Tribunal Criminal Tribunal for the Former Yugoslavia

Page 107

 1                          Wednesday, 5 December 2007

 2                          [Appeals Hearing]

 3                          [Open session]

 4                          [The appellant Kubura entered court]

 5                          --- Upon commencing at 8.33 a.m.

 6                          [Appeals Chamber and legal officer confer]

 7                          [The appellant Hadzihasanovic entered court]

 8            JUDGE POCAR:  So good morning to everybody.  We resume the hearing

 9    in -- that was adjourned yesterday in the case Prosecutor versus

10    Hadzihasanovic and Kubura.

11            We heard yesterday the appeal from Kubura and the appeal from the

12    Prosecution.  We will hear today the appeal from Hadzihasanovic and we'll

13    give the floor to counsel for Hadzihasanovic for their submissions.

14            You have the floor.

15            MR. BOURGON:  Thank you very much, Mr. President.

16            Good morning, Mr. President.  Good morning, Judges.

17            Allow me to begin by withdrawing our urgent motion, which was

18    filed on 3 December on the basis of information which was received from

19    the Chamber's legal officer.  This was a motion dealing with last-minute

20    translations.

21            My submissions this morning concerning the appeal of

22    General Hadzihasanovic will be presented as follows:   Firstly, the third

23    ground of appeal, related to counts 3 and 4 for events in Bugojno;

24    secondly, the fifth ground of appeal, related to grounds 3 and 4 for

25    events in Orasac.  I will then address specific issues in the fourth

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 1    ground of appeal very briefly, concerning events which -- for count 4, in

 2    music school.

 3            As for grounds 1 and 2, which refer to the fairness of the trial,

 4    we stand by our written pleadings.  If the Judges have any questions

 5    concerning these two grounds, I will be glad to answer.

 6            Time permitting, Mr. President, I will address one further issue

 7    at the end; and namely, the Trial Chamber's adjudication on the

 8    appellant's Rule 98 bis motion at the end of the Prosecution case.

 9            Before moving on to my first topic, there are three preliminary

10    remarks which we submit have a bearing on the adjudication of this appeal.

11    Firstly, it is our submission that the multiple measures taken by

12    General Hadzihasanovic to prevent his subordinates from committing crimes

13    or to punish them, as they appear on the record, must be taken into

14    consideration when assessing the findings of the Trial Chamber as part of

15    this appeal.

16            Secondly, it is our submission that in this case the Prosecution

17    had the burden to prove beyond a reasonable doubt the failure to take

18    necessary and reasonable measures and that at no time it was for the

19    appellant to show that measures were indeed taken.

20            Thirdly, we take the view that fair trial issues raised as part of

21    our second ground of appeal did have a bearing and should be considered in

22    assessing the Trial Chamber's findings in this appeal.

23            I move to the third ground of appeal, related to counts 3 and 4

24    for the events in Bugojno.  My submissions on this ground will comprise

25    four parts:   First, the question posed by the Appeals Chamber in the

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 1    Scheduling Order; second, the errors committed by the Trial Chamber which

 2    we submit they -- the Trial Chamber committed, concerning the measures as

 3    they were taken in Bugojno by 307 Brigade and the municipal public

 4    prosecutor in response to criminal acts committed by soldiers of the 307

 5    Brigade.  The third part will address the alleged errors committed by the

 6    Trial Chamber concerning the measures taken by General Hadzihasanovic at

 7    the 3rd Corps command, those for which he has been found guilty, upon

 8    being informed of the measures taken in Bugojno in response to criminal

 9    acts committed on the 5th of August.  Finally, in part 4 I will address

10    briefly the Trial Chamber's incorrect assessment, in our view, of the

11    responsibility of General Hadzihasanovic in relation to the possibility

12    that similar criminal acts would be committed - and here the date is

13    important - after 18 August 1993, both in the furniture salon, as well as

14    in other detention facilities.

15            I now move specifically to the question posed by the Appeals

16    Chamber.  The question was:   Could military disciplinary courts or

17    superiors exercising disciplinary powers impose a sanction in excess of 60

18    days of imprisonment?

19            The quick answer to the Appeals Chamber question is that military

20    disciplinary courts or superiors exercising disciplinary powers could not

21    impose a sanction in excess of 60 days imprisonment.  However, this answer

22    would be incomplete if I did not mention the following:   Firstly, the

23    power to impose a prison sentence of up to 60 days, as opposed to a

24    sentence of detention - and there is a distinction and a difference -

25    applies only to the brigade commanders and higher.  This stems from the

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 1    rules on military discipline, Articles 7, 8, 11, and 24, as well as from

 2    the decree law on the service in the army of the Bosnia-Herzegovina,

 3    Exhibit P120, Article 66.

 4            THE INTERPRETER:  Could counsel please be asked to slow down.

 5    Thank you.

 6            MR. BOURGON:  Thank you.  Will do.  I apologise.

 7            A prison sentence, Mr. President, of up to 60 days, according to

 8    the rules, can only be issued in respect of breaches of discipline which

 9    are listed in Articles 7 and 8 of the rules.  It should also be noted that

10    looking at the list of breaches in Articles 7 and 8, some pursuant to the

11    rules can also constitute criminal offences.  It is not surprising then

12    that criminal acts, such as murder or grievous bodily injury, would not be

13    included in the listed breaches of discipline.  Accordingly, it would be

14    illegal and contrary to the rules of military discipline for a superior to

15    use only disciplinary powers of punishment in respect of a subordinate who

16    committed the criminal act of murder or grievous bodily injury.

17            On the other hand, pursuant to Article 6 of the same rules, the

18    accountability of a serviceman for a criminal offence does not exclude his

19    being held accountable for the same offence, in relation to the same

20    offence, for a breach of military discipline too - that's the word used in

21    the rules - alongside, if according to these rules a military offence also

22    constitutes a breach of military discipline.

23            It follows that in respect of a soldier suspected of having

24    committed the crime of murder or grievous bodily injury, for example, in

25    addition to the applicable criminal proceedings according to the law a

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 1    brigade commander could, for example, impose a prison sentence of up to 60

 2    days imprisonment for the disciplinary breach of disobeying a lawful

 3    command or committing a criminal act for vile reasons.

 4            This is especially important in times of war where immediate

 5    response to any offence committed by a soldier is necessary.  This is the

 6    best deterrent to ensure and maintain discipline, and this is in line with

 7    Article 68 of the rules, which provides that decisions on disciplinary

 8    accountability shall be taken as a matter of urgency.

 9            This was my first observation concerning the question posed by the

10    Trial Chamber.

11            The second observation is the following:  In addition to

12    disciplinary powers of punishment superiors had other means available to

13    ensure that criminal acts committed by their subordinates would not go

14    unpunished and would be treated in accordance with the law.  The proper

15    mechanism available to ensure that this would take place would be dealt

16    with by filing and submitting a criminal report to the relevant judicial

17    authorities.  It is known and accepted in the jurisprudence of the

18    International Tribunal that once a criminal report has been filed, the

19    matter is in the hands of justice and the commander has fulfilled its

20    duty -- his duty pursuant to Article 7(3) of the Statute.

21            In this regard, I refer quickly the Appeals Chamber to the

22    following Prosecution submission of 19 May 2004, transcript page 7704.

23    "Once the commander has conducted an investigation and referred the matter

24    to the relevant court authorities, his duty ends."

25            I also refer the Appeals Chamber to the ICRC commentary of

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 1    Additional Protocol 1, paragraph 3562.

 2            In closing on this specific point, Mr. President, I take the

 3    opportunity to refer the Appeals Chamber to the testimony of Sead Zeric,

 4    who was the Travnik military prosecutor at the time, regarding the manner

 5    in which a prosecutor could be seized of a case.

 6            Witness Zeric confirmed that a prosecutor could be seized of a

 7    case upon discovering -- sorry, upon receiving a criminal report.  He said

 8    the criminal report can be oral or written, and he said that he could also

 9    discover the crime on his own.  That was at page 5538-5539 of the

10    transcript.

11            Witness Zeric also confirmed that criminal reports could be filed

12    by various bodies:  By military bodies, civilian police, and by citizens

13    directly.  This is at the same pages.

14            Witness Zeric went on to testify the following concerning the

15    duties of prosecutors, including municipal public prosecutors, and he said

16    that once they are seized of a criminal complaint which they feel is not

17    within their jurisdiction, they have an obligation in this regard.

18            Here I will quote from the transcript, lines 6 to 14 of page 5594.

19    The question was -- or the answer was:

20            "If a report was filed against a member of the army, every

21    prosecutor's office is obliged to pass on the case to the competent

22    prosecutor's office.  And if it feels that it is not within a

23    jurisdiction, it would pass it on to another prosecutor's office.  So if

24    it was filed with the basic prosecutor's office in Travnik or Bugojno" -

25    meaning the municipal prosecutor - "and if they were army personnel, it

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 1    was their obligation to pass on that case to us for further processing,

 2    and vice versa."

 3            This was not only a matter of opinion.  It's also a matter of law.

 4    And I refer you to Exhibit DH337, Article 8 of the Yugoslav Law on

 5    Criminal Procedure.

 6            Finally, concerning the possibility for the military disciplinary

 7    system to work in parallel with the prosecutor's office, I would like to

 8    refer you to the testimony of the same witness regarding the practice at

 9    the time whereby a soldier would be given a disciplinary sentence or

10    punishment while further investigations were carried out.

11            I read from lines 13 to 20, and that is on page 5638 of the

12    transcript:

13            "Well, let me tell you about the practice at the time.  The

14    officer, each officer of every unit, of brigades, of corps could issue a

15    decision on disciplinary detention for 15 or 30 days.  Such was the

16    practice.  These soldiers would be detained for 15 or -- rather, for 30

17    days when disciplinary measures were taken against them.  And during that

18    period of time, we could carry out other investigations in order to

19    support the detention or justify the detention of the person concerned."

20            Although this witness referred to 30 days' detention, it is given

21    in the rules a brigade commander could give up to 60 days' imprisonment.

22            This concludes my part 1.  I move to part 2, which deals with the

23    nature of the measures taken in Bugojno in response to the criminal acts

24    of 5 August in the furniture salon.

25            To begin with, I wish to draw the attention of the facts as they

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 1    were established in the trial record on the basis of the testimony of

 2    Witnesses HF, Zlotrg, Muratovic.

 3            JUDGE POCAR:  Judge Meron.

 4            JUDGE MERON:  Mr. Bourgon, I was very much interested in the tour

 5    de raison you made of the relevant regulations.  But what would interest

 6    me is the bottom line on that.  How many such criminal reports were

 7    actually filed?

 8            MR. BOURGON:  Well --

 9            JUDGE MERON:  You spoke about the possibility of filing those

10    reports.  I would like to know what --

11            MR. BOURGON:  Judge, yesterday I referred the Appeals Chamber to

12    three different exhibits.  One exhibit is in -- from -- comes from

13    Travnik, from the district military prosecutor's office, with more than

14    800 criminal reports.  One exhibit dealt with Zenica, the Zenica District

15    Military Court, and included more than 900 complaints.  And all of these

16    complaints, according to the evidence on the record, are -- were filed

17    because of the policy of the 3rd Corps, because of what

18    General Hadzihasanovic was doing; and more importantly, the evidence on

19    the record shows that the Military Police Battalion did not let anything

20    go unpunished on the records and at the instigation of the appellant

21    General Hadzihasanovic.

22            JUDGE MERON:  Thank you very much.

23            MR. BOURGON:  Thank you for your question, Judge.

24            I move on to part 2, which deals with the nature based on this law

25    and based on those facts.  And I look at the testimony of three witnesses.

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 1    I said their name, HF, Zlotrg, and Muratovic, and also Exhibit P203, which

 2    is public security station information dated 20 August, and Exhibit 1392,

 3    a 3rd Corps security report dated 18 August.  On the basis of this

 4    evidence, it is established firstly that the alleged perpetrators were

 5    arrested and taken into custody; secondly, that proceedings were

 6    instituted against them, DH1392; that a criminal report was filed by 307

 7    Brigade against them, Zlotrg, 1497, corrected version; appropriate legal

 8    measures were taken in accordance with the policy of the 3rd Corps,

 9    Muratovic, 15039, corrected version; legal proceedings were underway,

10    Muratovic, 15040, corrected version.

11            Thirdly, it is established that after 5 August but no later than

12    18 August, criminal proceedings had been instigated against the

13    perpetrators, and the municipal public prosecutor in Bugojno was seized of

14    the matter.  Exhibit P203.

15            Fourthly, looking at the involvement of the Bugojno authorities,

16    while the perpetrators were imprisoned, the Public Security Station, the

17    municipal public prosecutor, the State Security Service Detachment, the

18    security organ of the 307 Brigade, as well as the Bugojno Defence Staff

19    were all aware of the situation and working together on this case.

20            On the basis of these established facts, it is our submission,

21    Mr. President, that the matter was in the hands of justice in that the

22    municipal prosecutor was seized of the matter, and accordingly he had two

23    options:  The municipal public prosecutor could either exercise

24    jurisdiction if he believed he had so; and to act upon it.  His second

25    choice:  If he believed he did not have jurisdiction, then it was his

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 1    obligation to pass on the case to the Travnik district military

 2    prosecutor, or, depending, of course, on the qualification of the crime,

 3    the crime could also go to the Zenica high public prosecutor.

 4            Consequently, it is our respectful submission that no reasonable

 5    trier of fact could conclude beyond a reasonable doubt on the basis of the

 6    evidence on the record that the measures taken in Bugojno by the 307

 7    Brigade and all the other players I mentioned were only disciplinary in

 8    nature.

 9            It is significant in this respect that in analysing the measures

10    taken the Trial Chamber did not refer to the involvement of the Bugojno

11    municipal public prosecutor.

12            At paragraphs 1771 to 1776 of the judgement, the Trial Chamber

13    provided four reasons for its conclusion that the 3rd Corps had initiated

14    no investigation or criminal proceedings and that the measures were only

15    disciplinary.

16            The Defence submits that a reasonable trier of fact could not

17    arrive at this conclusion on the basis of the evidence referred to.  It is

18    clear, in our view, that the testimony of Muratovic taken as a whole, in

19    light of Exhibit 1392 and in light of the testimony of Witness Zlotrg, who

20    accompanied him in Bugojno and who is the one who drafted the Exhibit

21    1392, it cannot be concluded that the measures he reported to

22    General Hadzihasanovic were solely disciplinary in nature.

23            Secondly, regarding the testimony of Sead Zeric, the Chamber

24    omitted in the judgement to take into consideration that this witness

25    confirmed that he did not deal with all cases which numbered between 7 and

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 1    900 in 1993 and that he could not be sure whether he received or not a

 2    criminal report for this incident.

 3            Thirdly, the investigation conducted by Peter Hackshaw, the

 4    Defence recalls that in addition to the lack of probative value of his

 5    evidence, this witness did not go to Bugojno to search any files and there

 6    are many documents about the events in this case which we succeeded in

 7    locating on the public records:  Example, in relation to Dusina - and this

 8    is documented on the record - which he did not -- or was not able to find.

 9            Lastly, regarding Witness Zrinko Alvir, the proceedings before the

10    high court in 2004 refer to his testimony do not exclude the possibility

11    that they were the result of the criminal proceedings which were initiated

12    by the municipal public prosecutor in Bugojno in 1993.  The statement

13    given by this witness in 1994, when returning to Bugojno for the first

14    time, is evidence which allows for this possibility.

15            In any event, what is important is that the Bugojno municipal

16    public prosecutor was seized of the matter as of 18 August at the latest

17    and that it was his duty to act upon it or to pass on the case to the

18    Travnik district military prosecutor.  There is no evidence whatsoever on

19    the record as to what happened after 18 August 1993, and consequently it

20    is our submission that the Prosecution failed to prove that no measures

21    were taken after this date.

22            I now move to part 3 and the issue in the following section is the

23    following:  Further to the written and oral information that the appellant

24    received.  He's sitting in the 3rd Corps.  He gets a visit and he gets a

25    report.  Following this information, what was his understanding of the

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 1    nature of the measures taken in Bugojno in response to the acts of 5

 2    August?  Well, the evidence demonstrates that the measures taken, as we

 3    have shown, were not only disciplinary in nature.  Our argument is the

 4    following:  Even if they were disciplinary in nature, based on the

 5    information he received, if his understanding was that appropriate legal

 6    measures were taken in accordance with the law and if there is no specific

 7    reasons for him to question or challenge this information, then it was

 8    reasonable for him to be satisfied.  And the proper conclusion is he did

 9    take necessary and reasonable measures in the circumstances ruling at the

10    time.

