IV. FACTUAL AND LEGAL FINDINGS

A. The Nature of the Evidence Before the Trial Chamber

594. As a general principle, the Trial Chamber has attached probative value to the testimony of each witness and exhibit according to its relevance and credibility. The Trial Chamber notes that, pursuant to Rule 89 of the Rules, it is not bound by any national rules of evidence and as such, has been guided by the foregoing principles with a view to a fair determination of the issues before it. In particular, the Trial Chamber notes the finding in the Tadic Judgment that corroboration of evidence is not a customary rule of international law, and as such should not be ordinarily required by the International Tribunal. ⁶⁰⁶

595. The majority of witnesses who appeared before the Trial Chamber were eyewitnesses and, in some cases, victims of events that occurred in the Celebici prison-camp. Their testimonies were based on incidents they had seen, heard or experienced and, in many cases, consisted of a recounting of horrific acts, in some cases committed against themselves, their family members or friends. The Trial Chamber recognises that recollection and articulation of such traumatic events is likely to invoke strong psychological and emotional reactions, including feelings of pain, fear and loss. This may impair the ability of such witnesses to express themselves clearly or present a full account of their experiences in a judicial context. The Trial Chamber acknowledges the courage of these witnesses, without whom it would not be able to perform its task.

596. In addition, during the course of the trial, both the Defence and the Prosecution, sought to rely on pre-trial statements made by some witnesses or to use them in cross-examination for the purposes of impeachment. In particular, the Defence sought to impeach a number of witnesses on the basis of inconsistencies between their prior statements and their testimony before the Trial Chamber. In many cases there has been a significant time lapse between the events about which these witnesses were testifying, the making of their prior statements, and their testimony before the Trial Chamber. The Trial Chamber recognises the difficulties in recollecting precise details several years after the fact, and the near impossibility of being able to recount them in exactly the same detail and manner on every occasion that one is asked to do so.

597. The Trial Chamber has considered the oral testimony before it in the light of these considerations. Accordingly, inconsistencies or inaccuracies between the prior statements and oral testimony of a witness, or between different witnesses, are relevant factors in judging weight but need not be, of themselves, a basis to find the whole of a witness’ testimony unreliable. The Trial Chamber has attached probative value to testimony primarily on the basis of the oral testimony given in the courtroom, as opposed to prior statements, where the demeanour of the relevant witnesses could be observed first hand by the Trial Chamber and placed in the context of all the other evidence before it.

598. However, before proceeding with the facts of the present case, it is necessary to make brief reference to the operation of the appropriate burdens of proof.

B. Burdens of Proof

599. The provisions of Article 21(3), of the Statute presume the innocence of the accused until he or she is proven guilty. The Rules do not, however, anywhere expressly prescribe the burden of proof on any party in the proceedings. In accordance with the procedure for the presentation of evidence contained in Rule 85, when a trial commences on an indictment filed by the Prosecution, alleging offences committed by the accused, it would seem clear that the burden of proving the allegations in the indictment rests on the Prosecution. However, there are situations in a case where the accused himself makes allegations or denies the accepted situation, for example, that he is a person of sound mind. Where the obligation of either party at trial is to satisfy the requirement of a rule of law that a fact in issue be proved or disproved, either by a preponderance of evidence or beyond reasonable doubt, there is a legal burden on such party. It is a fundamental requirement of any judicial system that the person who has invoked its jurisdiction and desires the tribunal or court to take action on his behalf must prove his case to its satisfaction. As a matter of common sense, therefore, the legal burden of proving all facts essential to their claims normally rests upon the plaintiff in a civil suit or the prosecutor in criminal proceedings.

1. Burden of Proof on the Prosecution

601. Since 1935, in the English legal system, the burden of proof on the prosecutor has been accepted in criminal cases as being proof beyond reasonable doubt⁶⁰⁷. In Miller v. Minister of Pensions⁶⁰⁸, Lord Denning further explained that the expression "proof beyond reasonable doubt" should be understood as follows:

It need not reach certainty but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence, 'of course it is possible, but not in the least probable', the case is proved beyond reasonable doubt, but nothing short of that will suffice.

In a subsequent case in 1950, Lord Goddard C.J. suggested that it was sufficient only to charge the jury to be satisfied on the guilt of the accused and it is the duty of the prosecutor to do so⁶⁰⁹. In Dawson v. R⁶¹⁰. Dixon C.J. of Australia disapproved of the practice of departing from the time-honoured formula of proof beyond reasonable doubt as formulated in Woolmington v. DPP. He rejected the substitutes as having never prospered either in England or Australia. Furthermore, in the words of Barwick C.J., in Green v. R.:

A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgement.⁶¹¹

The general principle to be applied by the Trial Chamber is clearly, on the basis of this brief analysis, that the Prosecution is bound in law to prove the case alleged against the accused beyond a reasonable doubt. At the conclusion of the case the accused is entitled to the benefit of the doubt as to whether the offence has been proved.

2. Burden of Proof on the Defence

602. The burden is different where it is the accused who makes an allegation, or when the allegation made by the prosecutor is not an essential element of the charges in the indictment. In such a situation the legal burden in a civil case will satisfy the standard required. In R. v. Carr-Briant⁶¹², Humphreys J. stated:

In any case where either by Statute or common law, some matter is presumed against an accused person, 'unless the contrary is proved' the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt and that the burden may be discharged by evidence satisfying the jury of that which the accused is called upon to establish.

This standard has been approved by the English Judicial Committee of the Privy Council in Sodeman v. R.⁶¹³, where it was applied to a defence of insanity. The Trial Chamber will further consider this issue in its discussion of the special defence of diminished mental capacity below.

603. Whereas the Prosecution is bound to prove the allegations against the accused beyond a reasonable doubt, the accused is required to prove any issues which he might raise on the balance of probabilities. In relation to the charges being laid against him, the accused is only required to lead such evidence as would, if believed and uncontradicted, induce a reasonable doubt as to whether his version might not be true, rather than that of the Prosecution. Thus the evidence which he brings should be enough to suggest a reasonable possibility. In any case, at the conclusion of the proceedings, if there is any doubt that the Prosecution has established the case against the accused, the accused is entitled to the benefit of such doubt and, thus, acquittal.

____________________________

604. Bearing these considerations in mind, the Trial Chamber here proceeds to examine the superior responsibility of Zejnil Delalic in relation to the charges laid against him, before engaging in the same analysis of the evidence in relation to Zdravko Mucic and Hazim Delic. Upon the completion of this discussion and the making of factual and legal findings on the alleged superior responsibility of each of these accused, the Trial Chamber considers each of the counts of the Indictment in turn and makes its findings on the responsibility of the accused for the charges contained therein.

C. Superior Responsibility of Zejnil Delalic

1. Introduction

605. On the basis of his alleged position of superior authority over the Celebici prison-camp, Zejnil Delalic is charged with responsibility as a superior for all but one of the criminal acts alleged in the Indictment⁶¹⁴. In addition to being charged with responsibility as a direct participant for the unlawful confinement of civilians (count 48), Delalic is accordingly charged in the Indictment with responsibility pursuant to Article 7(3) of the Statute for acts of murder (counts 13 and 14), acts of torture (counts 33 to 35), acts causing great suffering or serious injury to body or health (counts 38 and 39), inhumane acts (counts 44 and 45), the subjection of detainees to inhumane conditions constituting the offences of wifully causing great suffering or serious injury to body or health and cruel treatment (counts 46 and 47), and the unlawful confinement of civilians (count 48).

606. In sub-section F below, the Trial Chamber will make its factual findings in relation to the underlying offences for which the accused is alleged to be criminally liable in this manner. It is first necessary to assess whether, as the Prosecution alleges, Zejnil Delalic has been shown inter alia to have been in such a position of superior authority in relation to the Celebici prison-camp and that the conditions for the imposition of criminal responsibility pursuant to Article 7(3) of the Statute have been met.

2. . The Indictment

607. The relevant general allegations made in the Indictment in relation to the superior responsibility of Zejnil Delalic read as follows:

     3. Zejnil Delalic, born 25 March 1948, co-ordinated activities of the Bosnian Muslim and Bosnian Croat forces in the Konjic area from approximately April 1992 to at least September 1992 and was the Commander of the First Tactical Group of the Bosnian Muslim forces from approximately June 1992 to November 1992. His responsibilities included authority over the Celebici camp and its personnel.

     [. . .]

     7. The accused Zejnil Delalic, Zdravko Mucic and Hazim Delic had responsibility for the operation of Celebici camp and were in positions of superior authority to all camp guards and to those other persons who entered the camp and mistreated detainees. Zejnil Delalic, Zrdavko Mucic and Hazim Delic knew or had reason to know that their subordinates were mistreating detainees, and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators. By failing to take the actions required of a person in superior authority, Zejnil Delalic, Zdravko Mucic and Hazim Delic are responsible for all the crimes set out in this indictment, pursuant to Article 7(3) of the Statute of the Tribunal.

     3. Arguments of the Parties

608. The Trial Chamber has considered the lengthy submissions of the parties on this matter, along with the evidence presented by them. An overview of this material is set out here.

(a) The Prosecution

609. According to the Prosecution, Zejnil Delalic had direct control over, and responsibility for, the Celebici prison-camp and the camp commander, almost from the very moment it was established in May 1992, up until the time when he left Bosnia and Herzegovina on 25 November 1992. It is contended that, at the very least, Mr. Delalic was in a position to exercise considerable authority, control and influence over the prison-camp itself, the commander of the prison-camp and the region in which it was located. ⁶¹⁵

610. More specifically, the Prosecution asserts that, from the time Zejnil Delalic returned to Konjic from abroad at the end of March or beginning of April 1992, he played a key role in the military affairs of the area. It is asserted that he was appointed co-ordinator of the Konjic Defence forces on 18 May 1992, and subsequently, on 11 July 1992, commander of Tactical Group 1. According to the Prosecution, Mr. Delalic was, in both of these roles, in a position of authority, with powers of control and influence over the Celebici prison-camp and its commander. It is contended that this position arose as a result of both formal and de facto forms of command and control, and that it is immaterial that no official instrument can be identified specifically conferring formal responsibility for the camp on Mr. Delalic. ⁶¹⁶

611. In support of these contentions the Prosecution relies on evidence, considered below, which is purported to directly demonstrate Mr. Delalic’s control and authority over the Celebici prison-camp. In addition, it is argued that this evidence is reinforced by evidence relating to the general situation pertaining in the Konjic region, and the overall position and functions exercised by Zejnil Delalic at the relevant time. From this more general perspective, it is asserted that, due to the fluid situation existing in the region at the time, in which well developed structures were lacking, persons often carried out functions, including command functions, without formal appointments. Accordingly, it is the Prosecution’s position that the evidence of Mr. Delalic’s authority and control over the Celebici prison-camp must be considered in light of the fact that no other person or group of persons has been identified as having had formal or informal authority to supervise the commander of the Celebici prison-camp. Indeed, it is submitted that the evidence shows that in the area of Konjic, and Bosnia and Herzegovina generally, there were no laws or regulations setting forth who had control over military prisons in general, and the Celebici prison-camp in particular. It is noted that, when the prison-camp first began its operations, the HVO, MUP, TO and the War Presidency were all involved in various aspects of its operation, and submitted that Mr. Delalic’s involvement therein is logical, given his official role as co-ordinator. In this context it is said to be immaterial whether Mr. Delalic’s authority over the camp and its personnel arose out of either an express delegation, or by an implicit delegation, or even by an abdication of responsibility by the bodies involved in the operation of the prison-camp.⁶¹⁷

612. Moreover, the Prosecution asserts that, even if Zejnil Delalic is not characterised as a "superior" of the camp commander and considered to have been in a position to control him and the other perpetrators of offences, he would still have superior responsibility for the crimes committed in the prison-camp by virtue of the authority he exercised in relation to the prison-camp and the Konjic region. In its view, it is clear that he was one of the leading figures of authority in the region at that time, and that his power and influence extended to matters pertaining to the Celebici prison-camp and at the very least to the classification and release of detainees. Consequently, whatever Zejnil Delalic may claim about the limits of his authority, it is said to be manifest that his means of intervention to prevent the commission of crimes in the prison-camp or to ensure the punishment of perpetrators were not entirely foreclosed. On this basis, it is submitted that an interpretation of the word "superior" in Article 7(3) to exclude a person in Mr. Delalic’s position would substantially narrow the scope of protection afforded by international humanitarian law.⁶¹⁸

(i) Status Prior to 18 May and as a Co-ordinator from 18 May to 11 July 1992

613. According to the Prosecution, Zejnil Delalic returned to Konjic from abroad at the end of March or beginning of April 1992. As he was relatively wealthy, had business connections, and was willing to put his services and even his own property at the disposal of the "Bosnian cause", he immediately made an impression of being someone with the ability to contribute substantially to the defence of Konjic. It asserts that the evidence indicates that he was, from the beginning, part of the War Presidency of the Konjic municipality, as well as a member of the Armed Forces of Bosnia and Herzegovina, in particular of the Territorial Defence Municipal Headquarters of Konjic. He was actively involved in the seizure of the JNA military facility in Celebici on 19 April 1992, and he also participated thereafter in the military operations at Donje Selo and Bradina. It is said that the significance of his role in the region is evidenced by a "special authorisation", dated 2 May 1992, which he received prior to his appointment as a co-ordinator. This document, signed jointly by the President of the Konjic War Presidency and the Commander of the Konjic TO Headquarters, authorised Zejnil Delalic to negotiate and conclude contracts and agreements of great importance, including on such matters as arms supplies and joint actions of troops. The Prosecution contends that the importance of his position at this time is further shown by a mission which he undertook to Zagreb between 5 and 10 May 1992. During this mission, which concerned, inter alia, the procurement of weapon supplies, Mr. Delalic gave an extensive interview to a Croatian television talk-show, "Slikom na sliku", in the course of which he was presented as the commander of the TO of Konjic, and behaved, and was treated, as an important military commander. The Prosecution submits that whether or not Mr. Delalic was formally the commander of the TO of Konjic, this suggests, at the very least, that he was already at this time a person of recognised authority. ⁶¹⁹

614. On 18 May 1992, Zejnil Delalic was officially appointed "co-ordinator" of the Konjic Defence Forces by the President of the War Presidency in Konjic, a position which, according to the instrument of appointment, empowered him to "co-ordinate the work of the defence forces of the Konjic Municipality and the War Presidency"⁶²⁰. The Prosecution emphasises that the term "co-ordinator" is not a usual military function and submits that it was created to deal with the special circumstances present in the Konjic municipality. It notes that, at this time, the military operations in the area were in the process of becoming organised, with tensions and differences existing between the various bodies, including the HVO and the TO. In its view, because of the exceptional nature of the situation and of the creation of this position, it is to be expected that there were no clearly defined formal powers and responsibilities of the "co-ordinator". Instead, it asserts, Mr. Delalic’s powers and authority were simply those that he exercised in practice, including those which he assumed for himself under the title of his position. Against this background the Prosecution argues that the evidence indicates that Mr. Delalic as co-ordinator had both military and civilian functions, and that in this position he possessed the authority to issue orders. ⁶²¹

615. With specific reference to the authority exercised by Zejnil Delalic over the Celebici prison-camp, the Prosecution alleges that the evidence demonstrates that he had the power to determine who would, and who would not, be detained in the prison-camp. Among the evidence relied on in support of this contention is the testimony given by Witness D, a member of the Military Investigative Commission which was established to classify the detainees in Celebici and to determine whether they should be released. Reliance is thus placed, inter alia, on this witness’ understanding that Mr. Delalic had authority over the Commission and also had powers of decision concerning which detainees should be released, and his evidence of how Mr. Delalic participated in a meeting held by the Commission and there explained the different categories that were to be used to classify the prisoners. It is further noted that this witness reported how, during the time of the Commission’s work in the Celebici prison-camp, he was told by Zdravko Mucic that the decisions on which prisoners were to be released would be made by "commander Delalic". According to the Prosecution, this evidence that Mr. Mucic, as commander of the camp, considered Mr. Delalic his superior, is confirmed by the testimony of Nedeljko Draganic. It is thus noted how, according to this witness Mr. Mucic, in the course of a discussion with members of the witness’ family concerning the release of prisoners from the prison-camp, declared that that he would have to ask Mr. Delalic about releases.⁶²²

616. More generally, the Prosecution relies on evidence showing that Zejnil Delalic made a number of visits to the prison-camp and was treated as a person in authority. Several witnesses testified to having seen Mr. Delalic in the Celebici prison-camp at the beginning, or mid-part of June 1992. Specifically, the Prosecution notes that the witness Branko Sudar reported that when Mr. Delalic was about to enter Hangar 6, the guards said: "Sit still. The commander is coming"⁶²³. It contends that, although the Defence has suggested that the witnesses might have mixed up Zejnil Delalic with one of his relatives, this suggestion is refuted by Witness N, who recognised both Mr. Delalic and his nephew, and testified that both were present at the camp.⁶²⁴

(ii) Status as Commander of Tactical Group 1 from 11 July to November 1992

617. According to the Prosecution, Zejnil Delalic was on 11 July 1992 appointed commander of Tactical Group 1 (hereafter "TG 1") for the area of Hadzici, Pazaric, Konjic and Jablanica, by Sefer Halilovic, chief of the Armed Forces Main Staff. Pursuant to a second order, issued by Halilovic on 27 July 1992, Zejnil Delalic’s authority was extended to include the areas of the Dreznica, Prozor and Igman, with the troops over which he had command expressly designated as "all formations of the Armed Forces of the Republic of Bosnia and Herzegovina in the area"⁶²⁵. The Prosecution submits that the clear language of this order, conferring Mr. Delalic with authority over all troops in the area, would have included the troops operating in the Celebici prison-camp. It accordingly contends that these orders of appointment, as well as other documents, show that Mr. Delalic had command authority over Celebici prison-camp in his capacity as commander of TG 1. At the very least, it argues, the evidence concerning the organisation of TG 1 demonstrates that the extent of Mr. Delalic’s authority in this position was a matter of practice rather than theory. In this respect, it submits, Mr. Delalic’s position as commander of TG 1 was the same as when he was co-ordinator, so that under the title of his position and by virtue of his personal influence and authority he was capable of exerting considerable control and influence in the region. Thus, the Prosecution asserts that the evidence shows that Mr. Delalic in his position as commander of TG 1 continued to exercise control over Celebici prison-camp, with power to determine who would, and who would not, be detained in the prison-camp. ⁶²⁶

618. Among the evidence on which the Prosecution relies in support of this proposition are the circumstances surrounding the release of the three detainees Dr. Petko Grubac, Witness P and Miro Golubovic. In particular, emphasis is placed on the fact that the release forms for these prisoners were all signed by Zejnil Delalic on 17 and 22 July 1992. Noting the Defence assertion that these documents were signed by Mr. Delalic not on his own authority but "for" the investigative body of the War Presidency, the Prosecution contends that the evidence demonstrates that no such investigating committee existed at this time. ⁶²⁷

619. The Prosecution further places great weight on two written orders signed by Zejnil Delalic concerning the Celebici prison-camp, which are asserted to provide direct and incontrovertible evidence that he was a superior authority in relation to the camp. The Prosecution thus notes that Mr. Delalic, as commander of TG 1, issued an order on 24 August 1992 directed to the OSOS (Armed Forces Municipal Command) of Konjic which was copied to the Celebici prison-camp administrator, containing, inter alia, an order concerning the functioning of the Celebici prison-camp⁶²⁸. A second order addressed directly to the Celebici prison-camp administrator was issued by Mr. Delalic on 28 August 1992⁶²⁹. Asserting that no substantial evidence has been given in support of Mr. Delalic’s submission that these were exceptional orders issued by him at the request of the Supreme Command, the Prosecution contends that the fact that the Supreme Command may have issued orders to Mr. Delalic which he then passed on, does not indicate that he was not the superior in relation to the Celebici prison-camp. In contrast, it is said to be a normal function of commanders to pass on orders to their subordinates. Moreover, the Prosecution claims that, even if the contention that these were exceptional orders is accepted, this nevertheless represents a recognition from the Supreme Command that Zejnil Delalic was in practice, and now formally, the person responsible for the prison-camp. In this respect, the Prosecution notes that the order issued by Mr. Delalic on 24 August 1992 specifically states that the commander of the Konjic OSOS "is responsible to me for prompt and effective implementation of this order".⁶³⁰

620. Moreover, it is asserted by the Prosecution that the evidence shows that Zejnil Delalic, during the relevant period, made a number of visits to the Celebici prison-camp, and that he was treated there as a person in authority. Thus, it submits that Mr. Delalic twice accompanied representatives of the ICRC when they visited the prison-camp, and that this body subsequently sent its reports to him. It is further noted that a Bosnian television crew made a television report in the prison-camp sometime around mid-August of 1992, and submitted that the evidence of Dr. Grubac and Witness P demonstrates that Mr. Delalic at this time made arrangements for the two doctors to be interviewed as part of this report. The Prosecution notes that Mr. Delalic himself appeared in the report, providing information about the prison-camp. It is argued that the Defence has not been able to offer a credible explanation as to why, if Mr. Delalic had no responsibility for the operation of the Celebici prison-camp, he would accept to be interviewed in this way about the conditions in it.

621. The Prosecution further relies on a substantial body of documentary evidence seized at what is described as Zejnil Delalic’s business premises in Vienna, Austria, in March 1996 (hereafter "Vienna Documents"). It asserts that these documents, many of which are alleged to be authored by Mr. Delalic himself, confirm that he, in his capacity both as co-ordinator and then commander of TG 1, had authority and responsibility for the Celebici prison-camp. A description of this fairly voluminous material is not warranted at this juncture. The weight to be attached to this evidence will be considered by the Trial Chamber in sub-section 4(c) below.

