Tribunal Update 58: Last week in The Hague (January 5-10, 1998)
Tribunal Update 58: Last week in The Hague (January 5-10, 1998)
The indictment against him and five other Bosnian Croat leaders was issued on 10 November 1995. The trial of one of the other indictees, General Tihomir Blaskic, is currently underway, while two (Ivica Santic and Pero Skopljak) were released just before Christmas on the Prosecutor's request due to the lack of evidence. Dario Kordic and Mario Cerkez, the remaining two indictees, surrendered in October as members of the group that went voluntarily to the Hague last year, are still in the pre-trial phase.
Aleksovski was arrested by the authorities in Croatia in July 1996, and was extradited to the Tribunal in April 1997. The long detention, from capture to time of trial, was successfully used by the defence in arguing for a separate trial for Aleksovski. Currently, the Trial Chamber is also considering a request for provisional release of the defendant, requested on the basis of the lengthy detention.
Aleksovski is being tried before the Trial Chamber I-bis, comprising: Presiding Judge Almiro Simoes Rodrugues (Portugal); Judge Lal Chand Vohrah (Malaysia) and Judge Raphael Nieto Navia (Colombia). The Prosecution team is made up of Grant Niemann (Australia) in the role of Senior Trial Attorney and Trial Attorneys Anura Meddegoda (Sri Lanka) and Michele Marchisiello (Italy). The Defence Counsel comprises two Zagreb lawyers: Goran Mikulicic and Srdjan Joka.
In his opening address, Prosecutor Grant Niemann said
"This case is about the unlawful treatment of Bosnian Muslim detainees." From January to May 1993, the accused was the commander of the Kaonik camp, in which the Muslim survivors of the Bosnian Croat (HVO) forces' offensive in the Lasva Valley were detained. The indictment states that the detained civilians and/or prisoners-of-war were subjected to treatment which amounted to an outrage upon their human dignity. That treatment, according to Niemann, "was inhumane and included being kept in cramped or overcrowded facilities provided with inadequate food or water and inadequate or no medical treatment, subjected to physical or psychological abuse and intimidation, repeatedly being forced to dig trenches for the HVO near the lines of confrontation, thereby subjecting such detainees to death, injury and mental and physical harm, being subjected to use as human shields to protect HVO military installations or troops."
The civilian prisoners were never charged with any crime, and it seems - the Prosecutor pointed out - "that the whole basis for their detention was their ethnicity", and that their continued detention "was justified on the basis that they would be suitable as 'bargaining chips'."
Niemann dedicated the lion's share of his two-and-a-half-hour-long opening address to the doctrine of "command responsibility" and to establishing the international character of the Central Bosnian war theatre. Aleksovski's position of authority in the Kaonik prison, Niemann said, "makes him responsible through his subordinates... and all military commanders have a solemn obligation to ensure that horrors of war are not visited upon innocent civilians and prisoners of war and they may be held responsible for this dereliction of duty."
Command responsibility, originally a military concept, - the Prosecutor deems - also applies to civilians in positions of power. Therefore, Aleksovski has criminal responsibility "regardless of whether he was the military commander of a camp or the civilian warden of a prison."
Anticipating possible Defence arguments that the extent of violations which did occur in the camp while Aleksovski was commander "were less than the detainees might have been exposed to if he had not been the commander Niemann stressed that "none of the violations can be justified on grounds that they prevented some greater harm. No choice of evils existed, and the crimes were certainly not lesser evils."
For these crimes to qualify as "Grave Breaches" of Geneva Conventions, the Prosecutor must prove that they took place in the context of an international conflict, as well as that the victims were protected persons under the same Conventions. Niemann, referring to numerous UN documents in order to establish that forces from the Republic of Croatia had fought alongside the HVO, argued that Croatia was de jure at war with Bosnia. Besides, Niemann added, "the Bosnian Croat entity was under such a degree of control by Croatia that it must be regarded as an arm or agent of the Croatian government.
The accused Aleksovski, "was connected to the Croatian side of the (international) conflict", while the civilians detained in Kaonik were protected persons in that they were civilians who on the basis of their Bosniak (Muslim) nationality "were connected to the B-H side of the conflict, and they were in the hands of the other party to the conflict."
In the first week of the trial, six witnesses appeared before the Court: five former detainees of Kaonik and one of the members of the European Community Monitoring Mission (ECMM). The latter, former British officer Charles McLeod, spoke of an one hour interview he had with Aleksovski at Kaonik on 10 May 1993. At the Prosecutor's request, he read out some notes taken during that conversation. In essence, the talk appeared to be a long monologue by the accused Aleksovski about the problems of running the prison during wartime.
At the outset, Aleksovski boasts how his detainees are "lucky" to have him as a warden since he is a true "professional": before the war, as a sociology graduate, he was a counsellor at the Penal Institution in Zenica. He went to claim that he knew how to run a prison and how to treat prisoners, and that he was familiar with the Geneva Conventions which were "more or less respected." He added that there were cases where the guards physically mistreated the prisoners, but that was because some of them had their brothers killed in the war.
He then asked his collocutors from the ECMM, "Would you shoot the guard who was left without a brother in order to protect Muslim detainees?" Concerning the use of prisoners to dig trenches, he said "he knew it was not in accordance with the Geneva Conventions", but he explained that "someone has got to dig trenches otherwise, the Muslims would seize Busovaca", adding that in a way, "it is the Muslims who are defending Busovaca". Busovaca is a small town under Croat control in the immediate vicinity of the Kaonik prison.
Some of those unwilling "defenders of Busovaca" also testified last week. Of the five witnesses from Kaonik, three were taken to dig trenches, one was fiercely assaulted, and one was systematically beaten up. The story told by witness Hamdo Dautovic shows that even though they had "a professional warden", the guards at Kaonik, just like the guards of other camps whose victims appeared before the Tribunal, did not lack sadistic sense of imagination.
Among other things, Dautovic took part in the "performance" which the guards called a mono-drama even though four "actors", i.e. detainees, took part. The guards took the detainees out of their cells, forced them to lie down on their backs, forming a cross, and then ordered them to shout "Allah Akhbar" at the top of their voices as well as other Muslim, Serbian or Communist slogans. During that time the guards beat them, accusing the detainees of dodging and of not shouting loud enough. The witness claimed that the commander Aleksovski also attended the "mono-dramas", but did not take part in the beatings.
Aleksovski's defence team, Zagreb lawyers Mikulicic and Joka, lack criminal law experience and proved rather inept in the cross-examination of the prosecution witnesses. Some of their questions caused the defendant more harm than good. For example while questioning McLoad, Mikulicic, trying to stress the "professionalism" and impartiality" of Aleksovski asked whether he had noted any difference in the treatment of arrested Muslims and Croats (several Croat soldiers, most likely arrested because of petty crime, were at Kaonik). "Of course I did", McLoad responded readily with an answer that somehow took Mikulicic by surprise. Adding "The Muslims were crammed in cells, up to ten of them in the space envisaged for one or two persons. There were two Croats to a cell with many personal possessions all around them, and they looked healthy and in good mood."