11            Looking at the reverse perspective, it would be unreasonable if

12    this was not the case.  This would impose on the commander of a corps the

13    obligation to challenge and to investigate the measures taken in Bugojno,

14    for example, no matter what information he received from his subordinates.

15    Based on the evidence on the record, and including, more specifically, the

16    testimony in the report of the defence military expert witness regarding

17    the duties and responsibilities of a corps commander, it simply cannot be

18    that corps commanders are expected to challenge all information they

19    receive.

20            Moreover, the Appeals Chamber has held, pursuant to Article 7(3),

21    that a commander bears no responsibility for failing to obtain information

22    from his subordinates.  Celebici appeal, judgement, paragraph 226.

23            We submit that this holding of the Appeals Chamber applies to the

24    present scenario and that the responsibility of General Hadzihasanovic

25    must be assessed on the basis of the information in his possession.

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 1            With a view to assessing his understanding of the nature of the

 2    measures, we submit that the following must be taken into consideration:

 3    Not only the text of the written report, not only the text or the words of

 4    the testimony, but also the orders he issued concerning the prevention and

 5    punishment of criminal acts and breaches of discipline.

 6            We must bear into consideration the fact that the 3rd Corps policy

 7    in this respect had been disseminated to the Bugojno units.  We must also

 8    bear -- take into consideration that the qualifications and employment of

 9    Witnesses Muratovic and Zlotrg, these two witnesses had knowledge of the

10    related corps -- 3rd Corps policy.  They knew the applicable law.  They

11    knew the rules on military discipline.  And they knew the difference

12    between the applicable procedure for breaches of discipline and those

13    applicable to criminal acts.

14            We must also take into consideration the duties and

15    responsibilities of a corps commander for the detention of prisoners and

16    related issues.

17            Finally, then we look at the contents of the reports.

18            Assessing the commander's understanding, in light of these

19    considerations, leads to the following observation:  First,

20    General Hadzihasanovic could trust that 307 Brigade was informed of the

21    difference between breaches of discipline and criminal acts and was

22    informed of the policy of the 3rd Corps.  He could trust that Muratovic

23    and Zlotrg, working in the 3rd Corps command security sector, knew the

24    law, knew the policy, knew the difference between criminal and

25    disciplinary measures.  And on this basis, the words they use in their

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 1    written and oral reports were to be interpreted and assessed in that

 2    context.  He knew that pursuant to the 3rd Corps policy measures for the

 3    repression of all breaches, whether disciplinary and/or criminal alike,

 4    would be and were taken at each level in the chain of command from the

 5    battalion, to the brigade, to the operational group, to the appellant in

 6    the 3rd Corps command.

 7            In the absence of specific information to the contrary,

 8    General Hadzihasanovic was entitled to trust that his subordinates at

 9    every level were acting in accordance with the policy.

10    General Hadzihasanovic, as commander of a corps comprising between 30 and

11    40 thousand soldiers simply cannot be expected -- could not be expected to

12    do everything himself.

13            On this basis, we submit that the wording in the reports, both

14    oral and written, make it clear, contrary to the Trial Chamber's

15    conclusion, that the measures taken in Bugojno were not only disciplinary

16    in nature.

17            THE INTERPRETER:  Could counsel please be asked to slow down.

18            MR. BOURGON:  I apologise once again.  I'm sorry.

19            The alleged perpetrators, according to the wording of the reports,

20    were arrested, were taken into custody.  Appropriate legal measures were

21    taken in accordance with the law.  Measures were taken in accordance with

22    the policy of the 3rd Corps.  And a criminal report had been filed, was

23    being, or would be filed.

24            The general received no report from his officers that the measures

25    taken were insufficient.  The general received no report from his officers

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 1    that the measures taken in Bugojno were illegal.  The general received no

 2    information from his officers which would require his immediate attention

 3    as commander of the 3rd Corps.  He received no information which would

 4    create a doubt in his mind as to what took place in Bugojno.  He was also

 5    aware that the information concerning this incident, based on the

 6    evidence, had been covered by three levels in the chain of command:  By

 7    the brigade witness -- or not witness, but Mr. Handzic, the security

 8    officer; at the operational group level, OG Zapad, that was Dzafic,

 9    security officer for the operation group; as well as in the command

10    itself, by Muratovic, Zlotrg, and HF.

11            In conclusion, General Hadzihasanovic had every reason to believe

12    in the circumstances ruling at the time that measures taken were

13    appropriate and legal and there was no reason to believe that they were

14    insufficient or illegal.

15            Mr. President, even if it was the case that the Witnesses HF,

16    Muratovic, and Zlotrg made a mistake and provided incorrect information to

17    him, General Hadzihasanovic should not bear responsibility for that.

18            Even if it was the case that Witness -- that Mr. Handzic, the

19    security officer from the brigade provided wrong information to the

20    officers which were sent to investigate, it would not be for

21    General Hadzihasanovic to bear responsibility for that.

22            And even if it was the case that the security level -- security

23    officer at the operational group level, Dzafic, even if he had wrong

24    information or if he communicated wrong information,

25    General Hadzihasanovic should not bear responsibility for that.

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 1            Consequently, the only possible conclusion is that he took -- the

 2    appellant took the necessary and reasonable measures in response to

 3    criminal acts committed by his subordinates and that the convictions for

 4    counts 3 and 4, Bugojno, must be reversed and a verdict of acquittal

 5    entered.

 6            At this point, Mr. President, I address one issue:  If there is

 7    any doubt in the Appeals Chamber in respect to our arguments that he must

 8    be acquitted for these counts, then the only other option, in our view, is

 9    to order a new trial for this count.  This is based on the nature and

10    insufficiency of the measures taken in Bugojno.  That's an issue which was

11    never raised by the Trial Chamber during the testimony of Witnesses HF,

12    Zlotrg, and Muratovic, nor under -- nor during final arguments.

13            The nature or insufficiency of the measures was never raised by

14    the Prosecution either at the 98 bis stage, during the testimony of these

15    witnesses, or during the testimony of other witnesses, such as Gerritsen,

16    or during final arguments, or in its final brief.  This issue was raised

17    proprio motu by the Trial Chamber during deliberations.

18            The Prosecution did not meet its burden of proof in relation that

19    these counts and there are just too many unknowns which should have been

20    addressed by the Prosecution in the evidence.

21            Therefore, the Trial Chamber was right in concluding that

22    General Hadzihasanovic had knowledge -- had no evidence to show that he

23    had knowledge of the 5 August incident and that he should have been

24    acquitted at that time.

25            I now refer to the -- in the judgement where the Trial Chamber

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 1    says, We have no direct evidence that he was aware of the 5 August

 2    incident unless -- until the Defence witnesses came and we got those

 3    reports.  That shows to us that he should have been acquitted at the end

 4    of the Prosecution's case.

 5            After the case for the Defence, if the Prosecution was surprised

 6    by the evidence that we led, by those witnesses and those documents, all

 7    the evidence that we brought forward, it could have led evidence in

 8    rebuttal, but it did not.  And during the appeal, if the Prosecution was

 9    surprised with our arguments, then they could also ask for fresh evidence

10    and do further investigations in Bugojno.  They did not.

11            The entire adjudication of this issue centres uniquely on evidence

12    put forward by the Defence, when there was really no case to answer.

13            For all these reasons, it would be wholly unfair in the event the

14    a Appeals Chamber is not convinced by our arguments that he should be

15    acquitted, to confirm this conviction without ordering a new trial on this

16    count.

17            I now move to part 4, the last part under counts 3 and 4,

18    furniture salon and other detention facilities.

19            In this part, I address briefly the Trial Chamber's guilty verdict

20    for count 4 in relation to the period after 18 August 1993 - and the dates

21    are very important here - for the furniture salon and for also other

22    detention facilities in Bugojno.

23            THE INTERPRETER:  Kindly slow down for the interpreters.  Thank

24    you very much.

25            JUDGE POCAR:  Mr. Bourgon, Judge Shahabuddeen would like to put to

Page 124

 1    you a question.

 2            JUDGE SHAHABUDDEEN:  Mr. -- Counsel, I read here that you are --

 3    you have submitted that in certain circumstances you are inviting the

 4    Appeals Chamber to confirm this conviction by not ordering a new trial on

 5    this count; is that correct?

 6            MR. BOURGON:  That's incorrect, Mr. -- Incorrect, Judge.  They're

 7    both -- both are to be looked in the opposite way.  We want to reverse the

 8    conviction and that conviction should not stand.

 9            If you have any idea or any doubt into -- in your mind as to not

10    reversing the count, then we say we need a new trial.

11            JUDGE SHAHABUDDEEN:  All right.

12            MR. BOURGON:  Because of what happened.  Thank you, Judge.

13            The last part of my argument deals with the period after 18

14    August.  I'd like to come back on this to paragraph 251 of the appeal

15    brief, which clearly highlights the unreasonable character of the Trial

16    Chamber's verdicts.

17            The rationale behind the Trial Chamber's verdict is that because

18    Hadzihasanovic failed to take appropriate measures in respect of the 5

19    August incident, then he had reason to know that the commission of similar

20    illicit acts after 18 August was a real and reasonable risk.  And

21    accordingly, the Trial Chamber says he created a situation conducive to

22    the repetition of similar criminal acts after 18 August, not only at the

23    furniture salon but also at other detention facilities.

24            The furniture salon, Mr. President, dear Judges, was never

25    mentioned in any report to General Hadzihasanovic.  What was reported to

Page 125

 1    him was a situation involving two soldiers who had beaten up HVO

 2    prisoners.

 3            Secondly, the Trial Chamber found that General Hadzihasanovic -

 4    and here it's very important - did not have knowledge of the poor

 5    detention conditions whether at the furniture salon or at the other

 6    detention facilities.

 7            Then comes some crucial findings of the Trial Chamber at

 8    paragraphs 1759, 60, 61, 83, 84, and 85.  In these paragraphs, the Trial

 9    Chamber established the following:  General Hadzihasanovic did not have

10    any alarming information that would have warned him that similar criminal

11    acts had been committed by soldiers of 307 Brigade at other detention

12    centres in Bugojno.

13            Secondly, when he learned of the 5 August incident, the Trial

14    Chamber states he did not have reason to know that his subordinates had

15    committed other crimes of mistreatment, whether at the furniture salon or

16    at other detention facilities.

17            The information communicated to General Hadzihasanovic did not

18    reveal, according to the Trial Chamber, a repeated practice of

19    mistreatment but, rather, one incident which had taken place on one

20    occasion, on 5 August 1993.  The information communicated to

21    General Hadzihasanovic was not enough for him to believe, according to the

22    Trial Chamber - that's very important - that this incident was preceded or

23    followed by other criminal acts of the same nature.

24            In other words, this is what the Trial Chamber concluded:  One,

25    there was a serious incident on 5 August; two, there were no similar

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 1    incidents before 5 August; three, there were no similar incidents during

 2    the period between 5 August and 18 August.

 3            Consequently, it is our submission that no reasonable trier of law

 4    and fact - because we believe that this is a misapplication of

 5    Article 7(3) mens rea - could conclude that General Hadzihasanovic had

 6    reason to know that his subordinates were about to commit similar criminal

 7    acts at any of the detention facilities in Bugojno.

 8            It follows that the conviction entered for count 4, in respect of

 9    potential cruel treatment after 18 August at the furniture salon, the

10    Gimnazija, the FC Iskra Stadium, and the Vojin Paleksic school, must be

11    reversed.  In relation to all the other issues raised in relation to the

12    third ground of appeal, we stand by our submissions.

13            And I move to the fifth ground, Orasac.

14            The events, Mr. President, which took place in Orasac deal

15    specifically, as you know, with the actions of the so-called Mujahedin, or

16    El Mujahid Detachment, the main issue being whether a

17    superior-to-subordinate relationship existed between

18    General Hadzihasanovic, as commander of the 3rd Corps, and these forces.

19    Our fifth ground of appeal on this topic comprises no less than seven

20    sub-grounds of appeal.  Each of those is, in our view, part of a logical

21    sequence, from the issue of control to the issue of measures.  At the same

22    time, each of these grounds is a stand-alone and only one needs to be

23    successful, in our submission, to justify the reversals of the conviction

24    entered by the Trial Chamber for counts 3 and 4, Orasac.

25            My submissions will be divided in three parts -- or three

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 1    sections.

 2            THE INTERPRETER:  Could counsel please be asked to slow down.

 3    Thank you.

 4            MR. BOURGON:  Once again, I apologise.  I'm doing my best.

 5            In section 1, I will respond to the question posed by the Appeals

 6    Chamber to the Prosecution in the Scheduling Order.  In section 2, I will

 7    address in some detail our first and sixth sub-grounds of appeal.  And

 8    then these grounds deal with the issue of the use of force by a commander

 9    against his own subordinates and the sixth sub-ground deals with the

10    criteria which must be fulfilled for effective control to exist if the

11    Appeals Chamber comes to the conclusion that this is included in his

12    material ability to prevent or punish.

13            Finally, in section 3, I will address the remaining five

14    sub-grounds, focusing on a few important issues in each case.

15            The question put to the Prosecution in the Scheduling Order is

16    divided in two parts.  First, to point the evidence in the trial record

17    pertaining to the failure of General Hadzihasanovic to provide Mujahedin

18    with international humanitarian law - which I will refer to as IHL -

19    training and to set up a disciplinary system to ensure compliance with the

20    Rules.

21            Secondly, to explain whether such failure would be sufficient in

22    itself for General Hadzihasanovic to incur criminal responsibility for

23    failure to prevent the crimes of cruel treatment and the crime of murder

24    of Dragan Popovic.

25            I'll answer these questions in the reverse order.  First, it is

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 1    our submission that failure to provide the Mujahedin with IHL training and

 2    to set up a disciplinary system is not sufficiently in itself for the

 3    appellant to incur criminal responsibility for failure to prevent cruel

 4    treatment and murder of Popovic.

 5            Failure to provide IHL training and to set up a disciplinary

 6    system only becomes relevant, moreover, in the presence of a

 7    superior-to-subordinate relationship between the commander and the group

 8    concerned.

 9            If General Hadzihasanovic did not exercise effective control over

10    Mujahedin, then the issue is moot.

11            Secondly, it is our submission that providing IHL training and

12    setting up a disciplinary system are included in the responsibilities and

13    duties of a commander from the moment he assumes command.  These duties

14    and responsibilities are a standing obligation for the commander pursuant

15    to customary international law, even if he does not have reason to know

16    that a subordinate is committing or is about to commit a crime.  This is

17    something he does at all times.

18            In this case, Mr. President, we have never undermined the

19    importance of the duties and responsibilities of a corps commander.  On

20    the contrary, we have proven in many respects that he was a good commander

21    and that he did fulfil his responsibilities and obligations.

22            These responsibilities, Mr. President, are, in our view, part of

23    his general duty of prevention, as well as to his duty to ensure that

24    subordinates will comply with the dictates of IHL.

25            This is different from the commander's duty if he knows or had

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 1    reason to know that a subordinate was committing or about to commit a

 2    crime.  Then he must take necessary and reasonable measures to prevent

 3    this crime.

 4            The difference between the two is supported by the fact that if

 5    the crime is committed or about to be committed, it is very unlikely at

 6    this point that training in IHL will be sufficient to prevent this crime

 7    from happening.

 8            Consequently, while the commander who fails to train subordinates

 9    or to set up a disciplinary system is certainly in breach of his general

10    duty of prevention, providing, of course, that he was able to do so, this

11    is insufficient to attract criminal responsibility for a crime committed

12    by a subordinate.  In other words, his responsibility for a crime

13    committed by a subordinate will be and must be assessed on the measures he

14    took once he knew or had reason to know that the crime was being committed

15    or about to be committed.

16            Looking at the same situation from the reverse perspective, a

17    commander who failed to take necessary and reasonable measures to prevent

18    a crime by a subordinate, in our -- in our submission, could not say --

19    could not say, I'm not guilty, because I provided IHL training to my

20    troops before I ever had any reason to know about the crime which was

21    being committed or about to be committed.

