The Trial Chamber determined that failure to punish was a distinct form of responsibility. This finding was later followed in Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14 /2-PT, Decision on the Joint Defence Motion to Dismiss for Lack of Jurisdiction of the amended Indictment alleging “Failure to Punish” Liability, 2 Mar 1999 (“ Kordic and Cerkez Decision on failure to punish”), paras 9-16. It should be noted, however, that the Trial Chamber in Blaskic, in dismissing the argument that the words “or punish the perpetrators thereof” should be stricken from the indictment, stated that; “?…g the indictment is not restricted to a narrow charge of failing to punish. It covers rather, and essentially, the failure by the accused of preventing his subordinates from committing the alleged crimes in addition to having instigated, planned and ordered them himself”, Blaskic Decision, para. 16.
216.ICRC Commentary to the Additional Protocols, p. 1015, para. 3547.
217.Kordic and Cerkez Trial Judgement, para. 446.
218.See the Yamashita case, Law Reports, p. 35 (emphasis added):
where murder and rape and vicious, revengeful actions are widespread offences and there is no effective attempt by a commander to discover and control the criminal acts, such commander may be held responsible, even criminally liable, for the lawless acts of his troops […].
The Tokyo Judgement found that the defendant Shigemitsu “took no adequate steps to have the matter investigated […] He should have pressed the matter, if necessary to the point of resigning, in order to quit himself of a responsibility which he suspected was not being discharged”, ibid., p. 49, 831 (emphasis added).
219.High Command case, p.  623. When assessing Hans von Salmuth’s responsibility for actions by his subordinates, the military tribunal considered the fact that the only punishment inflicted was a 20-day confinement sentence against a member of his own staff for unauthorised participation in this action, ibid. In the Hostage case, the military tribunal considered the defendant’s commitment to conduct an adequate investigation and to bring the perpetrators to justice (Hostage case, p. 1309):
(t(he investigation was made, the battle report of the commanding officer was found to be false, and the action of the regimental commander found to be in excess of existing orders. Upon the discovery of these facts the defendant Felmy recommended that disciplinary action be taken against the officer in charge in consideration of the sacrifices of the regiment in the combat area at the time. The defendant testified that he never knew what punishment, if any was assessed against this guilty officer. He seems to have had no interest in bringing the guilty officer to justice.
220.The Tokyo Judgement found defendant Tojo responsible for not taking adequate steps “to punish the offenders and to prevent the commission of similar offences in the future. […] He did not call for a report on the incident. […] He made perfunctory inquires about the march but took no action. No one was punished.” The Tokyo Judgement pp. 49, 846. See also Strugar Trial Judgement, para. 376 and jurisprudence cited therein. It is a matter of fact as to whether the efforts made by a commander to investigate crimes were sufficient to meet the standard of “necessary and reasonable measures ” within the meaning of Article 7(3). See, e.g., Blaskic Trial Judgement, paras 488-495.
221.ICRC Commentary to the Additional Protocols, p. 1023, para. 3562.
222.Kvocka Trial Judgement, para. 316.
223.Krnojelac Trial Judgement, para. 95.
224.Celebici Trial Judgement, para. 395.
225.Kordic and Cerkez Trial Judgement, para. 446.
226.In B/C/S, Oruzanih Snaga Republika Bosna i Hercegovina, abbreviated as OS R BiH.
227.Namik Dzankovic, 21 Mar ’05, T. 62. There is evidence that the commanders of the 10th Mountain Brigade and the Deputy Commander of the 9th Motorised Brigade were selected by the members of those units, Vehbija Karic, Ex. 444, T. 19.
228.Namik Dzankovic, 21 Mar ’05, T. 63.
229.Vahid Karavelic, 18 Apr ’05, T. 137.
230.Salko Gusic, 04 Feb ’05, T.  69; Jusuf Jasarevic, 03 Mar ’05, T. 13.
231.Ivan Brigic, Ex. 453, 14 Mar ’03, pp. 2-3, 18; Ex. 143, Decision on the organisational structure of the Ministry of Defence and the Army of the Republic of Bosnia and Herzegovina, 18 July 1993, which under III provides that “(t(he Main Staff consists of: […] three Deputy Commanders (Muslim, Serb and Croat) […]”. See also Mirko Pejanovic, Ex. 456, 1 Mar ’03, p. 3.
232.Kemo Kapur, 16 Mar ’05, T. 37.
233.Salko Gusic, 04 Feb ’05, T.  25; Namik Dzankovic, 21 Mar ’05, T. 90; Ex. 102, Decision on the restructuring of the Republic of Bosnia and Herzegovina Supreme Command Headquarters of the armed forces and the appointment of senior officers, 08 June 1993, which provides under VII that “(r(egulations pertaining to the introduction of ranks in the Army of the Republic of Bosnia and Herzegovina shall start to apply. Ranks shall be introduced gradually”. See also Erdin Arnautovic, 104 Feb ’05, T. 44.
234.Namik Dzankovic, 21 Mar ’05, T. 63, who agreed with Defence counsel’s proposition that the ABiH “was still very much a work in progress.”
235.Witness F, 08 Mar ’05, T. 65 ; Salko Gusic, 04 Feb ’05, T. 69-70; Ramiz Delalic, 17 May ’05, T. 13-14.
236.Ramiz Delalic, 17 May ’05, T. 14.
237.Ramiz Delalic, 17 May ’05, T. 15, testifying that:
most of the former JNA officers transferred to the BH Army immediately after the war broke out or up to two months after that. And there was a lot of animosity between them and the ordinary commanders because those who were the former JNA members actually took part in attacking Sarajevo before they transferred to the BH Army. In addition to that, there was a lot of mistrust among the former JNA officers and the commanders who were ordinary people.
See also Erdin Arnautovic, 15 Feb ’05, T. 17, and further regarding Ramiz Delalic’s opinions on former JNA officers, Kemo Kapur, 16 Mar ’05, T. 34; Vahid Karavelic, 19 Apr ’05, T. 44.
238.In B/C/S, Glavni Stab Vrhovne Komande, or GSVK (see, e.g., Ex. 122, Ex. 501, Ex. 502). The GSVK was also referred to as Stab Vrhovne Komande, or SVK (see, e.g., Ex. 109, Ex. 146, Ex. 377).
239.Selmo Cikotic, 24 Feb ’05, T. 52; Jusuf Jasarevic, 28 Feb ’05, T. 4.
240.Nacelnik in B/C/S. The Trial Chamber notes that the term nacelnik was used in several ways within the ABiH and the MUP. For instance, in Ex. 388 the term is used to refer, on one occasion, to Sefer Halilovic as Chief of the Supreme Command Staff and, on another occasion, to the Chief of Staff of the 6th Corps; in Ex. 143 the term refers to the Chief of the Main Staff as well as the Heads (“Chiefs”) of the various administrations and branches of the ABiH Main Staff (see in this respect Ex. 224, Ex. 228, Ex. 229, Ex. 232, Ex. 233, Ex. 237, Ex. 283 and Ex. 213, wherein Jusuf Jasarevic, who was Chief of the Main Staff UB, is referred to as Chief/Nacelnik, and Ex. 296, which Avdulah Kajevic, who headed the Main Staff Administration for Organisation and Mobilisation, signed as Chief/Nacelnik); in Ex. 154, Ex. 230 and Ex.  234 Nermin Eminovic, who was Chief of the SVB in the 6th Corps, signed as Nacelnik ; in Ex. 492 Ramo Maslesa, who headed the Mostar CSB, signed as Chief/Nacelnik (see also Ex. 493 wherein Munir Alibabic of the Sarajevo CSB signs as Nacelnik Centra or Chief of the Centre); in the intercepted conversation in Ex. 390, Vahid Karavelic asks the question “Well, where are you chief?” which has been translated using the word nacelnik.