(iii) Knowledge

622. According to the Prosecution, the evidence establishes beyond reasonable doubt that Zejnil Delalic knew, or must have known, or had information from which he could conclude, that crimes were about to, or had been, committed in the Celebici prison-camp by guards or those responsible for the administration of the camp. Moreover, the Prosecution contends that Mr. Delalic would in any event have had such information if he had supervised the camp properly, including by establishing an effective system of reporting.

623. Among the evidence relied on by the Prosecution in this context is a document which is described as a report of the Military Investigative Commission at the Celebici prison-camp, describing maltreatment and physical abuse of the detainees⁶³¹. The Prosecution notes that Zejnil Delalic, in his interview with Prosecution investigators, denied having received this report, but acknowledged that it appears to be addressed to him as the co-ordinator of combat activities. It contends that, given the fact that Mr. Delalic was the person actively involved in the establishment of this commission, he was involved on an ongoing basis with its work. Furthermore, given that the report was accompanied by the resignation of all members of the commission, there can be no reasonable doubt that Mr. Delalic must either have received the report or been aware of its existence.⁶³²

624. As evidence of Zejnil Delalic’s knowledge, the Prosecution further notes, inter alia, that he received a report from the ICRC in which Hazim Delic was mentioned as having mistreated prisoners. Reference is further made to Mr. Delalic’s admission during his interview with Prosecution investigators that he saw seven to eight wounded prisoners when he visited the infirmary at Celebici prison-camp. Similarly, the Prosecution asserts that notes written by Mr. Delalic on the release forms of Witness P and Dr. Grubac, requiring the latter to "continue to take care of the injured prisoners"⁶³³, demonstrate that he was aware of the need for the continued presence of two doctors in the camp on a daily basis.⁶³⁴

(iv) Failure to Act

625. According to the Prosecution, in view of the authority, control and influence that Zejnil Delalic exercised in the Konjic region, as well as his direct authority over the Celebici prison-camp and its personnel, there existed a wide range of measures which he would have been in a position to undertake to prevent or punish the crimes committed in the camp. Specifically, it is asserted that the evidence indicates that Mr. Delalic was in a position to use his authority and influence to take at least the following steps:

(a) initiating appropriate forms of immediate preventive action and constraining measures;
(b) conducting bona fide investigations and prosecutions, or transferring matters to the relevant national authorities;
(c) discharging, removing, or demoting the perpetrators (including Mucic);
(d) devising and implementing internal policies to ensure that violations of international humanitarian law were prevented, and providing clear orders,
instructions and training in this regard;
(e) establishing proper reporting systems;
(f) registering any complaints or reports of the unlawful activities to higher military or other authorities;
(g) addressing these matters internally, making interventions, or offering recommendations for their prevention or punishment;
(h) using his influential position to direct appropriate policy and practice, or taking persuasive action;
(i) publicly recording condemnation of the illegal activities;
(j) fully co-operating with relevant external bodies and organisations; and
(k) resigning from his positions.⁶³⁵

(a) issued orders and instructions to the camp commander and guards to properly and expeditiously determine the detainees’ status and ensure that they were treated humanely in the interim in accordance with the provisions of international humanitarian law, especially in situations when they were being mistreated;
(b) issued orders and instructions to the camp commander and guards to release detainees that were unlawfully confined;
(c) used his position to make recommendations to improve, and to influence, policy with respect to the camp;
(d) registered complaints or reports to other or higher military or other authorities;
(e) demanded further information about the situation in the camp;
(f) publicly recorded condemnation of the illegal activities;
(g) resigned from his positions.⁶³⁶

627. It is the Prosecution’s position that it is not necessary to prove that Zejnil Delalic could have undertaken all of these measures. In contrast, it contends that to demonstrate criminal liability, it is sufficient to show that he could have done any one or more of them, and failed to do so. As a matter of fact, the Prosecution asserts that Mr. Delalic failed to carry out any such measure.

(b) The Defence

628. According to the Defence⁶³⁷, Zejnil Delalic at no time had command and control over the prison-camp at Celebici. It is recognised that Mr. Delalic was appointed co-ordinator on 18 May 1992, and submitted that he remained in this position until 30 July 1992, when he assumed command of Tactical Group 1. Contrary to the assertions of the Prosecution, however, the Defence contends that Mr. Delalic had no command function, or superior authority at all in his position as co-ordinator, and that, in his latter role as commander of TG 1, he possessed no command authority over the prison-camp at Celebici, its personnel, guards or others.

629. More generally, the Defence contends that the Prosecution, in order to prove the charges against Zejnil Delalic, must demonstrate the chain of command in the legal organs and institutions which existed in the Konjic municipality in 1992. It argues that the evidence in this respect shows that the structures of the legally constituted organs and institutions of Konjic, both before and during the war, existed and functioned according to law. Moreover, it asserts that the evidence establishes that Mr. Delalic was never a member of any of these institutions or structures, that he never was in a position of superior authority to any of these institutions or structures, and that he never received any superior authority or command responsibility in connection with the prison-camp at Celebici, or its personnel. It further submits that, during the period relevant to the Indictment, there was no confusion in the creation of the armed forces, nor in connection with the chain of command and control. The Defence accordingly asserts that the TO, HVO and MUP all had their respective structures, chain of command and experienced commanding personnel, and that the Joint Command likewise had a full complement of experienced officers and commanders in its structure.⁶³⁸

630. On the question of the authority over the Celebici prison-camp, the Defence avers that, according to the laws that were in effect immediately before the war and for a period at the beginning of the war, civilian prisoners were under the jurisdiction of the Ministry of Justice and the regular courts. Military prisons were exclusively under the jurisdiction of the JNA, and the TO system did not envisage the establishment of prisons or detention centres. At the beginning of the war in 1992, jurisdiction over prisons and prisoners was clearly defined and shared between the MUP, the HVO and investigating organs created by the Joint Command. Specifically in relation to Celebici, the Defence argues that the evidence demonstrates that it was the Chief of Police (MUP) in Konjic who, in consultation with the HVO, decided to hold the arrested individuals in the barracks of Celebici, and that it was the MUP and HVO military police which provided security for the barracks and the prison-camp until the second half of June 1992. The Defence asserts that, from mid-June until mid-July 1992, the guards assigned to Celebici were subordinate to the command of the TO and the HVO, and that thereafter, particularly from August, most of the guards were members of the TO and under the command of the Municipal TO staff.⁶³⁹

(i) Status Prior to 18 May and as Co-ordinator from 18 May to 30 July 1992

631. According to the Defence, Zejnil Delalic arrived in Konjic in April 1992 to attend his brother’s funeral. He remained in Konjic when the war began, and returned to Munich, Germany in mid-November 1992. The Defence submits that, from early April until 17 May 1992, Mr. Delalic contributed to the defence efforts in Konjic in the area of logistics, drawing on his expertise as a businessman in negotiating and concluding contracts. His activities included arranging for the procurement of vehicles, radios and uniforms, and the setting up of hospitals and shelters for the civilian population. It maintains that, while it is correct that Mr. Delalic participated in the liberation of the Celebici barracks in April 1992, he did so as an unarmed volunteer who was given the task of ensuring that the weapons from the Celebici barracks were transported to a safe location. Contrary to the assertion of the Prosecution, the Defence contends that Mr. Delalic did not participate in the military operation at Donje Selo. ⁶⁴⁰

632. On 2 May 1992 Zejnil Delalic received an authorisation from the War Presidency in connection with the procurement of equipment for the preparation of the defence of Konjic. The Defence asserts, however, that such authorisations were common during this period and were not a reflection of influence, authority or importance. It submits that this particular authorisation permitted Mr. Delalic to perform certain logistical tasks in Konjic and Croatia, but did not give any military authority or function to him, nor did it confer upon him any command function or position of authority.

633. On 18 May 1992, while he was away in Zagreb, Zejnil Delalic was appointed co-ordinator pursuant to a decision of the War Presidency. The Defence submits that, both according to the terms of this appointment and having regard to his activities as a co-ordinator, Mr. Delalic had in this role no superior authority as alleged in the Indictment. Thus, it notes that the decision expressly appoints Mr. Delalic as "co-ordinator", not as a commander. In the view of the Defence, co-ordination implies, by definition, mediation and conciliation, and does not connote command authority or superior authority. Indeed, the Defence submits that a person appointed to co-ordinate among legally constituted institutions is in a position of subordination to these institutions. It thus points out that the co-ordinator has his functions delegated to him by the body naming him and relies upon the authorisation of the delegator to carry out his duties.

634. More specifically, the Defence argues that Zejnil Delalic was appointed co-ordinator to fill a specific role in relation to the War Presidency and the armed forces in Konjic Municipality. This appointment was given to him because it was thought that he would be effective as a kind of mediator in dealing with problems between the War Presidency, a civilian body, and the different components which composed the defence forces in Konjic. Thus, the Defence contends that Mr. Delalic was, in this position, a mediator who could not independently make decisions or issue orders. It accordingly submits that when Mr. Delalic signed an order as co-ordinator, he did so to signify that he was present as a witness to an agreement. Moreover, it emphasises that the War Presidency did not, and could not, provide Mr. Delalic with any authority it did not possess itself. In this respect the Defence submits that the War Presidency was a civilian body without authority over the military, and could not, therefore, provide Mr. Delalic with any such powers. Similarly, the War Presidency had no authority to arrest or detain persons in custody, nor to establish a prison, and could not, therefore, confer such authority on Mr. Delalic. The Defence maintains that the evidence accordingly establishes that he, in his position as co-ordinator, had no command authority or superior responsibility in relation to any military formation, nor to the Celebici prison-camp. Instead, it holds that Zejnil Delalic in this role had as his primary responsibility the provision of logistical support in the preparation of the war effort.⁶⁴¹

635. According to the Defence, Zejnil Delalic was on 27 June 1992 mobilised into the ranks of the TO and was, from this day until approximately the end of July of that year, involved in fighting in the mountains around the region of Borci, approximately 40 kilometres east of the town of Konjic. It argues that, during this operation, Mr. Delalic was a rank and file soldier who communicated with the town of Konjic in relation to logistics, and submits that he possessed no superior authority or command function in this position. ⁶⁴²

636. Commenting on the evidence relied on by the Prosecution, the Defence contends that there exists such considerable contradictions and inconsistencies in the testimony given by Witness D so as to cause serious doubts as to the accuracy of his testimony. Moreover, it notes that, contrary to the evidence given by this witness, several Defence witnesses testified that Mr. Delalic never worked with the Military Investigative Commission and possessed no authority over this body. The Defence accordingly submits that when the evidence given by Witness D is seen in light of all the evidence of the case, there is no evidence that Mr. Delalic had any position of authority or superiority within the civil or military structures in Konjic, or that he had any connection to the Military Investigative Commission, the Celebici prison-camp or its personnel.⁶⁴³

637. In relation to the three release forms of detainees from the Celebici prison-camp, signed by Zejnil Delalic in the latter part of July 1992, the Defence submits that these documents all were issued by the Investigating Body of the War Presidency. Thus, it notes that each form was signed by Mr. Delalic "for" the Head of the Investigating Body, and argues that it is clear from this wording that he in signing the documents was acting not as the person in authority, but on behalf of another person so authorised. Moreover, it maintains that the evidence demonstrates that Mr. Delalic was authorised to sign all three release forms by Midhat Cerovac, the commander of the Konjic TO. The Defence thus submits that, taken as a whole, the release forms and the testimony given in relation to them, demonstrate that Zejnil Delalic had no authority to release prisoners from the Celebici prison-camp. ⁶⁴⁴

(ii) Status as Commander of Tactical Group 1 from 30 July to November 1992

638. According to the Defence, Zejnil Delalic assumed command of Tactical Group 1 on 30 July 1992, his appointment having been issued by the Supreme Command three days earlier. It is submitted that, both according to the terms of his appointment and having regard to his activities in this position, the evidence demonstrates that Mr. Delalic, as commander of Tactical Group 1, possessed no superior authority over the Celebici prison-camp or its personnel.

639. The Defence submits that the central issue in this regard is the composition of Tactical Group 1. It observes that this body was established as a temporary formation, charged with the specific task of lifting the siege of Sarajevo, and asserts that Zejnil Delalic, as the commander of this formation, could only command the units specifically assigned to him by the Supreme Command. In this respect, it maintains that the use of the term "all formations" in Mr. Delalic’s appointment of 27 July 1992, was vague and not implementable, and that, accordingly, the evidence demonstrates that Mr. Delalic never was in command of all formations in the municipalities enumerated in this document. It is thus argued that it is clear from the evidence that Mr. Delalic, as commander of TG 1, was not conferred with authority over a geographical region, and possessed no authority over Municipal TO staffs, the MUP, the HVO, Military Police Units and War Presidencies, or over any institutions in the areas from which the Tactical Group received formations for combat operations. Likewise, the Defence contends that TG 1 had no authority over such institutions as prisons, hospitals, military investigation commissions or their personnel. Specifically, it asserts that no guard or member of staff of the prison-camp at Celebici was ever subordinated to TG 1.⁶⁴⁵

640. In response to the Prosecution’s claim that the orders issued by Zejnil Delalic in relation to the Celebici prison-camp demonstrates that he in fact possessed power of command and control in relation to the prison-camp, the Defence maintains that in 1992 it was common for a commander in the armed forces of Bosnia and Herzegovina to be given additional tasks, such as the transmission of orders, that were not ordinarily part of his functions and duties. It asserts that such an assignment of a specific task did not expand the authority or functions of the subordinate commander. With specific reference to the orders issued by Mr. Delalic on 24 and 28 August 1992⁶⁴⁶, it is argued that it is clear from the preambles of these documents that Mr. Delalic, on these occasions, acted merely as a conduit and that he transmitted these orders pursuant to orders issued to him by the Supreme Command.⁶⁴⁷

(iii) Knowledge

642. Recognising that a number of witnesses testified to having seen Zejnil Delalic in the Celebici prison-camp at some point in 1992, the Defence submits that this establishes nothing more than the fact that he was occasionally present there. Noting that it is well established that the Celebici barracks were used for a number of things, such as a weapons repair depot and the training and swearing in of troops, it argues in this respect that such presence is consistent with Mr. Delalic’s role as co-ordinator. It is asserted that proof of mere presence does not establish that Mr. Delalic had any contact with the prison-camp, nor that he had any information which could lead to a showing of the requisite degree of knowledge pursuant to Article 7(3)⁶⁴⁸. The Defence further denies that the release forms for Dr. Grubac and Witness P demonstrate Mr. Delalic’s knowledge concerning the commission of the acts alleged in the Indictment. It submits that it is not only unclear whether the notation on these documents that the two doctors continue to care for injured prisoners was written by Mr. Delalic, but, moreover, that there is considerable evidence that those injured persons in the Celebici prison-camp were thought to have been injured in the course of combat operations⁶⁴⁹. Moreover, it is asserted that there exists a considerable problem of authenticity and reliability in relation to the document which is purported to be the final report of the Investigative Commission⁶⁵⁰. In response to the Prosecution’s assertion that this document is addressed to Zejnil Delalic as "Co-ordinator of combat operations", the Defence contends that Mr. Delalic never held this position, and submits that there is no proof that he ever received or saw this document. ⁶⁵¹

(iv) Failure to Act

643. According to the Defence, there is no evidence to show that Zejnil Delalic, between April and November 1992, had the authority or means to prevent the commission of the alleged offences in the Indictment, or to investigate or punish the perpetrators thereof. It is submitted that the law of command responsibility requires a commander to act reasonably in this respect, having regard to his rank, experience and the extent and level of his command. Asserting, inter alia, that there were no investigative or judicial institutions functioning in the region at the time relevant to the Indictment and that Zejnil Delalic as a commander of TG 1 did not have the authority to discipline soldiers under his command, the Defence contends that the specific circumstances in relation to Mr. Delalic are such that even if he had a duty to act, his situation would have precluded him from adopting the required measures.⁶⁵²

4. Discussion and Findings

644. The Trial Chamber has set out the relevant arguments of the parties with respect to the criminal liability vel non of Zejnil Delalic in respect of the offences with which he is charged. The relevant part of the Indictment and the related cgounts have also already been set out. It is thus necessary here to discuss the arguments of counsel and to analyse the facts in the issues involved. The ravamen of the issues before the Trial Chamber rests on the determination of whether Zejnil Delalic, the first accused, in the time-period relevant to the Indictment was in a position of superior authority to Zdravko Mucic, Hazim Delic, and Esad Landzo, the second, third and fourth accused persons in the Indictment, respectively, as well as the other guards and those other persons who entered the prison-camp and mistreated the detainees in the Celebici prison-camp.

(a) Preliminary Issues

645. The Trial Chamber deems it convenient and appropriate to discuss a few preliminary issues which it considers necessary for the elucidation of its reasoning. First, the Trial Chamber observes the complete difference of approach in consideration of the same issue between the Prosecution and the Defence. The Prosecution, in its effort to establish the superior authority of the accused, has relied on several pieces of evidence from which it has inferred the valid exercise of de facto authority in the absence of de jure authority. The Defence has relied entirely on the establishment of a de jure exercise of authority. Secondly, the Prosecution has considered the exercise of superior authority in a general sense without consideration of the nexus giving rise to a superior-subordinate relationship. The Defence has, however, insisted on the establishment of the superior-subordinate relationship in the exercise of responsibility. Thirdly, the Prosecution would seem to have ignored the principle of vicarious criminal responsibility which is the basis of the doctrine of command responsibility, the alter ego of superior authority.

646. The Prosecution has taken the position that the absence of de jure authority is not fatal to a finding of criminal responsibility. It is sufficient if there exists, on the part of the accused, a de facto exercise of authority. The Trial Chamber agrees with this view, provided the exercise of de facto authority is accompanied by the trappings of the exercise of de jure authority. By this, the Trial Chamber means the perpetrator of the underlying offence must be the subordinate of the person of higher rank and under his direct or indirect control.

647. The view of the Prosecution that a person may, in the absence of a subordinate unit through which the authority is exercised, incur responsibility for the exercise of superior authority seems to the Trial Chamber a novel proposition clearly at variance with the principle of command responsibility. The law does not know of a universal superior without a corresponding subordinate. The doctrine of command responsibility is clearly articulated and anchored on the relationship between superior and subordinate, and the responsibility of the commander for actions of members of his troops. It is a species of vicarious responsibility through which military discipline is regulated and ensured. This is why a subordinate unit of the superior or commander is a sine qua non for superior responsibility. The Trial Chamber is unable to agree with the submission of the Prosecution that a chain of command is not a necessary requirement in the exercise of superior authority. The expression "superior" in article 87 of Additional Protocol I is intended to cover "only … the superior who has a personal responsibility with regard to the perpetrator of the acts concerned because the latter … is under his control"⁶⁵³. Actual control of the subordinate is a necessary requirement of the superior-subordinate relationship. This is emphasised in the Commentary to Additional Protocol I.⁶⁵⁴

648. The Prosecution appears to extend the concept of the exercise of superior authority to persons over whom the accused can exert substantial influence in a given situation, who are clearly not subordinates. In other words, it seems to be the Prosecution’s position that the perpetrators of crimes for which the superior is to be held responsible need not be subordinates within the meaning of article 87 of Additional Protocol I. The Prosecution relies for this proposition on a passage in the Hostage case which may be appropriate within its context. It is, however, clearly not applicable to the facts of the instant case.

As cited above in Section III, the tribunal in the Hostage case stated as follows:

The matter of subordination of units as a basis of fixing criminal responsibility becomes important in the case of a military commander having solely a tactical command. But as to the commanding general of occupied territory who is charged with maintaining peace and order, punishing crime and protecting lives and property, subordination are [sic] relatively unimportant. His responsibility is general and not limited to a control of units directly under his command.⁶⁵⁵

649. The closest to the dictum above within which the facts of the case of Mr. Delalic could be brought, is his appointment as Commander of Tactical Group 1 on 27 July 1992, which took effect on 30 July 1992. Otherwise, his appointment as co-ordinator in May 1992, which was a civilian appointment, did not place him in any position of superior authority within the meaning of article 87 of Additional Protocol I. This appointment did not vest any status upon Mr. Delalic. The Prosecution would appear to have relied on the dictum in the Hostage case for the proposition that the criminal liability of a "superior" is not confined to acts of perpetrators who are directly subordinate in a chain of command. This latter proposition is valid in those cases where a commanding general is charged with the maintenance of peace and order and the punishing of crime and protecting lives and property, where subordination is regarded as relatively unimportant. It would be straining the imagination to uncomfortable limits to aim at bringing Mr. Delalic’s activities within this category.

(b) Analysis of the Activities of Zejnil Delalic(c) and the Concept of Superior Responsibility

650. The activities of Zejnil Delalic with respect to the war effort in the Konjic area from the date of his arrival there in April 1992, to his departure towards the end of November 1992, may be discussed under three phases. These are: (a) before 18 May 1992; (b) 18 May to 30 July 1992; and (c) 30 July to 25 November 1992. Each of these periods is significant for the role played by Mr. Delalic in the activities of the war effort in the Konjic area, and the recognition and status he enjoyed by virtue of his contribution - personal, financial and material - to the war effort in Bosnia and Herzegovina. It is, therefore, convenient for the Trial Chamber, and appropriate for the proper determination of the criminal responsibility of Zejnil Delalic, to here consider these time-periods in turn.