22            Finally, a further argument is that even though providing IHL

23    training to subordinates and setting up a disciplinary system is included

24    in the responsibilities of a commander, pursuant to Article 87 of

25    Additional Protocol 1, failure to do so is not a breach which attracts

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 1    criminal responsibility in relation to a crime which had been committed by

 2    a subordinate as, for example, in Article 86 of Additional Protocol 1.

 3            In response to the second part of the question, a comprehensive

 4    review of the evidence of the trial record reveals, in our respectful

 5    submission, that both issues, failure to provide IHL training to

 6    Mujahedin, and failure to set up a disciplinary system for Mujahedin, were

 7    not addressed, whether in witness testimony or documentary evidence.  This

 8    is in fact confirmed by the Trial Chamber at paragraphs 1434 of the

 9    judgement.

10            On the other hand, the trial record is replete with examples of

11    the numerous measures taken by General Hadzihasanovic to stress, amongst

12    other things, the importance of training for his troops, to distribute

13    Geneva Conventions to his troops, to draw their attention to the

14    obligations they entail, to instruct his officers concerning their legal

15    obligations, and to train his troops in military discipline.

16            If General Hadzihasanovic did this for the units under his

17    command, the question becomes:  Why then would he not do so for Mujahedin

18    if they were under his command?

19            The evidence is silent on this question.

20            I turn to section 2 of my submission, which addresses the first

21    and sixth ground of appeal, six sub-grounds.

22            It is our submission, Mr. President, that the obligation for a

23    commander to use military force against a group of fighters --

24            JUDGE MERON:  Mr. Bourgon, I would like to stay for a moment on

25    this question of the authority of Mr. Hadzihasanovic over the Mujahedin.

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 1    And there are, of course, legally, two questions there.  The first one is

 2    the question of de jure superior relationship between the 3rd Corps and

 3    the Mujahedin.  And the second question is the question of effective

 4    control.

 5            Do I understand you to argue that there was no de jure authority

 6    and no de facto authority?

 7            MR. BOURGON:  This is --

 8            JUDGE MERON:  Both of these.

 9            MR. BOURGON:  This is exactly the case, Judge.  We argue that

10    there is a mistake which led to an error on the part of the Trial Chamber

11    about de jure control, which we say never existed; sub-ground of appeal 2.

12      And that the effective control never existed; sub-ground of appeal 3.

13            JUDGE MERON:  You are, of course, aware of the fact that the trial

14    judgement in paragraph 853, I believe, reached the conclusion that there

15    was effective control over the Mujahedin.  Would you say that no

16    reasonable trier of fact could have reached the conclusion that

17    Hadzihasanovic had de facto control over the Mujahedin?

18            MR. BOURGON:  Absolutely, Judge.  And later on in my argument I

19    will refer to the holdings of the Appeals Chamber in the Blaskic case.

20    And I will say if we look at the facts in this case and the way the

21    Appeals Chamber applied the effective control test in the Blaskic case or

22    in the Blaskic appeal, then there is absolutely no way that the

23    relationship which existed between General Hadzihasanovic and the

24    Mujahedin can be even considered to come close to effective control.

25            JUDGE MERON:  So we will be returning to this point, sir?

Page 132

 1            MR. BOURGON:  Absolutely, Judge.

 2            JUDGE MERON:  My second question - and I don't know whether this

 3    is the best time to ask you that, but I would not mind if you would return

 4    to it later on - you mentioned in your argument today the

 5    had-reason-to-know test.  And you, of course, know that this test draws

 6    importantly on the Krnojelac appeals decision.

 7            If the Trial Chamber applied that test, had-reason-to-know, in an

 8    impermissible fashion, I would like you at one point during your argument

 9    to point specifically to parts of the judgements which would be

10    invalidated as a result of that.

11            MR. BOURGON:  Thank you, Judge.

12            Did I understand Krnojelac judgement from the from the Appeals

13    Chamber?

14            It is our submission, Judge, that if the Appeals Chamber follows

15    the same route with the had-reason-to-know, it would find that there is no

16    had-reason-to-know in the previous circumstances.

17            JUDGE MERON:  No, I understand that.  But what I meant is do you

18    argue that the standard of Krnojelac was incorrectly applied?

19            MR. BOURGON:  That's exactly the case.  We feel that the -- the

20    Trial Chamber in the judgement went over the Krnojelac judgement and

21    decided to depart from the Appeals Chamber holdings, whereas the Appeals

22    Chamber had conducted a very detailed review of the circumstances

23    involving Mr. Krnojelac, the fact that he was at the prison, that he saw

24    beatings that -- and all the facts surrounding his situation.  The Appeals

25    Chamber conducted that on the whole he had such alarming information that

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 1    he had reason to know.  The Trial Chamber, on the other hand, went to say

 2    that if -- if the general knows that in the same brigade in the same

 3    general geographical area a crime was committed, it has reason to know

 4    about all the other crimes committed by the same brigade in the same area,

 5    he has reason to know.

 6            JUDGE MERON:  And --

 7            MR. BOURGON:  And we believe that this is wrong.

 8            JUDGE MERON:  And if this standard was impermissibly applied --

 9            MR. BOURGON:  Yes.

10            JUDGE MERON:  -- which parts of the judgement would be affected by

11    that?  Could you tell us that during the day.

12            MR. BOURGON:  Well, Judges, the part that I referred to earlier

13    on.  It's the conclusions that if -- if the Trial Chamber says:  One

14    incident, 5 August, nothing happened before, nothing happened between 5

15    and 18 but then there's suddenly had-reason-to-know that pops up on the

16    18th.  For us, that's where it went wrong.

17            JUDGE MERON:  Thank you.

18            JUDGE POCAR:  Judge Liu.

19            JUDGE LIU:  Thank you, Mr. President.  I have just a follow-up

20    question with Judge Meron's question concerning with the effective

21    control.

22            I would like to know, was your position on Mr. Hadzihasanovic's

23    material ability to prevent or punish the members of the Mujahedin at that

24    moment?  You may answer this question now, but if you come across this

25    question at a later stage, I could wait.

Page 134

 1            MR. BOURGON:  Thank you very much, Judge.  This is exactly the

 2    point I'm addressing now.  And we feel there are two ways to address this

 3    question in our arguments.  We have a detailed ground of appeal, which we

 4    say, had the Trial Chamber correctly analysed all the evidence on the

 5    record, then it would come to the conclusion that there was no material

 6    ability to prevent or punish.

 7            But for now I want to address the Trial Chamber's own finding,

 8    which makes that, in our view, very clear.  And that is the fact that the

 9    Trial Chamber said that a commander, as part of his material ability to

10    punish, is in a position where he must use force to do so.

11            So the Trial Chamber included the use of military assets and

12    attacking subordinates as a manner to apply effective control.

13            In our view, this makes no sense.  And this is what I get into at

14    this part.

15            The importance of this issue stems from the Trial Chamber's

16    finding at paragraph 1459, which reads as follows:  "The only way in which

17    the 3rd Corps could deal with the situation it faced was to use military

18    assets against the El Mujahedin Detachment immediately."

19            The situation in this quote refers to the seriousness of offences

20    which took place, to the fact that past threats to use force had not had

21    the deterrent effect counted on, on the lack of discipline shown by the El

22    Mujahid Detachment, and by the fact that initiating talks at that stage

23    was useless.  These are all Trial Chamber conclusions.

24            We respectfully submit that this finding most accurately reflects

25    the totality of the evidence on the record concerning the state of affairs

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 1    related to Mujahedin during the period from August to December 1993.  It

 2    shows, in our view, that the Mujahedins were uncontrolled elements which

 3    did not accept to be under command and control of the 3rd Corps.

 4            Strikingly, the Prosecutor has not addressed this specific finding

 5    of the Trial Chamber in its response, which, in our view, is revealing.

 6            On the basis of this finding, we submit that in such a situation a

 7    superior-to-subordinate relationship in the sense of Article 7(3) cannot

 8    be said to exist.

 9            If a group of fighters refuses to carry out the orders of a

10    commander and the only way to bring them into submission is to use

11    military force and to attack them, surely it cannot be said that this

12    commander exercises effective control over this group.

13            The question at this stage is whether or not -- is not whether or

14    not the commander is able to use force to attack the group.  It is,

15    rather, whether the commander has the material ability to prevent or

16    punish --

17            THE INTERPRETER:  Could counsel please be asked to slow down.

18            MR. BOURGON:  Will do.  Thank you.

19            So the question, Mr. President, is not whether he has the material

20    assets to attack; the question is whether he has the material ability to

21    prevent or punish acts committed by this group which refuses to obey his

22    order.

23            To us, there's no confusion, contrary to the Prosecution argument,

24    between the first and third elements of command responsibility.  The

25    meaning of effective control --

Page 136

 1            JUDGE POCAR:  Judge Shahabuddeen.

 2            JUDGE SHAHABUDDEEN:  Mr. Bourgon, I understand your proposition

 3    that the issue turns on proof of effective control.  Well, is there a

 4    principle in military organisations which says that a military commander

 5    in a given sector has to have control of all personnel in that area?  In

 6    other words, is there a principle of unity of --

 7            MR. BOURGON:  Thank you very much for your question, Judge.  To me

 8    the answer is very simple.

 9            JUDGE SHAHABUDDEEN:  Yes.

10            MR. BOURGON:  In times of occupation, a commander may have some

11    kind of a geographical responsibility for what happens in that area.

12            JUDGE SHAHABUDDEEN:  Yes.

13            MR. BOURGON:  If it's not times of occupation, that simply is not

14    the case.  The military commander is only responsible for everything that

15    is -- his soldiers do.  And that's effective control.  No effective

16    control, no responsibility.

17            JUDGE SHAHABUDDEEN:  Thank you.  Thank you.

18            MR. BOURGON:  The Trial Chamber's analysis, the meaning of

19    effective control, as I was saying, is well-defined in the jurisprudence

20    of the International Tribunal.

21            It is our submission that the use of military force to attack a

22    group who will not carry out orders is at odds with this concept as set

23    out in our military pleadings -- in our written pleadings.  Sorry.

24            The Trial Chamber's analysis of the issue at paragraphs 85 to 87,

25    without providing any authority for -- in support, is both important and

Page 137

 1    revealing.

 2            With all due respect for the Trial Chamber, I believe it may -- it

 3    may have confused the following two terms:  "Material ability to prevent

 4    or punish," as defined in the jurisprudence of the International Tribunal

 5    with "the possession of military assets and the possibility to use them"

 6    because of the French definition, "capacite materielle de faire usage de

 7    la force," which is a different concept altogether.

 8            In this regard, we disagree with the last sentence of paragraph 86

 9    of the judgement, which must be looked at, in our view, by the Appeals

10    Chamber.

11            In our view, the only situation in which a commander may be

12    compelled to use force to enforce international humanitarian law is when

13    the use of force is required against the enemy as a means of reprisal, not

14    in the context referred to by the -- by the Trial Chamber.

15            We also disagree with the second sentence of paragraph 87 of the

16    judgement that because orders must be obeyed for an army to function -

17    everybody agrees with that - a commander would not hesitate to use force

18    in cases where they refused to obey a combat order.

19            This simply cannot be the case, Mr. President.

20            Moreover, the same reasoning applies to the third sentence, where

21    the only occasion, in our respectful opinion, a commander may find himself

22    in a position where he must order the execution of a soldier who refuses

23    to obey his orders is when this soldier was tried and convicted in

24    accordance with applicable international norms.

25            It simply cannot be the case that a commander -- You refuse to

Page 138

 1    obey my order; I shoot you.

 2            That's my reading of the trial judgement.  I may be wrong.  But I

 3    think the Appeals Chamber must look at such holdings in the trial

 4    judgement.

 5            In the end, Mr. President, perhaps there is a situation when a

 6    commander may be compelled to use force against his subordinates.  That

 7    is, if they join the enemy and they begin firing at his unit.  But then

 8    again, they are no longer subordinates; they are former subordinates.

 9            While these conclusions of the Trial Chamber may explain the

10    finding that General Hadzihasanovic exercise effective control over

11    Mujahedin, even though the only way for him was to attack them, we

12    respectfully believe that this finding which  is contrary to the

13    jurisprudence of the International Tribunal, cannot stand.

14            I referred you earlier to the case of Blaskic, which was

15    adjudicated by the Appeals Chamber.  In that case, the Appeals Chamber

16    held that Blaskic did not exercise effective control over the 4 Military

17    Police Battalion, concerning the HVO attack on Ahmici, even though the 4

18    Military Police Battalion was a regular HVO unit, was present and included

19    in the Central Bosnia operative zone, which was under the command of

20    Colonel Blaskic, and this 4 Military Police Battalion could be attached to

21    him for ad hoc missions pursuant to specific requests.

22            Despite all this, the Appeals Chamber said, no effective control.

23            Our submission is, when we compare the facts of both cases, the

24    situation prevailing at the time between the commander of the 3rd Corps

25    and the Mujahedin does not even come close to the kind of relationship

Page 139

 1    which existed between Blaskic and the 4 Military Police Battalion.

 2            In these circumstances, we take the view that our first sub-ground

 3    of appeal must succeed and we respectfully request that the convictions

 4    entered against General Hadzihasanovic for counts 3 and 4, Mujahedin and

 5    Orasac, be reversed and a verdict of acquittal entered.

 6            I now move on to our sixth sub-ground of appeal set out --

 7            JUDGE POCAR:  Counsel, can you try to slow down.

 8            MR. BOURGON:  Will do, Mr. President.  I'm looking at the time and

 9    I'm ...

10            The sixth sub-ground of appeal is set out in paragraphs 371 and

11    373 of the appellant brief.

12            In the event the Appeals Chamber disagrees with our submission on

13    the previous issue, that is, if the Appeals Chamber holds that use of

14    military assets and attacking subordinates in order as a means to prevent

15    and punish, then and only then our sixth sub-ground of appeal becomes

16    relevant.

17            If it's the fact that having to attack a subordinate does not

18    automatically negate any effective control the commander exercises over

19    his troops, then, in our view, it must still fulfil the criteria had the

20    material ability to prevent or punish.  And in such a case, this would

21    require three criteria to be -- to be fulfilled.  In other words, we

22    submit that if the use of force and military assets, which we say is not,

23    is included in the material ability to prevent or punish, then the

24    commander will only have effective control if he has the legal authority

25    under domestic law to attack his subordinates; if he has the necessary

Page 140

 1    military authority; and if he possesses the military assets necessary to

 2    launch such an attack.

 3            In respect of these submissions, we refer the Appeals Chamber to

 4    our written pleadings in paragraphs 373 to 394.

 5            JUDGE POCAR:  Judge Guney would like to put a question.

 6            JUDGE GUNEY: [Interpretation] Mr. Bourgon, there is the -- the

 7    exercise of the authority of effective control, but there's also the de

 8    jure control.  That's on the one hand.  And then also there is the

 9    material capability to prevent and punish.  Is it possible to have the

10    material capacity to prevent and punish without having effective control,

11    be it that or the de jure control?

12            So I'd like to know your view on this.

13            MR. BOURGON: [Interpretation] Thank you very much, Your Honour.

14    The answer is very simple:  The Appeals Chamber clearly established that

15    for a commander to have the material capability -- or ability to prevent

16    or punish, he must exert effective control.  But the relationship between

17    effective and de jure control, in both cases you must have evidence of

18    effective control [In English] to prevent and punish.  An effective

19    control to prevent and punish includes or has been defined as the material

20    ability to prevent and punish.  And the material ability to prevent and

21    punish, if that is not there, then this is the end of the matter.  You

22    need either de jure or effective control.  But even with de jure, this

23    would not be sufficient, according to our submissions and the holdings of

24    the Appeals Chamber.

25            I now move to simply my conclusion, and that is that whether the

Page 141

 1    Appeals Chamber adopts the position where using military assets and

 2    attacking does not negate effective control.  And if you look at it the

 3    other way, the criteria I have just mentioned, domestic legal authority

 4    and military authority and possession of military assets is not there.  Is

 5    simply, it cannot be that the Trial Chamber would find, that a

 6    reasonable -- a reasonable trier of fact would find the material ability

 7    to prevent or punish.

 8            I now move quickly to some of our arguments in grounds 2 to 5.  In

 9    our view, these are determining arguments which can facilitate

10    adjudication by the Appeals Chamber.

