Bosnian Muslim Commanders Begin Defence

Wednesday, 9 November, 2005

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Michael Farquhar

Lawyers representing senior Bosnian army commanders Enver Hadzihasanovic and Amir Kubura are to begin their defence on October 18 after a three-month break.

The two - the first senior Muslim commanders to appear before the Hague tribunal - are charged with violations of the laws or customs of war in relation to fighting between Bosnian and Croat forces in central Bosnia in 1993.

Their case is the only one so far at the UN court to be grounded entirely in the notion of “command responsibility” – the idea that senior officers can be held answerable for crimes committed by their subordinates, even if they didn’t order them.

During the period referred to in the indictment, Hadzihasanovic was in command of the Bosnian army’s Third Corps, which was involved in fighting local Croat armed forces around the town of Zenica.

Amir Kubura was chief of staff, stand-in commander and later commander of the corps’ Seventh Muslim Mountain Brigade, members of which, according to the indictment, were supposed to adhere strictly to Islamic codes. It is alleged that those acting on his orders included “mujahedin” – foreign volunteers, mostly from Islamic countries, fighting on the side of the Bosnian Muslims.

The prosecution claims that soldiers under Kubura’s command – and hence also under the command of his superior, Hadzihasanovic – murdered and mistreated civilians and prisoners of war, and plundered Bosnian Croat and Bosnian Serb towns and villages.

In one incident, it is alleged that some 30 Bosnian Croat civilians and prisoners of war were massacred following an attack involving Seventh Muslim Mountain Brigade troops.

Prosecutors claim that Kubura’s men also beat detainees with rifle butts, wooden staves and metal hooks, forced them to hit each other, ordered them to bang their heads against walls and threatened to amputate their legs.

Hadzihasanovic is charged in relation to similar acts allegedly committed by troops under his control, in addition to those said to have been perpetrated by the Seventh Muslim Brigade. And prosecutors allege that he is also responsible for damage done to Catholic churches in the Bosnian towns of Guca Gora and Travnik.

The prosecution case – which closed in July – tried to establish that the crimes listed in the indictment had taken place; that it had been troops under the command of Hadzihasanovic and Kubura who had committed them; that the defendants knew or had reason to know that this was the case; and that they had not done enough to prevent such incidents or punish them afterwards.

To do so, the prosecution called residents of the areas in question, a local judge and prosecutor, and former members of local Croat forces to testify in The Hague. They also questioned foreign peacekeepers who had been stationed in Bosnia, and the former Sunday Times correspondent Andrew Hogg, who had covered the conflict and had spent time researching the role of mujahedin fighters.

Retired German general Klaus Reinhardt, who led German contingents in Croatia and Bosnia and later commanded NATO forces in Kosovo, also testified as an expert witness.

In a written statement based on documents provided to him by the prosecutors, General Reinhardt said there was little evidence to suggest the defendants had punished their subordinates or instigated criminal proceedings in response to the kinds of crimes listed in the indictment.

He said they largely limited themselves to issuing written orders underlining that such acts were forbidden, and holding individual commanders responsible for implementing measures to prevent them.

However, after nearly a week of cross-examination by defence lawyers, General Reinhardt changed his assessment of Hadzihasanovic, the most senior of the two defendants. The witness told judges that additional documents shown to him “prove that General Hadzihasanovic did not only issue orders but also went through the whole circle of making sure that the perpetrators were treated legally”.

Prosecutors also sought to strengthen their position by sending a team of investigators to central Bosnia to try to make a list of all relevant legal proceedings that occurred during the period in question. They subsequently argued that the violations detailed in the indictments were never reported to the relevant courts.

Following the conclusion of the prosecution case, defence lawyers used a customary opportunity to seek acquittal for their clients. They contended that all charges should be immediately dropped because prosecution evidence had been too weak to justify a conviction, even without a defence being presented.

They also said the wording of some of the counts in the indictment leaves it unclear exactly which laws their clients are being charged under – which raises questions concerning the validity of the charges and the court’s jurisdiction over them.

But judges rejected the bulk of their arguments. The defence teams are currently appealing this decision – pushing, among other things, the argument about ambiguity in the indictment.

At a pre-trial conference in early October – organised to give all those involved a chance to discuss the timetable for coming months and other legal and technical issues – defence lawyers said they expect to call some 100 witnesses between them. These will include four experts who will testify on the history of the region, constitutional issues and matters relating to command within the military.

Hadzihasanovic’s defence case is likely to proceed according to an outline released prior to the trial, with lawyers hoping to show that he fulfilled his responsibilities as a commander in trying to prevent and punish criminal activity by his subordinates.

It is likely that part of this tactic will involve questioning whether some of the events listed in the indictment actually took place, what happened and whether those involved were Hadzihasanovic’s subordinates.

Kubura’s lawyers expect to present their case around mid-May next year, once Hadzihasanovic’s defence is finished. They will explore the command structure of the Seventh Muslim Brigade in 1993 and will also try to show that it was not actually present in a number of areas where crimes are alleged to have taken place.

Judges ruled that the defence stage of this trial must conclude by July 1, 2005.

Michael Farquhar is an IWPR reporter in The Hague.