(i) Before 18 May 1992

651. It is important for the purposes of this Judgement to consider critically the evidence relied upon by the Prosecution to demonstrate the ability of Zejnil Delalic in this period to exercise superior authority in the activities of the war effort of Bosnia and Herzegovina in the Konjic area. It is uncontested that Mr. Delalic returned to Konjic from Austria at the end of March or beginning of April 1992⁶⁵⁶. He was recognised as a person with considerable wealth, who contributed generously and substantially to the defence of Konjic. In addition, he had management experience and extensive business connections in western European countries. Mr. Delalic was willing to put his wealth and personal endeavours at the disposal of the authorities organising the war effort in the Konjic area. Evidence of his enthusiasm, and the general recognition and appreciation of the community was given by General Jovan Divjak⁶⁵⁷, Salih Ruvic⁶⁵⁸, Major Sefkija Kevric⁶⁵⁹, Dr. Rusmir Hadzihusejnovic⁶⁶⁰ and Brigadier Asim Dzambasovic⁶⁶¹. As recognised by the Prosecution, these credentials by themselves did not place Mr. Delalic in a position of superiority. Instead, according to the Prosecution: "[t]his led to his gradual acquisition of authority and influence in the area".⁶⁶²

652. As evidence of how Zejnil Delalic acquired authority and influence during this period the Prosecution refers to a document purported to be signed by him in which he described his early involvement in the war⁶⁶³. Reference is also made to a War Veterans Association form completed by Mr. Delalic in which he describes himself as a member of the War Presidency of Konjic Municipality⁶⁶⁴. He is also said to have been a member of the Armed Forces of Bosnia and Herzegovina, more specifically the Territorial Defence Municipal Headquarters of Konjic⁶⁶⁵. Mr. Delalic is also credited by some for participating in a significant manner in the seizure of the JNA facility in Celebici on 19 April 1992. This was stated in Exhibit 144⁶⁶⁶, one of the Vienna Documents bearing his signature. He confirmed this claim in his interview with Prosecution investigators where he described himself as the leader of the group of 20 to 25 volunteers who carried out the operation⁶⁶⁷. In this statement, Mr. Delalic declared that he was present at the meeting of the War Presidency where the decision was made to conduct an operation under his supervision to take over the Celebici barracks and seize the weapons that were stored there⁶⁶⁸. The weapons seized were transported to his sister’s house in Ovcari for their final distribution⁶⁶⁹. The importance and significance of the participation of Mr. Delalic in these matters has been, however, considerably minimised by the testimonies of Major Sefkija Kevric⁶⁷⁰ and Midhat Cerovac⁶⁷¹.

653. On 2 May 1992, Zejnil Delalic was, by a "special authorisation" signed jointly by Dr. Rusmir Hadzihusejnovic as the President of the Konjic War Presidency and Esad Ramic as Commander of the Konjic TO Headquarters, authorised to negotiate and conclude contracts and agreements of great importance⁶⁷². Between 5 – 10 May 1992, Mr. Delalic undertook a mission to Zagreb for the acquisition of weapons for the Konjic municipality. The evidence before the Trial Chamber demonstrates that although the War Presidency was a civilian institution, Mr. Delalic was at no time a member of this body. In his testimony before this Tribunal, Iljas Hadzibegovic stated that "He [Delalic] could only have been invited to attend a meeting of the Presidency, but he certainly was not a member of that Presidency". ⁶⁷³

a. Seizure of the Celebici Barracks and Warehouses

654. The seizure of the JNA facility in Celebici by a group of 20 to 25 persons did not, by itself, attract any official attention and was not accorded any official recognition. There is no evidence that the group made the seizure under the aegis of any of the recognised commands, or that Zejnil Delalic was the commander of the unit. In fact the Defence has pointed out that the correct position of the seizure of the Celebici barracks and warehouses is that Mr. Delalic did not lead the operation, but rather that he received the task of transporting weapons from Celebici to a safe location. In his interview with Prosecution investigators, Mr. Delalic declared that the person in charge of commanding the military side of the operation was Midhat Cerovac⁶⁷⁴. In his testimony, Midhat Cerovac stated that the take-over of the Celebici facility was peaceful. He led a group tasked with engaging in combat if there was any resistance which there was not⁶⁷⁵. Major Sefkija Kevric, an assistant commander for logistics in the Municipal TO staff said that the task assigned Mr. Delalic was that of transporting weapons found to Kevric, who was waiting for Mr. Delalic at a farm in Ovcari owned by Zejnil Delalic’s sister.⁶⁷⁶

b. Authorisation of 2 May 1992

655. The authorisation of 2 May 1992 is one of the credentials which enabled Zejnil Delalic to exercise some authority. The nature of this authorisation, which is clearly not unique, is to enable Mr. Delalic to procure equipment for the defence of Konjic. The authorisation was signed by Dr. Rusmir Hadzihusejnovic, the President of the War Presidency, and Esad Ramic, the Commander of the Municipal TO staff. In his testimony Dr. Hadzihusejnovic stated that such authorisation was given to anyone who could be of assistance to the war effort in the procurement of material and supplies required. According to this witness, Zejnil Delalic was a civilian, not a soldier, and was performing a civilian function.⁶⁷⁷

c. Authorisation of 9 May 1992

656. There is a similar authorisation of 9 May 1992 by the Minister of National Defence of Bosnia and Herzegovina, Jerko Doko⁶⁷⁸. This is an authorisation empowering Zejnil Delalic to acquire certain materials for the needs of the defence of the municipality. It is an example of a power of attorney. The authorisation confers no status upon Mr. Delalic, neither does it place the recipient in any hierarchy of authority. Certainly it does not subordinate any officials to the recipient. Accordingly, it does not constitute the creation of a relationship of superior and subordinate.

d. Conclusion

657. The position of Zejnil Delalic with respect to the Celebici prison-camp during the relevant time-period seems to the Trial Chamber to be clear and unarguable. Mr. Delalic was not a member of the unit which took over the JNA facility in Celebici. Major Cerovac was the commander of this operation and his testimony stands unchallenged. Mr. Delalic was employed in the transaction in a ministerial capacity to transport weapons collected to Major Kevric, who was waiting at Ovcari. There is clearly no basis for assuming that, in this transaction, he operated as a person of superior authority. It is important to note that, the Prosecution in its submissions in this connection refers to the Celebici compound as a whole, not that part of it which was subsequently used for the detention of captured Bosnian Serb prisoners, here referred to as the prison-camp.

658. More generally, it seems clear to the Trial Chamber that the transactions in which Zejnil Delalic was involved in this first time-period did not vest or confer on him political or military authority. He did not acquire any civilian status which placed him into any hierarchy of authority creating a relationship of superior and subordinate. Our analysis of the facts resolves the situation into the simple case of a well-placed influential individual, clearly involved in the local effort to contribute to the defence of the Bosnian State. This effort and the recognition which accompanied it did not create a relationship of superior and subordinate between him and those who interacted with him.

(ii) 18 May to 30 July 1992: Zejnil Delalic(iii) and the Role of Co-ordinator

a. Appointed Co-ordinator – Meaning and Functions

659. Zejnil Delalic was appointed "co-ordinator of the Konjic Municipality Defence Forces" on 18 May 1992. The instrument of appointment was signed by Dr. Rusmir Hadzihusejnovic, President of the War Presidency in Konjic. Mr. Delalic was thus empowered to "directly co-ordinate the work of the defence forces of the Konjic Municipality and the War Presidency"⁶⁷⁹. The expression "co-ordinate" used in the appointment is significant. The term used admittedly is not a usual military term, and the function is unusual. The office was created to deal with the special circumstances in the Konjic municipality. The Prosecution has expressed the view that "… in such a fluid situation, in which well-developed structures were lacking, a strong and influential personality like Delalic could have acquired such a significant degree of authority to make him a leading Commander in Konjic".⁶⁸⁰

660. It seems to the Trial Chamber that the Prosecution has overstated the position. The creation of a functionary to reconcile areas where there are difficulties is an exercise to avoid conflicts between the institutions or functionaries. The meaning of the word "co-ordination" implies mediation and conciliation. The expression does not connote, and cannot reasonably be construed to mean, command authority or superior authority over the parties between which he mediates. The general principle is that a co-ordinator has his functions prescribed. He relies upon these functions and works within the given guidelines. On the basis of the guidelines under which Mr. Delalic was to operate, and in the light of the testimony of Dr. Hadzihusejnovic, there is no doubt that Mr. Delalic had no command authority or superior responsibility conferred on him. Not being a member of the armed forces, he could not have been in a position of superior authority to any of the armed forces in relation to which he exercised the functions of mediation.

661. The evidence before the Trial Chamber is that the position of co-ordinator was not provided for in the military structures of the SFRY or in the military regulations of the armed forces of Bosnia and Herzegovina in 1992. Accordingly, a co-ordinator appointed by a civilian authority, as Mr. Delalic was, cannot be interposed within the established system of command leadership over the Bosnian forces. Also, it cannot be considered a superior position or a position that vests command authority on an individual functionary⁶⁸¹. The Trial Chamber recognises the particularly difficult and skilful task of a person assigned the function of mediation. The Trial Chamber, however, does not agree that the appointment was necessitated by any lack of clear organisation in the Konjic area and the frequent changing of the TO Commanders. Apart from the inevitably disruptive activities of the war, the Trial Chamber accepts the submission of the Defence that the "evidence concerning the structures of the legally constituted organs and institutions in Konjic Municipality clearly shows that both before and during the war these bodies existed and functioned according to the law".⁶⁸²

662. The Prosecution has relied on functions associated with co-ordination of activities to argue that the exercise of such ancillary functions brings the co-ordinator within the meaning of superior authority. Reference has been made to the signing of orders by Zejnil Delalic⁶⁸³. Another purported example of superior authority is that Mr. Delalic carried on his assignment without supervision and apparently without a superior to whom he reported. The Trial Chamber does not share this view. The superior-subordinate relationship is the only indicium to determine the exercise of command authority. The Prosecution contends that Mr. Delalic was not only a co-ordinator but, during the same period, was also co-ordinator of combat activities⁶⁸⁴. There is evidence that Mr. Delalic was at sometime both co-ordinator and member of the TO⁶⁸⁵. The Trial Chamber does not discern any conflict in the discharge of the two roles. The only difficulty may arise where the discharge of the functions of co-ordinator simpliciter is relied upon for the claim of superior authority. There is no doubt that, if Mr. Delalic were shown to have been appointed to a command position in the TO, such an appointment would satisfy the criterion of superior authority under article 7(3) or articles 77 and 86 of Additional Protocol I. However, the appointment of Mr. Delalic at the relevant time was necessary to fill a gap created by the frictions among the armed forces in their dealings with each other. The particular skill and experience of Mr. Delalic was the immediate answer. Concisely stated, his duties were to operate as an effective mediator between the War Presidency, which is a civilian body, and the Joint Command of the Armed Forces. His regular intervention was designed to facilitate the work of the War Presidency with the different formations constituting the defence forces in Konjic. In this capacity he was not expected to make any independent decisions. Mr. Delalic was accountable to, and would report orally or in writing to, the body within the War Presidency which gave him the task.

663. Zejnil Delalic was not, at any time, a member of the War Presidency. His appointment as co-ordinator did not involve membership rights. By his appointment as co-ordinator, he was not a superior to anyone and he had no subordinates under him. It is clear from the appointment that this position is personal, attaching to no office. Clearly stated, Mr. Delalic never enjoyed any status of command authority or superior authority in the armed forces in Konjic municipality by virtue of his appointment as co-ordinator⁶⁸⁶. The Trial Chamber has heard uncontradicted evidence that Mr. Delalic was not a member of the Joint Command.

664. The primary responsibility of Zejnil Delalic in his position as co-ordinator was to provide logistical support for the various formations of the armed forces. These consisted of, inter alia, supplies of material, equipment, food, communications equipment, railroad access, transportation of refugees and the linking up electricity grids. Mr. Delalic never co-ordinated between the military forces, that is the TO and the HVO. His duties were confined to problems between the civilian and military authorities. The evidence of Arif Sultanic⁶⁸⁷ and Saban Duracic ⁶⁸⁸can be relied upon for such a conclusion. Mr. Delalic was, therefore, not in a position of command or a superior in relation to those who worked with him to carry out his duties of providing supplies or repairing much-needed facilities of electric supply to villages in the municipality of Hadzici.⁶⁸⁹

665. The Prosecution relies on the participation of Zejnil Delalic in the military operations at Donje Selo and Bradina as evidence of his exercise of command authority or superior authority. To this end, it notes that Mr. Delalic, in his interview with Prosecution investigators, declared that his main task in these operations "was to co-ordinate all these forces, these three different forces, with the War Presidency of the municipality"⁶⁹⁰. This claim is rejected by the Defence, which submits that Mr. Delalic’s responsibilities as a co-ordinator were to streamline the relationship between the military on the one part, and the War Presidency on the other. It is accordingly submitted by the Defence that Mr. Delalic, as co-ordinator, had no command authority or superior responsibility in relation to any military activities or military formation. The Trial Chamber has not received any evidence that Mr. Delalic had any military position or task in relation to the Donje Selo and Bradina operations. The testimony of Midhat Cerovac is that the order for the Donje Selo operation was prepared and signed by the Commander of the Joint Command, Omer Boric, and its Chief of Staff, Dinko Zebic⁶⁹¹. Similarly, on the testimony of Major Sefkija Kevric, the Bradina operation was carried out by the Joint Command. The combat orders were signed jointly by the Commander of the Joint Command, Omer Boric and his deputy, Dinko Zebic. The Commander of the operations at Bradina was Zvonko Zovko⁶⁹². The testimony of Enver Tahirovic ⁶⁹³and Midhat Cerovac⁶⁹⁴, who were officers and present at each of the operations, was that Zejnil Delalic was not present in either operation, and had neither military position nor task in them. The Prosecution still disputes the claim of Enver Tahirovic that Mr. Delalic was not in Konjic at the time, based on the evidence of Witness P⁶⁹⁵ and Ahmed Jusufbegovic⁶⁹⁶ who testified that Mr. Delalic was in his house in Konjic during the night between 26 and 27 May 1992, and there received Witness P immediately after the latter’s arrest in Bradina. Even if this testimony were considered to be an accurate recollection of the relevant time-period, this does not detract from the conclusion that Mr. Delalic had no commanding role in the operations at Bradina and Donje Selo.

b. The Gajret Ceremony

666. The Prosecution further relies on video footage of Zejnil Delalic’s presence at a send-off ceremony for a unit of soldiers from Konjic which had been subordinated to TG 1 (the Gajret unit) on or about 15 June 1992, as evidence indicating his exercise of an important military role⁶⁹⁷. At the time of the ceremony, the Gajret unit was under the command of Mustafa Polutak. As co-ordinator, Mr. Delalic provided supplies to this unit, including communications equipment, quartermaster supplies, uniforms and cigarettes. It is, therefore, possible that he was invited to the departure ceremony because of his association with the unit. There is evidence which remains uncontradicted that Mr. Delalic had no command authority or superior authority in his relationship with the Gajret unit or any command position in the forces of the Konjic municipality.⁶⁹⁸

667. In his testimony, General Polutak, the Commander of TG 1 at the time, said that the Gajret unit was subordinated to TG 1 pursuant to orders issued by Esad Ramic, the Commander of the Municipal TO Staff. There is, therefore, no basis for assuming that Mr. Delalic could have exercised any command authority or superior authority either de facto or de jure over this unit, the footage of the occasion in Exhibit 116 notwithstanding.

c. Participation in the Borci Operation as Co-ordinator

668. Zejnil Delalic’s participation in the military operation in the region of Borci between the end of June and the beginning of August 1992 is another basis on which the Prosecution asserts that he exercised command authority. It would seem to the Trial Chamber that the Prosecution completely ignores the evidence before it. It is relevant to point out, as the Defence for Mr. Delalic adumbrated in their reply, that Mr. Delalic was still a co-ordinator during this period, and was saddled with co-ordinating activities even though he had just become a rank and file soldier. Mr. Delalic continued to communicate with the town of Konjic in relation to logistics. According to Sefkija Kevric⁶⁹⁹, Mr. Delalic did not take part in combat activities and was not in a position of superior authority during this period. He was without command functions and could not issue any orders⁷⁰⁰. Midhat Cerovac also testified that Mr. Delalic had no military command, since he was not within the structure of command and control. His military task was simply to provide logistic support from the area of Vranske Stijene. Mr. Delalic did not take part in the military or technical planning of the Borci operation, nor did he issue orders in relation to it. In the preparation for the operation, Mr. Delalic made arrangements for the relevant needs for first aid equipment, transport conveyance and such supplies and facilities as could be provided by the civilian authorities, all consistent with his assignment as a co-ordinator.

d. Superior of the Celebici Prison-Camp

669. The Prosecution is strongly of the view that the participation of Zejnil Delalic in the administrative processes of the Celebici prison-camp per se makes him a superior of that institution and renders him responsible for the crimes of those working in that institution. The Prosecution evidence before the Trial Chamber attempts to show that Mr. Delalic was, on occasion, influential in the release of persons detained therein, and in suggesting the criteria for the release of persons detained. There is no evidence that the Celebici prison-camp came under Mr. Delalic’s authority by virtue of his appointment as co-ordinator. Analysis of the relevant evidence further demonstrates conclusively the failure of the Prosecution to show that Mr. Delalic was in a position of command authority or superiority in relation to the Celebici prison-camp and in a superior-subordinate relationship with those who have been alleged to have committed offences therein. The Trial Chamber does not consider the acts of Mr. Delalic, as relied upon by the Prosecution, as an unequivocal exercise of superior authority.

e. Issue of Orders to Institutions by Zejnil Delalic.

670. It is the contention of the Prosecution that Zejnil Delalic could issue orders to various municipal institutions in Konjic and its personnel. The evidence relied upon is the testimony of Witness P. In the presence of this witness, Mr. Delalic telephoned Dr. Ahmed Jusufbegovic, Director of the Health Centre, and asked him to treat him so that he could work⁷⁰¹. In his testimony Dr. Jusufbegovic stated that Mr. Delalic, who was very well known to him, telephoned him urging him to find a place in his Medical Centre for Witness P, who is a medical practitioner. The witness was unable to do so because of political problems which made it impossible for Witness P to work in the Medical Centre. Dr. Jusufbegovic testified that he was not bound to obey Mr. Delalic, who could not give him orders, not being a superior authority to him. He could only receive orders from the War Presidency⁷⁰². It is obvious from the above evidence that Mr. Delalic could not issue orders to those not subordinate to him.

671. The signature of Zejnil Delalic on orders, along with other signatures, has been construed by the Prosecution as evidence of the exercise of command authority or superior authority by Mr. Delalic. A direct example is an order of 3 June 1992 for the reopening of the railway line between Pazaric and Jablanica⁷⁰³. This document was authenticated by Arif Sultanic ⁷⁰⁴and by Brigadier Vejzagic⁷⁰⁵. In his comment as to the signature of the co-ordinator in this order, Dr. Rusmir Hadzihusejnovic suggested "[y]es, this would happen occasionally, that in some documents his signature would also feature. But this signature only meant that he was present there because he was a person who was supposed to transmit certain information to the War Presidency from the command post or vice-versa. And in no way did that mean that he could take decisions"⁷⁰⁶. Brigadier Vejzagic testified "[t]he fact that the co-ordinator has signed it means that he is aware that he has to co-operate with them, because this has to do with his responsibilities regarding materials, manpower, electric power, so the establishment of the railway line itself is more a civilian undertaking …".⁷⁰⁷ Similarly, Arif Sultanic stated "[h]is role was to co-ordinate all these activities, together with us, and upon the completion of the task to report back to the municipal authorities and the TO command, that is, the joint staff of the TO and the HVO, which of course he did"⁷⁰⁸. Midhat Cerovac also confirmed that "his principal task was to set in motion the railway line between Jablanica and Pazaric, which was of particular significance for three municipalities". ⁷⁰⁹

672. It may accordingly be noted that the general attitude preferred by the Defence is that Zejnil Delalic signed this order as a witness. However, Brigadier Vejzagic acknowledged that the signature of Mr. Delalic was needed to have the order effected quicker⁷¹⁰. It seems to the Trial Chamber that the signature of Mr. Delalic as co-ordinator did not confer validity on the order, which would have been valid without it. It was merely a formal acknowledgement of the involvement of the co-ordinator. Thus this does not suggest any command authority or superior responsibility on the part of Mr. Delalic.