241.Jusuf Jasarevic, 28 Feb ’05, T. 4, 50 and 04 Mar ’05, T. 30; Ramiz Delalic, 17 May ’05, T. 15; Witness D, 21 Feb ’05, T. 42; Witness F, 09 Mar ’05, T. 63; Ex. 144; Ex. 488; Ex. 473; Ex. 220 ; Ex. 471; Ex. 377; Ex. 243; Ex 399; Ex. 219; Ex. 378.
242.Ex. 102. See also Sefko Hodzic, 24 Mar ’05, T. 22; Salko Gusic, 07 Feb ’05, T. 63-64; Mirko Pejanovic, Ex. 456, 1 Mar ’03, p. 3-4.
243.Ex. 102, p. 1.
244.Ex. 102, p. 2.
245.Ex. 102, p. 2.
246.Ex. 143. The preamble of this decision provides that it was adopted “(p(ursuant to […] the Decree Law on the Armed Forces of the Republic of Bosnia and Herzegovina […], at the proposal of the Minister of Defence and the (RBiH( Armed Forces Main Staff Commander […].”
247.Ex. 143. I, referring to the Decree Law on the revision of Amendment LXXXIII of the Constitution of the Republic of Bosnia and Herzegovina, published in the Republic of Bosnia and Herzegovina Official Gazette, no. 9/92.
248.Ex. 143, III.1.
249.Indictment, para. 1.
250.Indictment, para. 3.
251.Indictment, para. 36.
252.Prosecution Final Brief, para. 67.
253.Defence Final Brief, para. 199.
254.See e.g., Salko Gusic, 07 Feb ’05, T. 64; Witness D, 21 Feb ’05, T. 58; Selmo Cikotic, 23 Feb ’05, T.  6; Witness F, 08 Mar ’05, T. 46; Nermin Eminovic, 10 Mar ’05, T. 67; Zakir Okovic, 15 Mar ’05, T. 55.
255.The position of chief of staff is a key post as far as planning, monitoring and control are concerned, Vahid Karavelic, 22 Apr ’05, T. 34. The term ‘control’ in this respect means (Vahid Karavelic, 22 Apr ’05, T. 34):
to have constant oversight of the combat operations (in order that the staff be able( to prepare any kind of decisions, guidelines, directives, in terms of what to do at that point in time, tomorrow, in the future, how to conduct […] the combat operations. This is prepared by the staff of that command, together with the Chief of Staff, and it’s prepared for the commander of that unit or the commander of the Main Staff.
In other words, a chief of staff participates in coordination, planning and the other four parts of the control process but not in the command process unless he had been given specific authority to do so by his commander (Vahid Karavelic, 22 Apr ’05, T. 98). Thus, solely by virtue of his position a chief of staff does not have the authority to issue combat orders but can only do so if his commander authorises him (Vahid Karavelic, 22 Apr ’05, T. 33; see also Salko Gusic, 07 Feb ’05, T. 70-71). In situations when the commander authorises his deputy commander to command, orders by the deputy are signed zastupa komandanta which means that the deputy commander is acting on behalf of the commander (Selmo Cikotic, 24 Feb ’05, T. 2). In other words, a chief of staff was not “structurally speaking” in the line of command (Salko Gusic, 07 Feb ’05, T. 41). According to Dzevad Tirak, the 6th Corps Chief of Staff, it was his responsibility to know the whereabouts of 6th Corps units (Dzevad Tirak, 30 Mar ’05, T. 85). The chief of staff would have a duty or even an obligation to explain and clarify to subordinate units the meaning of orders issued by the commander to whom the chief of staff was subordinated (Vahid Karavelic, 22 Apr ’05, T. 34, testifying that “the orders […] issued […] are something that the Chief of Staff would understand the best, because it was the Chief of Staff who prepared that for the commander”; Selmo Cikotic testified that it is one of the important roles of a chief of staff to convey orders of the commander and explain them in detail to the units that will carry out the orders, Selmo Cikotic, 23 Feb ’05, T. 79-80). In order to do this, the chief of staff could issue an order, an instruction or the like, as required by the circumstances (Vahid Karavelic, 22 Apr ’05, T. 35). The chief of staff would have “full command only over the staff within his headquarters” (Vahid Karavelic, 22 Apr ’05, T. 36). In terms of the internal Main Staff chain of command, the 18 July decision provides that the several Main Staff administrations were “directly” linked to the Commander of the Main Staff and “indirectly linked” to the Chief of the Main Staff (Ex. 143, III.3. The only Main Staff organs that were “directly linked” to the Chief of the Main Staff were the Office of the Chief of the Main Staff, the Command Operations Centre, the Headquarters Administration and the Combat Arms Administration). Importantly, a chief of staff could not directly punish soldiers or units for violations of military discipline or law; he could, however, suggest to the commander to take disciplinary measures (Salko Gusic, 07 Feb ’05, T. 71-72). On the other hand, if the chief of staff had been given the authority to command then he could take disciplinary measures (Salko Gusic, 07 Feb ’05, T. 72).
256.Salko Gusic, 07 Feb ’05, T.  67-68, commenting on Ex. 143, III.3.
257.Vahid Karavelic, 22 Apr ’05, T. 152. The JNA textbook “Command and Control” from 1983 (Ex. 142, p. 28) provides that:
The principle of single authority in command and control implies an inalienable right of a commander to command and control a subordinated command and unit in keeping with the powers deriving from the competence ascribed to a specific level of command and control. This principle ensures that in the process of command and control there is only one superior who issues commands and to whom the others report about the execution of tasks. The commander’s authority is stipulated by regulations. It is his right to make decisions, for which he is therefore solely responsible. In his work a commander relies on his aides, the staff and other command organs. The rights and obligations of these organs are stipulated by regulations, and they are responsible for their scope of work. A commander may delegate some of his duties and obligations on the chief of staff, his aides, a staff organ and subordinated commands, but he cannot delegate the responsibility for the situation in the unit and its use. The principle of single authority does not bar a commander from including a wider circle of associates into the decision-making process, or from hearing out their opinions and suggestions. In that way favourable conditions are created for a commander to reach best possible decisions, and for his associates to develop inventiveness and creativity.
Salko Gusic, the Commander of the 6th Corps, testified (Salko Gusic, 07 Feb ’05, T. 55-56) that:
(Command and control( consists of the inviolable right of the commander to command and control subordinated units, ensuring the appearance of only one superior in command and control who commands. It is the right of the commander to make decisions, so he alone bears the responsibility for this. The commander can transfer some of his rights and obligations to the Chief of Staff, assistants, or subordinated commanders but he cannot transfer responsibility for the state and use of units. The command relationship is established by the principle of subordination in a military organisation. A command relationship is founded on the duty, right, and responsibility of superiors to make decisions and designate tasks and the duty, right, and responsibility of subordinates to carry out these tasks.
Salko Gusic further testified that the five functions of the concept of ‘command and control’ are planning, organisation, command, coordination and control, Salko Gusic, 07 Feb ’05, T. 59. He also testified that ‘control’, or rukovodjenje, is more akin to direction or management than command. It means the control of personnel and certain services, for instance by giving guidelines. ‘Control’ does not imply issuing orders. ‘Command’, on the other hand, implies all five elements and means the issuing of tasks to subordinate units, Salko Gusic, 07 Feb '05, T.  60-61.
258.Jusuf Jasarevic, 28 Feb ’05, T. 24.
259.Referred to in the decision as “Nacelnik Glavnog Staba”.
260.Ex. 143, III.1.
261.Ex. 143, III.2.
262.In B/C/S, as Nacelnik Staba. See, e.g., Ex. 381, Ex. 138, Ex. 161 (signed both as “Nacelnik GS VK ” and Deputy Commander), Ex. 123 (signed as Ex. 161), Ex. 382, Ex. 122. In the following, when referring to exhibits, the Trial Chamber will therefore note the title in B/C/S with which Sefer Halilovic signed documents.
