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Aleksovski Trial: Closing Arguments

By Mirko Klarin

In his concluding statement at the trial of Zlatko Aleksovski, the former commander of the Kaonik prison-camp in Central Bosnia, indicted for the detention and inhuman treatment of Bosnian Muslim prisoners, Prosecutor Grant Niemann claimed that he had succeeded in proving Aleksovski's responsibility beyond reasonable doubt.

Niemann went on to ask for a minimum sentence of ten years' imprisonment. In his own final statement, Defence counsel Goran Mikulicic disagreed and argued that the Prosecutor had failed to prove anything. Mikulicic requested an acquittal for his client. In their final summations, both sides devoted much attention to the nature of the conflict at the material time covered by the indictment, i.e. during the 1993 clashes between Muslim and Croat forces in Central Bosnia. This is because two out of three counts of Aleksovski's indictment rest on the legal interpretation of that conflict. Aleksovski is charged with grave breaches of the Geneva Conventions, for inhuman treatment and for wilfully causing great suffering or serious injury.

In order to secure a conviction, the Prosecution must prove that he had indeed committed acts or omissions he is charged with, and that those same acts or omissions had "occurred within the context of an international armed conflict or partial or total occupation, and that the victims were protected persons under one of the Geneva Conventions of 1949." It is worth noting that in the case of Dusan Tadic, the Trial Chamber concluded with a majority of 2:1 that the conflict in the region of Prijedor, in North-Western Bosnia, was not of an international character. 11 counts relating to grave breaches were thrown out as a result.

Prosecutor Niemann as a matter of course tried to convince judges that sufficient evidence of the international character of war in Central Bosnia was presented at the trial to convict Aleksovski for grave breaches. He pointed out that the government of Croatia assisted, supplied and often controlled the operations of the HVO in its actions against the armed forces of Bosnia-Herzegovina. "Croatian Army officers," Niemann continued, "often commanded Bosnian Croat (HVO) units, and Croatian army units often directly participated in actions against Bosnian government forces within the territory of Bosnia-Herzegovina."

According to Niemann, the significant and continuous military action by the armed forces of Croatia in support of the Bosnian Croats against the forces of the Bosnian Government on the territory of the latter "was sufficient to convert the domestic conflict between the Bosnian Croats and the Bosnian Government into an international one." That said, Niemann asked the judges not to "put the issue of sovereignty before the violation"... (he said) "because the character of conflict is not a constituent element of the criminal act."

Even though in an earlier case of Ivica Rajic, Trial Chamber decided at a hearing in 1996 set up under Rule 61 of the Statute of the Tribunal that the conflict was of international character, and that the precedent may add some additional weight to his case. Niemann in effect called upon the Tribunal to expand the landscape of international humanitarian law by deciding to expand its jurisdiction to judge in cases defined by the Geneva Conventions without reference to the character of the conflict.

The Defence leapt at such interpretation of Article 2 of Tribunal's Statute of the Tribunal's, which they point out, was taken directly from the Geneva Conventions. If the Tribunal accepts the Prosecutor's interpretation, Mikulicic cautioned, then they would be in breach of the principle of nullum crimen sine lege, 'no crime except in accordance with the law.' The Defence also categorically denied the involvement of the Republic of Croatia in the war in Bosnian war, pointing out that during the war full diplomatic relations existed between Bosnia and Herzegovina and Croatia, had full diplomatic relations; that Croatia received Bosnian refugees and extended logistic to its army and the government; that in Central Bosnia there were no Croatian Army soldiers; that those Croatian Army personnel that were present in Southern Bosnia were there on the basis of an agreement between Presidents Izetbegovic and Tudjman. The links between Croatian state and Bosnian Croats, according to Mikulicic, were of little relevance. "After all," he said, "pursuant to the Constitution of the Republic of Croatia (...) the Croatian state is obligated to care about Croats in other countries" -a practice he said that is common to other countries. " Therefore, the Defence concludes, "there is no ground for the conclusion that there was a question of the international armed conflict and [or] partial occupation, therefore there are no grounds to apply the Geneva Conventions of 1949 as an applicable law."

Apart from the two counts of grave breaches, Aleksovski is also charged violating the law or customs of war, which does not depend on the judges' decision on the character of the conflict. According to the Prosecutor, the evidence presented at trial described the accused's direct or constructive participation in assaults, abusive interrogations, the denial of adequate medical care, hygiene and nutrition, the use of civilian detainees and prisoners of war as human shields and in forced trench digging work on the front lines, and the subjection of Muslim detainees to beatings and other forms of physical and mental cruelty.

Apart from directly participating in those acts, the accused had - under a theory of superior responsibility - abrogated his duties to detainees in the Kaonik prison and is individually responsible for the violations of international humanitarian law that occurred there, the Prosecutor contends. The Defence denies this. According to Mikulicic, Aleksovski carried out administrative tasks and, in general, organized the everyday life in the detention facility in his capacity as a "civilian warden" of a military prison, but had no command over the prison wardens who were allegedly HVO soldiers and members of the Military Police.

It is absolutely clear, the Defence claims, that a civilian person like Aleksovski "cannot have operative authority over the military guards or policemen." The accused was not a member of the HVO, had no rank, nor was he a military commander of a Military police unit that provided for guards in the detention facility.

The Defence also stressed that no-one had been murdered or tortured in the prison itself, and that the Prosecution did not provide medical reports on the alleged heavy injuries of prison inmates. It is true that two detainees were killed while they were digging trenches on the front-line, but Aleksovski had immediately denounced the HVO soldier responsible for the crime to the military tribunal.

The trial of Zlatko Aleksovski started in January 1998, during which a total of 64 witnesses were heard: 38 for the Prosecution, and 26 for the Defence. The presentation of evidence ended in September, yet it took six months before the final statements were heard from the two sides. This was down to the length of the Appeals Chamber deliberation in the dispute between Defence and Prosecution over the introduction of two testimonies given in the case of Blaskic into the proceedings.

Those two witness statements have a direct bearing on the determination of the character of conflict in Central Bosnia. Since the judges had ample time to consider evidence presented during the six-month break from the trial, the judgment is expected to be made relatively quickly.

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