673. The other two orders signed by Zejnil Delalic as co-ordinator are Exhibits 210 and 211. As with Exhibit 127, Brigadier Vejzagic testified that the co-ordinator merely signed here as witness, because he had to report back to the municipal authorities that the commanders had reached agreement⁷¹¹. The Prosecution criticises this reasoning on the ground that there is no distinction between Mr. Delalic and the other signatories on the face of the documents. With due respect to the Prosecution, the essential difference between the co-ordinator and the other functionaries is a difference between executive capacity which the other signatories enjoy, and a merely ministerial status which the co-ordinator has. All the co-ordinator achieves is to complement the position of the other functionaries who are essential signatories. Mr. Delalic as co-ordinator could not sign, therefore, any document as a person in authority, with a power to issue orders. The evidence of Sefkija Kevric⁷¹², Midhat Cerovac⁷¹³, Saban Duracic⁷¹⁴ and Dr. Rusmir Hadzihusejnovic⁷¹⁵ unequivocally expressed this. The Trial Chamber accepts the view that the co-ordinator had no power or authority to issue binding orders. The Trial Chamber, therefore, finds that Mr. Delalic, in his position as co-ordinator, did not issue any orders.

f. Zejnil Delalic and the Power to Make Appointments

674. The Prosecution claims that Zejnil Delalic had the authority to make appointments. As an example of the exercise of such authority, reference is made to the appointment of Zdravko Mucic as commander of the Celebici prison-camp, a ‘proposal’ made during an informal discussion. It so happened that Mr. Mucic actually took up the position. The Defence rejects this assertion on the ground that a proposal of a name during an informal meeting in no way can amount to the authority to appoint attributed to such a functionary. The Defence suggests that Mr. Delalic had no knowledge as to when and how Mr. Mucic became the Warden of Celebici prison-camp. The Trial Chamber is of the view that, on the premise that Mr. Delalic had authority to make appointments, it is paradoxical that he would propose the name of Mr. Mucic to someone else for appointment. It is interesting to observe that there is no evidence as to whom the name was proposed, and who actually had the power to appoint. It would also seem that Mr. Delalic had no knowledge of when Mr. Mucic actually became commander of the Celebici prison-camp. ⁷¹⁶

675. Again, it is suggested that Zejnil Delalic appointed Witness D as a member of the Military Investigation Commission. This contention is rejected by the Defence, who argue that Witness D had testified that he had absolutely no information regarding the duties and authority of Zejnil Delalic⁷¹⁷. Witness D admitted in his testimony that he was aware that members of the Croatian community in Bosnia and Herzegovina were appointed to their duties and posts by the HVO⁷¹⁸, and that, while in Konjic, he reported only to Ivan Azinovic at the HVO headquarters.⁷¹⁹

676. The evidence is that Witness D arrived in Konjic from Mostar with a special permit issued by the HVO in Mostar⁷²⁰. He reported to the President and the Deputy Commander of HVO, Ivan Azinovic, at the HVO headquarters in Konjic⁷²¹. It follows invariably that Witness D was appointed by the HVO. According to the testimony of the witness, which remains uncontradicted, the TO and HVO staff of Konjic Municipality created the Commission and were the bodies with authority over it⁷²². The Commission was a separate institution from the prison-camp at Celebici, and had no competence or jurisdiction over its operation⁷²³.

677. Witness D testified that he never released any prisoners and did not know of anyone else specifically authorised to do so⁷²⁴. He had several contacts with Zejnil Delalic, by whom he was issued his military uniforms⁷²⁵. The issuing of uniforms is consistent with the work of Mr. Delalic in logistics.

678. According to Witness D, he, Zejnil Delalic, and most members of the Military Investigation Commission, met on 1 June 1992 in the Administration Building (Building B) of the Celebici prison-camp⁷²⁶. Mr. Delalic, who appeared to be directing the proceedings, read out some kind of order which had arrived by fax⁷²⁷, which he explained to them as indicating how they were to conduct the interrogation of detainees based on a list of categories which Mr. Delalic had established⁷²⁸. At the end of the meeting, Witness D received a note from Mr. Delalic addressed to Ivan Azinovic requesting that Witness D be issued with a permit enabling him to travel between Konjic and Mostar on private business.⁷²⁹

679. The Defence for Zejnil Delalic has criticised the testimony of Witness D as manifesting inconsistencies in the following respects. First, the meeting is said to have taken place on 1 June 1992 while the fax⁷³⁰, which Witness D claims was read out by Mr. Delalic at the meeting, is dated 7 June 1992. Surely, if the fax was read out at the meeting it cannot be dated later than 1 June 1992. Either the meeting was held on 7 June 1992 when the fax was received, or there was no meeting at all. The second inconsistency is that Witness D, in his testimony, first stated that Mr. Delalic had established the categories into which the detainees were to be placed, but later denied personal knowledge of who designed the system of categories⁷³¹. Thirdly, the witness, during cross-examination, was no longer certain whether he received the note⁷³² introducing him to Ivan Azinovic, personally from Mr. Delalic at the meeting on 1 June 1992, or whether Mr. Delalic sent the note to him through some other person.⁷³³

680. These inconsistencies aim at demonstrating the unreliability of the testimony with respect to the authority of Zejnil Delalic over the Commission and his influence in other areas. In the view of the Defence, it is obvious from the evidence that Witness D, being a Croat, could only be appointed to the Military Investigation Commission by the HVO, and definitely not by Mr. Delalic who had no such authority⁷³⁴. The note purportedly given to Witness D by Mr. Delalic, was, on his own evidence, worthless as it was not necessary for him to present it to Ivan Azinovic to obtain his permit to travel to Mostar.⁷³⁵

681. The Trial Chamber recognises the fact that the categories of detainees were read out from the fax dated 7 June 1992. The witness may be rightly cautious in attributing the creation of the categories to Mr. Delalic. The Trial Chamber finds that Witness D was sent to Konjic by the HVO in Mostar and was the HVO member of the Military Investigative Commission in Konjic. Witness D appears to have had no knowledge regarding the duties and responsibilities of Zejnil Delalic or his status vis-à-vis the Commission. He knew that the Commission was under the authority of the TO and HVO staff of Konjic to whom the files on detainees prepared by the Commission were sent. The doubts created by this evidence regarding the relationship of Mr. Delalic to the Commission and the prison-camp were cleared by the evidence of Dr. Rusmir Hadzihusejnovic, Midhat Cerovac, Sefkija Kevric, and Enver Tahirovic. In their testimony they disclosed that Mr. Delalic never worked with the Military Investigative Commission, and that he had no authority over it. They also testified that Mr. Delalic never had any authority over the prison-camp at Celebici and that neither the civilian nor the military institutions in Konjic gave any authority to him. Furthermore, Mr. Delalic had no authority to appoint the head of the Military Investigative Commission.⁷³⁶

682. The evidence before the Trial Chamber is that the relevant authorities in the Konjic municipality responsible for the Military Investigative Commission and the prison-camp at Celebici were in place and working. There is no evidence that Zejnil Delalic had any position of authority or superiority over any of them. The Trial Chamber, therefore, finds that Mr. Delalic could not exercise any authority over the prison-camp at Celebici, its commander or its personnel.

683. Even if it is conceded, which it is not, that Zejnil Delalic held the meeting with members of the Military Investigative Commission where the guidelines for detention and release were discussed, this could have been a gratuitous exercise of his enthusiasm to be relevant, demonstrated by his meddlesomeness in a situation where he was not needed. The relevant institutional structures were in place, the personnel were not lacking, and he could therefore not possess even a de facto status.

684.As co-ordinator, Zejnil Delalic had no authority to release prisoners. The Prosecution relies on three release orders, signed by him in the latter part of July 1992, being Exhibits 95 (dated 17 July), 154 and 169 (both dated 22 July), relating to the release of Miro Golubovic, Witness P and Dr. Petko Grubac, respectively. It is important and pertinent to observe that all the release forms were signed ‘for’ the Head of the Investigating Body. The Prosecution regards this evidence as relevant because "they are the only three release forms in evidence for the entire period of June and July 1992"⁷³⁷. It is obvious from the evidence before the Trial Chamber that Mr. Delalic did not sign these orders in his capacity as "co-ordinator". He did so for the Head of the Investigating Body of the War Presidency.

685. The Prosecution has challenged the credibility of the testimony of Midhat Cerovac that he asked Zejnil Delalic to sign the release forms on his behalf, noting that this witness testified unequivocally that he never had authority over the Celebici prison-camp or authority to release prisoners.⁷³⁸ Notwithstanding the reasons adduced, it is sufficient for present purposes that Mr. Delalic did not sign the three release forms in his capacity and status as co-ordinator. He had no authority to do so in that capacity. It was, therefore, clear that he was not in a position of superior authority when he was acting upon the orders of Midhat Cerovac to sign the forms. Witness D testified, and it remains uncontradicted, that the TO and HVO staff of Konjic Municipality formed the Military Investigative Commission. They were the competent body with authority over the Commission⁷³⁹. There is also uncontradicted evidence that the Commission was a separate institution from the prison-camp at Celebici. The Commission had no jurisdiction over the operation of the prison-camp.

g. Conclusion

686. There is thus no evidence that Zejnil Delalic, as co-ordinator, had responsibility for the operation of the Celebici prison-camp with superior authority over the prison-camp and its personnel, or that he was in a position of superior authority to the guards and to those other persons who entered Celebici.

(iii) Zejnil Delalic(v) as Commander of Tactical Group 1

687. Zejnil Delalic was appointed Commander of Tactical Group 1 on 11 July 1992, by the Main Staff of the Armed Forces of Bosnia and Herzegovina. On 27 July, he was appointed commander of "all formations" of the armed forces of Bosnia and Herzegovina in the area of Dreznica-Jablanica-Prozor-Konjic-Pazaric-Hadzici-Igman. Mr. Delalic actually assumed command of TG 1 on 30 July 1992.

688. Tactical Group 1 was one of three temporary formations established to assist the lifting of the siege of Sarajevo. It was strictly a combat formation, and did not include non-combat institutions, such as hospitals, prisons, military training institutions, warehouses or technical workshops.⁷⁴⁰

a. The Meaning of "All Formations"

689. Prosecution and Defence witnesses have been unanimous in describing the use of the expression "all formations" in the order of 27 July 1992 as vague and not implementable. In explaining the expression used in this order, General Divjak testified that pursuant to the Law of Defence of May 1992, the armed forces of Bosnia and Herzegovina comprised three components: the Army of Bosnia and Herzegovina, the HVO and the MUP. According to the witness, this order did not place "all formations" of the three components of the armed forces of Bosnia and Herzegovina from the municipalities of Dreznica, Jablanica, Prozor, Konjic, Pazaric, Hadzici and Igman under Mr. Delalic’s command. The witness explained that it is not certain from this appointment which units are part of TG 1, because the expression "all formations" is very vague. The commander of the tactical group cannot order the municipal staff to give formations to his tactical groups unless he is specifically given authority by the Supreme Command in Sarajevo. No such authority was conferred on TG 1 pursuant to the appointment of 27 July 1992⁷⁴¹. Similarly, Mustafa Polutak in his testimony referred to the phrase "all formations" as vague, illogical and not implementable. As declared by this witness, even the person signing this appointment, Sefer Halilovic, the Chief of Staff of the Supreme Command, was not the commander of "all formations" of the armed forces, because the HVO was part of the formations of the armed forces of Bosnia and Herzegovina and yet they were never under the command of the main staff in Sarajevo. Similarly the MUP forces were part of the armed forces of Bosnia and Herzegovina and their formations were not under the command of the main staff in Sarajevo. Thus it would appear that the order was badly drafted. Mr. Delalic could not have been in command of all formations⁷⁴². This evidence was supported by the testimony of Brigadier Asim Dzambasovic.⁷⁴³

690. TG 1 had a small set composition of a maximum of 1,200 troops. This number was seldom fully assigned. The evidence of all who testified before the Trial Chamber was that Zejnil Delalic, as TG 1 commander, was never in command of "all formations"⁷⁴⁴. The commander of "all formations" did not exist in the organisational system. Mr. Delalic, as commander of TG 1, never had superior authority over the TO, HVO and MUP.

691. A review and analysis of the evidence presented by the parties in relation to the appointment of 27 July 1992, thus clearly shows that Zejnil Delalic, as commander of TG 1, was not in command of all formations in the municipalities of Dreznica, Jablanica, Prozor, Konjic, Pazaric, Hadzici and Igman. The confused expression used in the first order in the situation was clarified by the subsequent Order for Disposition of 8 August 1992, signed by the President of the Republic of Bosnia and Herzegovina, Alija Izetbegovic, appointing Mr. Delalic commander of the temporary war formation TG 1 in the areas of Hadzici, Pazaric, Konjic and Jablanica. This order terminates all previous orders of disposition and appointment in relation to TG 1⁷⁴⁵. The limitations of Mr. Delalic’s jurisdiction as commander of TG 1, is further evidenced by the creation of another temporary formation – TG 2 - in July 1992. This formation received units from the municipalities of Hadzici, Hrasnica, Ilidza, Krupac and Turnovo⁷⁴⁶. Thus, it is clear that both TG 1 and TG 2 received units from the municipality of Hadzici.

692. The Prosecution is of the view that Zejnil Delalic had the authority as commander of TG 1 to issue direct orders to the commander of the Celebici prison-camp. Two orders have been relied upon as incontrovertible examples of the exercise of such authority and evidence that Mr. Delalic was a superior authority regarding the Celebici prison-camp. The first is an order of 24 August 1992 issued by Mr. Delalic as commander of TG 1, directed to the OSOS (the Armed Forces Supreme Command Staff) of Konjic and copied to the "Celebici Prison Administrator", containing, inter alia, an order concerning the functioning of the Celebici prison-camp⁷⁴⁷. Mr. Delalic stated in this order that the "commander of the Konjic OSOS, BiH, is responsible to me for prompt and effective implementation of these orders"⁷⁴⁸. The second order, a follow-up to the first order, which had not been executed, was issued on 28 August 1992, directly to the "Celebici Prison Administrator"⁷⁴⁹. This order noted that the first order of 24 August had not yet been complied with and required the Military Investigating body of the Konjic OSOS to undertake interrogation of prisoners at Celebici. It required Zdravko Mucic to establish a commission of three members to undertake the interrogation of prisoners.

b. Nature of Tactical Group 1

693. The Trial Chamber wishes to recall the nature and scope of TG 1. A tactical group is entirely a combat unit without non-combat institutions. The command authority and responsibility of the commander is limited to members of his command. The uncontradicted evidence of General Arif Pasalic and General Jovan Divjak lays down the three key elements of a tactical group as follows:

(a) it is temporary in nature and disbands immediately after its mission is accomplished;
(b) the authority of the commander is limited to the units assigned to it by the Supreme Command and such command did not confer on the commander authority over any other units or over a geographical region; and
(c) the assignment of specific tasks or missions to the commander of TG 1 over and above his usual authority, by order of the Supreme Command, were specific to the mission and did not expand the authority of the commander beyond the terms of the specific order.⁷⁵⁰

694. The commander of a tactical group does not command a geographic area, but rather specific units assigned to his tactical group. The commander of a tactical group⁷⁵¹, when so ordered by his superior, must perform missions or tasks outside the scope of his specific authority as a tactical group commander.

695. The Prosecution would seem to have misunderstood the nature of the tactical group when it disputes the actual nature of the orders of 24 and 28 August. The view that the Supreme Command issued orders to Mr. Delalic about the Celebici prison-camp, which he then passed on to the TO headquarters and the camp commander, does not, by itself, indicate that Mr. Delalic had superior authority over the Celebici prison-camp.

696. The claim made by Zejnil Delalic in his interview with Prosecution investigators, that these were exceptional orders, issued by him at the request of the Supreme Command⁷⁵², seems to the Trial Chamber to be the more plausible position. These are not the orders of Mr. Delalic, who, as commander of TG 1, could not issue any orders outside those concerning his command. Mr. Delalic was in this case performing as a mere conduit or a ministerial functionary. Mr. Delalic was not a normal commander, but the commander of a tactical group. The Prosecution wants the inference to be drawn that, because the Supreme Command passed a message to the commander of the Celebici prison-camp through Mr. Delalic, he was the person responsible for the prison-camp. No such inference can or ought to be drawn. The principles governing the commander of a tactical group are clear. The order of the Supreme Command was sent to the relevant institution, that is the OSOS of Konjic, with command authority. It has always been recognised that a commander can be given an additional assignment by his superior, which is not ordinarily part of his duties, without in any sense enlarging his authority.⁷⁵³

697. The Trial Chamber finds that the authority of Zejnil Delalic over TG 1 was not enlarged by the extra orders he was given to discharge by the Supreme Command. Mr. Delalic did not, therefore, acquire any command authority or responsibility over the Celebici prison-camp and its staff.

c. Not a Regional Commander

698. The evidence before the Trial Chamber demonstrates that the commander of TG 1 was not a regional commander. He had no superior authority over municipal TO staff, MUP units, HVO units, military police units or War Presidencies. The commander of TG 1 had authority only over the formations that were directly subordinated to him by order of the Supreme Command. With regard to the Konjic municipality, members of the municipal TO staff testified that Zejnil Delalic had no superior authority or superior responsibility in relation to members of the municipal TO or to the municipal staff. All military divisions and units artillery and anti-aircraft units in the Konjic municipality were subordinate to the municipal TO staff and not to the commander of TG 1. The municipal TO staff in Konjic had exclusive command and control over its troops⁷⁵⁴. In both Konjic and Jablanica municipalities, Mr. Delalic, as TG 1 commander, was not superior to MUP units.

699. As commander of TG 1, Zejnil Delalic’s authority to make appointments, even within his formation, was limited to provisional appointments to the staff of TG 1. The evidence shows that the commander of TG 1 could not appoint his own staff. He could only nominate or select people he would wish to work with and the appointment was then made by the Supreme Command.⁷⁵⁵

700. The Prosecution has relied on the practice whereby the Supreme Command delegates to a commander duties above his ordinary assignment. The delegation of authority by the Supreme Command is regarded as an enlargement of authority. The Prosecution contends that, if Zejnil Delalic did not automatically have authority over the Celebici prison-camp simply by virtue of his position as Tactical Group commander, he may well have had such authority by virtue of delegation from the Supreme Command. The Prosecution has not led any evidence of such delegation of authority. Reference has been made to the evidence of Defence witnesses who did not know about some orders in August 1992 from Mr. Delalic regarding Celebici or his contacts with the ICRC or his interviews with journalists about the Celebici prison-camp⁷⁵⁶. With due respect to the Prosecution the claim made should not be allowed to disappear as a matter of speculation. A delegation of authority is a crucial matter, the burden of proof of which is on the party asserting the delegation. The onus is surely not on the accused but on the Prosecution, who is making the assertion. The Prosecution would wish the assertion to be accepted on the assumption that the extent of Mr. Delalic’s authority was not clearly defined and that this was a matter of practice rather than theory. The Trial Chamber cannot be lured into such consideration of the exertion of personal influence for the commission of irregular conduct in the face of express regulations of transactions. It cannot be disputed that the powers and scope of Mr. Delalic’s authority were clearly defined in his appointment as co-ordinator. His appointment as commander of TG 1 was clearly governed by law, and it would certainly be absurd to consider the conduct of Mr. Delalic on the basis of his considerable personal influence and authority de hors express authorisation. The Trial Chamber declines to accept the invitation.

701. The Prosecution has contended that Zejnil Delalic had, and exercised, command authority over various municipal bodies throughout his geographical area. Reliance for this assertion is placed on Exhibit 224, dated 14 November 1992, in which Mr. Delalic, as commander of TG 1, gave an order to the Konjic municipal Defence Headquarters relating to the strengthening of intelligence. The Prosecution also relies on Exhibit D169/1⁷⁵⁷. In this document Esad Ramic, commander of the TO, formally appointed Sefkija Kevric as Deputy Commander for Logistics, as stated in the document "[o]n basis [sic] of the appointments made by the Main Staff of the Army of Bosnia and Herzegovina, No. 02/349-343 dated 11 July 1992 and Orders of the Bosnia and Herzegovina Armed Forces"⁷⁵⁸. The reference number quoted is that of Mr. Delalic’s appointment of 11 July 1992. It is contended by the Prosecution that Esad Ramic relies on that order in making the formal appointment of Major Kevric. The Trial Chamber rejects both contentions as misconceived.

702. The Trial Chamber starts with the contention of Esad Ramic’s purported reliance on Mr. Delalic’s appointment of 11 July 1992. Esad Ramic was the commander of the TO. His appointment did not have the constraints of a TG 1 commander. He could in this position make formal appointments. The order relating to intelligence of 14 November 1992 issued by Mr. Delalic, as commander of TG 1, is sui generis. It was made pursuant to a standing order of the Supreme Command requiring municipal TO staff to provide intelligence information to tactical groups. It was not an independent order of the commander of TG 1 to the municipal TO staff. According to Colonel Sucro Pilica, this order was a transmission from the Supreme Command to the municipal TO staff. The date of the order corresponds with the period during which an operation to lift the siege of Sarajevo was being prepared.

703. In his testimony Zijad Salihamidzic, the Deputy Staff Head of Intelligence in Konjic, testified that the order of 14 November 1992 was identical to the instructions received from the Supreme Command regarding the obligation of the municipal TO staff to provide intelligence to TG 1 and TG 2. It is well recognised that as commander of TG 1, Zejnil Delalic could not issue orders on his own authority to the municipal TO staff in Konjic⁷⁵⁹. The Trial Chamber is accordingly satisfied that the order of 14 November 1992 relied upon by the Prosecution does not represent the exercise of command authority by Mr. Delalic, as commander of TG 1, over the municipal TO staff of Konjic.

(c) The Vienna Documents

(i) Introduction

704. In the course of these proceedings, a number of documents seized at the premises of the Inda-Bau company in Vienna, a firm with which Zejnil Delalic is alleged to have had close links, have featured considerably as part of the case of the Prosecution. Indeed, the Prosecution has relied on these documents as evidence of the superior authority of Mr. Delalic under Article 7(3) of the Statute. These exhibits⁷⁶⁰, consisting of videos and documents, are here referred to as "the Vienna Documents". In the Decision on the Motion of the Prosecution for the Admissibility of Evidence of 21 January 1998, this Trial Chamber stated the attitude towards admissibility of the exhibits and their probative value as follows:

the Trial Chamber wishes to make clear that the mere admission of a document into evidence does not in and of itself signify that the statements contained therein will necessarily be deemed to be an accurate portrayal of the facts. Factors such as authenticity and proof of authorship will naturally assume the greatest importance in the Trial Chamber’s assessment of the weight to be attached to individual pieces of evidence.⁷⁶¹

In that Decision the Trial Chamber stated that in the admission of documents the fact that the alleged authors have not appeared as witnesses is a factor to be taken into account at the stage of assessing the weight and probative value of such exhibits. This is because such documents would not have received and survived the scrutiny involved in the cross-examination of a witness.⁷⁶²

705. The Trial Chamber considers the Vienna documents in accordance with their probative value and the extent to which they have been established in evidence. Prima facie they are all relevant to the consideration of the contention that Zejnil Delalic had command authority by virtue of his transactions in relation to the war effort in Bosnia and Herzegovina, and whether he was, at the period relevant to the Indictment, in a position of superior authority in relation to the institutions in the Konjic municipality; and, in particular, over the Celebici prison-camp, its commander and guards. The Trial Chamber will here consider the documents in the following three categories. First, there are those which are authenticated (Exhibits 118, 137, 141). Secondly, there are documents of particular relevance (Exhibits 117, 130, 131, 132, 144, 147A). Thirdly, there are documents of general relevance (Exhibits 119, 121, 122, 123, 124, 125, 126, 127, 128, 129, 133, 143, 145, 146, 147B, 147C).