11            With respect to sub-ground 2, we maintain, as set out in our

12    written pleadings, that the Trial Chamber committed numerous incorrect

13    conclusions of facts which have occasioned a miscarriage of justice.

14            It is our submission that no reasonable trier of fact could have

15    concluded on its analysis of the evidence on the record that the Mujahedin

16    were under de jure command of the 3rd Corps.

17            Considering that this sub-ground deals with de jure -- and

18    specifically with de jure control, we submit that the testimony of Poparic

19    was especially important and respectfully submit that the Trial Chamber

20    was incorrect in setting it aside as being an administrative matter.

21            As for the documents involved or used by the Trial Chamber -

22    namely, some orders and letters - it is significant that the sole document

23    amongst these six letters and orders is the 28 August 1993 order which

24    bears the mention "not carried out."

25            The related testimony of Kulenovic at pages 13953 and 13961 is

Page 142

 1    also important in respect of these documents.

 2            Finally, the incorrect inference drawn by the Trial Chamber from

 3    what we say is -- was an unreliable, even totally unreliable Mujahedin

 4    propaganda video, the Trial Chamber drew an inference concerning the

 5    existence of an agreement between the Mujahedin and the Bosnian army

 6    leadership which was incorrect.

 7            Moving on to the sub-ground 3.  We submit, as set out in our

 8    written pleadings, that the Trial Chamber -- or that no reasonable trier

 9    of fact could have concluded from its analysis of the evidence on the

10    record that the Mujahedin were under effective control of the 3rd Corps.

11            In addition to the fact that a large amount of evidence, which, in

12    our view, has high probative value, was not attributed any weight, as

13    described in our pleadings, we invite the Trial -- the Appeals Chamber to

14    take a close look at the analysis of effective control which was performed

15    by the Trial Chamber for the period before 13 August 1993 and after 13

16    August 1993.  In this regard, over and above the fact that the Trial

17    Chamber, we say, incorrectly attributed weight to unreliable evidence for

18    the period after 13 August 1993 - and I refer here to the Mujahedin

19    propaganda video, P482, as well as to the war diaries and operational

20    logbooks, C11 to C20 - in our view, it stands from the evidence on the

21    record that other than that the Delic order of 13 August 1993, which was

22    used as a separation point by the Trial Chamber and for which there is no

23    response on the record, nothing had really changed regarding the lack of

24    effective control over the Mujahedin after 13 August.

25            One of the Trial Chamber's errors, in our submission - this one

Page 143

 1    was conceded by the Prosecution in its response at paragraph 257 - has

 2    special importance:  That is, the conclusion that members of Mujahedin

 3    were in fact tried by the municipal court in Travnik and not, as the Trial

 4    Chamber held, by the district military court.

 5            Another of the Trial Chamber's errors, which we say has

 6    significant importance, is the incorrect inference which was drawn from

 7    the war diaries C11 and C13 for 7 September 1993.  Contrary to the Trial

 8    Chamber's finding, these entries do not show that the Mujahedin

 9    participated in combat activities at the request of 325 Brigade.  On that

10    occasion, 325 Brigade was in fact assisted by the Military Police

11    Battalion -- or Military Police Platoon of operational group Bosanska

12    Krajina, OG BK, and 27 Brigade.

13            I move to the fourth sub-ground, which deals with the

14    had-reason-to-know criteria.  It is our submission that no reasonable

15    trier of fact could conclude that General Hadzihasanovic had knowledge of

16    the abduction of five Croat civilians in Travnik of 20 October 1993.

17            The Trial Chamber started its analysis from the absence of

18    evidence, establishing direct knowledge.  Then the Trial Chamber went on,

19    in our respectful view, to search and to find on the basis of a series of

20    unverified deductions and assumptions that General Hadzihasanovic had

21    knowledge.

22            I thought there was a question.

23            It is important to note what the Trial Chamber held.  It held all

24    of the following on the basis of a few pieces of evidence:  It held that

25    General Hadzihasanovic knew that five civilians were abducted by Mujahedin

Page 144

 1    on 19 October; that he knew what measures and steps had already been taken

 2    by Operational Group Bosanska Krajina, OG BK, to resolve the crisis; that

 3    he knew that in response to threats by one Mujahedin, Alagic, the

 4    commander of OG BK, had forbidden Mujahedin to abduct civilians.  That he

 5    knew that despite these threats a first group of five civilians was

 6    kidnapped on 16 October; that he knew that following the first abductions,

 7    OG BK had threatened the Mujahedin that they would attack them.  All of

 8    these findings, everything I've just mentioned, was established entirely

 9    on the basis of constructive knowledge.

10            In our submission, one of the incorrect inferences by the Trial

11    Chamber in this regard tells it all.  Contrary to the Trial Chamber's

12    finding, the support received from the corps commander mentioned by

13    Witness HE referred to, in fact, to the situation after he learned about

14    the killing of Popovic in early November 1993.  At that time, Alagic was

15    the new commander of the 3rd Corps and not Hadzihasanovic.

16            You take this part out of the equation, and in our view, the

17    playing cards castle falls apart.

18            Moving to the fifth sub-ground of appeal set out in paragraph 360.

19    It is our submission that the Trial Chamber erred in law by concluding at

20    paragraphs 1463 and 1465 that there exist an implicit causal link between

21    the failure to act to prevent a crime and the commission of that crime and

22    that such an implicit causal link could be presumed.

23            In our respectful submission, this is straightforward contrary to

24    the jurisprudence of the International Tribunal.  We only mention this at

25    this time to highlight the fact that, in our respectful submission, the

Page 145

 1    aim of the Trial Chamber in finding the existence of such a causal link

 2    was to shift the burden on the accused to prove the feasibility of the

 3    measures which he should have used.  Consequently, we take the view that

 4    this error of law invalidates the trial's analysis of the measures which,

 5    in its view, should have been taken by General Hadzihasanovic.

 6            Mr. President, I note I have ten minutes left, according to my

 7    legal assistant.  Would you like to take the break now and give me ten

 8    minutes at the end or to -- for me to conclude in ten minutes?

 9            JUDGE POCAR:  I believe I prefer you conclude in ten minutes now.

10            MR. BOURGON:  Thank you, Mr. President.

11            It is our submission with respect to the final sub-ground at

12    paragraphs 395 to 407 that no reasonable trier of fact, having properly

13    assessed the evidence on the record, could conclude that launching an

14    attack against the El Mujahid Detachment, with a view to securing the

15    release of five civilians kidnapped by the Mujahedin, was a necessary and

16    reasonable measure in the circumstances ruling at the time.

17            In this regard, the only point we'd like to raise relates to the

18    issues which were not addressed by the Trial Chamber in its analysis as to

19    whether or not launching an attack against the Mujahedin was a necessary

20    and reasonable measure.

21            These issues include the impact of the attack on the

22    accomplishment of the mission, the likely collateral damage, the chances

23    of success of the attack, and the rule of proportionality.

24            We note in this regard that the Prosecution did not even attempt

25    to address these criteria, but it's not surprising --

Page 146

 1            THE INTERPRETER:  Please kindly slow down.  Thank you.

 2            MR. BOURGON:  They did not even enter into this area.  And in our

 3    view, the Appeals Chamber does not need to do so either because it will be

 4    determined from the get-go that there was no effective control.

 5            In light of all these submissions, Mr. President, we respectfully

 6    request the convictions entered against General Hadzihasanovic for counts

 7    3 and 4, Mujahedin and Orasac, to be reversed and a verdict of acquittal

 8    entered.

 9            Finally, in my last minutes I move to the fourth ground of appeal,

10    related to music school.  And I refer the Appeals Chamber to paragraph 409

11    to 483 in the appeals brief.

12            It is our submission that no necessary -- no reasonable trier of

13    fact could conclude that General Hadzihasanovic failed in his duty as a

14    superior to take the necessary and reasonable measures to punish the

15    perpetrators and to prevent treatment at the music school, and very

16    importantly, in the circumstances ruling at the time.

17            The Trial Chamber, firstly, erred in the disposition of the

18    judgement, which does not reflect its findings.  Also, the Trial Chamber

19    erred by failing to properly consider and attach probative value to the

20    evidence provided by Witness Merdan and HF concerning their investigation

21    of the situation at the music school when necessary.

22            I mentioned at the beginning that this ground only deals with

23    cruel treatment and there was no murder.  Nobody died in the music school,

24    and only cruel treatment.

25            Witness Merdan was the deputy commander of the 3rd Corps, a

Page 147

 1    witness who has testified in many cases before this Tribunal.  He

 2    testified for many days, during which he was extensively questioned by the

 3    Trial Chamber.  There was no objective reason, in our view, for the

 4    Trial Chamber to set aside his testimony as it did.  This relates to a

 5    further ground of appeal.  We would have liked to hear Witness Merdan here

 6    again if the Appeals Chamber had any doubt.  It was decided not to call

 7    him again to testify, but we do feel that his testimony must bear close

 8    scrutiny by the Appeals Chamber.

 9            Thirdly, the Trial Chamber erred by failing to consider and attach

10    probative value to the evidence related to the fact that both the

11    detention and the mistreatment of prisoners was voluntarily concealed from

12    the 3rd Corps command.

13            And lastly, it is our submission that the evaluation of the

14    evidence on the record was incorrect because the situation was not

15    appreciated on the basis of in the circumstances ruling at the time, and

16    also from the perspective of the appellant, as commander of a corps, in

17    the circumstances.

18            This brings us to two conclusions.  It stems from the evidence

19    that the detention and mistreatment of prisoners was concealed from the

20    3rd Corps.  Nonetheless, that General Hadzihasanovic was put on notice of

21    the possibility that prisoners were detained.  On those occasions,

22    General Hadzihasanovic investigated the matter, sending his most serious

23    officers to investigate.  The reality of what was happening at the music

24    school at the time was unfortunately not uncovered.

25            On this basis, no reasonable trier of fact could be satisfied

Page 148

 1    beyond a reasonable doubt that the appellant failed to take necessary and

 2    reasonable measures.  Such a conclusion would be entirely inconsistent

 3    with the evidence on the record concerning the manner in which

 4    General Hadzihasanovic exercised his command.

 5            Consequently, the Defence respectfully requests the Appeals

 6    Chamber to overturn the judgement and return a verdict of not guilty for

 7    count 4, failure to punish, cruel treatment at the music school.

 8            And this puts an end to my submissions, Mr. President.  If you

 9    have any questions, I will be glad to answer.

10            JUDGE POCAR:  I thank you, Mr. Bourgon.

11            Any questions from the Bench?

12            No, that's not the case.

13            So we can break now for 20 minutes, as in the schedule, and

14    reconvene at 10.20.

15                          --- Recess taken at 10.00 a.m.

16                          --- On resuming at 10.22 a.m.

17            JUDGE POCAR:  Well, I give now the floor to the Prosecution for

18    their submissions.  Please.

19            MS. GOY:  Thank you, Your Honours.

20            Before beginning with the Prosecution's response, we need to

21    correct one error in yesterday's submissions regarding the sentence of

22    Hadzihasanovic.

23            When addressing the gravity of the crime, I referred to Witness

24    ZH's experience of being beaten at his arrival in the Gimnazija school.

25    That is transcript page 68, line 19 and following.

Page 149

 1            While this event on the 23rd of July, 1993 falls within the time

 2    frame set out in the disposition, in its brief the Prosecution agreed that

 3    the disposition is incorrect and should read 18 August to 8 October 1993.

 4            Therefore, the beating of ZH on 23 July is not something we ask

 5    you to take into account when assessing the gravity.

 6            However, the Trial Chamber also found that the same witness, ZH,

 7    suffered further beating of a similar nature on the 17th of September

 8    within the time period.  That is trial judgement, paragraph 1665.  We ask

 9    Your Honours to take that into account.  And in 1666, the Trial Chamber

10    sets out the injuries resulting from the treatment at the Gimnazija

11    school.

12            I will now -- we will now proceed with our response.  I will first

13    deal with question 1 Your Honours have asked, and then address the ground

14    relating to Bugojno.  Mr. Kremer will after that address the ground

15    relating to Orasac.  And after that, Mr. Tracol will address the Zenica

16    music school.

17            Regarding the first question, Your Honours have asked whether

18    based on the rules of military discipline or any other relevant provision,

19    could military disciplinary courts or superiors exercising disciplinary

20    powers impose a sanction in excess of 60 days imprisonment.

21            We agree with the Defence that the answer is "no," both military

22    disciplinary courts and military superiors, the highest punishment for

23    them was 60 days imprisonment.

24            The sanctioning powers are regulated in Article 11 of rules on

25    military discipline, P325, read together with Article 66 of the decree law

Page 150

 1    on service in the Army of the Republic of Bosnia and Herzegovina, P120.

 2            Article 11 provides that for the errors of discipline and military

 3    infractions, disciplinary measures and disciplinary punishment stipulated

 4    in Article 66 of the decree law on service in the armed forces may be

 5    imposed.  And Article 65 of the decree distinguishes between an error of

 6    discipline, the minor breach, and the disciplinary offence, the severe

 7    breach.  And according sanctions are then listed in Article 66, for which

 8    then the minor breaches and the major breaches have as the maximum

 9    punishment 60 days' imprisonment.

10            The organ in charge of imposing the punishment is again set out in

11    the rules of military discipline, Exhibit P325.  Under these rules, the

12    military superiors shall have the authority to establish responsibility

13    for the minor offence, the errors of discipline, Article 22; and the

14    military courts have the authority to try the major ones, the military

15    infractions, Article 44.

16            This answers -- this is our submission to the question.  And

17    unless Your Honours have questions regarding this, I would move on to our

18    response to the ground of appeal regarding Bugojno.

19            JUDGE POCAR:  Please proceed.

20            MS. GOY:  With regard to the ground relating to Bugojno, I will

21    first address the measures that were taken at Bugojno and the awareness of

22    General Hadzihasanovic of the kind of measures taken, and will then move

23    to his mens rea regarding the failure to prevent of future crimes.

24            With regard to the measures taken, Hadzihasanovic failed to show

25    that it was unreasonable for the Trial Chamber to conclude, first, that

Page 151

 1    the measures taken against the perpetrators of cruel treatment and murder

 2    on 5 August were only disciplinary; and second, had -- that Hadzihasanovic

 3    was only informed about disciplinary measures and expressed his

 4    satisfaction in this regard.

 5            The Trial Chamber carefully analysed the evidence of the types of

 6    measures taken, referring to one exhibit, the inspection report, 13 --

 7    DH1392, and the testimony of six witnesses, Witness Muratovic, Zlotrg, HF,

 8    Zeric, Hackshaw, and Alvir, and it reached a conclusion that was not

 9    unreasonable.

10            Hadzihasanovic now raises concerns with regard to the translation

11    of two testimonies, the one of Muratovic and Zlotrg, but our position is

12    that the change between the English and French transcript and the official

13    translation does not render the Trial Chamber's ultimate conclusion

14    unreasonable.

15            The Trial Chamber first concluded that neither the inspection

16    report nor the testimony of Witness HF made it explicit what kind of

17    measures were taken.  And regarding Witness Zlotrg, the Trial Chamber

18    finds in paragraph 1768 that he seems to indicate that the actions taken

19    were criminal in nature and the official translation makes clear that he

20    talks about a criminal report which, according to transcript page 1946 in

21    the official version, has -- had been filed and which, according to his

22    testimony in cross-examination on transcript page 14999, was going to be

23    filed.

24            But in any event, Hadzihasanovic still failed to show that it was

25    unreasonable for the Trial Chamber to conclude, despite this testimony,

Page 152

 1    that measures taken were only disciplinary, in light of the other evidence

 2    looked at.

 3            The Trial Chamber next looked at the testimony of Muratovic and

 4    concluded that he specified that the measures were disciplinary in nature.

 5    The -- even the change of his testimony through the revised translation

 6    does not reveal that he talks about a criminal report being filed or

 7    criminal measures being taken.  The only thing he says is that "We

 8    received an oral report when we were in Bugojno and were told that legal

 9    proceedings were underway."

10            But we say it's reasonable for the Trial Chamber to conclude that

11    he was not talking about two things, disciplinary proceedings and criminal

12    proceedings, but only about disciplinary proceedings, in light of the fact

13    that when he was asked, "Are you aware that a trial was ever conducted,"

14    he said, "They were brought before the military disciplinary organ in

15    Bugojno and were punished."

16            Therefore, it's reasonable for the Trial Chamber to conclude that

17    he was only talking about disciplinary measures.