263.Ex. 143, III.1. According to IV.1 the administrations were: Combat Arms Administration; Intelligence Administration ; Airforce and Anti-aircraft Defence Administration; Personnel Administration; Armed Forces Organisation and Mobilisation Administration; Moral Guidance, Information, Propaganda and Religious Affairs Administration; Security Administration; Training, Education, Rules and Regulations Administration; Logistics Administration; Finance and Army Development Planning Administration; Legal Affairs Administration; and Navy Department.
264.Ex. 143, III.2.
265.Ex. 143, III.5. The B/C/S text of this provision reads (emphasis added):
Komandanti korpusa neposredno su potcinjeni komandantu Glavnog Staba, a vezu ostvaruju i sa Operativnim centrom komandovanja i nacelnikom Glavnog staba, po pitanjima koja odredi komandanta Glavnog Staba.
The English translation of this provision reads (emphasis added):
Corps commanders are directly subordinate to the Main Staff Commander. They shall liaise with the Command Operations Centre and the Chief of the Main Staff in issues determined by the Main Staff Command.
The Trial Chamber notes that there is a mistake in the B/C/S original as the word “komandanta” is grammatically incorrect. In order to mean “command”, as the English translation purports, it should have been “komanda” and in order to mean “commander ”, it should have been “komandant”. Therefore, on 28 September ’05 the Trial Chamber requested ex officio the Tribunal’s Conference and Language Services Section to revise the translation of this provision. The revised translation is Ex. 500 and the revised translation of the provision reads:
Corps commanders are directly subordinate to the Main Staff Commander. They liaise with the Command Operations Centre and the Chief of the Main Staff on issues determined by the Main Staff /?Commander/.
The Trial Chamber finds that it is more logical that the decision’s drafter intended that it read “komandant”. This interpretation is supported not only by the fact that it is more likely that a mistake is made of one letter and not of three, but also by the principle of single authority in command, which applied in the ABiH, Jusuf Jasarevic, 28 Feb ’05, T. 24 and 01 Mar ’05, T. 11; Vahid Karavelic, 22 Apr ’05, T. 152. The Trial Chamber therefore considers that the decision in this respect was intended to provide that Corps commanders would “liaise with the Command Operations Centre and the Chief of the Main Staff on issues determined by the Main Staff Commander.”
266.Indictment, para. 38.
267.Indictment, para. 38; Prosecution Final Brief, para. 186. The Trial Chamber notes that in the its Pre-trial Brief (paras 203, 207-208), the Prosecution did not contend that the Accused had any de jure command authority of the units used during the “Neretva-93 Operation ” by virtue of being either “chief of the Supreme Command Staff” or “ABiH deputy commander”.
268.See infra Section IV. C.8-9.
269.In B/C/S, Sluzbe Vojne Bezbjednosti.
270.Jusuf Jasarevic, 28 Feb '05, T. 13-14.
271.In B/C/S, Uprava Bezbjednosti, see, e.g., Ex. 224.
272.Jusuf Jasarevic, 02 Mar ’05, T. 30. Attached to the Main Staff UB was a Military Police Battalion, which was in charge of, among other things, guarding the facilities of the Main Staff, including the Vranica, Mladen Stojanovic, and Privredna Banka buildings, Witness F, 08 Mar ’05, T. 11, 13-14.
273.Jusuf Jasarevic, 28 Feb '05, T. 5, testifying that he was appointed on 17 July 1993 and that his predecessor was Fikret Muslimovic (mentioned e.g. in Ex. 243).
274.Jusuf Jasarevic, 28 Feb '05, T. 12. See also Ex. 137, Rules for the Military Security Service in the Armed Forces of the Republic of Bosnia and Herzegovina, items 1, 5-7, pp. 4-5, detailing specific tasks for each of these functions.
275.Ex. 137, para. 5(b), p. 4.
276.Jusuf Jasarevic, 28 Feb '05, T. 34.
277.Ex. 137, items 27-44, pp. 7- 10. See infra Section IV.F.
278.Ex. 137, item 8, p. 5. See also Jusuf Jasarevic, 28 Feb '05, T. 11.
279.Jusuf Jasarevic, 28 Feb '05, T. 24.
280.Jusuf Jasarevic, 28 Feb '05, T. 24.
281.Jusuf Jasarevic, 28 Feb '05, T. 25, testifying that the SVB organ would report to its commander.
282.Selmo Cikotic, 23 Feb ’05, T. 31. See also Ivan Brigic who stated that when he became Chief of the Main Staff Administration for Moral Guidance, Information and Religious Affairs there were already rules in place concerning the Geneva Conventions and humanitarian law, Ivan Brigic, Ex. 453, 11 Jun ’05, p. 3. He also stated that his administration would issue daily reminders to the ABiH to protect civilians and religious buildings, ibid. See also Mirko Pejanovic, who stated that when Sefer Halilovic was Supreme Commander of the ABiH he always reacted in a responsible manner to incidents in which local commanders arbitrarily abused their position, and that Sefer Halilovic insisted on the accelerated establishment of the military police, the military judiciary and appropriate legislation, Mirko Pejanovic, Ex. 456, 1 Mar ’03, p. 4.
283.Vahid Karavelic, 21 Apr ’05, T. 94.
284.Salko Gusic, 03 Feb ’05, T.  23, testifying that these rules were available electronically at the ABiH units.
285.Ex. 104, Instructions published in the Official Gazette of the ABiH on 5 December 1992, p. 2; Salko Gusic, 03 Feb ’05, T. 23.
286.Ex. 103, The Decree Relating to the Implementation of the International Laws of War Within the Army of the Republic of Bosnia-Herzegovina. The “International Laws of War” are defined as “International Conventions and Treates signed and ratified by the Republic of Bosnia and Herzegovina ”, “Customary International Law of War” and “General Principles of International Law of War”, ibid; Salko Gusic, 03 Feb ’05, T. 22.
287.Salko Gusic, 03 Feb ’05, T.  19.
288.Salko Gusic, 03 Feb ’05, T.  19.
289.Salko Gusic, 03 Feb ’05, T.  19-20.
290.Vahid Karavelic, 21 Apr ’05, T. 95 and 22 Apr ’05, T. 147-149. He testified that during this time rules were also introduced on the SVB and military courts and prosecutors, Vahid Karavelic, 21 Apr ’05, T. 100.
291.Salko Gusic, 03 Feb ’05, T.  20. See also Mehmed Behlo, 28 Jun '05, T. 39-41.
292.Enes Sakrak, 107 Feb ’05, T.  72.
293.Enes Sakrak, 107 Feb ’05, T.  82-83.
294.Ex. 143, III.1, p. 2.
295.Ex. 472, Decision on the formation of the 6th Corps of the BH Army and the zones of responsibility of the 1st, 3rd, 4th and 6th Corps of the BH Army, 9 June 1993; Vahid Karavelic, 22 Apr ’05, T. 32. Ex. 109, Conclusions and tasks adopted at the meeting of the senior officers of the Main Staff and Corps Commanders, held in Zenica on 21 and 22 August, dated 29 Aug ’05, p. 4, shows that the establishment of a 7th Corps was being considered.
296.Ex. 408, Annexes filed to the Motion of Judicial Notice, 15 Apr ’05, p. 4.
297.Vahid Karavelic, 18 Apr ’05, T. 139.
298.Ex. 237, Ex. 255, Ex. 257, Ex. 270, Ex. 380, Ex. 388, Ex. 400.
299.Vahid Karavelic, 21 Apr ’05, T. 103. See also Salko Gusic, 03 Feb '05, T. 27 and Zakir Okovic, 15 Mar '05, T. 35.
300.Vahid Karavelic, 18 Apr ’05, T. 140-141.
301.These were: Breza, Centar-Sarajevo, Cajnice, Foca, Gorazde, Han Pijesak, Ilidza, Ilijas, Novi Grad Sarajevo, Novo Sarajevo, Olovo, Pale, Rogatica, Rudo, Sokolac, Stari Grad Sarajevo, Vares, Visegrad, Vogosca, and Zepa, Ex. 472, Decision on formation of the 6th Corps of the BH Army and the zones of responsibility of the 1st, 3rd, 4th and 6th Corps of the BH Army, 9 June 1993, p. 1.