(ii) The Authenticated Exhibits

706. Exhibit 118, identical to Exhibits 71 and 99-7/9, is the appointment of Zenil Delalic as commander of TG 1, dated 11 July 1992. However, the evidence of General Mustafa Polutak, the predecessor of Mr. Delalic, and Colonel Sucro Pilica, the Chief of Staff of TG 1 under General Polutak and Mr. Delalic, was that they were never aware of the order of 11 July 1992, and that Mr. Delalic only became aware of his appointment on 30 July 1992. This is consistent with the interview of Mr. Delalic himself with the Prosecution where he stated that he saw his appointment as commander of TG 1 for the first time after 27 July 1992, when he arrived at Igman. This evidence is consistent with the testimony of Arif Sultanic and Major Kevric that they had personal knowledge of the appointment of Mr. Delalic as commander of TG 1. The Trial Chamber accepts this version of events and finds as a fact that Mr. Delalic became commander of TG 1 on 30 July 1992.

707. Exhibits 137 and 141 are documents signed by General Arif Pasalic and admitted through him. They were admitted prima facie on the basis that the rank, responsibilities and duties ascribed to the persons indicated therein are accurate. However, the description in Exhibit 137 of Zejnil Delalic as being commander of TG 1 on 7 December 1992 is not correct. Similarly, the description in this document of Edib Saric as Assistant to the Commander of TG 1 for Security, and Nedzad Spago as the Security Officer for TG 1, are incorrect. No such offices indeed existed in the command structure of TG 1. The correct position is that, on 14 August 1992, Edib Saric was appointed Chief of Staff of TG 2 by the Chief of Staff of the Supreme Command, and that he on 20 August 1992 was appointed the Head of Security for the temporary command of the JUG Group.

708. Exhibit 141 describes Zejnil Delalic as the commander of TG 1 directly responsible for the Celebici prison-camp. In his testimony before the Trial Chamber, General Pasalic admitted he did not conduct any investigation as to the accuracy of the content of the document and that he relied entirely on information given to him by an investigating commission of the functions ascribed to individuals named in Exhibit 141. General Pasalic admitted that he never saw any document confirmatory of the information in Exhibit 141. Neither did he have any information which gave him personal knowledge about the chain of command at Celebici prison-camp. In his testimony before the Trial Chamber, General Pasalic stated that Mr. Delalic, as commander of TG 1, had no superior authority over the Celebici prison-camp or its personnel, and that his authority in this position was limited to the formations that were placed temporarily under his command. In the face of such obvious contradictory statements it would seem inevitable that the Trial Chamber will attach no weight to Exhibit 141. The Trial Chamber is strengthened in its view by the fact that General Pasalic’s testimony about Mr. Delalic and his relationship with the Celebici prison-camp is completely supported by the evidence of all other witnesses, both Prosecution and Defence. Exhibit 141 can, therefore, not be relied upon as supporting the proposition that Zejnil Delalic, as commander of TG 1, had authority over the Celebici prison-camp or its personnel. The correct position, as stated by all witnesses, is that Zejnil Delalic, as commander of TG 1 did not have command authority over the prison-camp and was not in a position of superior authority to its personnel.

(iii) Exhibits 117, 130, 131, 132, 144, 147A

709. There is a peculiar feature of these documents in that, although they are all relevant to the issue at hand, none of them is authenticated as the parties alleged to have created them never gave evidence. Accordingly, it was not possible to expose them to the scrutiny of cross-examination. For instance, Exhibits 117, 131 and 147A are hand-written and unsigned. Exhibits 130, 132 and 144 are typewritten and only Exhibit 144 is dated. Exhibit 144 is purported to have been signed by Zejnil Delalic. Exhibit 117 is a five-page, undated, unsigned, photocopied, hand-written document. Exhibit 130 is a typed, twelve-page, undated document purported to have been signed by Zradvko Mucic, certified by the Consulate of the Republic of Bosnia and Herzegovina in Vienna. Mr. Mucic did not give evidence at the trial. Consequently, it was not possible to test the authenticity of the document. There is no evidence of the specimen signature to enable determination as to whether Mr. Mucic is the maker of Exhibit 130. This document is undoubtedly unreliable.

710. Exhibit 131 is a hand-written, undated, unsigned two-page document. It was purportedly written by the deputy to the commander of TG 1. Exhibit 132 is a three-page, typed document addressed to the President of the Republic of Bosnia and Herzegovina. The document is unsigned, with the name of Edib Sarib typed in at the end. Once again this exhibit cannot be ascribed any weight. Exhibit 144 is a typed, fourteen-page document, dated 14 December 1992 in Geneva and purportedly signed by Zejnil Delalic. It is clear that on 14 December, when the letter was written, the command of Mr. Delalic had been disbanded and no longer existed. Finally, exhibit 147A is an undated, unsigned, hand-written registration card for the United Association of War Veterans to which no weight can be attached.

(iv) Exhibits 119, 121, 122, 123, 124, 125, 126, 127, 128, 129, 133, 143, 145, 146, 147B, 147C

711. Only two of the 16 exhibits indicated above, regarded as being of general relevance in these proceedings, were shown to witnesses. These are Exhibits 119 and 127. There is no evidence of the authenticity and the authorship of the remaining documents and they, therefore, lack weight. Exhibit 119 is a hand-written note dated 8 May 1992 in Zagreb, of only one page. This document merely shows that Mr. Delalic was in Zagreb on 8 May 1992. It provides no indication either as to his superior authority or as to his responsibility as a commander.

712. Exhibit 127 is an order dated 3 June 1992, with respect to the opening of a railroad between Jablanica and Pazaric. There is evidence that Zejnil Delalic at this time was acting as co-ordinator with no command authority or superior responsibility. The Trial Chamber does not accept the argument that the fact that Mr. Delalic is a co-signatory of the order made him a commanding authority over the institutions in Konjic municipality. He was a co-ordinator responsible to the War Presidency for the results of the assignment given to him by that body. Exhibits 125 and 128 both relate to Mr. Delalic. Exhibit 125 mentions his name but does not ascribe to him any rank, responsibilities or duties. Exhibit 128, by implication, suggests that Mr. Delalic was commander of TG 1 on 25 June 1992. The evidence before the Trial Chamber, both oral and documentary, is that Mr. Delalic in fact became commander of TG 1 on 30 July 1992.

713. Exhibits 121, 122 and 123 are all hand-written documents. Exhibit 121 is dated 7 May 1992 and signed "Zejnil". There is no evidence that the signature represents that of Zejnil Delalic nor that he signed it. There is no proof of the authenticity or of the authorship of the document. Exhibits 122 and 123 are undated and unsigned and there is no proof of their authorship. These exhibits cannot be ascribed any weight. They do not tend to establish the guilt of Mr. Delalic with respect to any of the charges against him in the Indictment. Exhibit 145 consists of two type-written and two hand-written pages. Exhibit 146 consists of three pages of hand-written notes. Exhibit 147B is a hand-written, one-page, letter, dated 25 November 1992 in Vienna and signed "Zejnil Delalic". There is no proof of their authorship or the context in which they were written. Exhibit 124 is a four-page, type-written letter dated 8 December 1992 and signed "Oganj, Zejnil Delalic". There is no proof of the authenticity or authorship of the document. The document was doubted by General Arif Pasalic in his testimony, on the ground that the Staff of the Supreme Command was incorrectly designated in the heading and its reference to TG 1 was incorrect because, by 8 December, TG 1 was incorporated into the 4^th Corps of the Army of Bosnia and Herzegovina.

714. Exhibit 126 is a five-page, hand-written document, dated 27 April 1993 and signed "Oganj". There is no proof of the authorship or authenticity of this document and no weight can be attached to it. Exhibit 143 is a two-page, type written news release from a news agency in Mostar, dated 7 December. No year is indicated and the document is not authenticated.

(v) The Videos

715. The exhibits recovered at the Inda-Bau premises in Vienna included some video-tapes. The videos consist of scenes filmed by, or on behalf of, Mr. Delalic in respect of activities in which he was participating. The videos are a relevant factor because the Trial Chamber has heard evidence that Zejnil Delalic was the victim of a smear campaign in the Croatian Press in 1992 and that his family and friends in Vienna and Zagreb attempted to counter the negative propaganda against him⁷⁶³. This propaganda was that Mr. Delalic was a spy for the Serbs, in the KOS (Intelligence Service in the former Yugoslavia) and that he was a traitor to Bosnia and Herzegovina who freed Serb prisoners and fled Konjic in a Serbian helicopter.

716. Exhibit 116 consists of the video entitled "War in Bosnia-Herzegovina" which was made between mid-January and the end of March 1993. This video consists of edited portions of twenty to thirty videos containing footage from television broadcasts in Croatia, Bosnia and Herzegovina, Serbia and private amateur videos and a text composed by Ekrem Milic⁷⁶⁴. The purpose of this was to counter the negative media campaign against Mr. Delalic in the Croatian press. Ekrem Milic composed fifteen commentaries which are the narrated text of Exhibit 116. The text is an example of a counter campaign that contains many exaggerations in an attempt to respond equally to the smear campaign against Mr. Delalic. The evidence before the Trial Chamber is that Mr. Delalic was not consulted prior to the editing and making of this video. At the time he was living in Munich and only became aware of the project after its completion.

717. The most accurate way to describe Exhibit 116 is to say that it was supposed to be a lie to counter what Ekrem Milic believed to be a lie about Mr. Delalic. It was simply composed to exaggerate the importance of Mr. Delalic in response to the lies that had been propagated against him that he had been a traitor and a spy for KOS and that he had left Bosnia and Herzegovina in a "Chetnik" helicopter for Belgrade⁷⁶⁵. In light of the admission, on oath, by Ekrem Milic that the video "War in Bosnia-Herzegovina", contains untruths and exaggerations created for the express purpose of refuting negative press propaganda, the Trial Chamber cannot give any weight to this evidence, which undoubtedly cannot have any probative value in the determination of the charges against Mr. Delalic.

(vi) Conclusion

718. The Trial Chamber has carefully studied the Vienna Documents. We are satisfied, upon analysis, that these exhibits do not provide reliable evidence of the command authority or superior responsibility of Zejnil Delalic over the prison-camp at Celebici and its personnel, as alleged.

719. The foregoing arguments have been considered for the determination of whether the Prosecution has established that Zejnil Delalic had, in all his activities in the Konjic municipality and in relation to the armed conflicts which affected the municipality in 1992, command authority over the institutions which interacted with him, in particular whether he had superior authority and responsibility over the prison-camp in Celebici, its commander and guards. The onus to establish the essential requirement that Zejnil Delalic had command authority vis-à-vis such institutions and that he was a superior of the commander of the prison-camp at Celebici and the guards, rests entirely on the Prosecution.

720. It is important to reiterate the fact that all the offences with which Zejnil Delalic is charged occurred in the prison-camp at Celebici. The perpetrators of these offences are alleged to have been the commander of the prison-camp and the guards there. Mr. Delalic has been charged with responsibility for their crimes under Article 7(3) of the Statute. Accordingly, the Prosecution must establish beyond reasonable doubt that Mr. Delalic was the superior of the commander of the prison-camp and the guards, and that they were subordinate to him. The Prosecution has failed to prove this element either through documentary evidence, de jure, or by the conduct of Mr. Delalic de facto in all his interactions with the personnel at the Celebici prison-camp and the guards. Having failed to prove this sheet anchor of responsibility of the superior for the acts of his subordinates, cassus cadit.

5. Conclusion

721. The judicial precedents considered above in Section III all show that a commander has an affirmative duty to act within, and enforce, the laws of war. This duty includes the exercise of proper control over subordinates. A commander who breaches this duty and fails to prevent or punish the criminal acts of his subordinates may be held criminally liable. The courts have not accepted the proposition that a commander be held responsible for the war crimes of persons not under his command. In the instant case, the Trial Chamber has found that the Prosecution has failed to prove that Mr. Delalic had command authority and, therefore, superior responsibility over Celebici prison-camp, its commander, deputy commander or guards. Mr. Delalic cannot, therefore, be held responsible for the crimes alleged to have been committed in the Celebici prison-camp by Zdravko Mucic, Hazim Delic, Esad Landzo or other persons within the Celebici prison-camp.

D. Superior Responsibility of Zdravko Mucic

1. Introduction

722. On the basis of his alleged position as commander of the Celebici prison-camp, Zdravko Mucic is charged with responsibility as a superior for all of the offences alleged in the Indictment. In addition to being charged as a participant for the creation of inhumane conditions (counts 46 and 47), the unlawful confinement of civilians (count 48) and the plunder of private property (count 49), Mr. Mucic is accordingly charged in the Indictment with responsibility pursuant to Article 7(3) of the Statute for acts of murder (counts 13 and 14), acts of torture (counts 33 to 35), acts causing great suffering or serious injury to body or health (counts 38 and 39), inhumane acts (counts 44 and 45), the subjection of detainees to inhumane conditions constituting the offences of wilfully causing great suffering or serious injury to body or health and cruel treatment (counts 46 and 47), the unlawful confinement of civilians (count 48), and plunder (count 49).

723. In sub-section F below, the Trial Chamber will make its factual findings in relation to the underlying offences for which the accused is alleged to be criminally liable in this manner. Before proceeding further, however, it must first consider whether, as the Prosecution alleges, Mr. Mucic has been shown inter alia to have been in such a position of superior authority in relation to the Celebici prison-camp that the conditions for the imposition of criminal responsibility pursuant to Article 7(3) of the Statute have been met.

2. The Indictment

724. The relevant general allegations made in the Indictment in relation to the superior responsibility of Zdravko Mucic read as follows:

4. Zdravko Mucic, also known as "Pavo", born 31 August 1955, was commander of Celebici camp from approximately May 1992 to November 1992.

[. . .]

7. The accused Zejnil Delalic, Zdravko Mucic and Hazim Delic had responsibility for the operation of Celebici camp and were in positions of superior authority to all camp guards and to those other persons who entered the camp and mistreated detainees. Zejnil Delalic, Zrdavko Mucic and Hazim Delic knew or had reason to know that their subordinates were mistreating detainees, and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators. By failing to take the actions required of a person in superior authority, Zejnil Delalic, Zdravko Mucic and Hazim Delic are responsible for all the crimes set out in this indictment, pursuant to Article 7(3) of the Statute of the Tribunal.

3. Arguments of the Parties

(a) The Prosecution

725. According to the Prosecution, Zdravko Mucic was commander of the Celebici prison-camp from late May or early June until late November 1992, regardless of if, or when, he received any formal written appointment. It contends that in this position he possessed superior authority over the functioning of the prison-camp, with powers of control over its personnel, including the deputy commander and the guards.⁷⁶⁶

726. In support of this position, the Prosecution relies on a large body of oral and documentary evidence which it contends demonstrates Mr. Mucic’s superior position. It thus submits that practically all of the former detainees in the Celebici prison-camp who gave evidence before the Trial Chamber, testified that Mr. Mucic was the camp commander. It maintains that this evidence is confirmed by the testimony of those witnesses who worked in the Celebici prison-camp, including that of Mr. Mucic’s co-accused Esad Landzo, and the evidence given by a number of individuals who visited the camp during the period relevant to the Indictment.⁷⁶⁷

727. Among the documentary evidence offered by the Prosecution are a number of documents from the 4^th Corps of the Army of Bosnia and Herzegovina from December 1992, which are said to indicate that Zdravko Mucic was considered to have been commander of the Celebici prison-camp from at least June 1992⁷⁶⁸. The Prosecution further relies, inter alia, on a number of release documents alleged to have been signed by Mr. Mucic⁷⁶⁹, as well as a letter from the ICRC to Zejnil Delalic with a copy addressed to "Commander PAVO Mucic – Commander of the Celebici Prison"⁷⁷⁰. In addition, emphasis is placed on Mr. Mucic’s statement in his interview with the Prosecution investigators, where it is said that he himself admitted that he had authority over the camp, at least from 27 July 1992.⁷⁷¹

728. According to the Prosecution, there can furthermore be no doubt that Zdravko Mucic knew of the crimes being committed in the Celebici prison-camp by his subordinates. Moreover, it alleges that conditions in the prison-camp were such that Mr. Mucic in any event had reason to know of these offences. In this respect, the Prosecution relies, inter alia, on evidence from a number of former detainees, which it asserts demonstrates not only how Mr. Mucic took a leading role in abuse of detainees, but also how conditions in the camp were such that Mr. Mucic should have known of the crimes being committed. Specifically, it is alleged that although the injuries suffered by the detainees were evident, Mr. Mucic made almost no inquiries concerning their medical conditions and made no effort to establish a system such that he would be advised of the conditions in the prison-camp.⁷⁷²

729. The Prosecution further maintains that the record establishes that Mr. Mucic, as commander of the Celebici prison-camp, failed to take any appropriate action to prevent the mistreatment of detainees, or to punish the commission of the crimes committed there. It submits that he did not institute any kind of reliable reporting system in the prison-camp, and that he failed to ensure that the guards and the deputy commander who were known to mistreat prisoners did not have access to the detainees. Moreover, it contends that the evidence shows that, even if Mr. Mucic did issue orders concerning the treatment of prisoners, he failed to ensure that these orders were obeyed. It asserts that, although Mr. Mucic on occasion did intervene to help certain detainees, there is no evidence to support the claim that Mr. Mucic did everything reasonably possible in this respect. Instead, it is the Prosecution’s view that any such action which Mr. Mucic may have taken to alleviate the suffering of the victims cannot be a defence, but could only be taken into account as a mitigating circumstance in sentencing.⁷⁷³

b) The Defence

730. The Trial Chamber notes that the Defence for Zdravko Mucic in the course of these proceedings, has adopted different positions in relation to the charges raised against him pursuant to Article 7(3) of the Statute, which appear to be in part conflicting. The Trial Chamber considers it appropriate here to set out those arguments presented by the Defence in its final written and oral submissions, on the understanding that this constitutes its final and definitive position in relation to this matter.

731. According to the Defence, the evidence offered by the Prosecution fails to demonstrate that Zdravko Mucic ever held the position of commander of the Celebici prison-camp. It contends that it remains unclear what authority or body controlled the prison-camp section of the Celebici compound at different times in 1992, and submits that it has never been demonstrated from whom the persons present in the camp derived their authority. Specifically noting the absence of any document formally appointing Mr. Mucic to the position of commander or warden of the Celebici prison-camp, it thus asserts that it has not been shown what authority, powers and duties Mr. Mucic held in relation to the prison-camp and its personnel. Specifically, the Defence asserts that it has not been proven whether Mr. Mucic was a military commander or a civilian warden or administrator, nor what powers were given to him to investigate and punish those who mistreated detainees. In addition, it submits that there is consistent evidence that different military, paramilitary and police units, including MUP units, had easy and frequent access to the prison-camp for a multitude of reasons, and contends that it has not been demonstrated how anyone in the Celebici prison-camp, let alone Mr. Mucic, had the power to control these entities, or to investigate and punish any crimes committed by them. ⁷⁷⁴

732. Moreover, the Defence asserts that there exists no credible evidence that Zdravko Mucic knew in advance that any acts of mistreatment were going to take place, or that he had any duty or authority to punish or prevent such acts⁷⁷⁵. In this respect, the Defence further contends that there is consistent evidence that Mr. Mucic did what he could, within his limited authority as a person who was present in the prison-camp at some juncture, to prevent the commission of crimes, and that he gave orders that detainees were not to be mistreated. It further submits that there is consistent evidence that persons engaged in mistreatment took steps to conceal from him what they were doing, and it contends that there was far greater discipline when Mr. Mucic was present in the prison-camp than in his absence. Moreover, there is said to be evidence that Mr. Mucic made inquiries of detainees about mistreatment, but that they refused to provide him with such information on the ground, inter alia, that they feared for possible repercussions from the guards.⁷⁷⁶ Accordingly, the Defence argues that whatever Mr. Mucic’s undefined power was, he could not have taken any action to punish or report those committing crimes in the Celebici prison-camp, as he could not get beyond the first step of identifying any such perpetrators.⁷⁷⁷

4. Discussion and Findings

733. The Prosecution relies on oral and documentary evidence submitted in these proceedings in order to establish the exercise by Zdravko Mucic of superior authority over the Celebici prison-camp, his deputy, and the guards. According to the Prosecution, Mr. Mucic was commander of the Celebici prison-camp from late May or early June 1992, in the absence of a formal written appointment. The Defence rejects this assertion of the Prosecution. It contends, on its part, that it still remains unclear what body or authority was in control of the Celebici prison-camp at different times in 1992. It is argued that the Prosecution has not demonstrated from whom those administering the prison-camp derived their authority. The Defence further questions the Prosecution’s assertions concerning the authority, powers and duties of Mr. Mucic in relation to the camp and its personnel.