18            Particularly, it cannot be argued that the ultimate conclusion

19    that only disciplinary measures were taken was one which no reasonable

20    Trial Chamber could reach, taking into account the other three witnesses

21    the Trial Chamber relied upon, Witness Alvir and particularly

22    Witness Hackshaw, whom the Trial Chamber trusted with regard to murder -

23    that is paragraph 994 of the judgement - and Witness Zeric.

24            The Trial Chamber was entitled to put particular weight to the

25    clear evidence of Witness Zeric, the Travnik military prosecutor, during

Page 153

 1    the period the crimes were committed until February 1996.  He gave a clear

 2    answer on transcript page 5528 when asked, "Can you recall any reports

 3    that you received in respect of ABiH soldiers killing prisoners of war or

 4    any prisoners at all?"

 5            Answer:  "We never received any such report."

 6            Question:  "Did you receive any report alleging that ABiH soldiers

 7    mistreated HVO prisoners of war?"

 8            Answer:  "I never received any such report."

 9            Hadzihasanovic also mentioned that the evidence that a criminal

10    report was filed is contained in Exhibit P -- P203.  The Trial Chamber

11    does not refer to this exhibit in this particular section of the

12    judgement, but it was well aware of it.  It referred to it in several

13    other parts of the judgement, such as paragraph 1646 and 1671, and the

14    Trial Chamber does not have to refer to every piece of evidence as set out

15    in the Kupreskic appeal judgement, paragraph 293.

16            Regarding the content of Exhibit P203, it is a report dated 20

17    August 1993 which Senad Dautovic, the chief of the civilian police in

18    Bugojno sent inter alia to the 307th Brigade and relates to a meeting

19    attended by the municipal prosecutor and the European Community observers.

20            And the exhibit says that criminal proceedings had been instituted

21    against those who committed the crime and the annex refers to the murder

22    of Mladen Havranek, but it also says that the individuals had been

23    punished.  Moreover, the Defence mentioned that since the military

24    prosecutor had attended the meeting, he would have either dealt with the

25    matter himself or sent it to the military prosecutor.  However, the

Page 154

 1    municipal prosecutor is only competent, according to paragraph 1 -- 9 --

 2    paragraph 954 of the judgement, to deal with matters regarding civilians

 3    or when civilians were co-perpetrators with military officials, but here

 4    the Trial Chamber found that the perpetrators were members of the 307th

 5    Brigade.  Therefore, he was not competent and would have to refer the

 6    matter to the military prosecutor, who gave clear evidence that he had

 7    never received such a report.

 8            Consequently, the Trial Chamber's conclusion that no military

 9    report was filed is a reasonable conclusion.

10            With regard to what Hadzihasanovic knew about the measures taken,

11    the trial judgement refers to the inspection report, which was addressed

12    to the 3rd Corps, but this report does not provide specific information

13    about the types of measures taken.  It just says proceedings were

14    instituted.  And the Trial Chamber, moreover, describes the conversation

15    between Muratovic and Hadzihasanovic, and Muratovic even in the official

16    corrected version does not talk about criminal measures being taken or a

17    criminal report being filed; he just talks about the appropriate legal

18    measures were taken, in accordance with the law.

19            From our point of view, therefore, it was not unreasonable for the

20    Trial Chamber to conclude that Hadzihasanovic was merely informed about

21    disciplinary measures.

22            This ends my submission on the measures taken and Hadzihasanovic's

23    knowledge thereof.  And if Your Honours have no further questions, I would

24    move on to his mens rea regarding future crimes.

25            We have set out in our response brief, that the Trial Chamber did

Page 155

 1    not commit an error with its legal test that the awareness of a real and

 2    reasonable risk is the correct mens rea standard, and I would now like to

 3    address the factual question whether the fact that Hadzihasanovic was

 4    aware of one serious incident of cruel treatment of six and the murder of

 5    one prisoner of war in the furniture salon is sufficient to trigger his

 6    awareness of a real and reasonable risk of other crimes, future crimes, in

 7    the furniture salon, as well as in other detention facilities in Bugojno,

 8    especially when coupled with the failure to take adequate measures to

 9    punish the incident.

10            The answer is "yes," especially in light of the inadequate

11    measures taken.  Not only did Hadzihasanovic know of the incident of cruel

12    treatment and murder; he also failed to adequately punish.

13            The Krnojelac appeals judgement supports this proposition.  The

14    Krnojelac judgement endorses the notion that the awareness of one incident

15    may be sufficient to trigger had-reason-to-know.

16            The Appeals Chamber holds in paragraph 169 that while the fact

17    that Krnojelac witnessed the torture inflicted on one detainee is not

18    sufficient to constitute that he knew that future crimes would happen, but

19    it says it may nevertheless constitute sufficiently alarming information

20    as to alert him of the risk of other acts of torture being committed.  In

21    other words, Krnojelac's awareness that one detainee was tortured may have

22    been sufficient to give him reason to know that his subordinates were

23    committing or were about to commit acts of torture against other

24    detainees.

25            By contrast, the Trial Chamber seems to require in paragraph 1760

Page 156

 1    a situation of recurrent criminal acts to trigger the had-reason-to-know,

 2    that the awareness of one incident is sufficient is also supported by the

 3    Rauer case referred to by the Trial Chamber in paragraph 165, especially

 4    the case note supports the proposition that after becoming aware of one

 5    incident, Rauer he had a legal duty to take measures to prevent

 6    repetition.

 7            Moreover, failure to take adequate measures to punish has an

 8    encouraging effect, which means that the risk of future crimes is higher;

 9    therefore, also the awareness of the risk increases.

10            Failure to punish has an implicit encouraging effect because the

11    subordinates believe that they can commit further crimes with impunity.

12    That is supported by the Celebici appeal judgement, para 739.

13            The same can be said, albeit to a lesser extent, with regard to

14    the failure to take appropriate measures, especially taking into account

15    the obvious discrepancy in punishment, maximum of 60 days for disciplinary

16    sanction and the minimum of five years for war crimes under the SFRY

17    Criminal Code.

18            In other words, if a superior takes inadequate measures, this can

19    still have an encouraging effect.

20            Therefore, Hadzihasanovic, by being aware of one serious incident,

21    plus his failure to take the adequate measures, had reason to know that

22    future crimes would be committed in the furniture salon and other

23    detention facilities in Bugojno which had the same group of people and

24    were in close geographic proximity.

25            This ends my submission on Bugojno, and unless Your Honours have

Page 157

 1    questions, I would pass on to Mr. Kremer.

 2            MR. KREMER:  Your Honours, let me begin the submissions on Orasac

 3    by, first of all, pointing out that there is an error in the disposition.

 4    The disposition refers to a period from the 15th of October to the 31st of

 5    October, 1993.  The proper disposition should have been, according to the

 6    findings in the judgement, from the 19th of October to the 31st of

 7    October, when the second group of Croat civilians was abducted by the

 8    members of the El Mujahedin Detachment.  That was overlooked when the

 9    brief was prepared, and I thought I should correct that at this point.

10            I will not deal with all of the matters that Mr. Bourgon discussed

11    in his submissions to you this morning.  I will deal with the question

12    that has been raised by the Chamber, question number 2.  I will deal with

13    the use of force and its impact on effective control.  And I will deal

14    with the question of de jure control.

15            The either questions, I believe, are adequately addressed in our

16    brief, and there's no need to respond further.

17            Let me begin by answering the question.  The question, as

18    Mr. Bourgon properly pointed out, has two parts:  First, identify the

19    evidence pointing to Hadzihasanovic's failure to provide IHL training and

20    to set up a disciplinary system to ensure compliance.  And secondly, to

21    respond as to whether such failure can itself attract criminal

22    responsibility to Hadzihasanovic for failure to prevent the crimes of

23    cruel treatment and the murder of Dragan Popovic.

24            I, like Mr. Bourgon, will answer question -- part 2 of the

25    question first.  And our submission is directly contrary to his.  Our

Page 158

 1    submission is that on the facts of this case - and I stress that "on the

 2    facts of this case" - from the 13th of August, 1993, when the El Mujahedin

 3    Detachment became subordinated to Hadzihasanovic and the 3rd Corps, his

 4    failure to provide IHL training and to set up a disciplinary system to

 5    ensure compliance does itself attract criminal responsibility for failure

 6    to prevent the crimes of cruel treatment and the murder of Dragan Popovic.

 7            Why?  First of all, reading from the judgement, paragraph 1479,

 8            "Hadzihasanovic knew the members of the El Mujahedin Detachment

 9    had a dangerous and violent temperament well before the detachment was

10    integrated into the ABiH.  In fact, he knew those troops had already

11    committed heinous crimes, specifically the massacre of 24 Croats in Maline

12    in June 1993 and the execution of four Croatian civilians in Miletici in

13    April, in breach of IHL."

14            In addition, the risk that he was aware of was exacerbated because

15    the murders were never punished, because these crimes were not brought to

16    the attention of the military police or military judicial authorities and

17    unlikely to the civilian police and judiciary, given ongoing combat

18    activities in the area.  That's found in trial judgement paragraph 1433.

19            The events that gave Hadzihasanovic knowledge of the risk of

20    incorporating and subordinating this group to his 3rd Corps command are

21    set out in paragraphs 1427 and 1435.  And the Trial Chamber discussed

22    whether Hadzihasanovic had reason to know of -- I'm sorry, let me back up

23    for a second.  These were -- these events are discussed and they became

24    relevant for the discussion by the Trial Chamber as to what Hadzihasanovic

25    had reason to know at the time of the October abductions.  And during this

Page 159

 1    discussion, the Trial Chamber also referred to the Totic abduction and the

 2    killing of his four bodyguards earlier in April.

 3            Now, although the Trial Chamber was aware of the Maline massacre

 4    and the killings in Miletici, he nevertheless recommended that the

 5    Mujahedin in his zone of responsibility be integrated into the Army of

 6    Bosnia-Herzegovina and re-subordinated to him as an independent unit with

 7    special status so he could use them immediately for combat.  He was keenly

 8    aware of his accountability for their actions.  In fact, he was concerned

 9    about being held accountable for their actions when they were not yet

10    formally subordinated to him.  And that's found in DH73 and trial

11    judgement 552.

12            Delic's response to Hadzihasanovic's concern on June the 13th

13    about his accountability was responded to quickly by Commander Delic to

14    the effect that:

15            "Send these groups to Mount Igman and merge them with the SVK

16    Independent Detachment in Zuka's unit.  In case they do not accept, show

17    them no hospitality and eventually disarm them."  And that's found at

18    paragraph 270 of -- or in the Exhibit P270.

19            The same day Hadzihasanovic protested to Sefer Halilovic and asked

20    that only the first part of the order be implemented.  That's found in

21    trial judgement 555.

22            From this point forward, the 16th of June, 1993, Hadzihasanovic

23    was part of the discussions and negotiations leading to the creation of

24    the El Mujahedin Detachment and its subordination to the 3rd Corps.  In

25    spite of his concern for accountability, his knowledge of the risk of

Page 160

 1    incorporating this group into the 3rd Corps, from the date of the

 2    re-subordination he took no steps to identify and isolate the perpetrators

 3    of the Miletici and Maline crimes and he took no steps to initiate

 4    criminal proceedings against the perpetrators of those crimes.  He allowed

 5    the members of the El Mujahedin Detachment, including those responsible

 6    for the crimes, to remain isolated in their camps, to which the military

 7    police and security police had no access.  Even access by commanders was

 8    tenuous, according to the trial judgement.

 9            And instead of taking even the most basic action, like training

10    and establishing discipline, he rushed them to combat.  He failed to

11    address the risk of future crimes by the criminal members in the

12    El Mujahedin Detachment.  And on these facts, he can be held criminally

13    responsible.

14            The legal principles on which this submission is based are found

15    in the trial judgement starting at paragraph 145 and continuing to

16    paragraph 151.

17            And the evidence showed that Hadzihasanovic did accept that the

18    3rd Corps must be subject to an internal disciplinary system, enforcing

19    compliance with the rules of international humanitarian law and the law

20    applicable to armed conflict, and that he, as the commander, was

21    responsible for carrying out this task.  And on this point, Mr. Bourgon

22    and the Prosecution agreed.

23            He also send his duty to disseminate those rules and to include

24    them in the study in the programmes of military instruction.  We agree

25    there too.

Page 161

 1            Hadzihasanovic, as commander of the 3rd Corps, by virtue of the

 2    authority vested in him, was qualified to exercise control over his troops

 3    and the weapons they use.  More than anyone else, he could have prevented

 4    breaches by creating the appropriate frame of mind, ensuring rational use

 5    of means of combat, and by maintaining discipline.

 6            And he was aware, based on his concerns as early as June 13th,

 7    1993, that criminal liability could attach for his failure to meet his

 8    duty as commander in respect of his newly-formed El Mujahedin Detachment.

 9            As commander of the 3rd Corps, he had choices.  He could either

10    take measures to instil order and discipline, or not.  In respect of the

11    newly-formed El Mujahedin Detachment, he chose not to take measures.

12    Aware of the risk presented by members of the newly-subordinated

13    El Mujahedin Detachment, Hadzihasanovic took the risk that his failures to

14    take even the most basic measures to prevent crimes by them while under

15    his command and the risk resulted in this conviction from which he's

16    appealed to you today.

17            While failure to take basic measures did not -- does not

18    necessarily result in criminal liability, on the facts of this case it

19    did.

20            The Trial Chamber appreciated that failure to take general

21    measures may lead to criminal responsibility.  It stated, and I believe

22    this is paragraph 161 [sic]:  "Those general measures will, however, be

23    taken into consideration in the factual analysis and evaluation of efforts

24    made by the accused to fulfil their obligation to prevent, in view of the

25    circumstances of the case.  In fact, it is much less foreseeable for

Page 162

 1    violations of international humanitarian law to occur when a commander has

 2    taken a series of general preventative measures to instil order and

 3    discipline in his troops than when a commander has not taken care to put

 4    in place a system which instills respect for the law and discipline."

 5            This statement is consistent with the recent Appeals Chamber

 6    decision in Halilovic at paragraphs 63 and 64.

 7            "What constitutes" - and I'm quoting - "What constitutes

 8    necessary and reasonable measures to fulfil a commander's duty is not a

 9    matter of substantive law but of evidence."

10            And continuing:  "The correct legal standard is solely whether the

11    superior failed to take the necessary and reasonable measures to prevent

12    the criminal act or punish the perpetrator thereof.  Of course, the single

13    standard will have to be applied differently in different circumstances."

14            Our position simply is that the Appeal Chamber's single standard

15    applied to Halilovic's failure to provide basic training and to set up a

16    disciplinary system for the El Mujahedin, in light of the knowledge that

17    he had of their past criminal conduct, and to ensure their compliance with

18    it, the disciplinary system and the rules that they would be taught, does

19    by itself on the special and unique circumstances of this case attract

20    criminal liability, as the Trial Chamber found.  And therefore, he was

21    properly found to be guilty of failure to take necessary and reasonable

22    measures to prevent the crimes of cruel treatment and the murder of

23    Dragan Popovic on this basis.

24            This takes me to part 1 of the question.  And this question flows

25    from the Trial Chamber's conclusions at paragraphs 1479 to 1484.  These

Page 163

 1    conclusions were informed by what Hadzihasanovic knew about the

 2    El Mujahedin before he recommended and accepted their integration into the

 3    3rd Corps and subordination as an independent detachment of the 3rd Corps.

 4            On August 13th, 1993, when Hadzihasanovic received the order

 5    re-subordinating the El Mujahedin Detachment to the 3rd Corps, he knew it

 6    included murderers of Croatian citizens and Croatian POWs in violation of

 7    IHL.  Given that in Hadzihasanovic's zone of responsibility the fighting

 8    was against Croatian forces and for the territory -- for a territory with

 9    Croatian residents, this knowledge alone, in combination with his

10    knowledge of their past crimes, required Hadzihasanovic to implement

11    measures to prevent the commission of similar crimes by his

12    newly-subordinated members while they remained under his command.

13            Instead, Hadzihasanovic put military necessity over international

14    humanitarian law principles.  He accepted their independent and special

15    status so that they could be used in combat.  He permitted them to

16    maintain their two isolated camps near Mehurici, the Poljanice camp and

17    the Orasac camp, separate from the 3rd Corps and the OG BK main troops.