302.Ex. 404, sketch of the command and composition of the 1st Corps by Vahid Karavelic. The other subordinate brigades were the 1st, 2nd, 9th and 82nd Mountain Brigades and the 1st, 2nd, 4th, 5th, 101st and 102nd Motorised Brigades, ibid. See also Dzevad Tirak, 30 Mar ’05, T. 23-24.
303.Nedzad Mehanovic, 16 Feb ’05, T. 23; Witness D, 21 Feb ’05, T. 77; Vahid Karavelic, 18 Apr ’05, T. 150; Ramiz Delalic, 17 May ’05, T. 13.
304.Vahid Karavelic, 18 Apr ’05, T. 151.
305.Vahid Karavelic, 18 Apr ’05, T. 152. Vahid Karavelic further testified that “after several talks with Ramiz Delalic, I do not remember the exact number of these conversations, he actually accepted the post of deputy commander of that brigade”. Ramiz Delalic however described his appointment in the following words (Ramiz Delalic, 17 May ’05, T. 13-14):
I proposed that myself. Since I didn't have a lot of military training and the brigade did number 5,000 men, I suggested (to Vahid Karavelic( that I be appointed deputy commander and (Sulejman Imsirevic( be appointed the commander […] Vahid Karavelic, (was( really […] quite happy to hear that (because( at that time all the commanders were just regular men who had no particular training for commanders of brigades who had no training in carrying out military operations. And in order to lead a brigade you needed a trained person. So the plan was to let the military personnel who used to be members of the former JNA lead the units.
306.Vahid Karavelic, 18 Apr ’05, T. 154-155.
307.Zlatan Okic, 01 Apr ’05, T.  33.
308.Ramiz Delalic, 17 May ’05, T. 13.
309.Witness D, 21 Feb ’05, T. 5; Vahid Karavelic, 18 Apr ’05, T. 150.
310.Jusuf Jasarevic, 1 Mar ’05, T. 13; Ramiz Delalic, 17 May ’05, T. 35.
311.Ramiz Delalic, 17 May ’05, T. 16; Nedzad Mehanovic, 16 Feb '05, T. 99; Witness F, 08 Mar '05, T. 25.
312.Ramiz Delalic, 17 May ’05, T. 16.
313.Kemo Kapur, 16 Mar ’05, T. 22, who in 1993 was the Commander of the military police company of the 9th Brigade.
314.Kemo Kapur, 16 Mar ’05, T. 49.
315.Ramiz Delalic, 17 May ’05, T. 23, Erdin Arnautovic, 104 Feb '05, T. 31, Witness F, 08 Mar '05, T. 25-26. Before the unit was deployed to Grabovica, the commander of this unit was Malco Rovcanin, thereafter it was a man nicknamed ‘Zuti’, Erdin Arnautovic, 104 Feb '05, T. 31. This company was used when there was heavy fighting or when a breakthrough was necessary, Erdin Arnautovic, 104 Feb '05, T. 81-82.
316.Nedzad Mehanovic, 15 Feb '05, T. 98.
317.Witness D, 21 Feb '05, T. 5. The assault company was equipped with rocket-propelled grenades, hand-held launchers and automatic weapons, ibid.
318.Ramiz Delalic, 17 May ’05, T. 23.
319.Ramiz Delalic, 17 May ’05, T. 16. Ramiz Delalic commented that the depiction in Ex 402 of the area of responsibility of the brigade did not include all of the area and said that the 9th Brigade covererd 20-25% of the total frontline in Sarajevo, Ramiz Delalic, 17 May ’05, T. 24. See also Jusuf Jasarevic, 04 Mar '05, T. 64-65; Vahid Karavelic, 18 Apr ’05, T. 150.
320.Witness F, 8 Mar '05, T. 24. See also Kemo Kapur, 16 Mar '05, T. 26.
321.Ramiz Delalic, 17 May ’05, T. 16-17.
322.Enes Sakrak, 107 Feb '05, T.  90; Kemo Kapur, 16 Mar ’05, T. 48. Also Ramiz Delalic, the Deputy Commander of the brigade, testified to this, stating that while the majority of the soldiers were Bosnian Muslims, there were also Bosnian Croats, Roma and Bosnian Serbs, Ramiz Delalic, 17 May 05, T. 21 and 19 May ’05, T. 26. See also Vahid Karavelic, who testified that Tomislav Juric was a Bosnian Croat, 22 Apr ’05, T. 19. However, Vahid Karavelic also testified that in the entire 1st Corps only 5-7 percent were Bosnian Serbs and 3-4 percent were Bosnian Croats, Vahid Karavelic, 22 Apr ’05, T. 156.
323.Enes Sakrak, 107 Feb '05, T.  88 (testifying that “(e(verybody had respect for that unit. Its fighters were good ” and agreeing with Defence counsel’s proposition that “(i(t was in fact regarded as an elite unit”: “You can say that, yes, if - you can use that word, ‘elite’”). For the battle on Mt. Igman, see infra Section IV.B(d).
324.Witness F, 8 Mar ’05, T. 68.
325.Vahid Karavelic, 19 Apr ’05, T. 42-43; Ramiz Delalic, 17 May ’05, T. 34; Vehbija Karic, Ex. 444, T. 15; Ex. 216, Notes on meeting in the Main Staff with the source “Rotor”, 24 Sep 1993.
326.Witness F, 8 Mar ’05, T. 68; Vahid Karavelic, 18 Apr ’05, T. 150.
327.Witness F, 8 Mar ’05, T. 27- 28; Vahid Karavelic, 18 Apr ’05, T. 150-151.
328.Witness F, 9 Mar ’05, T. 24.
329.Vahid Karavelic, 22 Apr ’05, T. 25.
330.Jusuf Jasarevic, 28 Feb '05, T. 52-53.
331.Jusuf Jasarevic, 1 Mar '05, T. 11. Jusuf Jasarevic, could not say if this conduct were common knowledge in Sarajevo, Jusuf Jasarevic, 1 Mar '05, T. 18-19.
332.Jusuf Jasarevic, 2 Mar ’05, T. 43.
333.Namik Dzankovic, 21 Mar ’05, T. 13.
334.Dzevad Tirak, 30 Mar ’05, T.  33, 77.
335.Dzevad Tirak, 30 Mar ’05, T.  33-34, 37.
336.Witness E, 07 Mar '05, T. 19 -20.
337.Zlatan Okic, 01 Apr ’05, T.  31.
338.Vehbija Karic, Ex. 444, T. 22.
339.Jusuf Jasarevic, 01 Mar '05, T. 12. Zlatan Okic testified that it was predominantly the 9th Brigade that was involved in criminal activities, Zlatan Okic, 01 Apr ’05, T. 32-33. The Trial Chamber notes, however, that the witness several times confused the two brigades (e.g. 01 Apr. '05, T. 33) and therefore finds that it cannot rely on his testimony in this respect.
340.Kemo Kapur, 16 Mar '05, T. 26 -27.
341.Kemo Kapur, 16 Mar '05, T. 30.
342.Kemo Kapur, 16 Mar '05, T. 30.
343.Kemo Kapur, 16 Mar '05, T. 27. Kemo Kapur also testified that certain individuals misused their weapons and went to the market where they robbed goods. However, he also testified that he was only aware of certain individuals being involved in “petty criminal activities” and not of “murders or rapes or serious robberies”, Kemo Kapur, 16 Mar ’05, T. 52-53.
344.Mustafa Kadic, 10 Mar '05, T. 20-21.