734. It is important to emphasise that at the very root of the concept of command responsibility, with the exercise of corresponding authority, is the existence of a superior-subordinate relationship. The criminal responsibility of commanders for the unlawful conduct of their subordinates is a very well settled norm of customary and conventional international law. It is now a provision of Article 7(3) of the Statute of the International Tribunal and articles 86 and 87 of Additional Protocol I.

735. The Defence has forcefully contended that it has not been proven whether Zdravko Mucic was a military commander, a civilian warden or administrator. The Trial Chamber hastens to point out once more that a construction of the expression "superior authority" in Article 7(3) of the Statute extends it to persons occupying non-military positions of authority. The use of the term "superior" and the description of criminal responsibility to Heads of State or Government or responsible Government officials in Article 7(2), without doubt extends the concept of superior authority beyond the military, to encompass political leaders and other civilian superiors in positions of authority. Accordingly, as discussed above in Section III, the International Tribunal has jurisdiction over persons in positions of political or military authority who order the commission of crimes falling within its competence ratione materiae, or who knowingly refrain from preventing such crimes or punishing the perpetrators thereof.

736. It will further be observed that whereas formal appointment is an important aspect of the exercise of command authority or superior authority, the actual exercise of authority in the absence of a formal appointment is sufficient for the purpose of incurring criminal responsibility. Accordingly, the factor critical to the exercise of command responsibility is the actual possession, or non-possession, of powers of control over the actions of subordinates. Hence, where there is de facto control and actual exercise of command, the absence of a de jure authority is irrelevant to the question of the superior’s criminal responsibility for the criminal acts of his subordinates.

(a) The Status of Zdravko Mucic as a Commander

737. The evidence which remains uncontradicted is that Zdravko Mucic was the de facto commander of the Celebici prison-camp during the periods relevant to the Indictment. Mr. Mucic was present at the prison-camp during this period and operated effectively as the commander. In his interview with the Prosecution, Mr. Mucic admitted he had authority over the camp, at least from 27 July 1992. However, in the same interview he admitted that he went to the prison-camp daily from 20 May 1992 onwards. ⁷⁷⁸

738. In the course of these proceedings, a member of the Military Investigative Commission who worked closely with Mr. Mucic in the prison-camp in the classification of those detained, testified that he was the camp commander. This was supported by the detainees themselves and journalists who visited the camp.

739. This testimony was based on the fact that Mr. Mucic was at all times the de facto authority in the Celebici prison-camp. He had subordinate to him his deputy commander, Hazim Delic and the guards, who executed his orders in the prison-camp. The main plank on which Mr. Mucic bases his defence is the absence of a written and formal appointment for the exercise of his superior authority.

740. The Trial Chamber observes the inconsistency in the Defence argument. While rejecting the Prosecution’s assertion that Zdravko Mucic exercised de facto authority over the Celebici prison-camp and contending that mere presence in the prison-camp is not evidence of the exercise of superior authority, the Defence proceeds to argue as follows:

There is consistent evidence that Mr. Mucic did what he could, within his limited authority as a person who was present at the camp at some juncture, to prevent crimes and that he gave orders that detainees were not to be mistreated. There is consistent evidence that persons engaged in mistreatment took steps to conceal what they were doing from Mr. Mucic. There is consistent evidence that Mr. Mucic made inquiries of detainees about mistreatment but that they refused to tell him who had assaulted them either because they were uncertain what his reaction would be or, more usually, what repercussions would be visited upon them by the guards if they named names.⁷⁷⁹

741. There seems to be no doubt from the above that this is a concession that Zdravko Mucic was in a position to assist those detainees who were mistreated if only they had disclosed to him who had mistreated them. If this is not the actual exercise of authority by Mr. Mucic by his presence in the prison-camp it is difficult to comprehend what is. The Defence, after stating the above, goes on to bemoan the lack of formal authority, contending that, "[w]ithout the formal authority, he has no duty to maintain peace and order within Celebici".⁷⁸⁰

742. For this proposition the Defence relies on the following extract from a recent scholarly comment on the doctrine of command responsibility:

Where the superior does not have authority over the subordinates in question, it is clearly both unfair and of no deterrent value to impose a duty on that superior to ensure compliance with the law.⁷⁸¹

The Defence seems to the Trial Chamber to have misunderstood the purport of this statement. There is no ambiguity in the proposition urged. Where the superior has no authority over the subordinates, there is no basis for the exercise of command or superior authority. There is no suggestion, and it is not implicit in the proposition above, that superior authority can only be vested formally in a written form. It does not exclude the acquisition of authority de facto by virtue of the circumstances. The Defence misconceives the correct legal position when it assumes that "without the formal authority" Mr. Mucic "has no duty to maintain peace and order within Celebici". The Trial Chamber has already held in section III above that individuals in positions of authority, whether civilian or military structures, may incur criminal responsibility under the doctrine of command responsibility on the basis of their de facto as well as de jure position as superiors. The mere absence of formal legal authority to control the actions of subordinates should, therefore, not be deemed to defeat the imposition of criminal responsibility.

743. In apparent confirmation of the recognition of the authority of Zdravko Mucic over the prison personnel, the Defence states: "[t]here is consistent evidence that when Mr. Mucic was in the camp there was far greater discipline than when he was absent"⁷⁸². Of course, this is an explicit concession that Mr. Mucic, by his presence in the prison-camp was the embodiment of authority. He demonstrated his exercise of authority by his conduct towards the detainees and the personnel of the prison-camp.

744. The Prosecution relies on the testimony of several witnesses before the Trial Chamber as evidence of the actual exercise of authority by Mr. Mucic. The Defence has subjected this evidence to critical analysis with a view to underscoring its worthlessness by demonstrating the unreliability of the witnesses.

745. The Defence is not disputing that there is a considerable body of evidence from the testimony of detainees, guards and others who had transactions with the Celebici prison-camp, that Zdravko Mucic was the acknowledged commander of the prison-camp. Instead, the Defence submits that the Prosecution has to provide evidence which proves beyond a reasonable doubt the dates during which Mr. Mucic is alleged to have exercised authority in the Celebici prison-camp. In this respect, it is submitted that the former detainees who testified before the Trial Chamber did not provide any concrete dates as a reference for when they saw him in the Celebici prison-camp. The Trial Chamber agrees that the Prosecution has the burden of proving that Mr. Mucic was the commander of the Celebici prison-camp and that the standard of proof in this respect is beyond reasonable doubt. However, the issue of the actual date on which Mr. Mucic became a commander is not a necessary element in the discharge of this burden of proof. Instead, the issue is whether he was, during the relevant period as set forth in the Indictment, the commander of the prison-camp.

746. Evidence of the actual exercise of authority over the Celebici prison-camp by Zdravko Mucic was given in the testimony of Witness P, who stated that he was transferred early in June 1992 to the prison-camp, from the "3^rd March" School by Mr. Mucic⁷⁸³. Similarly, Witness N testified that he knew Mr. Mucic to be the commander of the Celebici prison-camp and that "he heard that first from the guards and later from Hazim Delic, the deputy, because on several occasions when Pavo was to come to the hangar, Hazim Delic would tell us that the commander was coming…".⁷⁸⁴ Testimony to similar effect was given by Stevan Gligorevic⁷⁸⁵ and Vaso Dordic⁷⁸⁶. There is other positive evidence acknowledging the status of Mr. Mucic as commander of the prison-camp at Celebici, or someone in comparative status or authority.

747. The testimony of Mirko Dordic was that he was so convinced when he saw Mr. Mucic arranging for the transfer of prisoners⁷⁸⁷. Grozdana Cecez was of a similar view in late May or early in June 1992, when she was interrogated by Mr. Mucic. Branko Sudar stated that he felt the authority of Mr. Mucic when sometime in late May guards stopped mistreating two prisoners when they heard that Mr. Mucic was coming.⁷⁸⁸

748. Witness D, a member of the Military Investigative Commission in the prison-camp who worked closely with Mr. Mucic in the classification of the detainees in the Celebici prison-camp, testified that Mr. Mucic was the commander and that he had an office in the prison-camp. Zdravko Mucic was present early in June when members of the Commission met to discuss how they would go about their work of the classification of the detainees and consideration for their continued detention or release⁷⁸⁹. There is evidence that Mr. Mucic had a complete list of the detainees, which he brought out for members of the Military Investigative Commission.

749. Mr. Mucic was presented to journalists as the commander and was interviewed in that capacity in the middle of July 1992. Witness Assa’ad Taha, to whom Mr. Mucic was so introduced, gave evidence before the Trial Chamber⁷⁹⁰. Similarly, the Defence witness Bajram Demic, a Bosnian journalist, testified that he and others who went to the prison-camp had the permission of "Pavo" to film the prison-camp and to interview certain prisoners. Mr. Demic testified that he had the impression that Mr. Mucic was in charge of the place⁷⁹¹. Similarly, Mr. Mucic was identified as commander of the prison-camp in a letter from the ICRC addressed to Zejnil Delalic, and copied to Zdravko Mucic as Commander of Celebici Prison, admitted in evidence as Exhibit 192.

750. It seems inescapable, from the testimony of all the detainees, that they acknowledged Zdravko Mucic as the prison-camp commander. The detainees came to this conclusion because Hazim Delic called him commander, or because Mr. Mucic introduced himself as commander or because his behaviour towards the guards was that of a commander. The Trial Chamber considers the last of these factors the most significant for the purposes of ascribing superior authority. Concisely stated, everything about Mr. Mucic contained the indicia and hallmark of a de facto exercise of authority. Even in the absence of explicit de jure authority, a superior’s exercise of de facto control may subject him to criminal liability for the acts of his subordinates. Where the position of Mr. Mucic manifests all the powers and functions of a formal appointment, it is idle to contend otherwise.

751. The Defence has challenged the Prosecution testimony, in the view of the Trial Chamber quite unsuccessfully. Evidence that Zdravko Mucic was not in command of the Celebici prison-camp in June 1992 was given by Sadik Dzumhur, who testified that Rale Musinovic was the commander of the entire facility, at least up to the middle of June. The Defence argues that Mr. Mucic was not mentioned as being present in the prison-camp⁷⁹². It is also contended that the order issued by the Joint TO and HVO command setting up the Military Investigative Commission for the detention facility was not directed to Mr. Mucic as commander at all.

752. It seems clear from the Prosecution evidence, that Zdravko Mucic exercised de facto authority over the Celebici prison-camp since about the end of May 1992. There is evidence that he was in authority during the middle of June when Rale Musinovic was commander of the barracks. Mr. Mucic was commander of the prison-camp. As noted at the beginning of this Judgement, there is a distinction between the Celebici compound as a whole and the Celebici prison-camp.

753. It is important to note that the Celebici prison-camp was a new institution, established ad hoc after the operations in, inter alia, Bradina and Donje Selo for the detention of Bosnian Serbs arrested in these areas. It is, therefore, not suprising that Dr. Hadzihusejnovic, the President of the Municipal Assembly and the War Presidency of Konjic Muncipality, or Dr. Ahmed Jusufbegovic, director of the Konjic Health Centre, never identified Mr. Mucic as the commander of the Celebici prison-camp.

754. As against the evidence that Zdravko Mucic was present in the Celebici prison-camp in May 1992, the Defence refers to the testimony of Emir Dzajic who was an MUP driver in May 1992. This witness stated that he was at the Celebici compound every day in June 1992 and that he saw Mr. Mucic only once in that time. Mr. Dzajic testified that during this period, Rale Musinovic was the commander. Further, he did not know Mr. Mucic to be the commander⁷⁹³. Even if his evidence is to be believed, it is the opinion of the Trial Chamber that it is not conclusive as it was perfectly possible to visit the Celebici compound without visiting the prison-camp itself. It is, therefore, not unlikely for Emir Dzajic to have seen Mr. Mucic only once in June, even though he was in the compound every day.

755. The Defence rejects the evidence of Grozdana Cecez concerning Mr. Mucic, regarding it to be of doubtful veracity. As the Trial Chamber notes below, it is not at one with the Defence on this issue. Without doubting the evidence of Branko Gotovac, who stated that he heard Zdravko Mucic was "in charge of Celebici camp", the Defence asserts that there is no evidence which properly establishes the date when Mr. Mucic took charge. The Defence notes that, like many others, Branko Gotovac received his information that Mr. Mucic was the commander from others, and considers this information to be unreliable.

756. The Defence further considers the evidence and testimony of Stevan Gligorevic⁷⁹⁴ and Nedeljko Draganic⁷⁹⁵, who saw Mr. Mucic early in June 1992, to be insufficiently specific as to the dates during which Mr. Mucic was commander. Although Milojka Antic claimed that Mucic was present on her first night in the Celebici prison-camp, because of her answers in cross-examination, her testimony is regarded by the Defence as lacking in credibility. As will be discussed below, the Trial Chamber finds that Ms. Antic’s testimony is generally credible and is unconvinced by this argument.

757. The premium the Defence places on the date of appointment of Zdravko Mucic as commander of the prison-camp is demonstrated by its criticism of the testimony of Witness N. The witness claimed that he knew Mr. Mucic was the commander of the prison-camp but was unable to name the date on which he first saw him. Due to this omission the Defence contends: "This does not prove the date at which Mr. Mucic became commander or that he was in fact commander".⁷⁹⁶

758. Further, there is the testimony of those who saw Zdravko Mucic and were told by others he was the commander of the prison-camp but were unable to say when and how he came to be commander. The testimony of Dragan Kuljanin⁷⁹⁷, Mladen Kuljanin⁷⁹⁸, Novica Dordic⁷⁹⁹, Witness B⁸⁰⁰, Zoran Ninkovic⁸⁰¹, Milenko Kuljanin⁸⁰² and Branko Sudar⁸⁰³ fall into this category. These are the cases regarded by the Defence as insufficient to prove that Mr. Mucic was the commander.

759. The Defence for Zdravko Mucic seeks to strongly criticise the evidence of Witness D. Admitting that this witness served in the investigative commission in the prison-camp, it is curious that the Defence queries who told this witness that Mr. Mucic was the commander. Recalling the antecedent of the witness as a former secret service policeman, and the fact that the work of the investigative commission involved the categorisation of detainees, whom they knew or believed were killed or otherwise maltreated, the Defence submits that his evidence should be viewed with extreme caution. This is because in its view, Witness D should be regarded as an accomplice of those who committed the offences against the detainees in the prison-camp. Accordingly, the Defence argues that this witness has a real motive for giving evidence helpful to the Prosecution and exculpatory of himself. The Trial Chamber is unpersuaded by this argument.

760. The Trial Chamber has further been presented with testimony relating to the status of Zdravko Mucic from Risto Vukalo⁸⁰⁴, whose testimony is rejected by the Defence on the ground that the witness allegedly claimed at trial that his prior statement to the Prosecution was procured by duress, Witness T⁸⁰⁵, whose testimony is viewed by the Defence with considerable suspicion, Milovan Kuljanin⁸⁰⁶, Witness J⁸⁰⁷, Witness R⁸⁰⁸ and Petko Grubac⁸⁰⁹, all of whom knew Mr. Mucic as the commander of the Celebici prison-camp. The Defence also submits that General Divjak did not know the function of Mr. Mucic in the prison-camp. It is difficult to appreciate the criticism of these various witnesses on this issue.

761. The Trial Chamber is concerned with evidence of the actual exercise of authority by Mr. Mucic as commander in the Celebici prison-camp. The more complex issue of the precise scope of duties which attached to this status is clearly irrelevant to this question. There is, however, sufficient concrete evidence that Mr. Mucic was, before the end of May 1992, present in the Celebici prison-camp and was exercising de facto authority over the prison-camp and its personnel. The Trial Chamber has critically analysed the evidence and has come to the view that the only issue which concerns us in the testimony is whether Mr. Mucic was the commander of the Celebici prison-camp during the relevant period.

762. Reliable evidence in this respect was given by Witness D. There is nothing in the personal circumstances of this witness which would render acknowledging the fact that Mr. Mucic was the commander of Celebici prison-camp advantageous to him. Witness D worked closely with Mr. Mucic in relation to the classification of the detainees. He is thus in a position to know the exact status of Mr. Mucic. The Trial Chamber is completely satisfied that his testimony is credible and not in any sense tainted with self-serving disclosures.

763. The actual exercise of de facto authority by Zdravko Mucic was not confined to the areas considered above. Mr. Mucic extended his authority to the control of the Celebici prison-camp and its personnel. It is a cardinal requirement of the exercise of command authority that there must also be exercise of superior authority over the institution and its personnel.

764. There is evidence before the Trial Chamber of the control by Zdravko Mucic of the detainees who would leave or be transferred from the Celebici prison-camp to another detention facility⁸¹⁰. Mr. Mucic had the authority to release detainees. Exhibit 75, signed by him, is a release document in respect of the detention of Branko Gotovac⁸¹¹. There is also Exhibit 84, signed by Mr. Mucic for Mirko Kuljanin and Exhibit 91, signed by Mr. Mucic which is the release document for Milojka Antic⁸¹². Mr. Mucic also signed Exhibit 158, a release document for Witness B⁸¹³, and Exhibit 159 which is the release document for Zoran Ninkovic.

765. Similarly, Zdravko Mucic had authority over the guards. This has been established through the testimony of Dragan Kuljanin⁸¹⁴ and Witness B⁸¹⁵. Mr. Mucic also had control over visits to the detainees, which were only allowed by his permission⁸¹⁶. In her testimony before the Trial Chamber, Milojka Antic described the authority of Mr. Mucic as total: "[i]n the camp he was in charge. He was asked about everything".⁸¹⁷

766. Witness P also testified to the exercise of the authority by Mr. Mucic over the guards. This witness further testified to hearing Mr. Mucic speaking to Major Kevric as commander of the prison-camp, requesting that additional food be brought to the detainees.⁸¹⁸

767. Zdravko Mucic had all the powers of a commander to discipline camp guards and to take every appropriate measure to ensure the maintenance of order. Mr. Mucic himself admits he had all such necessary disciplinary powers. He could confine guards to barracks as a form of punishment and for serious offences he could make official reports to his superior authority at military headquarters⁸¹⁹. Further, he could remove guards, as evidenced by his removal of Esad Landzo in October 1992.⁸²⁰

(b) Knowledge of the Accused

768. The question of the knowledge required for a commander to be held criminally liable for the crimes of his subordinates is well settled in both customary and conventional international humanitarian law. The principles have been articulated in the provisions of Article 7(3) of the Statute and article 86(2) of Additional Protocol I and discussed at length above in section III. Article 7(3), which expresses it in the negative, states simply that the superior is not relieved of criminal responsibility for the acts of his subordinates "if he knew or had reason to know that the subordinate was about to commit such acts, or had done so …". Similarly, article 86(2) of Additional Protocol I states that it "… does not absolve the superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances of the time, that he was committing or going to commit such a breach …".

769. There is a plethora of evidence of the knowledge on the part of Zdravko Mucic that the guards under his command were committing crimes, some of which are specifically alleged in the Indictment. While the Trial Chamber has not yet set out its findings on the individual crimes charged in the Indictment, it is sufficient for the present purposes for us to note that some crimes undoubtedly were committed within the prison-camp by persons subordinate to Mr. Mucic. It is with these findings in mind that the Trial Chamber proceeds with this discussion. Besides his imputed knowledge, as a result of his deliberate absences from duty, which were frequent and regular, he was aware that his subordinates would commit offences during such absences. Mr. Mucic admitted in his interview with the Prosecution that he was aware that crimes were being committed in the prison-camp at Celebici in June and July 1992 and that he had personally witnessed detainees being abused during this period⁸²¹. He was also informed of the rapes in the camp in July 1992⁸²². He did, however, state that after that period detainees were not mistreated when he was present. The claim that there was no mistreatment of detainees when he was present was rejected by Vaso Dordic who testified that he was interrogated and assaulted by Hazim Delic in the presence of Mr. Mucic⁸²³. There was also the evidence of Milenko Kuljanin⁸²⁴ who testified that Mr. Mucic was present when he was taken and placed in a manhole. Similarly, Milovan Kuljanin⁸²⁵ and Novica Dordic⁸²⁶ testified that Mr. Mucic was present on occasions when they were released from this manhole.

770. The crimes committed in the Celebici prison-camp were so frequent and notorious that there is no way that Mr. Mucic could not have known or heard about them. Despite this, he did not institute any monitoring and reporting system whereby violations committed in the prison-camp would be reported to him, notwithstanding his knowledge that Hazim Delic, his deputy, had a penchant and proclivity for mistreating detainees⁸²⁷. There is no doubt that Mr. Mucic was fully aware of the fact that the guards at the Celebici prison-camp were engaged in violations of international humanitarian law.

(c) Failure to Act

771. Where a superior has knowledge of violations of the laws of war by his subordinates, he is under a duty to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators and incurs criminal responsibility if he fails to do so. Article 87 of Additional Protocol I requires commanders to prevent and, where necessary, suppress and report to the competent superior, breaches of the Geneva Conventions and Additional Protocol I. They are also required to make their subordinates aware of their obligations under the Conventions and Protocols consistent with their level of responsibility. The superior is expected to initiate such steps as are necessary to prevent those breaches and, where appropriate, initiate penal or disciplinary actions against the violators.

