Hadzihasanovic Lawyers Voice Scapegoat Concerns

Wednesday, 9 November, 2005

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Michael Farquhar

Lawyers representing former Bosnian army general Enver Hadzihasanovic launched their defence this week by warning that their client should not be turned into a scapegoat.

They also presented their first witness, who discussed the Bosnian army’s command structure and spoke of the accused’s attempts to maintain discipline amongst his troops.

Hadzihasanovic and his former subordinate Amir Kubura are charged with failing to take measures to prevent or punish war crimes committed by men under their command during clashes with Croat forces in Central Bosnia in 1993.

It is the first case to be tried at the tribunal that is based entirely on the notion of “command responsibility” – the idea that in wars commanders can be held personally responsible for the crimes committed by their subordinates, even if they did not order them.

But in his opening statement on October 18, defence counsel Stephane Bourgon said Hadzihasanovic in fact battled in “impossible” circumstances to fulfil his responsibilities as a general and ensure that his men acted within the law.

The incidents listed in the indictment against Hadzihasanovic and Kubura include the alleged murder and mistreatment of non-Muslim civilians and fighters, and looting and destruction of homes. Hadzihasanovic is also charged with responsibility for damage done to two Croat churches.

One key prosecution allegation is that in 1993 the two accused were in charge of a significant number of “mujahedin” – foreign volunteers who travelled to Bosnia to help defend the country’s Muslim population. These mujahedin are named as having been involved in a series of crimes listed in the indictment, including severe beatings of detainees.

But Bourgon painted a different picture of the relationship between the mujahedin and the Bosnian army from that offered by prosecutors. He claimed the radicalised fighters, far from being an integrated part of Hadzihasanovic’s Third Corps, actually “had no links to the army” and that their behaviour had caused problems for the defendant.

“Hadzihasanovic shouldn’t pay for what the mujahedin did, simply because he was in Bosnia and Herzegovina at the same time as [they] were,” he said.

Bourgon also said the prosecution, in mounting their case against his client, had tried to draw attention away from the context in which he was forced to act during his time as commander of the Third Corps.

He pointed out that Bosnia was unprepared for the war that broke out in 1992 and “an army was set up with all the pitfalls and difficulties one can imagine”, including a lack of qualified personnel and a severe shortage of weapons caused by a United Nations arms embargo.

Under the circumstances, he said, Hadzihasanovic had been working 20 hours a day every day of the week and had “almost died of exhaustion” towards the end of the summer of 1993.

Defence counsel attacked prosecution claims that such factors are irrelevant to the case, saying they would have had a significant effect on the everyday life of a commander involved in the war.

“The prosecution tried to close the debate,” he said. “We will try to open it.”

Bourgon also used his opening statement to list the charges against his client and outline how he will respond to each one individually. He plans to show that some alleged crimes did not happen, that the perpetrators of others were not Hadzihasanovic’s subordinates, and that in some cases the defendant simply was not aware of what had happened.

He also said he will show that in many cases either Hadzihasanovic or others further down the command chain did in fact take measures to punish those who had violated international law.

Proceedings on October 19 and 20 were taken up with the first witness to be called by the defence in an effort to back up the claims made by Bourgon in his opening statement. The first member of the Third Corps to testify before the chamber was Zijad Caber, who led a brigade under Hadzihasanovic’s command, during the time period in question.

He told judges about the problems faced by his brigade in 1993, including a lack of weapons and food, and friction with local Croat forces, which they had hoped would be an ally against the Serb enemy.

The witness told the court that he had insisted that troops under his command respected the lives and property of civilians. He said his troops had prevented looting in villages abandoned by their Bosnian Croat inhabitants and that “measures were taken in order to prevent anything being done that might be a violation of the Geneva conventions”.

But the witness admitted that he couldn’t remember if he had received orders relating specifically to the Geneva conventions and international law, although he said he thought he “must have received something to that effect”.

Caber also discussed a number of documents presented to him by the defence counsel, including orders from the Third Corps command relating to discipline in the ranks.

When asked about the mujahedin, Caber said none had been present in his own zone of command but recalled discussing the subject with former Third Corps’ head General Mehmed Alagic, who was originally indicted along with Hadzihasanovic but died before the case came to trial.

He said the foreign fighters had refused to be put under Alagic’s command and recalled that the general had said they were problematic and worked by their own rules. Caber himself described them as “a cancer that was present in [Alagic’s] zone of operations”.

On October 19, judges announced their decision to allow defence counsel to press on with part of an appeal against their decision not to acquit Hadzihasanovic and Kubura on all charges after the prosecution closed its case.

The judges dismissed a number of arguments in the original appeal - including that they had failed to consider evidence favourable to the defence and that three of the charges listed in the indictment are ambiguously worded and invalid.

But they said Bourgon and his colleagues are free to go to the appeals chamber with concerns that the same three charges do not come under the jurisdiction of the tribunal. In the meantime, the defence will continue to call witnesses.

Michael Farquhar is an IWPR reporter in The Hague.