345.Kemo Kapur, 16 Mar ’05, T. 42 -43. Erdin Arnautovic heard about cases of civilians being taken involuntarily to the front line to dig trenches by units within the 1st Corps, including the 10th Brigade, Erdin Arnautovic, 15 Feb '05, T. 78. Dzevad Tirak testified that his old geography professor, who at the time was around 60 years old, was taken to dig trenches by members of the 9th Brigade, Dzevad Tirak, 30 Mar '05, T. 26; however, Dzevad Tirak also testified that the soldiers who took his professor to dig trenches were “Caco’s men”, Dzevad Tirak, 30 Mar '05, T. 26. Considering that Tirak several times confused the two brigades and their commanders, the Trial Chamber therefore finds that it cannot rely on his testimony with regard to this incident. 
346.Namik Dzankovic, 21 Mar ’05, T. 13.
347.Vahid Karavelic testified about the existence and the structure of such a system, Vahid Karavelic, 19 Apr ’05, T. 6-7. Ex. 211 is an SVB report concerning the employment of 40 civilians for digging a road. Vahid Karavelic testified that as the document speaks of the registration of the civilians with the duty officer of the 9th Brigade, this probably indicates that the proper procedure was respected, Vahid Karavelic, 19 Apr ’05, T. 12-13. At the time, however, Vahid Karavelic never had occasion to learn that the 9th Brigade was engaging in illegal use of civilians for trench digging, Vahid Karavelic, 19 Apr '05, T. 8.
348.Kemo Kapur, Ex. 276, paras 16 -18, pp. 4-5. Kemo Kapur also testified that he considered the taking of civilians to dig trenches at the frontline a “petty crime”, Kemo Kapur, 16 Mar ’05, T. 56. He testified that the Criminal Code of Bosnia and Herzegovina by “crimes” implies “serious crimes, such as murders, rapes, robberies, armed robberies, and so on. I just wish to draw a distinction between those kinds of crimes and petty crimes. Petty crimes are also crimes. I'm speaking now as a lawyer. But the sanctions prescribed by the law for such crimes are smaller. If during the war an armed soldier steals a sack of potatoes from a market stall, that is not a serious crime; it's a petty crime”, Kemo Kapur, 16 Mar ’05, T. 56.
349.Zlatan Okic, 01 Apr ’05, T.  34. The Trial Chamber notes that Zlatan Okic was uncertain as to which brigade took him to dig trenches (Zlatan Okic, 01 Apr ’05, T. 35) and the Trial Chamber is therefore unable to conclude which brigade it was. Zlatan Okic described his experience digging trenches as follows: one day he was surrounded in the street in the centre of Sarajevo by five to six soldiers in uniform and that he and 10-15 other civilians were subsequently taken to dig trenches. Zlatan Okic showed the soldiers his official MUP identity card but without success. They were initially taken to a courtyard in Sarajevo where a soldier said that the soldiers could not dig trenches and that the civilians had to make their contribution to the defence of Sarajevo. Thereafter, they were transported to various locations by van escorted by a car with armed members of the brigade. While digging, Zlatan Okic heard that the Bosnian Serb soldiers were a few hundred meters above him on the hill, however there was no firing as long as he was there. He and the other people were not guarded while digging trenches, but the members of the brigade were a little downhill. The civilians were given dinner and stayed in an abandoned house near the ABiH positions. Zlatan Okic was there for 24 hours and was released the next day at noon. Upon return to Sarajevo, Zlatan Okic walked straight to the MUP and told his superiors and colleagues what had happened, Zlatan Okic, 01 Apr ’05, T. 34-39.
350.Kemo Kapur testified that, as the Commander of the military police, he was informed that Mustafa Hota had seized a vehicle from the civilian Nedzad Burovic. He testified that he informed Ramiz Delalic, who agreed to return the vehicle on the condition that Nedzad Burovic would go to dig trenches; Nedzad Burovic actually went to dig trenches and got his vehicle back, Kemo Kapur, 16 Mar ’05, T. 36 and Ex. 276, para. 15, p. 4.
351.Esad Cesko, Ex. 455, 29 Apr ’05, p. 1 and 28 Jun ’05, p. 1. See also Ex. 415, MUP Report on illegal activities of the Deputy Commander of the 9th Motorised Brigade, 16 October 1993, p. 3.
352.Jusuf Jasarevic, 01 Mar '05, T. 13-14, 26. Jusuf Jasarevic testified that the son of Avdo Smajlovic, a well-known Sarajevo musician, told him to having been taken to dig trenches by the members of the 10th Brigade, Jusuf Jasarevic, 1 Mar '05, T. 13-14.
353.Vahid Karavelic, 19 April ’05, T. 48-49.
354.Witness F, 8 Mar ’05, T. 39, 42, testifying that Rasim Delic’s son was “humiliated and abused” by the members of the 10th Brigade who took him to dig trenches. Ramiz Delalic testified that, to his knowledge, Rasim Delic’s son was not taken to dig trenches. However, he does remember that Rasim Delic’s son was “taken into custody in the 10th Mountain Brigade and beaten up there. Everybody knew about that. Nobody intervened and there were even some orders issued to the effect that this is the fate that should befall him ”, Ramiz Delalic, 17 May ’05, T. 40. Ramiz Delalic also testified that he was present in the 10th Brigade command Rasim Delic’s son was detained and beaten, and that he later asked Musan Topalovic, who had spoken with someone, who that person was. Ramiz Delalic testified that Musan Topalovic had spoken with “the chief of the Main Staff, Sefer Halilovic”, Ramiz Delalic, 17 May ’05, T. 40. The Trial Chamber notes that the testimony of Ramiz Delalic needs corroboration. As no corroborating evidence has been presented in this respect, the Trial Chamber does not consider that the incident, as described by Ramiz Delalic, has been proven beyond reasonable doubt. 
355.Erdin Arnautovic, 104 Feb '05, T. 80-81.
356.Namik Dzankovic, 21 Mar ’05, T. 14.
357.Ex. 430, “Report on certain intelligence connected to the incidents between a number of soldiers from the 10th Mountain Brigade and members of the Bosnia and Herzegovina MUP in the Stari Grad Area”, MUP, 6 July 1993, p. 3, which mainly concerns the 10th Brigade but in this respects includes information regarding the 9th Brigade’s. Bakir Alispahic, the Minister of the Interior, testified that, this being a document of the SDB, it would have been composed on the basis of several sources, the majority of which would have been very reliable, Bakir Alispahic, 23 May '05, T. 45.
358.Ex. 210, official note from the Main Staff UB, 1 July 1993, reporting that on 30 June 1993, the owner of a the restaurant “Amerikanac”, citizens from the area of Breka and Mejtas and a large group of taxi drivers were taken to dig trenches by members of the 9th Brigade.
359.Jusuf Jasarevic, 01 Mar '05, T. 18, 26.
360.Kemo Kapur, Ex. 276, para. 21, pp. 5-6.
361.Erdin Arnautovic, 104 Feb '05, T. 80-81.
362.Kemo Kapur, 16 Mar ’05, T. 57 ; Kemo Kapur, Ex. 276, paras 19-20, p. 5.
363.Dzevad Tirak, 30 Mar '05, T.  26.
364.Ramiz Delalic, 17 May ’05, T. 36.
365.Ramiz Delalic, 17 May ’05, T. 37.
366.Ramiz Delalic, 17 May ’05, T. 39-40 and 19 May ’05, T. 20.
367.Ramiz Delalic, 19 May ’05, T. 22, testifying that “(m(any people know that (Sadika Omerbegovic( practically had a habit of ordering the military police and other organs to take certain individuals to dig trenches.”
368.Ramiz Delalic, 17 May ’05, T. 39, testifying that “I personally was given an order by Sefer Halilovic to take (Esad Cesko( to dig trenches. He stayed there about seven days digging trenches.”
369.Ramiz Delalic, 19 May ’05, T. 21.
370.See supra Section II, para. 17.