772. Zdravko Mucic did not take reasonable or appropriate action to prevent crimes committed within the Celebici prison-camp or punish the perpetrators thereof. There is no evidence suggesting that he ever took appropriate action to punish anyone for mistreating prisoners. Indeed, there is evidence demonstrating that the guards were never disciplined. For example, Milovan Kuljanin⁸²⁸ stated that he never witnessed the punishment of any guard. Similarly, Witness T, who worked at the camp between June and November 1992, testified that he never knew of any investigations into the deaths of any of the thirteen prisoners who died whilst he was there⁸²⁹. Indeed, there were no disciplinary measures for the mistreatment of prisoners in Celebici.⁸³⁰

773. As stated by Witness T in his testimony, an important gap in any preventive efforts made by Mr. Mucic is that he as commander never gave any instructions to the guards as to how to treat the detainees⁸³¹. Although Mr. Mucic, as commander, was aware of the frequent abuses committed by the guards, he was not usually in the camp at night. As Witness T put it, "he was away rather than there"⁸³². The net effect of his frequent absences would have been that any orders he did issue concerning the treatment of prisoners would not have been enforced. An example of the impotence of the orders of Mr. Mucic was stated by Witness N, who testified that he heard Mr. Mucic had issued orders that no one should be beaten, but that he was beaten up after those orders had been given⁸³³. There is evidence that beating of detainees continued after the visit of the ICRC to the prison-camp. Mirko Dordic testified to the severe beatings he had received in August, September, October and late November 1992.⁸³⁴

774. There is no doubt that Zdravko Mucic had the authority to prevent the violations of international humanitarian law in the Celebici prison-camp. There is no evidence before the Trial Chamber that he made any serious effort to prevent these continued violations or punish his subordinates for such crimes during his tenure. The Trial Chamber is satisfied, on the evidence before it, that Mr. Mucic failed to take the necessary or reasonable measures to prevent or punish the guards who were his subordinates and the perpetrators of the offences charged.

5. Conclusion

775. In its findings in the case against General Tomoyuki Yamashita, the United States Military Commission in Manila, stated as follows:

where murder and rape and vicious, revengeful actions are widespread offences, and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable, for the lawless acts of his troops, depending upon their nature and the circumstances surrounding them.⁸³⁵

The facts of the present case fit appropriately into this dictum. The conduct of Zdravko Mucic towards the guards renders him criminally liable for their acts. Mr. Mucic was the de facto commander of the Celebici prison-camp. He exercised de facto authority over the prison-camp, the deputy commander and the guards. Mr. Mucic is accordingly criminally responsible for the acts of the personnel in the Celebici prison-camp, on the basis of the principle of superior responsibility.

E. Superior Responsibility of Hazim Delic.

1. Introduction

776. It is alleged in the Indictment that Hazim Delic is responsible for offences both as a direct participant and as a superior. He is charged under the Indictment with direct responsibility pursuant to Article 7(1) of the Statute for the alleged offences of: murder and wilful killing (counts 1, 2, 3, 4, 5, 6, 11, and 12); torture and cruel treatment (counts 15 to 29); inhuman treatment and cruel treatment (counts 42 and 43); the subjection of detainees to inhumane conditions constituting the offences of wilfully causing great suffering or serious injury to body or health or cruel treatment (counts 46 and 47); the unlawful confinement of civilians (count 48); and the plunder of private property (count 49). These counts of the Indictment shall be considered below in sub-section F.

777. In addition, the Prosecution alleges that Hazim Delic, along with Zdravko Mucic and Zejnil Delalic, had responsibility for the operation of the Celebici prison-camp and was in a position of superior authority to all camp guards and to those who entered the camp and mistreated the detainees. It contends that he had reason to know that his subordinates were mistreating detainees and failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. The Prosecution accordingly asserts that by failing to take the actions required of a person in command authority, Mr. Delic is responsible pursuant to Article 7(3) of the Statute for: wilful killing and murder (counts 13 and 14); torture and cruel treatment (counts 33 to 35); wilfully causing great suffering or serious injury to body or health and cruel treatment (counts 38 and 39); inhumane treatment and cruel treatment (counts 44 and 45); the subjection of detainees to inhumane conditions constituting the offences of wilfully causing great suffering or serious injury to body or health and cruel treatment (counts 46 and 47); unlawful confinement of civilians (count 48); and plunder (count 49).

778. By way of preliminary comment, the Trial Chamber notes that under counts 33 to 35, the Prosecution contends, inter alia, that Hazim Delic is responsible as a superior for the rapes alleged in paragraph 25 of the Indictment. Further, the Prosecution contends in counts 44 and 45, that Mr. Delic is responsible as a superior for, inter alia, inhumane acts involving the use of an electrical device alleged in paragraph 33 of the Indictment. In both of these paragraphs Mr. Delic is the only person alleged to be a direct participant in these acts. Therefore, the Trial Chamber notes that there are no subordinate acts for which he can be held responsible as a superior, even if the allegations in paragraphs 25 and 33 are found to be proven as pleaded.

779. In sub-section F below, the Trial Chamber will make its factual findings in relation to the underlying offences for which the accused is alleged to be criminally liable as a superior. Before proceeding further, however, it must first consider whether the evidence demonstrates, as the Prosecution contends, that Mr. Delic exercised superior authority such that the Trial Chamber may impose criminal liability pursuant to Article 7(3).

2. Arguments of the Parties

(a) The Prosecution

780. The Prosecution seeks to rely, in part, upon a statement Hazim Delic made to Prosecution Investigators on 19 July 1996⁸³⁶. In this statement Hazim Delic said that he worked as a locksmith in an enterprise in Konjic prior to the conflict⁸³⁷. Upon the outbreak of the armed conflict he was mobilised into a joint military police of the TO and HVO and was serving in the Celebici prison-camp from early May 1992, before the first prisoners arrived⁸³⁸. According to this statement, Mr. Delic served as an administrator in the prison, organising documents and logistics from about 27 July 1992⁸³⁹. From 18 November 1992 until 28 or 30 November 1992 he stated that he served as the commander or manager of the prison-camp.⁸⁴⁰

781. The Prosecution asserts that the evidence indicates that at all material times prior to his appointment as commander of the prison-camp, Mr. Delic was the deputy commander. According to the Prosecution, Article 7(3) does not limit command authority to the most senior commander thereby absolving the deputy commander of liability, as indicated by the use of the term "superior" as opposed to terms such as "commander" or "deputy commander". The central question is whether Hazim Delic was the superior of the individuals committing crimes in the Celebici prison-camp. The Prosecution makes three main factual allegations, which it contends establish that the accused was a superior of the individuals committing such crimes in the prison-camp.

782. First, the Prosecution argues that the deputy commander is liable to the extent of his or her authority, and that in some instances he may be liable as a commander. In this regard the Prosecution asserts that Zdravko Mucic was often absent from the prison-camp. It is alleged that the evidence shows that when Mr. Mucic was absent, Hazim Delic was in charge and exercised full authority, that is, he was the acting commander in Mr. Mucic’s absence. Secondly, the Prosecution contends that Mr. Delic held a superior position over the guards in the prison-camp, which included the ability to give the guards orders. In particular, it is asserted that Mr. Delic’s authority over the guards at the camp is demonstrated by the frequency with which he gave orders to them to mistreat the prisoners. Thirdly, it is alleged that the status of Mr. Delic as a superior is demonstrated by his exercise of considerable authority over various practical matters and events that took place in the Celebici prison-camp.

783. The Prosecution contends that it is not disputed that Hazim Delic knew about the crimes in the camp, and that he took no action to stop the killing and suffering of the detainees. Finally, it is alleged that he did not discipline the guards for their misdeeds, nor did he take action to prevent such acts, notwithstanding his authority and duty to do so. The Prosecution argues that the reason for this failure was that Mr. Delic was an active participant in these crimes. Further, it maintains that by his example, he condoned the commission of similar crimes by others and actually ordered the commission of some of the crimes by those under his control.

784. In closing oral submissions, the Prosecution conceded the possibility that Mr. Delic’s authority was not entirely unfettered and that he could not have instantly discharged a guard. However, it was clear that he could have taken any number of actions to prevent crimes or punish his subordinates for them, including: re-assigning the guards; confining them to barracks; preventing them from contact with the detainees; notifying superiors; recommending the guards be court-martialled; and resigning.⁸⁴¹

785. In reply to its submissions, the Prosecution contends that the Defence for Hazim Delic essentially advances a single legal argument in response to the charges of superior authority namely, that Article 7(3) of the Statute only applies to "commanders" and not to "deputy commanders" or "staff officers" who lack the authority to prevent or punish subordinates.

786. The Prosecution submits that the concept of superior in Article 7(3) of the Statute is clearly not limited to persons described as "commanders". Thus, within a single chain of command, a person described as "commander" may be the superior of a person described as "deputy commander", but it is also evident that the person described as "deputy commander" can be the superior of the person next in the chain of command, and so on. Accordingly, the Prosecution’s position is that, within an organisational unit, superior responsibility is not confined to the person who is at the head of the unit as a whole, but can apply to anyone in the unit who is a "superior" of anyone else in the unit.

787. The Prosecution submits that the evidence establishes the contrary of the Defence contention that the position of Hazim Delic was equivalent to that of a staff officer. According to the Prosecution, the evidence establishes that Mr. Delic was part of a chain of command, situated below the camp commander and above the camp guards.

(b) The Defence

788. The Defence characterises the Prosecution’s command responsibility case against Hazim Delic as resting on two premises, one legal and the other factual. The legal foundation is said to be that a non-commander can be found criminally liable under a theory of command responsibility. With respect to this premise, the Defence argues that superior responsibility is limited to commanders and civilian leaders with military command-like authority over subordinates. It submits that the use of the word "superior" in Article 7(3) of the Statute denotes only such persons. This Article cannot extend criminal liability to non-commanders simply because they hold a higher rank than that of the perpetrator of a particular crime.⁸⁴²

789. In support of this proposition the Defence draws a distinction between the status of "command" and that of "rank". It refers to United States army regulations when it contends that command is a right exercised by virtue of office, the key elements of which are authority and responsibility. Military rank, on the other hand, is characterised as the relative position or degree of precedence granted military persons marking their stations in military life, and confers eligibility to exercise command or authority within the limits of the law.

790. By reference to a number of commentators, the Defence contends that staff officers may be distinguished from commanders on the basis that they have no authority to command and do not prescribe policies, basic decisions or plans, as this responsibility rests with the commander. Thus, when it becomes necessary for a staff officer to issue an order in the name of a commander, responsibility remains with the commander even though he or she may have never have seen a written order or heard it given orally. With respect to the chain of command, the Defence quotes a commentary that defines this as the most fundamental and important organisational technique used by the army, which describes the succession of commanders, superior to subordinate through which command is exercised. It extends from the Commander in Chief down through the various grades of rank to the enlisted person leading the smallest army elements. Staff officers are not in the chain of command. Regardless of rank, only commanders can be in a chain of command. The issue of whether a non-commander is the superior, in terms of relative military rank, of someone in command of a subordinate unit, is irrelevant to the concept of command authority.

791. On the basis of the foregoing, the Defence states that commanders are persons specifically designated to command a military unit whereas others, that is those who are not commanders, assist the commander in carrying out the unit’s mission under the commander’s direction. In support of this argument, the Defence submits that the "commander" in the Army of Bosnia and Herzegovina, and the former JNA, had the authority to issue orders in his own name and bore responsibility for his unit’s performance. Others, including staff officers and deputy commanders, assisted the commander. In this regard, the Defence seeks to rely upon the testimony of Generals Arif Pasalic⁸⁴³ and Jovan Divjak⁸⁴⁴, who testified as witnesses for the Prosecution.

792. The Defence states that, despite the Prosecution’s allegation that Hazim Delic was deputy commander of the Celebici prison-camp at all relevant times, he cannot be convicted under the concept of command responsibility for the simple reason that he was not a commander. It is submitted that only commanders command and that, therefore, only they have the authority to punish or prevent violations of international humanitarian law. Since only commanders have the authority to take the steps necessary to avoid criminal liability for the acts of subordinates, only they should face criminal sanctions for the violations of subordinates.

793. The Defence also argues that the case of the Prosecution rests on the factual premise of the authority of Zdravko Mucic. In this regard, the Defence contends that whatever Mr. Mucic’s authority, the authority of Hazim Delic, as his deputy, could not be greater. In the absence of proof about the extent of the authority of Mr. Mucic, it is submitted that the Trial Chamber cannot determine whether Mr. Mucic acted reasonably within his authority to prevent and punish violations of international humanitarian law. Thus, the Defence contends that the Trial Chamber cannot find beyond reasonable doubt that Mr. Delic failed to carry out his responsibilities. The implication of this argument is that Mr. Delic’s authority as an alleged deputy commander is relative to that of Mr. Mucic, the alleged commander. Accordingly, a failure by the Prosecution to establish the extent of superior authority and thus criminal responsibility of Mr. Mucic, necessarily means that such a determination may not be made with respect to Mr. Delic.

794. In addition, the Defence seeks to refute the submission of the Prosecution that when Zdravko Mucic was absent, Hazim Delic was the superior responsible as commander. The Defence states that even if this assertion is legally correct, that is the deputy assumes command during a temporary absence of a commander who stays in communication with his command, the argument fails for lack of proof. It is submitted that the Prosecution, must prove that Mr. Mucic was in fact absent at the time of each alleged offence and that Mr. Delic was, in fact, the commander of the prison-camp at those times, under the law of Bosnia and Herzegovina. The Defence submits that the Prosecution has failed to meet this burden.

3. Discussion and Findings

795. The Trial Chamber has found, as noted in Section III above that a position of command is a necessary condition for the imposition of superior responsibility under Article 7(3) of the Statute. However, the existence of such a position cannot be determined by reference to formal status alone. The determining factor is the actual possession of power or control over the actions of subordinates.

796. Notwithstanding the submissions of the Defence, the Prosecution does not argue that the doctrine of command responsibility applies to those who do not exercise command and asserts as a matter of fact that the evidence demonstrates that Hazim Delic did exercise command in the Celebici prison-camp. Thus, the determination of the command responsibility of Mr. Delic depends on a factual determination as to the powers of command he did, or did not, possess in his position as "deputy commander" of the prison-camp. As such, the Trial Chamber must determine whether the evidence establishes beyond reasonable doubt that Mr. Delic’s position made him part of the chain of command in the Celebici prison-camp, thus providing him with the authority to issue orders and to prevent or punish the alleged criminal acts occurring in the prison-camp.

797. In a statement given to Prosecution investigators, Hazim Delic maintained that he was a member of the military police under joint TO and HVO command and as such, acted as a guard at the prison-camp, from early May 1992 until 27 July 1992⁸⁴⁵. Up until this time he contended that he had exactly the same duties and position as other guards⁸⁴⁶. After this date he stated that he was appointed as officer for personnel and logistics in the prison-camp.⁸⁴⁷

798. Numerous witnesses testified before the Trial Chamber as to the role played by Hazim Delic in the Celebici prison-camp. He was variously described in the following manner: "I think that he was Pavo’s deputy"⁸⁴⁸; "I cannot be exact, but I think he was the superior of the guards"⁸⁴⁹; "[w]e heard that Pavo was the most important, Pavo Mucic, and he [Delic] was his deputy"⁸⁵⁰; "commander of the guards"⁸⁵¹; "deputy-commander of the camp";⁸⁵² "[f]rom what I could observe, he was some kind of a commander. Whether he was a guard commander or something like that…"⁸⁵³; " I asked, "who is this man ?, and the people who were already sitting there said it was Hazim Delic, he is number two, he is God and your life depends on him";⁸⁵⁴ "[t]hey called him the Commander of the Guard and also the Deputy Commander….I am not familiar with what he was, but anyway that is what he was called"⁸⁵⁵. On this issue of Mr. Delic’s role in the prison-camp, Witness F stated,⁸⁵⁶

The role of Mr. Delic…I don’t know what it was, but I know that when he would appear, we had to get up, and the guards told us when he would appear. They said: "Here comes the boss", and he would come every morning, and based on that I think that most probably he was the Deputy Commander of the camp.

799. Dr. Petko Grubac testified that Hazim Delic was the "assistant warden" or the "deputy warden"⁸⁵⁷. Later in his testimony he stated that the accused was the deputy commander of the camp on the basis that the guards addressed him as such⁸⁵⁸. The witness explained that the detainees were not officially told what people’s positions were and that they learnt this from the behaviour and the attitudes of the persons who were in charge and from the way in which the guards addressed them.⁸⁵⁹

800. Thus, the evidence indicates that the detainees, while not in a position to precisely identify the rank of the accused, in general regarded him as a person who had influence over them and the guards, and as the deputy commander of the prison-camp at all relevant times. While this evidence is relevant to the Trial Chamber’s consideration, it is not dispositive of Mr. Delic’s status. The issue before the Trial Chamber is whether the accused had the power to issue orders to subordinates and to prevent or punish the criminal acts of his subordinates, thus placing him within the chain of command. In order to do so the Trial Chamber must look to the actual authority of Hazim Delic as evidenced by his acts in the Celebici prison-camp.

801. The witness who gave the most detailed evidence in this regard was Esad Landzo, a co-accused. He testified that when Zdravko Mucic was not present Hazim Delic was in charge of the camp⁸⁶⁰. More specifically, he testified that the guards did not receive written orders, but received oral orders by which they had to abide⁸⁶¹. In relation to orders given by Mr. Delic, he stated that "I carried out all the orders out of fear and also because I believed I had to carry [sic], execute them"⁸⁶². In his testimony Mr. Landzo alleged that Mr. Delic had ordered him to mistreat⁸⁶³ and to even kill detainees⁸⁶⁴. To the extent that these allegations are relevant to the specific incidents alleged in the Indictment, they shall be discussed below.

802. The Trial Chamber notes that, during his testimony, Esad Landzo admitted to previously telling lies about the events in the Celebici prison-camp. In addition, it was part of his defence that, during the relevant period of the Indictment, he suffered from a personality disorder which diminished his capacity to exercise free will and caused him to seek approval of authority figures by following their instructions. Accordingly, testimony that indicates that he was ordered by Mr. Delic to mistreat prisoners would support and be consistent with his defence of diminished mental capacity. It is for these reasons that the Trial Chamber cannot rely upon the evidence of this co-accused on the issue of the superior responsibility of Hazim Delic, unless such testimony is supported by other independent evidence.

803. Further evidence regarding the relationship that Hazim Delic had with the guards was given by Grozdana Cecez when she testified that she "just noticed that they all feared him"⁸⁶⁵. Witness M further stated that he thought that Mr. Delic’s role "was one of command, of somebody that the guards and prisoners feared, somebody who gives the orders"⁸⁶⁶. Branko Sudar testified that Mr. Delic occasionally severely criticised guards and shouted at them just as he shouted at the prisoners⁸⁶⁷ and that when Mr. Mucic was absent Mr. Delic would give the orders⁸⁶⁸. Stevan Gligorevic also stated that he believed the reasons for Mr. Delic’s visit to Hangar 6 was to control his guards, to control the detainees and to abuse them⁸⁶⁹ and that all the detainees had to obey him and all the guards had to obey him "and they were even afraid of him."⁸⁷⁰

804. Further, the Prosecution alleges that Hazim Delic ordered the guards to mistreat detainees. It provides an example of one occasion when he allegedly ordered the guards to beat the detainees from Bradina for breakfast, lunch and dinner, after the killing of Muslims near Repovci in 1992. Upon examination of the evidence, this allegation is inconclusive on the issue of the command authority of Mr. Delic. Witness R gave evidence that two or three days after Bradina burnt down for the second time Mr. Delic ordered that all people from Bradina be beaten three times during that day and these beatings were administered by either the guards or Mr. Delic himself⁸⁷¹. Witness F, gave more detailed testimony and stated that Mr. Delic cursed and beat detainees after the Repovci incident and then said to Mr. Landzo "[t]his is what the people from Bradina are to get for breakfast, lunch and dinner"⁸⁷². The witness then testified that Mr. Landzo continued with this beating every day for a prolonged period of time⁸⁷³. Later in his testimony the witness conceded that Mr. Landzo would beat prisoners "on his own as well, even when Mr. Delic was not around"⁸⁷⁴, that is, without being told to do so by Mr. Delic. The evidence with respect to this allegation suggests that Mr. Delic conducted a vindictive beating of the people from Bradina on one particular day and then told at least one other guard, Mr. Landzo to continue this beating. However, it is not proven that the beatings that followed from that day or were "ordered" by Mr. Delic.

805. Further, the Prosecution alleges that after the visit of the ICRC to the prison-camp Mr. Delic ordered the guards to beat the prisoners. Witness F⁸⁷⁵ and Mirko Dordic⁸⁷⁶ testified to this incident and indicated that Mr. Delic "ordered" or was "commanding" the guards in this collective beating.

806. In conclusion, this evidence is indicative of a degree of influence Hazim Delic had in the Celebici prison-camp on some occasions, in the criminal mistreatment of detainees. However, this influence could be attributable to the guards’ fear of an intimidating and morally delinquent individual who was the instigator of and a participant in the mistreatment of detainees, and is not, on the facts before this Trial Chamber, of itself indicative of the superior authority of Mr. Delic sufficient to attribute superior responsibility to him.

807. The Trial Chamber now turns to a consideration of the other tasks that Hazim Delic performed in the Celebici prison-camp in order to determine whether such tasks demonstrate the exercise of actual superior authority. Witness D, a member of the Military Investigative Commission, testified that the Commission would receive a list of detainees in the prison-camp from Zdravko Mucic. Then, the Commission would write out a list of people to be "interviewed". He stated that they would give the list of detainees to Mr. Mucic, and if he was not there to Mr. Delic⁸⁷⁷. Indeed, he stated that Mr. Mucic told the Commission members that they should give the list to Mr. Delic so that he could take further action⁸⁷⁸. Finally, he confirmed that of the prison-camp staff, only Mr. Mucic and Mr. Delic had access to the Commission files⁸⁷⁹. It is clear from his testimony that the role of Mr. Delic was to assist Mr. Mucic by organising and arranging for detainees to be brought to interrogations.

