Delic Defence Demands Appeal Acquittal

The defence of former Bosnian army, ARBiH, commander Rasim Delic, sentenced to three years in prison for the cruel treatment of captured Serb soldiers during the Bosnian war, has called for his conviction to be quashed.



At an appeals hearing on January 19, the defence team said Delic had not been in effective control of the El Mujahed Detachment, EMD, a body of foreign fighters that came to Bosnia to fight on the side of the Bosnian Muslims.



However, the prosecution team at the same hearing demanded that his prison sentence be raised to seven years, saying that the current sentence imposed on Delic “fails to reflect the gravity of the crimes”.



Delic was convicted in September 2008 of cruel treatment as a violation of customs of war, in relation to crimes committed against 12 Bosnian Serb soldiers at Livade and the Kamenica camp in July and August 1995.



He was found guilty of failing to take measures to prevent and punish the crimes of cruel treatment committed against captured Serb soldiers by the EMD.



The judges found that the soldiers were subjected to various kinds of maltreatment, including severe beatings and electric shocks. The captives were also forced to kiss the severed heads of other detainees, according to the judgement.



Delic was found to bear no responsibility for crimes committed in the villages of Maline and Bikosi in the Travnik municipality of central Bosnia on June 8, 1993, when about 24 Bosnian Croat civilians and soldiers were killed and six others injured by the mujahedin, as this happened on the same day he assumed command of the ARBiH.



He was also acquitted of charges of cruel treatment and murder in relation to the events that took place in September 1995 in the village of Kesten and Kamenica camp when members of the EMD killed one elderly Serb man and 52 Bosnian Serb soldiers, as well as abusing ten others. The trial chamber said it could not conclude beyond reasonable doubt that he had reason to know about these crimes.



At his appeal hearing, Delic’s defence sought to demonstrate his inability to control the EMD at the time of the mistreatment of Serb soldiers at Livade and Kamenica.



“There was at least a reasonable doubt that Delic exercised effective control,” his lawyer John Jones said.



He sought to demonstrate this by showing that the EMD frequently failed to obey orders from the ARBiH. This was demonstrated in a previous case, against former ARBiH 3rd Corps commander Enver Hadzihasanovic, Jones said, when the court found that the ARBiH had only been able to obtain the release of a Bosnian soldier in 1993 from EMD custody by threatening it with force. Jones said this instance was “strikingly similar” to the facts of Delic’s case.



He said that the EMD sent reports from the battlefield to a “foreign master” and that, while the ARBiH and EMD communicated about their battlefield actions because “it would be suicide not to”, at other times the ARBiH had to use force against the EMD to exert control.



“If they didn’t wish to do so, they didn’t follow orders [from the ARBiH],” Jones said of the EMD.



The defence pointed to the fact that Delic was convicted by a majority, rather than a unanimous verdict, with Judge Moloto dissenting against the other two judges.



In its appeal brief, the defence noted that Judge Moloto thought that Delic did not have effective control over the EMD at any time from the time of his assumption of duties as the commander of the ARBiH until the EMD was disbanded in December 1995, and consequently that he should be acquitted of all counts.



The judgement against Delic said that the EMD was subordinated to him from its establishment in August 1993, since it was a unit of the ARBiH, of which he was the commander.



Replying to the defence’s submissions, the prosecution argued that the fact that the EMD sometimes disobeyed orders did not demonstrate that Delic did not have effective control over it.



The prosecution produced a timeline which illustrated various instances in which Delic had exerted control over the EMD from 1993 to 1995, including in August 1993 when Delic authorised its creation and ordered it to be brought under ARBiH control. Delic had said that the EMD “was in the hierarchy of the Bosnian army” and that the ARBiH had even transferred its own soldiers o the EMD.



The timeline also included an incident in 1994, when two members of the EMD were arrested by a joint military-civilian force in the wake of the killing of British humanitarian worker Paul Goodall, to demonstrate that ARBiH was able to take action against the EMD. It also referred to Operations Proljece and Proljece II in May and July 1995, in which the EMD followed orders from the ARBiH in military operations to capture land from Bosnian Serb forces.



The prosecution said that incidences where the EMD did not follow orders were due to tactical considerations related to conditions on the battlefield and that these considerations were accepted by the command of the ARBiH.



Delic’s defence responded by pointing to three instances in the space of six days during April 1994 when the EMD did not follow ARBiH orders to come under the command of the 330th Light Brigade, a division of the ARBiH.



Jones said that Delic had not established the EMD out of personal authority.



“Joining the EMD was even treated as desertion,” he added, responding to a prosecution claim that Bosnian soldiers were transferred between ARBiH units and the EMD.



In its appeal to have Delic’s prison sentence raised to seven years, the prosecution said the current sentence was inadequate and “diminishes the power of command responsibility as a tool for enforcing international humanitarian law”.



However, the defence argued that deterrence should not be afforded undue significance. It said that while the prosecution described the crimes committed against the Serb soldiers in graphic detail, Delic had “imputed” rather than had direct knowledge of these crimes.



Prosecution lawyer Peter Kremer argued that Delic’s lack of direct knowledge of the crimes should not be a mitigating factor, given that it arose from his failure to investigate previous violent behaviour by the EMD.



The date of the appeals judgement will be set once the judges have considered the arguments from the hearing.



Rory Gallivan is an IWPR contributor.