18    The location of the camps and separation made policing breaches of

19    discipline more difficult, because access and communication were

20    precarious.  Reference trial judgement 833, 849, and 1405.

21            While the El Mujahedin recruits were being trained for 40 days at

22    these camps, the El Mujahedin were not part of the training offered by the

23    ABiH in the area.  That's paragraph 598.

24            Hadzihasanovic accepted the order re-subordinating the

25    El Mujahedin Detachment and with three -- within three days acted to

Page 164

 1    re-subordinate them to the OG BK for immediate use in combat.  And that is

 2    Exhibit P671.

 3            In spite of his knowledge of -- of the past violent and

 4    dangerous -- dangerous temperament of some of the members of the

 5    El Mujahedin Detachment, he did not include in his orders to the commander

 6    of the OG BK any notice about the criminal propensity of the members he

 7    was re-subordinating them to or proposing to, or instructions on measures

 8    to prevent the commission of the crimes by them.  The Trial Chamber was

 9    correct to consider Hadzihasanovic's actions in the context of

10    Hadzihasanovic's steps before August 13th to make the ABiH a more

11    professional and disciplined army.

12            The steps included - and Mr. Bourgon has referred to it, and I'll

13    just summarise it - orders on training soldiers in IHL, orders on ensuring

14    military discipline prevailed.  The military discipline orders demanded

15    more military police resources and reminded the military police of their

16    obligations.

17            THE INTERPRETER:  Thank you for slowing down.

18            MR. KREMER:  I'm sorry.

19            Reminded the military police of their obligations within the

20    framework the Presidency has legislated.  Paragraphs 859 and 872.

21            The Trial Chamber's conclusion that no IHL training and military

22    discipline system was created for the El Mujahedin Detachment is

23    summarised as 1434.  Its analysis proceeds from the finding that the

24    El Mujahedin Detachment was integrated into the ABiH on August 13th, 1993.

25    Before this date, the Trial Chamber found that the El Mujahedin Detachment

Page 165

 1    was not integrated in the ABiH and therefore could not have benefitted

 2    from the measures that Hadzihasanovic, as 3rd Corps commander, had

 3    instructed and ordered for his nearly 30.000 troops under his command.

 4            What was done before 13 August is detailed in paragraphs 1161 to

 5    1167, under the heading "General Measures," and in 856 to 859 as to

 6    training.

 7            Hadzihasanovic attempted to stress the importance of training the

 8    troops, especially new recruits.  He drew attention to IHL principles and

 9    organised distribution of Geneva Conventions.  Hadzihasanovic emphasised

10    the obligation to subordinates.  He created a legal department to instruct

11    officers in legal obligations assigned to brigades during armed combat.

12    He issued orders prohibiting the detention of civilians and mistreatment

13    of POWs on pain of sanctions.  He asked for investigations into reports on

14    alleged unlawful detentions and mistreatments, sometimes reports to him

15    personally.

16            In sum, Hadzihasanovic had the power to issue orders for training

17    and discipline and to have them enforced.  Of course, as commander of the

18    3rd Corps, he had power over all aspects of the 3rd Corps as well,

19    including issuing combat orders, re-subordination orders, allocating

20    resources and equipment, et cetera.

21            In contrast to these previous positive measures to create and

22    enforce a functioning military discipline system that were taken before

23    the 13th of August, 1993, the system for some reason did not apply and

24    Hadzihasanovic did not make it apply to the El Mujahedin Detachment.  He

25    ordered no -- he ordered no such measures for that detachment after their

Page 166

 1    re-subordination to and integration into the corps.

 2            The Trial Chamber's finding at 1434 of a lack of training and an

 3    absence of a military disciplinary system for the members of the

 4    El Mujahedin Detachment after 13 August found further support in

 5    Hadzihasanovic's rush to assign them to combat.

 6            The Trial Chamber discussed this at paragraphs 18 -- 812, I'm

 7    sorry, to 830.  I'll just summarise what those paragraphs say.

 8            On August 12th, Hadzihasanovic stressed the urgent need to

 9    organise and make use of foreign volunteers.  As early as August 16th,

10    Hadzihasanovic sent a letter to the commander of the OG BK advising that

11    50 members of the El Mujahedin Detachment were ready to go to the front at

12    Zavidovici and sought a reply the next day.

13            Then on August 28th he ordered the El Mujahedin re-subordinated to

14    the 306th Brigade.  Its special status allowed it to refuse the order.

15    The El Mujahedin Detachment was officially re-subordinated to the OG BK on

16    September 6th, owing to imminent combat operations.

17            From this date, the El Mujahedin Detachment participated in

18    continuous combat as part of the OG BK until October 31st, when

19    Hadzihasanovic left his post as commander of the 3rd Corps.

20            The Trial Chamber noted that the September 6th re-subordination

21    order did not instruct or direct any training or solving of the problems

22    that were known to exist in the El Mujahedin Detachment and it contrasted

23    the order of September 6th with an order of December 4th, 1993,

24    re-subordinating the El Mujahedin to the OG BK, where greater clarity, in

25    terms of the measures to be taken in respect of their re-subordination,

Page 167

 1    were discussed.

 2            The Trial Chamber at paragraph 1482 highlights that Hadzihasanovic

 3    did not have to use untrained men in combat and concludes that he should

 4    not have used them.  And I -- and they're talking there about the use of

 5    the El Mujahedin in combat prior to undergoing proper training and being

 6    part of a discipline system.

 7            Quoting from paragraph 1482:

 8            "Furthermore, he accepted the special status of the El Mujahedin

 9    Detachment as soon as it began working with the ABiH by deciding to derive

10    military benefit from the El Mujahedin Detachment in those conditions,

11    despite the alarming information at his disposal, Hadzihasanovic must have

12    foreseen, well before the Croatian civilians were abducted in October

13    1993, the potential consequences of that abduction."

14            In conclusion, there was ample evidence to support the

15    Trial Chamber's conclusion on the facts of this case that Hadzihasanovic's

16    failure to provide IHL training and to set up a disciplinary system for

17    the newly-recruited El Mujahedin Detachment attracted criminal

18    responsibility that resulted from his failure -- in his being convicted

19    for failure to prevent the crimes of cruel treatment and the murder of

20    Dragan Popovic in October of 1993.

21            I'll now move on to the use-of-force argument.

22            The appropriate measures to be taken by a commander are gauged by

23    considering the power of the superior.  And the trial judgement gets this

24    correct, I would submit, at paragraph 170.

25            In his argument, Hadzihasanovic argues that his failure to

Page 168

 1    exercise his power to prevent his subordinates from committing or

 2    continuing to commit crimes equates to lack of effective control and lack

 3    of material ability to prevent or punish.

 4            But I would -- the Prosecution would submit that his argument

 5    confuses his power as commander of the 3rd Corps with his will to use this

 6    power.  His position as commander of the 3rd Corps vested in him the power

 7    and the authority to control the troops subordinated to him.  He

 8    demonstrated his power and authority in issuing orders and instructions

 9    and in having them enforced.  His argument on this point accepts that he,

10    as commander, possessed the power and therefore the means to prevent by

11    use of force, but suggests that the -- having to resort to force to

12    prevent crimes negates his effective control.

13            Contrary to his argument, the object and purpose of the doctrine

14    of command responsibility and the theory of responsible command support

15    the use of force to prevent a crime when necessary, if exercised in a

16    reasonable manner.

17            Resort to force against subordinates committing or about to commit

18    is a reasonable and necessary measure consistent with the commander's

19    responsibility to prevent crimes by his subordinates.  Whether it is

20    instructing officers to stop the commission of crimes on pain of being

21    forcibly arrested, on -- on pain of being detained, and if they resist the

22    arrest, on pain of perhaps being shot, if it's an armed resistance.

23            Hadzihasanovic argues that when a commander concludes that resort

24    to force is required to prevent a crime, his duty to prevent is suspended

25    and he is freed from any potential criminal responsibility for failing to

Page 169

 1    prevent his subordinates from committing the crime or being about to

 2    commit the crime.

 3            The Trial Chamber appreciated that a commander with only limited

 4    number of soldiers and materials may find it difficult to use force

 5    against his own troops who have breached IHL.  As a result, they concluded

 6    that he may be determined not to have the material ability to prevent or

 7    punish for violations of IHL.  But they found clearly - and I think it's

 8    obvious, given his status as commander of the 3rd Corps with 30.000

 9    soldiers at his disposal - that Hadzihasanovic had no such limitation.

10            In fact, Hadzihasanovic had at his disposal a police force, a

11    military police force of 400 to 450 members specifically attached to the

12    3rd Corps command.  The 3rd Corps had substantial weaponry at its

13    disposal.  He didn't lack the -- the power to take appropriate measures

14    the prevent the Orasac crimes; he lacked the will to act.  His

15    unwillingness to act triggers his criminal responsibility.  It does not

16    excuse it.

17            Finally, the Trial Chamber correctly held that a commander who

18    uses soldiers while knowing there is a serious risk that they will not

19    obey his orders to comply with IHL may not claim to have lacked effective

20    control over them to avoid responsibility under Article 7(3).  They

21    found - and we support this, the position that led to this finding - that

22    his conduct before the crimes is relevant to establish that he accepted

23    the risk that the troops may not follow his orders.

24            And this takes us back to the extensive discussion of the Trial

25    Chamber, and a very discerning one, that there were many, many, many

Page 170

 1    pieces of evidence that indicated de facto control of the Mujahedin by the

 2    3rd Corps command, but there were -- there was other evidence that raised

 3    a reasonable doubt.  But they were entitled to look at all of that

 4    evidence in the context of what happened from June through to August,

 5    preceding the August 13th re-subordination order and subsequent, to

 6    conclude that Hadzihasanovic accepted the risk.  He in fact encouraged the

 7    re-subordination with full knowledge of what they had done or what some of

 8    the members had done.

 9            And on the basis of his acceptance, it can't be said that -- to

10    hide behind his acceptance and say, But things went terribly wrong and

11    therefore I had no effective control, particularly when he never made any

12    efforts during the course of the time that he was commander of the

13    3rd Corps, to ensure that this unit was properly controlled when it became

14    integrated into the 3rd Corps.

15            I now propose to move to the final point.  And I've touched on --

16            JUDGE POCAR:  Sorry, Mr. Kremer.  Judge Meron would like to ask

17    something.

18            MR. KREMER:  Yes.

19            JUDGE MERON:  Mr. Kremer, this question that you have now been

20    discussing of the obligation to use force or the capacity to use force is

21    a very hard one, in my view, and I would like to explore it with you

22    further.

23            We heard your argument about it.  We heard Mr. -- We heard

24    Mr. Bourgon's argument.  His argument was that Mr. Hadzihasanovic, as

25    you -- you have heard, lacked both de jure and de facto effective control.

Page 171

 1    He argued that the acknowledgment by the Trial Court, the trial judgement,

 2    that force would have to be used to establish control indicated that

 3    whatever the de jure situation, effective control was lacking.

 4            Now, I don't want to speak to the question of training.  I just

 5    want to focus on this question on -- on -- of the use of force.  It seems

 6    to me that both you and Mr. Bourgon are agreed about the criterion to be

 7    applied.  And the criterion is a military commander would have to take the

 8    necessary and the reasonable measures.

 9            MR. KREMER:  Yes.

10            JUDGE MERON:  So let's proceed on that basis.

11            So here you yourself spoke several times about the circumstances

12    of this case.  So the approach has to be sort of contextual.

13            So here are a few questions that come to mind that I would be very

14    grateful if you would enlighten me on that, and I'm sure that my

15    colleagues from the Bench would benefit.

16            How large was the Mujahedin contingent in the two camps that you

17    have mentioned?

18            What casualties would be -- would have the force loyal to

19    Mr. Hadzihasanovic have to take to establish control?

20            How likely was success?

21            And how would then an attack on the Mujahedin forces affect the

22    overall campaign for Mr. -- which Mr. Hadzihasanovic was responsible of --

23    of conducting a war?

24            On a more abstract level, Mr. Kremer, how likely does it have to

25    be that any given measure would be successful before such a measure could

Page 172

 1    be considered necessary and reasonable?

 2            I think I gave you enough questions.

 3            MR. KREMER:  Okay.  I --

 4            JUDGE POCAR:  May I, in this context, before you answer, add a

 5    question of a general nature maybe on this same point, and ask you how

 6    much - it's related to the question - how much you feel there should be in

 7    this -- in the use of force a proportionality test.

 8            JUDGE MERON:  Mr. Bourgon [sic], just to continue the President's

 9    question, which I think is excellent, imagine that the force that -- that

10    the Mujahedin consist of five or ten Mujahedin.  The argument for using

11    force would be, I think, overwhelming.  Where does it -- where -- at which

12    point -- where is the -- the sort of threshold or parameters where this

13    thing becomes complicated, in terms of proportionality?

14            MR. KREMER:  The issue rests with the commander that is confronted

15    with the situation of troops who are committing crimes.  He has the duty

16    to prevent the commission of the crimes, and he has to make an assessment

17    based on what he knows as to what to do, because he is required by law to

18    take the necessary measures to prevent the crime and to take reasonable

19    measures to prevent the crime.

20            The problem that you've asked are -- or the -- the questions, the

21    first five questions, go to the question of reasonableness, as opposed to

22    necessary measures.

23            I remind the Appeals Chamber that the discussion by the

24    Trial Chamber on this question rested with the fact that nothing was done

25    other than the passive negotiation with the Mujahedin in the unit who had

Page 173

 1    seized the Croatian civilians and that previous threats of violence,

 2    mortar shelling their camp, pointing an artillery implement at their camp,

 3    had led to more positive results than occurred in this particular case.

 4            And the issue for Hadzihasanovic, which the Trial Chamber

 5    discussed at considerable length, was what, if anything, should I do and

 6    what can I do?

 7            They concluded that he could not launch an attack, because he

 8    didn't have the time.  He had the means to launch an attack, should that

 9    have been necessary, but it was never determined to have been necessary.

10    He -- he certainly had the means.

11            The assessment of reasonable and necessary would have to take

12    account, as Judge Meron properly points out, all of the relevant factors

13    for determining whether or not to take -- or what means to take, and are

14    they reasonable and necessary, including how large was the Mujahedin

15    contingent in the camp.

16            Mr. Bourgon can correct me if I'm wrong, but my understanding was,

17    based on the evidence, that there were about 100 to 150 Mujahedin in the

18    two camps in total, but at the time we should also remember that many of

19    them would have been in combat, outside of the area.

20            There is evidence by witnesses to the effect that at the time that

21    Alagic and his assistant went to the Orasac camp in order to start

22    negotiations, they saw there a number of armed men but several unarmed.

23    They saw, I think - and I had the evidence here, but I'll just go from

24    memory - approximately three armed men and ten unarmed men.

25            The -- there is evidence on the record from -- in the Poljanice

Page 174

 1    camp that on one of the visits by one of the witnesses there was one armed

 2    guard at the entrance to the camp.

 3            The question is:  How large was the contingent?  It could have

 4    been as large as 100 to 150.  Was it that large?  We would submit probably

 5    not.  But it was up to Hadzihasanovic to inform himself of that

 6    information and make the appropriate assessment.

 7            What casualties would have resulted as a result of an armed

 8    attack?  The question [sic] is it depends on the resources of the two

 9    forces.  Whether the show of force, as the Trial Chamber, we would submit,

10    properly concluded, may have been sufficient to end the hostage-taking

11    there and then.  But we don't know what the result would have been,

12    because nothing was done or very little was done.

13            What casual -- whether there would have been civilian casualties,

14    I think the evidence is that Mehurici was basically the -- an IKM and it

15    was basically military.  There would not have been in those camps at

16    the -- at the very least, any collateral damage of -- to civilians or

17    civilian property.

18            How likely was it -- would it have been of success?  It would

19    depend -- it would depend on the measure that was taken, whether it was --

20    the Trial Chamber concluded that the -- the display or the -- the display

21    of force -- the intention to use force or, at least, mounting the

22    resources in order to use force, accompanying with a threat, may have been

23    successful.  That's where they say he failed to act reasonably and

24    necessarily.  They didn't say that using force against this group was the

25    only measure that he could take.  In fact, they said there -- there were a

Page 175

 1    number of reasonable necessary measures that might have been successful.