371.Vehbija Karic, Ex. 444, T. 20. Vahid Karavelic testified that “He (Ramiz Delalic( forced people to do various things in order to give voluntary donations to the brigade”, Vahid Karavelic, 18 Apr ’05, T. 152. As for the 10th Brigade, Vehbija Karic testified that Musan Topalovic badly beat his own uncle, Ibro Zulic, until he managed to get about 10,000 German marks from him, Vehbija Karic, Ex. 444, T. 22.
372.Witness F, 8 Mar '05, T. 25.
373.Witness F, 8 Mar '05, T. 25- 26.
374.Vahid Karavelic, 21 Apr '05, T. 46. During the spring of 1993 Vahid Karavelic was requested to investigate, as corps commander (Vahid Karavelic, 19 Apr ’05, T. 16, 47-48; see also Ex.  415):
whether Ramiz Delalic and his men, during the night, in certain sections of the town, were forcing people to give a voluntary donation. This way and this concept of work […] is called racketeering. […] However, at the time, no such case could be proved.
375.Vahid Karavelic, 21 Apr '05, T. 48.
376.Kemo Kapur, 16 Mar ’05, T. 37 -38, 60.
377.Kemo Kapur, 16 Mar ’05, T. 38 -39.
378.Kemo Kapur, 16 Mar ’05, T. 39 ; Kemo Kapur, Ex. 276, para. 13, p. 3.
379.Kemo Kapur, 16 Mar ’05, T. 39.
380.Ramiz Delalic, 17 May ’05, T, 19-20.
381.Kemo Kapur Ex. 276, para. 15, p. 4; see also Ex. 210, p. 1, stating that on the 30 June 1993 members of the 9th Brigade, following a Ramiz Delalic’s order, brought to dig trenches the owner of the restaurant “Amerikanac” who had refused to pay “the last racket”.
382.Ex. 217, 1st Corps SVB document, 07 October 1993, p. 3.
383.In B/C/S, Stanica Javne Bezbjednosti, Emin Zebic, 17 Mar ’05, T. 2.
384.Ex. 415, p. 1. Bakir Alispahic testified that this document has a high degree of accuracy, Bakir Alispahic, 24 May ’05, T. 72.
385.Ex. 415, p. 3.
386.Kemo Kapur, 16 Mar ’05, T. 39 -40.
387.Kemo Kapur, 16 Mar ’05, T. 40, also testifying that those who made donations would receive receipts that they had done so.
388.Vahid Karavelic, 19 Apr ’05, T. 27-28, 32-34. Dzevad Tirak heard at the time about Ramiz Delalic’s involvement in cigarette smuggling, Dzevad Tirak, 30 Mar '05, T. 30. Also Zlatan Okic testified that the 9th and the 10th Brigades were involved in smuggling, Zlatan Okic, 01 Apr ’05, T. 32-33. Concerning the Trebevic operation, see infra Section IV.F. 4.
389.Jusuf Jasarevic, 01 Mar '05, T. 12-13; see also Kemo Kapur, Ex. 276, para. 14, p. 3.
390.In B/C/S, Centar Sluzbi Bezbjednosti, see Emin Zebic, 17 Mar ’05, T. 4; Zlatan Okic, 01 Apr ’05, T. 44.
391.Ex. 204, 02 June 1993.
392.Ex. 429, 28 June 1993. Bakir Alispahic was familiar with the information contained in this document, Bakir Alispahic, 23 May ’05, T. 39.
393.Jusuf Jasarevic, 28 Feb ’05, T. 53; Witness F, 08 Mar ’05, T. 29-30; Bakir Alispahic, 23 May ’05, T. 31-32, testifying that also the Delta Brigade was involved.
394.Ramiz Delalic, 17 May ’05, T. 48-49.
395.Bakir Alispahic, 23 May ’05, T. 31. Kemo Kapur testified that he heard that the incident was triggered by a rumour started by Mustafa Hota and Kenan Foco that the MUP was going to attack the 9th Brigade, Kemo Kapur, 16 Mar ’05, T. 47.
396.Ramiz Delalic, 17 May '05, T. 48.
397.Kemo Kapur, Ex. 276, para. 24, p. 6.
398.Jusuf Jasarevic 28 Feb ’05, T. 53, 64, calling the location “the operative centre of the Main Staff”; Witness F, 08 Mar ’05, T. 29, calling the location “the operations centre facility […] or the command and control centre of the Bosnia and Herzegovina army”. See also Kemo Kapur, 16 Mar ’05, T. 46; Kemo Kapur, Ex. 276, para. 24, p. 6, stating that it was the “Supreme Command of the ABiH” that was blocked.
399.Witness F, 08 Mar ’05, T. 29 -30.
400.Witness F, 08 Mar ’05, T. 30 ; Vahid Karavelic, 19 Apr ’05, T. 39.
401.Witness F, 08 Mar '05, T. 30 ; Bakir Alispahic, 23 May ’05, T. 31, testifying that also the “main thoroughfares […] the operative staff of the Supreme Command (and( the army hall was blocked as well”.
402.Witness F, 08 Mar ’05, T. 31.
403.Witness F, 08 Mar ’05, T. 31.
404.Jusuf Jasarevic 28 Feb ’05, T. 64; Bakir Alispahic, 23 May ’05, T. 33, referring specifically to the blockade of the SJB in central Sarajevo.
405.Witness F, 08 Mar ’05, T. 31.
406.Bakir Alispahic, 23 May ’05, T. 32-33. Ramiz Delalic testified that he and Musan Topalovic contacted Sefer Halilovic, who said that he did not know what was going on and that the arrest was ordered by Fikret Muslimovic “who Sefer Halilovic hated above all.” According to Ramiz Delalic, Sefer Halilovic also said that “it could be very likely that we would also be arrested.” In the subsequent contacts with Sefer Halilovic during this “rebellion ”, Ramiz Delalic and Musan Topalovic “said more or less that we wanted Muslimovic's replacement […] We demanded this later. And he was replaced later”, Ramiz Delalic, 17 May '05, T. 49.
407.Kemo Kapur, 16 Mar ’05, T. 46 -48; Witness F, 08 Mar '05, T. 69.
408.Ex. 206, Report, 10 July 1993. Jusuf Jasarevic, who received the note, testified that he tasked an operations officer with “checking, in accordance with (the note’s( proposal, what needed to be checked and to act accordingly, to take a statement from this source of information ”; however, he did not remember what was the outcome of this, Jasarevic, 28 Feb ’05, T. 65.
409.Vehbija Karic, Ex. 444, T. 15, 22.
410.Witness E, 07 Mar ’05, T. 19.
411.Erdin Arnautovic, 104 Feb ’05, T. 77.
412.Witness D, 21 Feb '05, T. 53 -54.
413.Ramiz Delalic, 17 May ’05, T. 26.
414.Ramiz Delalic, 19 May ’05, T. 27.
415.Kemo Kapur, 16 Mar ’05, T. 30 -31, agreeing with Defence counsel’s propositions 1) that “some of the rumours which circulated in Sarajevo as to the reputation of the 9th Brigade were the result of jealousies or tensions between certain brigades and certain units, for instance, of the MUP” and 2) that the rumours “were in fact or in part the result of Caco and Celo having been particularly vocal and critical about some MUP units which did not take much part in the defence of the town, although they were well armed ”.
416.Jusuf Jasarevic, 01 Mar '05, T. 11.
417.Ramiz Delalic, 17 May ’05, T. 29; Ex. 415, “Overview of security related information regarding illegal activities and abuse of authority of the Deputy Commander of the 9th Motorised Brigade in Sarajevo, Ramiz Delalic aka Celo, son of Jusuf and Ðuza, néé Merdovic, date of birth 15. 2.1963 in Priboj, Serbia”, dated 16 October 1993.
418.Vahid Karavelic, 21 Apr ’05, T. 120.