 2            And what it escalates to, and if it escalates there, depends on

 3    the circumstances.  The -- the Trial Chamber, by my reading of the

 4    judgement, does not say that that was the only measure and that was the

 5    only reasonable measure.  Far from it.

 6            And I think, with respect to Mr. Bourgon's submission, he takes

 7    the extreme example and attempts to weave it into a legal principle, and

 8    it just -- it doesn't work.

 9            I think I've answered the question of proportionality.

10    Proportionality depends on the circumstances as they continue along the --

11    the period of time, and it's based on the information that the commander

12    has and is continuing to obtain, that will inform his decisions and will

13    inform the -- the actions that he takes against the non -- the criminals

14    who are about to commit crimes or are in the process of committing crimes.

15    If there's a crime that's being committed, if -- if they know that they

16    are going to be murdered, then he would have to make an assessment.

17            In terms of my obligation to prevent these murders, what should I

18    do?  Should I use force?  How much force?  And the use of force would be

19    chosen, having a regard to the risk.  And so it's a risk/reward, as in any

20    hostage-taking, the facts are going to vary on a case-by-case basis.

21            On this case, we have the simple fact that not even a -- a more

22    serious threat was issued when the second group of hostages were taken.

23    That is what, I think, underlies the Trial Chamber's decision that

24    Hadzihasanovic is guilty for having to fail -- having failed to prevent

25    the crimes in Orasac.

Page 176

 1            Just on the de jure argument, the Trial Chamber's decision is, in

 2    our submission, a very discerning one.  They spent several hundred

 3    paragraphs dealing with the question of de facto control prior to August

 4    13th.

 5            And as I've previously alluded to, there was substantial

 6    discussion on measures that would point to de facto control and measures

 7    that did not.  And ultimately, the conclusion of the Trial Chamber was

 8    that the evidence did not, beyond a reasonable doubt, establish effective

 9    control.

10            And they very -- I'm sorry.  They very carefully analysed the

11    events leading to the August 13th subordination order by Rasim Delic,

12    which included, as I've already mentioned on a couple of occasions, the

13    involvement and recommendation of Hadzihasanovic.

14            The fact that the group, the El Mujahedin Detachment, was -- was

15    subordinated is supported by a lot of evidence before and after August

16    13th.  We've outlined much of it in our appeal brief -- or our response

17    brief to Mr. Bourgon's submissions.  But there is additional evidence.

18    During August of 1993, there was a -- there's evidence on the record to

19    the effect that soldiers from other units, as a result of a call put out

20    by the Mujahedin that they were conducting a training programme, started

21    to leave in order to be trained by them and to join the El Mujahedin

22    Detachment.  And there was much made of this at -- at trial, that that was

23    having the effect of weakening some of the units because of the

24    departures.

25            But what that shows, in combination with the move to create an

Page 177

 1    El Mujahedin Detachment, is that the -- the interested parties were

 2    starting to assemble at Mehurici for the official order, and in fact no

 3    Mujahedin were joining in combat with the 3rd Corps during this period and

 4    there was anticipation of the proposed order to create an independent

 5    detachment.

 6            So the -- the evidence clearly shows that there is ample support

 7    for the conclusion that on the 13th of August the de jure order was made

 8    and the de jure order was made with the consent of the people who were --

 9    the -- the focus of it, and it was made with the -- the consent and

10    affirmation of the commander, who would benefit from additional combat

11    troops after that date, combat troops which he proved he could subordinate

12    and proved he could command.  The fact that he chose not to implement the

13    appropriate measures to prevent them from committing crimes and to prevent

14    them from -- and to punish them, should he want, was his personal choice

15    because of his willingness or desire to use them immediately in combat but

16    also because at that point military necessity overtook his obligations, or

17    what he believed his obligations were as a military commander.

18            Our position is he was properly found to be de jure commander at

19    that time.  The proof of effective control as a result of the de jure

20    command was carefully analysed as well.  The Trial Chamber looked at

21    several pieces of communication between Hadzihasanovic and others showing

22    that the El Mujahedin Detachment was referred to in the order itself,

23    something that was not common previous to August 13th.  They spoke of and

24    found that there was -- it was clear that Hadzihasanovic had the final say

25    over where the unit would go.  There's communication that's referred to in

Page 178

 1    the judgement between the commander of OG Istok and Hadzihasanovic

 2    about -- about the issue.

 3            There are reports in the war diaries referring to El Mujahedin

 4    losses, which wasn't the case prior to August 13th.  There are many, many

 5    indicators that the El Mujahedin Detachment became incorporated.

 6            Were they a problem?  Yes.  Were they -- were they not his

 7    subordinates?  The answer is "no."  Did Hadzihasanovic have effective

 8    control over them to the extent that he had the material ability to

 9    prevent and punish?  The answer is "yes."  He was a commander of a

10    30.000-man army with military police at his disposal and the authority to

11    issue commands to all those under him in a combat situation where orders

12    mattered.  He knew that at the time he accepted them into his unit, he did

13    nothing to ensure that they would abide by his orders, and the

14    consequences resulted in the cruel treatment of the Croatian civilians in

15    October and their -- the death of Dragan Popovic.

16            Subject to any questions that you may have, the remainder of my

17    response to Mr. Bourgon's submissions is found in our response brief.

18            MR. TRACOL: [Interpretation] Mr. President, Your Honours, I'm now

19    going to respond to the fourth ground of appeal of Hadzihasanovic, related

20    to the Zenica music school.

21            Hadzihasanovic has challenged the findings of the Trial Chamber

22    according to which he had reason to know of the serious physical abuse

23    committed by subordinates in the Zenica music school.  And secondly, that

24    Hadzihasanovic failed to take all the reasonable and necessary measures to

25    prevent and punish his subordinates.

Page 179

 1            Your Honours, Hadzihasanovic has failed to show any error in the

 2    judgement.  The Prosecution relies on its response brief, which fully

 3    supports our request to dismiss the fourth ground of appeal submitted by

 4    Hadzihasanovic.

 5            With respect to the disposition of the judgement referred to by

 6    Mr. Bourgon, we would like to refer you to paragraphs 179 and 180 of our

 7    appeals brief.  I have nothing to add to that.

 8            But I would just like to respond to the submissions of

 9    Hadzihasanovic related to the attempts of his subordinates to conceal the

10    serious physical abuse meted out to his -- to victims at the Zenica music

11    school.

12            This fact, the fact that he tried to conceal the fact, is

13    irrelevant and it has no impact on his criminal liability.  Mr. Bourgon

14    dedicated the bulk of his submissions to this attempt, but his submissions

15    are irrelevant because they ignore the fact that the Trial Chamber

16    correctly found that Hadzihasanovic had reason to know, since the 8th of

17    May, 1993, that his subordinates had committed serious physical abuse at

18    the Zenica music school but he took no action, because sources outside the

19    7th Brigade, such as the ECMM, the HVO, and Judge Vlado Adamovic, a

20    witness who was an investigating judge at the Zenica district military

21    court in 1993 and 1994, had provided him with, and I quote "alarming

22    information that his subordinates were committing mistreatment."

23            I would like to refer you to paragraphs 1230 and 1236 of the trial

24    judgement.  The Prosecution has tendered a lot of evidence about

25    Hadzihasanovic's knowledge at trial, and I would like to outline two of

Page 180

 1    these examples that you will find at page 224 of its final trial brief.

 2            First of all, Judge Adamovic testified about a meeting attended by

 3    Hadzihasanovic and the ECMM, a meeting that was cochaired by Ambassador

 4    Jean-Pierre Thebault of the ECMM, his deputy, and the president of the

 5    Zenica military district court.  The meeting took place at the Hotel

 6    Internacional in Zenica.

 7            During the meeting, Judge Adamovic stated that he raised the

 8    mistreatment at the music school.  Hadzihasanovic told him that he himself

 9    had heard of people being beaten up with wooden bats; therefore,

10    Hadzihasanovic admitted knowledge.  And I would like to refer you to

11    transcript 9482 to 9483 of 24th June 2004.

12            The Trial Chamber duly considered Judge Adamovic's warnings to

13    Hadzihasanovic, warnings referring to physical abuse suffered by

14    prisoners.  At paragraph 1221 of the judgement.

15            A second example of evidence:  On the 7th of May, 1993,

16    Hadzihasanovic was informed by a letter sent to him by Tihomir Blaskic,

17    who was complaining, and I quote, "of extreme mistreatments of detainees,"

18    and I'd like to quote the document in English:  [In English] "People

19    brought to the KP Dom from the music school have been beaten up and are in

20    a very bad state." [Interpretation] And this is Exhibit P3593.

21            As a result, Hadzihasanovic was made aware of these serious

22    mistreatments on the 8th of May, 1993.  Once again, the Trial Chamber duly

23    considered the specific information provided to Hadzihasanovic at

24    paragraph 1208 of the judgement.

25            Under these circumstances, the Trial Chamber duly and rightly

Page 181

 1    decided to ignore the testimony of HF, according to which Nesib Talic,

 2    who was the 7th Brigade assistant commander in charge of military

 3    security, was misusing the stamp of the 7th Brigade and was always

 4    concealing things to Hadzihasanovic.

 5            The findings of the Trial Chamber are therefore reasonable.

 6            Contrary to Mr. Bourgon's submission this morning, the

 7    Trial Chamber has not decided to ignore the testimony of Dzemal Merdan,

 8    who was the 3rd Corps deputy commander, and of Witness HF, who was also a

 9    senior officer of the 3rd Corps command.  On the contrary, the

10    Trial Chamber has duly examined and considered these statements and they

11    questioned the exactitude of these statements.

12            First of all, Dzemal Merdan and HF failed to mention any specific

13    dates for their visits.

14            I would like to refer you to Dzemal Merdan's testimony on the 16th

15    of December, 2004, transcript page 13632.

16            The Trial Judges referred to these transcripts in footnote 2694 of

17    the judgement and Hadzihasanovic also referred to this in -- in his -- in

18    footnote 324 of his appeal brief.

19            The Trial Chamber referred to the testimony of Witness HF, page

20    17214 and 17215 of the transcript.  The Trial Judges have duly considered

21    this testimony and have made no error in their assessment.

22            Secondly, the Trial Chamber questioned the exactitude of the

23    statements of Dzemal Merdan and HF, since these visits could not have been

24    concentrated between 11th and 15th of June, 1993.  For this, they relied

25    on the statements of Dzemal Merdan and HF.

Page 182

 1            This demonstrates that the Trial Judges carefully analysed and

 2    considered the testimonies of these witnesses in-depth and it also shows

 3    that the Trial Chamber Judges provided a reasoned opinion for their

 4    findings.

 5            The Trial Chamber's reasons are not unreasonable because they gave

 6    more weight to evidence from other witnesses about mistreatments.

 7    Paragraph 1238 of the judgement.

 8            The Trial Judges assessed the testimony of Dzemal Merdan and

 9    Witness HF against the testimony of many former detainees held at the

10    music school in Zenica between 18th of April, 1993 and 20th of August,

11    1993.  For example, at paragraph 1190 of the judgement.  Their findings

12    are therefore reasonable, in light of a lack of specificity of Witnesses

13    Dzemal Merdan and HF.

14            In conclusion, Your Honours, first of all, there is no dispute

15    that serious physical abuse was committed against Bosnian Croats and

16    Bosnian Serbs and prisoners of war held at the Zenica music school.

17    Hadzihasanovic has admitted this, for example, at paragraph 110(a) of his

18    reply brief.

19            Secondly, there is no issue that Hadzihasanovic's subordinates

20    committed such serious physical abuse.

21            Thirdly, Hadzihasanovic had reason to know of the serious physical

22    abuse, since he received, and I quote, "alarming information pertaining to

23    this on the 8th of May, 1993."

24            Fourthly, and lastly, the Trial Chamber correctly found that

25    Hadzihasanovic, as a commander, failed to take the necessary and

Page 183

 1    reasonable measures commensurate with the situation.  He did not make

 2    genuine efforts to initiate an appropriate investigation into the

 3    allegations of cruel treatments.  These are the findings of the Trial

 4    Chamber at paragraph 1240 of the judgement.  That is the reason why the

 5    Trial Chamber did not make any error in convicting Hadzihasanovic for his

 6    failure to take all the necessary and reasonable measures to prevent and

 7    punish crimes committed by his subordinates in the Zenica music school.

 8            The Prosecution requests that Your Honours dismiss the fourth

 9    ground of appeal raised by Hadzihasanovic.  Of course, I am available for

10    any questions you may have.

11            JUDGE POCAR: [Interpretation] There seems to me no questions.

12            MR. TRACOL: [Interpretation] Well, so these are our submissions,

13    our final submissions to the appeal raised by Mr. Hadzihasanovic.

14            JUDGE POCAR: [Interpretation] Thank you very much.  We're going to

15    break now for 20 minutes.  Thereafter, we shall have the reply by the

16    Defence.

17                          --- Recess taken at 11.45 a.m.

18                          --- On resuming at 12.10 p.m.

19            JUDGE POCAR:  I will now give the floor to the Defence of

20    Mr. Hadzihasanovic for the reply.

21            MR. BOURGON:  Thank you, Mr. President.

22            I will address the issues which we feel have a more important

23    bearing on the adjudication of this appeal.  I will start with the

24    arguments which were raised in response by the Prosecution concerning the

25    events in Bugojno.

Page 184

 1            First of all, in light of the corrections which were brought to

 2    the transcript, it is our submission that the Trial Chamber's conclusions

 3    where it held that "seems to indicate" about Witness Muratovic is

 4    incorrect.  Moreover, the language in the corrected translations of the

 5    original audio transcript make it clear, in light of the context mentioned

 6    earlier, that a criminal report had been filed and measures taken in

 7    accordance with the law.

 8            Concerning the arguments raised about Witness Zeric that he did

 9    not receive a criminal report, one, this is not a most important issue;

10    two, what this witness said when he testified is that he divided all the

11    reports he received.  He only was responsible for part of the reports

12    which were sent to the Travnik district military prosecutor, and he also

13    said in response in cross-examination that he did not verify the record

14    before testifying and that he would have to do so in order to determine

15    whether in fact there was a report filed or not.

16            Regarding the jurisdiction of the municipal prosecutor, contrary

17    to the arguments of the Prosecution, the Bugojno municipal prosecutor

18    could have jurisdiction and that would happen if the offence was committed

19    jointly by civilians and soldiers together.  The evidence reveals that we

20    know about the involvement of two soldiers and the evidence also reveals

21    that more perpetrators were involved.  Were these civilians?  We don't

22    know.  But he could have jurisdiction and he could exercise it.  Whether

23    himself, if it was a crime, anything below murder.  And if it was murder,

24    he would have to transfer it to the Zenica high public prosecutor and the

25    Zenica high court.

Page 185

 1            But in any event, what the Prosecution said today is significant.

 2    What my colleague said is that he was not -- he had not -- did not have

 3    jurisdiction and in such a case he would have to refer the matter to the

 4    district military court.  But we agree, if he did not have jurisdiction,

 5    it was his duty to transfer the case to the district military prosecutor.

 6            But what bearing does this have on this case is that the military

 7    took action.  They put the people in gaol.  They put the criminal report.

 8    And now the military prosecutor has the matter and it's his responsibility

 9    to transfer it.  The military is aware and the duty of the commander at

10    all levels has been fulfilled to take necessary and reasonable measures.

11            Regarding the mens rea for after 18 August, the standard to be

12    applied is that developed by the Appeals Chamber in Celebici.  We say the

13    Trial Chamber in this case departed from this standard.

14            If we follow the proper application of this standard in Krnojelac,

15    also by the Appeals Chamber, the careful analysis that was then performed

16    by the Appeals Chamber, who concluded that Krnojelac had alarming

17    information, well, in this case if we perform the same type of analysis

18    and we look at the Trial Chamber's findings, then we easily come to the

19    conclusion that General Hadzihasanovic did not have reason to know that

20    his soldiers would commit any similar criminal crimes after 18 August.

21            One important fact is important in this regard, is that in this

22    case, there was a measure taken by General Hadzihasanovic.  There was a

23    measure taken from the 307 Brigade.  The people were put in gaol.  And

24    that is important when we put this into the equation and the analysis to

25    be performed, as the Appeals Chamber did in Krnojelac.

Page 186

 1            I recently attended a ICRC expert meeting on sanctions.  A report

 2    is about to come out pretty soon.  The conclusions of that expert group

 3    said - and of course, it's not binding law, but that's what they -- that's

 4    what the experts were saying then - the best sanction to ensure the

 5    application of international humanitarian law, it must be immediate, it

 6    must be visible, and it must be close to the situation where the offence

 7    happened.

 8            In this case, everything that was done in this case fulfils that

 9    definition and those requirements.  The soldiers are in prison and a

10    criminal report has been filed.  I don't see how can this be an

11    encouragement to do more deeds of the same type to anyone.

12            Moving on to the Mujahedin.  First of all, I'd like to point out

13    for the record that it appears to me, from hearing my colleague, that he

14    cited many conclusions and many -- a lot of wording from the judgement,

15    but he did not cite the evidence that goes with it.  It is when you look

16    at this evidence that you find that numerous conclusions of fact and the

17    numerous inferences drawn by the Trial Chamber that were simply incorrect

18    and that could not be drawn by a reasonable trier of fact.

19            On the training issue, the prior notice developed -- a theory

20    developed by my colleague is simply incorrect.  If I listen to him, it

21    means that General Hadzihasanovic was responsible for anything that the

22    Mujahedin would do after 13 August 1993, because he did not train them.

23    The thing is there's a reason why and if they were not trained.  It's that

24    it was not possible.  According to the evidence, these people would not

25    even receive a phone call.  According to the evidence, they would not let

Page 187

 1    access to their camps.  According to the evidence, they didn't -- the

 2    3rd Corps did not even know where one of the camps was, and that is the

 3    Orasac camp.  And it also ignores the issue that we have to also look at

 4    the crime that was supposed to be prevented by this training.  The theory

 5    of the Prosecution simply doesn't hold ground.

 6            On page 18, my colleague said that all what the General did

 7    concerning training and setting up a disciplinary system -- and he was

 8    very, for the first time I was glad to hear the Prosecution commenting so

 9    highly on General Hadzihasanovic, because this is what the evidence on the

10    record reveals, a top-level commander who took measures at all times.  If

11    he didn't do it, it's because it was not possible.

12            Then again, my colleague has avoided the question that there's no

13    evidence on the record specifically answering the question posed by the

14    Trial Chamber that he did not train the Mujahedin and that he did not put

15    in place a disciplinary system.

16            The most important part comes with the use of force.  The use of

17    force; we believe that the Prosecution's theory, once again, is entirely

18    incorrect.  Responsible command imposes obligations on the commander for

19    his subordinates.  That's the basis of the complete responsible command

20    theory.  A commander, he has subordinates and in respect of these

21    subordinates, he must train them, he must order them to apply the law, and

22    if they don't, then he has obligation towards them.  The -- the basic

23    principle is subordination.  This is why, according to Article 7(3) of the

24    Statute, we have existence of a superior-to-subordinate relationship.  And

25    this relationship, according to the case-law of the Tribunal, is fulfilled

Page 188

 1    by showing effective control.

 2            And the question here is very simple:  Does effective control, as

 3    been defined as the material ability to prevent or punish?  And according

 4    to the case-law of the International Tribunal, the use of force is not

 5    included in this -- in the material ability to prevent or punish.

 6            In the end, this shows that these Mujahedin, those rogue elements

 7    who were present - it was not denied; they were there - but they were

 8    never subordinates of General Hadzihasanovic.

 9            Let's say we take the position that was argued with the

10    Prosecution with the fact that it -- use of force is included in material

11    ability.  Then we say that if material ability in such a case includes

12    authority under domestic law, a commander can not just attack his

13    subordinates without any authority under domestic law.  It is not the

14    same.  Attacking the enemy is war; attacking your own is using force

15    against your own -- in your own army.  You can't do that unless you have

16    domestic authority and the proper military authority.

17            Let's say, again, because this was discussed in the presentation

18    of my colleague, that it is the case that it can be -- it is possible to

19    use force and then the -- the question becomes whether the use of force

20    was reasonable and necessary in the circumstances.

21            In response to the questions which were posed by the Judges, how

22    large was the force to be attacked?  We don't know from the evidence.  We

23    can assume a whole bunch of things from what my colleague said.  It cannot

24    be -- it cannot be established on the basis of the evidence how much force

25    were present, starting in 20 August 1993 -- or 20 October 1993 in Orasac.

Page 189

 1            Worse, they didn't even know where Orasac was.  They didn't even

 2    know that Orasac was a camp.  How could they attack a location that they

 3    don't even know exists?  The chances of success, the Trial Chamber

 4    concluded, were reasonable, or something like that.  This is entirely

 5    contrary to what the military expert said.

 6            We've had some pretty high-level military officers testify in this

 7    case.  General Karavelic is the officer who defended Sarajevo against the

 8    worst possible blockade in years.  This guy came and he shared his

 9    knowledge and he also shared his own experience when he had to attack

10    former subordinates, subordinates who were suddenly became out of control.

11    They were part of his army before, but they were completely out of

12    control.  He went to see the president of Bosnia and he said, Let me -- I

13    need to attack these people, but I'm not going to do it unless I get the

14    proper authority, and the president said, Yes.  He gave them the authority

15    after doing the proper political analysis.

16            The time required to plan such an operation was not addressed in

17    the judgement.  In terms of the impact on the overall campaign, it was not

18    assessed in the evidence, whether it was possible to launch such an attack

19    at that time; whether there was enough soldiers.  My colleague says, oh,

20    yes, he's commanding a force of 30.000 soldiers.  It's impossible, he has

21    everything he can do.  That's not what the evidence reveals,

22    Mr. President.  The evidence reveals that they were short of soldiers.

23    Any one soldier employed to launch an attack on the Mujahedin in October

24    of 1993 would be sacrificing a part of his mission.  And that is -- was

25    not addressed in terms of whether that was good or that was possible or

Page 190

 1    not.  It's not in the evidence.

 2            I could say it was and I really believe that it was, but who am I

 3    to say?  What matters is the evidence in this case.

 4            The number of casualties that would result from such an attack,

 5    not assessed in the case.  No evidence on this.  Proportionality, no

 6    evidence on this.  Proportionality is an obligation.  If

 7    General Hadzihasanovic was about to launch an attack in Orasac -- or first

 8    he would like -- he would have to know where it is and that -- who is

 9    there and what's happening there and how it's defended and what weapons

10    are used.  Then he would have to you -- to evaluate proportionality and he

11    could not evaluate proportionality.

12            I'm told I have five minutes.  I will make it quick.

13            JUDGE POCAR:  Mr. Bourgon, before you move to that point, are you

14    moving to another issue.  Are you going to move to another issue or

15    remaining on this issue?

16            MR. BOURGON:  I'm moving to another issue.

17            JUDGE POCAR:  So perhaps before you go to that issue, how would

18    you take the -- what would be your position if instead of putting the

19    question that you put of the authority to use force, in terms of domestic

20    law?  You would have to deal with that in terms of international law,

21    because assessing command responsibility is not a matter for domestic law.

22    It is a matter for international law.

23            And what, if you were asked to see whether the use of force, the

24    authority had to be found in international law?  How would you take the

25    question?

Page 191

 1            MR. BOURGON:  Mr. President, I respectfully disagree with your

 2    position.  I don't think international law would have to be assessed in

 3    such a case, because now we are looking at whether he has the -- he -- it

 4    was reasonable and necessary and where -- whether he has the material

 5    ability, and the material ability is based on a national standard, not an

 6    international standard.  Whether a commander can use force against his

 7    subordinates is different from whether he can use force against the enemy

 8    in an armed conflict.  It's two different concepts.  The second one is

 9    entirely international.  The first one, against your own subordinates, we

10    submit, that you need this domestic authority.

11            JUDGE POCAR:  Go on.

12            MR. BOURGON:  Thank you, Mr. President.  I move on.

13            Maybe I'd like to address one thing which I -- on this issue which

14    my colleague raised.  He said it was a lack of will to attack the

15    Mujahedin, that he did not want.

16            Well, first of all, we say that the evidence does not reveal that

17    there was any lack of will to attack and that that is not -- that does not

18    stem from the evidence.

19            But whether he decides to attack, he may decide to attack.  There

20    might be a need for him to attack, but not in any relationship to his

21    responsibility towards his subordinates.

22            If he decides to attack, it's because the presence of these

23    uncontrolled rogue elements is an impediment to his mission, and then he

24    says, To accomplish my mission, I've got to get rid of these people and I

25    will attack them.  That's completely different.  But it also shows, once

Page 192

 1    again, if he wants to get rid of some people, it's because they are

 2    uncontrollable and not under the command and control of the 3rd Corps.

 3            About the de jure order, very quickly.  The Delic order.  When the

 4    Appeals Chamber will look at the evidence, it will see that there's no

 5    formal follow-up to the Delic order, no stamps of approval.  All the

 6    procedure to enter a unit in the organisations were not followed.  That's

 7    what I was referring to when I mentioned Witness Poparic.

 8            There was no order.  And the order itself stated not 13 August as

 9    a date.  It started, We said that you start taking measures to enter them

10    into the organisation.  And there was no agreement, and that video that my

11    colleague refers to simply is not reliable evidence and there was never

12    any agreement on the record where we can say there's an agreement between

13    the army and the Mujahedin.

14            I finish on music school very quickly.  Simply by saying that what

15    my -- the argument raised by my colleague, with all due respect, is

16    circular and is not helpful in these circumstances.  He said

17    General Hadzihasanovic had knowledge.  Yeah, we say that.  We agree.  We

18    agree that some information was brought to the attention of

19    General Hadzihasanovic of potential mistreatment in the music school.  The

20    issue is:  What did he do?  He sent his most senior officers.  They go and

21    they find nothing.  They testify and the Chamber doesn't believe them.

22    That's the issue.

23            Why did the Chamber -- Trial Chamber not believe the highest

24    senior officer he can send?  That's the best he can do in the

25    circumstances.  They come back and they are not there.  Why?  Because

Page 193

 1    there is concealment.  And the efforts to conceal this information is on

 2    the record.  The record shows that there was an effort.  They were taken

 3    by bus to one of the close brigades -- a brigade that was close by.

 4            The Trial Chamber's analysis as to when did this take place is

 5    certainly not sufficient to disregard.

 6            My colleague -- I'd like simply to say something about my

 7    colleague raised an issue about Adamovic and about a meeting.  The

 8    evidence reveals that the date of this meeting is not sure.  He doesn't

 9    know when this meeting took place and if it was the meeting described by

10    my colleague.  That's very important.

11            Finally, I just have one quick correction to make to something I

12    said during my main submission, and that was on page 7, line 8.  I needed

13    to say I made a mistake concerning Exhibit DH337, it was Article 48 and

14    also at trial transcript page 36, lines 13 to 17.  I mentioned the

15    documents which were used by the Trial Chamber in determining whether

16    there was de jure control.  My colleague referred to these documents, but

17    he forgot to refer to the fact that there's only six of them.  And what

18    I'm telling -- saying today is that out of these six documents, only one

19    was signed by General Hadzihasanovic; the others were not signed by him,

20    and there -- there is testimony, including that of Kulenovic, to explain

21    these documents on the record.

22            This concludes my submissions in response to the grounds -- to the

23    arguments raised by the Prosecution in response, and I would be glad to

24    answer any questions you may have.

25            JUDGE POCAR:  I believe we have no questions.

Page 194

 1            This concludes, then, the submissions of the parties in this

 2    appeal.

 3            According to the schedule, I will now turn to the appellants and

 4    ask them, in turn, whether they wish to personally briefly address the --

 5    the Chamber.

 6            I will start with Mr. Kubura.

 7            Mr. Kubura, do you wish to have a brief personal address to the --

 8    to the Chamber in not more than ten minutes?  You have the floor.

 9                          [The appellant stands up]

10            THE APPELLANT KUBURA: [Interpretation] Your Honours, I did speak a

11    few times in this courtroom.  My lawyers submitted in writing all the

12    elements of my appeal, and yesterday they presented their arguments orally

13    as well.

14            In view of everything they said and they wrote, I have nothing to

15    add.  I pointed out earlier on, and I'd like to point out now, that I have

16    always trusted this Tribunal, and I repeat that today as well.

17            Thank you for everything.

18            JUDGE POCAR:  I thank you, Mr. Kubura.  You may sit.

19                          [The appellant sits down]

20            JUDGE POCAR:  May I ask Mr. Hadzihasanovic if he wishes to address

21    the Chamber.

22            You have the floor.

23            THE APPELLANT HADZIHASANOVIC: [Interpretation] Yes, Your Honours,

24    I do wish to address you.

25            Good afternoon, Mr. President.  Good afternoon, Your Honours.  I

Page 195

 1    do thank you for making it possible for me to address you, and therefore I

 2    shall be very brief.

 3            The war that broke out in 1991 was a terrible one not only for

 4    Bosnia-Herzegovina but for all the republics of the former Yugoslavia.

 5    Bosnia and Herzegovina suffered a great deal because of this war, and

 6    regrettably it is still suffering to this day.  There were many victims in

 7    this war, civilians and soldiers, on all sides.  I am very sorry for all

 8    of them.  I am particularly sorry for the victims that pertain to the

 9    operations of the Army of Bosnia-Herzegovina and also victims due to

10    actions taken by soldiers that were under my command.

11            I stand before you today as a corps commander who was sentenced by

12    a Trial Chamber because I did not punish, failed to punish soldiers under

13    my command who had committed crimes.  Of course, to this day I cannot say

14    that I was a perfect commander in 1993.  There are always things that can

15    be done differently, and I keep asking myself all the time whether I could

16    have done more, better.

17            What I can say is that I was a professional soldier who defended

18    his country without any religious, political, or ethnic partiality.  I can

19    say that throughout the war I did the best to stop soldiers under my

20    command from committing crimes.  Also, I did my best to punish them in

21    accordance with the law if they did commit crimes.  Therefore,

22    Your Honours, when I was accused in July 2001 I did not hesitate.  I was

23    prepared to appear before this court straight away.

24            I exercised my command in very difficult conditions.  As a

25    professional soldier, I could not imagine that such a situation could crop

Page 196

 1    up.  I asked my Defence counsel to show to the Court what difficult

 2    conditions I had to contend with in the situation, in order to judge the

 3    situation as it was then.  I think that the Judges did understand up to a

 4    degree the situation that I was in then; although, I believe it is very

 5    difficult for anyone who was not there to understand what it was like.

 6            The presence of Mujahedin in my area was very difficult for me.

 7    Al-Qaeda is a well-known concept today, but at that time no one knew who

 8    these people were in actual fact and what their real purpose was.  I was

 9    the first one to have raised that question with my superiors, and I truly

10    believed that they did constitute a great danger.

11            Since I am not a lawyer myself, I hope that you will also try to

12    understand the situation as it was in Central Bosnia in 1993, as well as

13    the measures that I took in order to keep strict discipline within the

14    3rd Corps that I was in the process of establishing while at the same time

15    fighting.

16            However, although I was sentenced by the Trial Chamber, I still

17    believe in the work of this Tribunal that is good for my

18    Bosnia-Herzegovina.  Before I was accused, I testified twice before this

19    Tribunal:  In the Blaskic case and in the Krstic case.  And before that, I

20    made a statement to Mr. Harmon, the Prosecutor.

21            My trial was a difficult experience for me as an accused person

22    and for my family as well.  My life came to a halt when I stood accused.

23    On the other hand, I was always treated well and professionally here and

24    in detention.  I was allowed provisional release, which meant a great deal

25    to me, and I wish to express my gratitude to all for that.

Page 197

 1            In conclusion, I can just say that I fully support all the

 2    arguments and proposals made by my Defence here, and I do thank you once

 3    again.

 4            JUDGE POCAR:  I thank you, Mr. Hadzihasanovic.  You can sit down.

 5                          [The appellant sits down]

 6            JUDGE POCAR:  Well, this concludes the appeals hearing in this

 7    case.  I wish to thank the parties, counsel for -- also for having kept

 8    within the schedule as it was announced, and, of course, all those who

 9    assisted in the -- in the hearing in different capacities, with a special

10    mention for the interpreters, whose help is always of primary importance

11    for our discussion.

12            The judgement will be rendered in due course.  The Appeal Chamber

13    will now rise.

14                          --- Whereupon the hearing adjourned at 12.40 p.m.