419.Vahid Karavelic, 21 Apr ’05, T. 118-119. See also Witness G, who testified that Enver Buza, the Commander of the Prozor Independent Battalion, “very often complained to […] the Ministry of the Interior and said that (the police( weren't in fact fighting. He would criticise them and say they were being used away from the front lines. So he would criticise them for being in a safe area”, Witness G, 11 Apr ’05, T. 20-21.
420.Jusuf Jasarevic, 01 Mar '05, T. 48-49; Vehbija Karic, Ex. 444, T. 20, 37; Witness F, 08 Mar ’05, T. 34; Mustafa Kadic, 09 Mar ’05, T. 93 and 10 Mar ’05, T. 20-21, testifying that some members of these units apparently considered that they could decide at times whether or not to obey orders which came from outside the brigade, Vahid Karavelic, 21 Apr ’05, T. 100-101, 112-113. Vahid Karavelic also testified that all the orders issued by the 1st Corps command, which referred to the execution of combat activities, were for the most part carried out by the 9th Brigade so that “there were no real serious problems in respect of the execution of the basic tasks, the basic mission of the brigade”, Vahid Karavelic, 18 Apr ’05, T. 156-157. See also Vahid Karavelic, 18 Apr ’05, T. 158 and 19 Apr ’05, T. 2; Kemo Kapur, 16 Mar ’05, T. 36 -37; Jusuf Jasarevic, 01 Mar '05, T. 10-11, 13; Vahid Karavelic, 18 Apr ’05, T.  157-158 and 22 Apr ’05, T. 16-17. Vehbija Karic, Ex. 444, p. 20 (testifying that Musan Topalovic was “prone to wilfulness. He was undisciplined”), p. 22 (testifying that the 9th and 10th Brigades “weren’t completely integrated into a system of military subordination”), and p. 37 (testifying that while these brigades “nevertheless carried out their main task, which was to protect the defence line that they had been assigned as a responsibility […] They carried out their basic tasks with regard to defending the town”).
421.Jusuf Jasarevic, 04 Mar '05, T. 61-62. Dzevad Tirak testified that he was also rather surprised to learn that the units coming from Sarajevo were the 9th and the 10th Brigades, Dzevad Tirak, 30 Mar ’05, T. 45. He also testified that, had he been in a position to choose, he would have chosen units with better reputation, Dzevad Tirak, 30 Mar ’05, T.  71, 73.
422.Jusuf Jasarevic, 04 Mar '05, T. 62.
423.Jusuf Jasarevic, 02 Mar '05, T. 35.
424.Jusuf Jasarevic, 02 Mar '05, T. 36.
425.Vahid Karavelic, 22 Apr ’05, T. 88-89.
426.Vehbija Karic, 02 Jun ’05, T. 11-12.
427.Mustafa Kadic, 09 Mar ’05, T. 85 and 10 Mar ’05, T. 12.
428.Nedzad Mehanovic, 16 Feb ’05, T. 99; Mustafa Kadic, 09 Mar ’05, T. 85 and 10 Mar ’05, T. 12. In October 1993, Zakir Okovic replaced Adnan Solakovic as Commander of the 2nd Independent Battalion, Zakir Okovic, 15 Mar ’05, T. 48; Vahid Karavelic, 18 Apr ’05, T. 149. The Trial Chamber notes that Namik Dzankovic testified that Adnan Solakovic’s unit was the “1st Sarajevo Battalion”, Namik Dzankovic, 21 Mar ’05, T. 33.
429.Zakir Okovic, 15 Mar ’05, T.  16.
430.Mustafa Kadic, 10 Mar ’05, T. 11.
431.Zakir Okovic, 15 Mar ’05, T.  19; Vahid Karavelic, 18 Apr ’05, T. 148.
432.Enes Sakrak, 17 Feb ’05, T.  93-94.
433.Mustafa Kadic, 10 Mar ’05, T. 11.
434.Mustafa Kadic, 10 Mar ’05, T. 11.
435.Vahid Karavelic, 22 Apr ’05, T. 32.
436.Ex. 472, Decision on the formation of the 6th Corps of the BH Army and the zones of responsibility of the 1st, 3rd, 4th and 6th Corps of the BH Army, 09 June 1993; Mehmed Behlo, 27 Jun '05, T. 63.
437.Ex. 472, listing Banja Luka, Bosanska Gradiska, Bosanska Dubica, Bugojno, Busovaca, Celinac, Donji Vakuf, Jajce, Kakanj, Kotor Varos, Kupres, Laktasi, Mrkonjic Grad, Novi Travnik, Prnjavor, Skender Vakuf, Srbac, Sipovo, Travnik, Vitez, Zavidovici, Zenica and Zepce.
438.OG Zapad in B/C/S. OGs were temporary units within the army structure put together to coordinate and lead combat operations and to “reduce the links towards the corps commander”, Selmo Cikotic, 23 Feb ’05, T. 04, 33; see also Salko Gusic, 08 Feb ’05, T. 89. The Commander of the Main Staff, Rasim Delic, could propose the formation of an OG, however this had to be sanctioned by the Presidency of Bosnia and Herzegovina, Vahid Karavelic, 21 Apr ’05, T. 73; see also Dzemal Najetovic, Ex. 459, 13 Jun ’05, p. 2, stating that in order to establish an OG “a specific written order is required and that order must be signed by the higest level of command and control”. In order to establish an OG, two orders would be issued, a resubordination order and an order appointing officers to the various functions in the OG command, Vahid Karavelic, 22 Apr ’05, T. 53-54; see also Dzemal Najetovic, Ex. 459, 13 Jun ’05, p. 2. The orders setting up OGs were normally written but could be given orally, Salko Gusic, 08 Feb ’05, T. 95, and it was important that the orders specified who would command the OG and which units would be under the commander’s control, Selmo Cikotic, 23 Feb ’05, T. 35; see, e.g., Ex. 144, Decision on the temporary organisation and formation of units of the Army of the Republic of Bosnia and Herzegovina, by Alija Izetbegovic, dated 20 August 1992, which creates the OG South (or Jug in B/C/S) and specifies by name the commander and the other officers comprising the OG command; Ex. 193, which establishes OG Igman and 1) appoints a commander, 2) requests him to submit the names of proposed command members to the Main Staff within ten days, 3) resubordinates units to the OG from the composition of the 1st and the 6th Corps. Selmo Cikotic considered Ex. 193 an example of “an appropriate, adequate and sensible order by which to create a temporary military formation”, Selmo Cikotic, 23 Feb ’05, T. 41. In the military hierarchy, OGs were on the same level as divisions, Vahid Karavelic, 21 Apr ’05, T. 67, i.e. between brigades and corps, Dzemal Najetovic, Ex. 459, 13 Jun ’05, p. 2. The commander of an OG would typically be a person of seniority similar to that of a brigade commander, Selmo Cikotic, 23 Feb ’05, T. 33-34; Vahid Karavelic, 21 Apr ’05, T. 68, and the command of an OG would include more or less the same staff functions as the command of a permanent unit such as a division, Vahid Karavelic, 21 Feb ’05, T. 67; Dzemal Najetovic, Ex. 459, 13 Jun ’05, p. 2. An OG would have under its control several brigades and could cover several municipalities, Dzemal Najetovic, Ex. 459, 13 Jun ’05, p. 2. An OG was disbanded by written order, Dzemal Najetovic, Ex. 459, 13 Jun ’05, p. 2.
439.Selmo Cikotic, 23 Feb ’05, T. 4, 33, testifying that he was the commander of OG West from March 1993 until April 1994.
440.Selmo Cikotic, 23 Feb ’05, T. 4-5; Mehmed Behlo, 27 Jun '05, T. 63 and 28 Jun ’05, T. 3.
441.Selmo Cikotic, 23 Feb ’05, T. 4-5.
442.Further on IKMs, see infra Section IV.C.4.
443.Selmo Cikotic, 23 Feb ’05, T. 5.
444.Salko Gusic, 03 Feb '05, T.  25, 66; Ex. 472.
445.Bileca, Caplijna, Citluk, Gacko, Grude, Livno, Ljubinje, Ljubuski, Mostar, Neum, Nevesinje, Posusje, Ravno, Stolac, Siroki Brijeg, Tomislav Grad and Trebinje, Ex. 472. See also Dzevad Tirak, 30 Mar '05, T. 78.
446.Ex. 472.
447.Salko Gusic, 08 Feb '05, T.  20.
448.Salko Gusic, 03 Feb ’05, T.  16; Ex. 102, Decision on the restructuring of the Republic of Bosnia and Herzegovina Supreme Command Headquarters of the armed forces and the appointment of senior officers, 08 June 1993.
449.Dzevad Tirak, 30 Mar ’05, T.  37.
450.Dzevad Tirak, 30 Mar ’05, T.  22.
451.Nermin Eminovic, 10 Mar ’05, T. 56.
452.Ex. 472. The 6th Corps commander, Salko Gusic, testified that the 6th Corps’ zone of responsibility encompassed eleven municipalities and added to the above also Hrasnica, Salko Gusic, 03 Feb ’05, T. 24.
453.Dzevad Tirak, 30 Mar ’05, T.  37-38.
454.Dzevad Tirak, 30 Mar ’05, T.  37-38. See also Nermin Eminovic, 10 Mar ’05, T. 60.
455.See infra Section IV. C.5.
456.Ex. 193, Order on organisational changes in the organic strength of the corps, signed by Rasim Delic, 5 July 1993.
457.Salko Gusic, 03 Feb '05, T.  25; Ex. 472. This decision provides that the new 6th Corps would cover Jablanica and that “Manoeuvre units as well as the Municipal Defence Staffs with their headquarters support units are directly subordinated to the Commands of the Corps in whose zones of responsibility they are”, meaning that the 44th Brigade in Jablanica therefore became subordinated to the 6th Corps on 9 June 1993. See also Dzevad Tirak, 30 Mar ’05, T. 38.
458.Salko Gusic, 03 Feb '05, T.  26; Dzevad Tirak, 30 Mar ’05, T. 71, testifying that the 6th Corps was responsible for the Prozor Independent Battalion; Mehmed Behlo, 27 Jun '05, T. 76, testifying that the battalion submitted combat reports to the 6th Corps; Witness J, 06 Jul '05, T. 12-13, who also testified that the 6th Corps deputy commander Bahrudin Fazlic would frequently come and visit the Prozor Independent Battalion; Vehbija Karic, Ex. 444, T. 104.
459.Ex. 193; Salko Gusic, 03 Feb '05, T. 25-26. The evidence is contradictory with regard to where in the ABiH hierarchy the Zulfikar Detachment belonged before the combat operations in Herzegovina in September 1993. The 6th Corps Commander, Salko Gusic, was unclear on this matter. In his statement to the Sarajevo Cantonal Court on 11 March 1998, Salko Gusic stated that “(t(o tell the truth, the unit was also a part of the 6th Corps under my command” and that “(t(he unit was part of the 6th Corps, and as Commander of the 6th Corps, I was still authorised to provide logistical help to the unit. That was the 6th Corps’s permanent activity that could not have been stopped”, Salko Gusic, 04 Feb ’05, T. 40, 42. However, in his testimony before the Tribunal, Salko Gusic said that the Zulfikar Detachment “was always tied to the Supreme Command Staff, and that was part of its title. It was called a special detachment which was within the Supreme Command Staff.” He also testified that officially, it was under the 6th Corps command, “but it was never actually under the corps command”, Salko Gusic, 03 Feb ’05, T. 26-27. The 6th Corps Chief of Staff Dzevad Tirak testified that when the 6th Corps was established two units that were under the direct control of the ABiH Main Staff, the Zulfikar Detachment and the Black Swans, were present in the area covered by the 6th Corps” and that “(t(here was no real command. Units moved chaotically”, Dzevad Tirak, 30 Mar ’05, T. 37, 39. Selmo Cikotic testified that the Zulfikar Detachment “by title and position” identified itself as being directly under the ABiH Main Staff, Selmo Cikotic, 23 Feb ’05, T. 38; see also Selmo Cikotic, 23 Feb ’05, T. 19-20, testifying that “(i(n my understanding, (Zulfikar Alispago( was subordinated to the General Staff, to the commander of the General Staff”. There is however significant evidence that the Zulfikar Detachment was not directly subordinate to the Main Staff, but to Corps. The Trial Chamber notes the provision in the decision of the Main Staff Commander Rasim Delic, which established the 6th Corps (Ex. 472, dated 9 June 1993), that “Manoeuvre units […] are directly subordinated to the Commands of the Corps in whose zones of responsibility they are” (cf. Selmo Cikotic’s testimony that the Zulfikar Detachment was present in the 6th Corps area of responsibility). The Trial Chamber also notes the subsequent order on organisational changes by the Main Staff Commander Rasim Delic, dated 5 July 1993 (Ex. 193), which lists the Zulfikar Detachment as part of the 6th Corps. This order was addressed, inter alia, to the 6th Corps Commander. Thus, the evidence is clear that prior to the combat operations in Herzegovina in September 1993, the Zulfikar Detachment formed part of the 6th Corps. As for the specific situation during the combat operations in Herzegovina, see infra Section IV.C.1 and IV.C.5.
460.Nermin Eminovic, 10 Mar ’05, T. 66-67.
461.Nermin Eminovic, 10 Mar ’05, T. 65.
462.Nermin Eminovic, 10 Mar ’05, T. 65.
463.Salko Gusic, 08 Feb ’05, T. 63 -64.
464.Nermin Eminovic, 10 Mar ’05, T. 65-66.
465.Ex. 377, order of Sefer Halilovic concerning transfer of troops, dated 11 March 1993; Salko Gusic, 03 Feb ’05, T.  26.
466.Emin Zebic, 17 Mar ’05, T. 22.
467.Salko Gusic, 03 Feb ’05, T.  26; Dzevad Tirak, 30 Mar ’05, T. 66. Enver Buza joined the battalion in May 1993, Witness G, 07 Apr ’05, T. 7.
468.Witness J, 06 Jul '05, T. 8- 9.
469.Witness G, 07 Apr ’05, T. 9; Witness H, 13 Apr ’05, T. 35; Mehmed Behlo, 28 Jun '05, T. 42; Ex. 332, marked photograph. A “military police group” was co-located with the battalion command in Dobro Polje, Witness H, 13 Apr ’05, T. 36-37.
470.Witness G, 07 Apr ’05, T. 4.
471.Witness G, 07 Apr ’05, T. 6- 7 and 101 Apr ’05, T. 69; Dzevad Tirak, 30 Mar ’05, T. 67, 69.
472.Witness H, 14 Apr '05, T. 45.
473.Dzevad Tirak, 30 Mar ’05, T.  67.
474.Mehmed Behlo, 28 Jun '05, T.  43-44; Witness G, 07 Apr. ’05, T. 16-17; Witness J, 06 Jul '05, T. 69-70. In July 1993, during an attempt by ABiH to recapture the town of Prozor, the ABiH, including troops of the Prozor Independent Battalion, were confronted with Bosnian Muslim prisoners who were being used as human shields. Some of the prisoners were wounded but other prisoners were able to escape. Most of those who managed to escape joined the Prozor Independent Battalion, Witness G, 07 Apr. ’05, T. 15-17.
475.Witness G, 07 Apr ’05, T. 12.
476.Witness G, 07 Apr ’05, T. 8.
477.Witness G, 07 Apr ’05, T. 8.
478.Witness G, 07 Apr ’05, T. 8.
479.Witness G, 07 Apr ’05, T. 85.
480.Nermin Eminovic, 11 Mar ’05, T. 34; Emin Zebic, 16 Mar ’05, T. 75 and 17 Mar ’05, T. 09; Dzevad Tirak, 31 Mar ’05, T. 47.
481.Emin Zebic, 16 Mar ’05, T. 94 and 17