808. Witness R also confirmed that Hazim Delic’s role in the prison-camp was organisation when he stated that he was the commander in the "sense of everyday life, everyday organisation and checking of presence and being together with the guards, in the sense that Mr. Delic was the daily organiser of everything happening in Celebici.⁸⁸⁰" Further, both Petko Grubac⁸⁸¹ and Witness P⁸⁸² confirmed they would provide requests for the medicine they required for the detainees in the prison-camp and that Mr. Delic would attempt to acquire them.

809. This evidence indicates that Hazim Delic was tasked with assisting Zradvko Mucic by organising and arranging for the daily activities in the Celebici prison-camp. However, it cannot be said to indicate that he had actual command authority in the sense that he could issue orders and punish and prevent the criminal acts of subordinates.

810. After having reviewed the relevant evidence before it, the Trial Chamber finds that the Prosecution has failed to establish beyond reasonable doubt, that Hazim Delic lay within the chain of command in the Celebici prison-camp, with the power to issue orders to subordinates or to prevent or punish criminal acts of subordinates. Accordingly, he cannot be found to have been a "superior" for the purposes of ascribing criminal responsibility to him under Article 7(3) of the Statute. Having made this finding, the Trial Chamber need not consider the other elements of criminal responsibility of superiors under the Statute.

F. Factual and Legal Findings Relating to Specific Events Charged in the Indictment

1. Introduction

811. The Trial Chamber, having made its factual and legal findings on the superior responsibility of Zejnil Delalic, Zdravko Mucic and Hazim Delic shall now consider each of the counts of the Indictment in turn in order to make its findings on the acts alleged therein.

812. Before continuing with a consideration of the facts, it should finally be noted that counts 13, 14, 33 to 35, 38, 39, 44 and 45 of the Indictment charge Zejnil Delalic, Zdravko Mucic and Hazim Delic with superior responsibility for the criminal acts of their subordinates, including murder, torture, causing great suffering or serious injury and inhumane acts. Counts 42 and 43 of the Indictment charge Hazim Delic with direct participation in inhumane acts. The factual allegations set forth in the Indictment in support of these counts contain references to specific criminal acts, as well as references to unspecified criminal acts alleged to have occurred in the Celebici prison-camp. In consideration of the rights enshrined in Article 21 of the Statute, and in fairness to the accused, the Trial Chamber does not regard the unspecified criminal acts referred to in the above-mentioned counts as constituing any part of the charges against the accused. Accordingly, in its findings in relation to these counts, the Trial Chamber will limit itself to a consideration of those criminal acts specifically enumerated in the Indictment.

2. Killing of Scepo Gotovac - Counts 1 and 2

813. Paragraph 16 of the Indictment alleges that two of the accused – Hazim Delic and Esad Landzo – were responsible for the killing of Scepo Gotovac, an elderly Serb detainee in the Celebici prison-camp. This alleged killing is charged in counts 1 and 2 of the Indictment as follows:

     Sometime around the latter part of June 1992, Hazim DELIC, Esad LANDZO and others selected Scepo GOTOVAC, aged between 60 and 70 years. Hazim DELIC, Esad LANDZO and others then beat Scepo GOTOVAC for an extended period of time and nailed an SDA badge to his forehead. Scepo GOTOVAC died soon after from the resulting injuries. By their acts and omissions, Hazim DELIC and Esad LANDZO are responsible for:

     Count 1. A Grave Breach punishable under Article 2(a)(wilful killing) of the Statute of the Tribunal; and

     Count 2. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(murder) of the Geneva Conventions.

      

(a) Prosecution Case

814. In support of the allegations contained in these two counts, the Prosecution brought and examined twelve witnesses, namely, Mirko Babic, Branko Gotovac, Witness F, Stevan Gligorevic, Witness N, Dragan Kuljanin, Mirko Dordic, Witness B, Branko Sudar, Risto Vukalo, Rajko Draganic and Witness R. In its Closing Brief, the Prosecution does not seek to rely on the testimony of Mr. Gligorevic.

(b) Defence Case

815. In his interview with Prosecution investigators, given on 19 July 1996 (Exhibit 103), Hazim Delic admitted that Scepo Gotovac had been killed in the Celebici prison-camp, but denied that he had been involved in causing his death. He did, indeed, blame another guard for it. In its Closing Brief, the Defence for Mr. Delic does not make any specific arguments in relation to these counts apart from its general challenges to the credibility of the Prosecution witnesses.

816. On the other hand, Esad Landzo, while appearing as his own witness, admitted that he had participated in the beating which led to the death of Scepo Gotovac. However, in mitigation of his actions, he contended that he had done so at the instance of Zdravko Mucic and Hazim Delic. He alleged that they had given him a piece of paper bearing the name of Mr. Gotovac and directed that this person should leave the prison-camp on the following day with his "feet forward", which he took to mean that they intended him to be killed. In its Closing Brief, the Defence for Mr. Landzo challenges the accounts given by the Prosecution witnesses in relation to these counts.

(c)   Discussion and Findings

817. It will be noticed that the Defence⁸⁸³ does not dispute that Scepo Gotovac died in the Celebici prison-camp, by violence, while he was a detainee there. According to most of the witnesses, in the early afternoon of the relevant day, which was in mid to late June 1992, Hazim Delic and Esad Landzo approached Mr. Gotovac, who sat near the door inside Hangar 6, and Hazim Delic accused him of having killed two Muslims in 1942. Mr. Delic informed him that these Muslims had been killed in the prison-camp itself. Hazim Delic further referred to some old enmity between their families and told Mr. Gotovac that he should not hope to remain alive. Scepo Gotovac denied these allegations, whereupon Hazim Delic started to beat him. He was then taken out of the Hangar and the sound of blows and his moaning could be heard inside the Hangar. After some time, he was dragged back into the Hangar.

818. A few hours later, in the evening, he was once more taken out of the Hangar and Hazim Delic and Esad Landzo again administered a severe beating. As a result of this, he could not even walk back to his place inside and was carried into the Hangar by two of the other detainees. A metal badge, possibly bearing the insignia of the SDS, had been pinned to his head and Esad Landzo threatened the rest of the inmates of the Hangar by saying that he would kill anyone who dared remove it. As a consequence of this second beating, Scepo Gotovac died in the Hangar a few hours later.

819. Although there are some variations in the statements of the witnesses to these events, the basic features of their testimony remains the same. While appreciating their evidence, it has to be borne in mind that they were speaking about an incident which had occurred five years earlier and that they were confined in a place where physical violence was not an uncommon event.

820. It is true that Scepo Gotovac was beaten outside Hangar 6, while the witnesses were seated inside and could not, therefore, see the person or persons who were actually beating him. However, in view of what they saw and heard inside the Hangar, it could reasonably be said that they were in a position to know what was happening outside. For example, they:

(a) saw Hazim Delic walking up to Scepo Gotovac and accusing him of killing two Muslims in 1942, and, on his denial, hitting him;
(b) saw Hazim Delic and Esad Landzo taking Scepo Gotovac outside Hangar 6;
(c) heard the sound of blows, as well as the cries and moans of Mr. Gotovac, immediately after he was taken out;
(d) saw Scepo Gotovac being brought back into the Hangar in a poor condition;
(e) saw him again being taken out of Hangar 6 at about evening time;
(f) heard the sound of blows and the moans and cries of Mr. Gotovac, coming from outside the Hangar;
(g) saw Scepo Gotovac being carried into the Hangar after a short time;
(h) saw that a metal badge was stuck on his forehead;
(i) heard Esad Landzo shouting that anyone who removed the badge would be similarly treated; and
(j) found Scepo Gotovac dead in the morning.

821. These circumstance, when considered together, leave no room for doubt with regard to the persons who were responsible for causing the death of Scepo Gotovac. On the basis of the evidence on record, it is clear that both Hazim Delic and Esad Landzo participated in the beating which resulted in the death of the victim.

822. The testimony of Esad Landzo that he was asked by Zdravko Mucic and Hazim Delic to kill Scepo Gotovac, has no support on the record. By his own admission, Mr. Landzo has told lies in the past and the Trial Chamber considers him to be an unreliable witness concerning events within the Celebici prison-camp. It is therefore not safe to accept any part of his story which does not find support from other independent evidence. We would, accordingly, reject his allegation that he had beaten and killed Mr. Gotovac at the instance of Zdravko Mucic and Hazim Delic.

823. On the basis of these facts and the previous discussion of the offences of wilful killing and murder under the Statute, the Trial Chamber finds that the killing of Scepo Gotovac was a clear case of such wilful killing and murder. As stated above, a person commits wilful killing under Article 2 and murder under Article 3, when he has the intention to kill his victim or when he inflicts serious injuries upon him in reckless disregard of human life. In this case, Hazim Delic and Esad Landzo twice beat up a man of about 70 years, within a space of four to five hours, so mercilessly that on the first occasion he was left moaning in the Hangar, and on the second occasion he could not make his way back inside by himself. He died a few hours later on account of the injuries that he had thus received.

824. For these reasons, the Trial Chamber finds both Hazim Delic and Esad Landzo guilty, under counts 1 and 2 of the Indictment, of wilful killing and murder, as charged.

3. Killing of Zeljko Milosevic - Counts 3 and 4

825. Paragraph 17 of the Indictment states that:

Sometime around the middle of July 1992 and continuing for several days, Zeljko MILOSEVIC was repeatedly and severely beaten by guards. Sometime around 20 July 1992, Hazim DELIC selected Zeljko MILOSEVIC and brought him outside where Hazim DELIC and others severely beat him. By the next morning, Zeljko MILOSEVIC had died from his injuries. By his acts and omissions, Hazim DELI] is responsible for:

Count 3. A Grave Breach punishable under Article 2(a)(wilful killing) of the Statute of the Tribunal; and

Count 4. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(murder) of the Geneva Conventions.

(a) Prosecution Case

826. In support of the allegations in these two counts of the Indictment, the Prosecution seeks to rely principally on the evidence of Miro Golubovic, Novica Dordic, Milenko Kuljanin and Risto Vukalo. The Prosecution also called and examined Witness P, Witness J and Fadil Zebic who gave evidence in relation to these counts.

827. The Prosecution relies mainly upon the evidence of Milenko Kuljanin and Novica Dordic in support of its allegations. It alleges that Zeljko Milosevic was subjected to various serious beatings and mistreatment before he was killed by Hazim Delic. The Prosecution alleges that on one of these occasions Zeljko Milosevic was beaten with a piece of electrical cable and that on another occasion he was partially submerged in a manhole full of water for one night. Finally, the Prosecution alleges that after Zeljko Milosevic, in the presence of journalists visiting Celebici prison-camp, refused to make "confessions" that he had raped and tortured Muslims Hazim. Delic called him out of Tunnel 9, beat him, and that he died as a result. In support of its allegation, the Prosecution seeks to rely on Exhibit 185, a funeral certificate relating to Zeljko Milosevic.

(b) Defence Case

828. Hazim Delic was the only accused charged as a direct participant in the acts alleged in these counts. In the Motion to Dismiss⁸⁸⁴, his Defence submits, that on the facts, only two witnesses testified from personal knowledge regarding the alleged killing of Zeljko Milosevic, and their accounts differ. It is contended that Novica Dordic stated that when Arab journalists visited the prison-camp, Zeljko Milosevic and an other prisoner, had been asked to confess that they were snipers and that they had killed Muslims, and as a result of their refusal to do so, they were beaten by Hazim Delic and Esad Landzo, in the presence of the journalists. The Defence contends that Milenko Kuljanin had a sharply different story, in that the confession sought was in relation to the rape and torture of Muslim women and the torture and killing of children. Upon his refusal to do so, Zeljko Milosevic was returned to Tunnel 9. The Defence points out that, on the night that Zeljko Milosevic died, both of these witnesses were inside Tunnel 9 and thus could not observe what was occurring outside. Further, the Defence notes that, while both witnesses heard screams and moans, only one claims to have heard a shot. Finally, the Defence alleges that the evidence presented by the Prosecution is insufficient to prove that the beatings to which Zeljko Milosevic had been subjected to prior to the night of his death were severe.

829. Further, in a statement made by Mr. Delic in an interview with the Prosecution, on 19 July 1996, he stated that Zeljko Milosevic was killed in the prison-camp by another guard, whilst denying that he participated in causing his death (Exhibit 103).

(c) Discussion and Findings

830. The Defence does not dispute that Zeljko Milosevic died in the Celebici prison-camp. According to a number of Prosecution witnesses including Miro Golubovic, Novica Dordic, Milenko Kuljanin, Witness P, Risto Vukalo and Witness J, Zeljko Milosevic was subjected to a series of interrogations, beatings and other mistreatment during his detention in Tunnel 9. These were inflicted both inside and outside the tunnel, by Hazim Delic and Esad Landzo, because he was suspected of being a Serb sniper. On one occasion, he was called outside of Tunnel 9 and severely beaten with a piece of electrical cable by Mr. Delic. On another occasion, he was submerged in a manhole filled with water for a whole night.

831. Prior to his death, journalists had visited the prison-camp and Zeljko Milosevic was taken out of Tunnel 9 by Hazim Delic and asked to make "confessions" in front of these journalists, which he refused to do. After this incident, Zeljko Milosevic was called out of Tunnel 9 by Hazim Delic at night and the door of Tunnel 9 was closed. Mr. Delic spoke to Zeljko Milosevic and then inflicted a vicious beating upon him. Zeljko Milosevic did not return to Tunnel 9 that night. The following morning the motionless body of Zeljko Milosevic was observed by a number of Prosecution witnesses, lying near the hole where the prisoners had been taken to urinate.

832. With respect to the all of the allegations relating to these counts and particularly the incident which finally lead to the death of Zeljko Milosevic, the Trial Chamber lends particular credence to the testimony of Novica Dordic and Milenko Kuljanin. Novica Dordic was situated only a very short distance from the door of Tunnel 9. He was in a position to see and hear what was occurring outside the door, as it was open during the beatings leading up the final one occasioning Zeljko Milosevic’s death. This witness conceded that he did not see the final beating, as the door of Tunnel 9 was closed. However, he heard Mr. Delic call the victim out, after which he heard a discussion, then beatings and finally a shot. This is consistent with and supported by the testimony of Milenko Kuljanin, who testified that Hazim Delic called and personally took Zeljko Milosevic out of Tunnel 9, after which he heard the victim screaming, moaning and crying out for over an hour, indicating the severity of the beating inflicted upon him. The following morning Milenko Kuljanin, Novica Dordic and Witness J observed the victim’s dead body near the place where they were taken to urinate. Further, Milenko Kuljanin gave testimony relating to Hazim Delic’s state of mind. This witness stated that, after the journalists had visited the prison-camp and the victim had failed to make the confessions sought of him, Mr. Delic came back into Tunnel 9, bringing with him Zeljko Milosevic and the others who had previously been taken out to be interviewed. He threatened them by saying that they "would remember him well"⁸⁸⁵. In addition, Milenko Kuljanin testified that, the day before, Hazim Delic had "forewarned him [Zeljko Milosevic] of what was to come and told him to be ready" at one in the morning⁸⁸⁶. Although there are some variations between the testimony provided by the witnesses to these events, the fundamental features of this testimony, as it relates to Zeljko Milosevic’s last evening of life, are consistent and credible.

833. The Trial Chamber finds that in July 1992, after inflicting numerous beatings, Hazim Delic deliberately and severely beat Zeljko Milosevic for a period of at least an hour. The beatings leading up to and including the last prolonged and serious beating, and Mr. Delic’s threats to the victim prior to the last beating, demonstrate an intent to kill on the part of Mr. Delic. The Trial Chamber is further convinced that the beating inflicted on this occasion caused the death of the victim.

834. For these reasons, the Trial Chamber finds Hazim Delic guilty of wilful killing, under count 3 of the Indictment and of murder, under count 4 of the Indictment.

4. Killing of Simo Jovanovic - Counts 5 and 6

835. In paragraph 18 of the Indictment, Hazim Delic and Esad Landzo are again alleged to be responsible for the killing of one of the detainees in the Celebici prison-camp, Simo Jovanovic. The acts of these two accused in this respect are charged in counts 5 and 6 as follows:

Sometime in July 1992 in front of a detention facility, a group including Hazim DELIC and Esad LANDZO over an extended period of time severely beat Simo JOVANOVIC. Esad LANDZO and another guard then brought Simo JOVANOVIC back into the detention facility. He was denied medical treatment and died from his injuries almost immediately thereafter. By their acts and omissions, Hazim DELIC and Esad LANDZO are responsible for:

Count 5. A Grave Breach punishable under Article 2(a)(wilful killing) of the Statute of the Tribunal; and

Count 6. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(murder) of the Geneva Conventions.

(a) Prosecution Case

836. In support of these charges, the Prosecution relies in its Closing Brief upon the testimony of twelve of its witnesses, namely, Mirko Babic, Mirko Dordic Witness F, Stevan Gligorevic, Nedeljko Draganic, Witness N, Witness P, Witness B, Branko Sudar, Rajko Draganic, Milovan Kuljanin and Witness R. It also refers to the oral testimony of Esad Landzo. It should be noted that Petko Grubac, Branko Gotovac and Fadil Zebic also testifed in relation to these allegations

(b) Defence Case

837. In his oral testimony before the Trial Chamber, Esad Landzo admitted that, on the relevant evening, he had taken Simo Jovanovic from Hangar 6, but that he had done so at the instance of some other guards who informed him that they had obtained permission from the authorities in this regard. Mr. Landzo denied that he had taken part in the beating of Mr. Jovanovic, and his Defence argued, in its Closing Brief, that no witness was able to claim to have seen who actually carried out the beating which led to his death.

838. Hazim Delic, in his interview with Prosecution investigators on 19 July 1996 (Exhibit 103), conceded that Simo Jovanovic had been killed whilst in the Celebici prison-camp, but denied that he had played any role in causing his death. The Defence for Mr. Delic, in its Closing Brief, made no particular submissions in relation to this incident.

(c) Discussion and Findings

839. Simo Jovanovic was a Bosnian Serb of about 60 years of age who had lived in the village of Idbar, in Konjic municipality. It seems that, prior to the war, he was the owner of a fish farm in the municipality, in addition to being involved in the running of a construction company in the town of Konjic. It appears from the testimony of some witnesses that he may have been arrested and detained by the MUP for a period prior to his transfer to the Celebici prison-camp. As a consequence of his mistreatment during this time, he was in need of medical treatment when he arrived at the prison-camp. He was, however, confined to Hangar 6 up until the time of his death. Each of the abovementioned witnesses for the Prosecution, with the exception of Witness P, were also kept in Hangar 6 at the relevant time and were thus in a position to depose about the circumstances relating to his death.

840. It appears that there were some guards employed in the Celebici prison-camp who came from the same village as Mr. Jovanovic and who had personal scores which they wished to settle with him. Thus, these individuals, with the assistance of Esad Landzo, would often take him out of the Hangar during the night and beat him severely. As a result, Mr. Jovanovic remained in a poor physical condition at all times.

841. Sometime at the end of June or beginning of July 1992, Esad Landzo called Simo Jovanovic out of the Hangar, as on previous occasions. There is some variation in the accounts of the witnesses on whether Mr. Landzo was alone on this occasion, or whether he was accompanied by some other guard or guards. In any case, Mr. Jovanovic was taken behind Hangar 6 and given a severe beating by a number of persons. His moans, cries and appeals for mercy could be heard inside the Hangar by the witnesses. After about 15 to 20 minutes he was brought back inside and died a few hours later.

842. As has been noted above, Esad Landzo admits that he took Simo Jovanovic out of Hangar 6 on the relevant evening, but denied that he joined the others in beating him. However, this version of events is not convincing. All of the witnesses testified that Mr. Landzo had taken Mr. Jovanovic out of the Hangar on previous occasions, during which he was also mistreated by other guards who knew him from his home village. It appears the Mr. Landzo did not report these incidents to the relevant persons in the prison-camp. Furthermore, there is witness testimony that Mr. Landzo himself had, on occasion, beaten the deceased inside the Hangar. In addition, on the day in question, at the very least, Mr. Landzo must have known why the other guards wished Simo Jovanovic called from the Hangar and he willingly lent his hand to the assailants. Therefore, even if his explanation that he did not personally hit the deceased were to be accepted, Esad Landzo cannot absolve himself of responsibility for his death as he clearly, at the very least, was in the position of facilitating the perpetration of the offence. As has been previously discussed individual criminal responsibility arises where the acts of the accused contribute to, or have an effect on, the commission of the crime and these acts are performed in the knowledge that they will assist the principal in the commission of the criminal act. Mr. Landzo himself stated that he had been posted outside of the Hangar to guard the detainees therein and there can be little doubt that he was aware of the intentions of Mr. Jovanovic’s assailants and that, without his help, they could not have laid their hands on said victim.

843. In relation to Hazim Delic, there is insufficient evidence to show that he was connected in any way with the killing of Simo Jovanovic. The only witness who mentions his presence at the time when the fatal beating was administered is Branko Sudar. According to this witness, he heard the voice of Mr. Delic coming from outside the Hangar, giving orders and, on a couple of occasions, saying "enough, stop the beating". It is to be noticed that this witness was present inside the Hangar while the beating was taking place outside.

844. It is not safe to ascribe responsibility to Hazim Delic for this incident, merely on the basis of voice recognition, when no other witness was able to confirm that they heard his voice at the time when Simo Jovanovic was fatally beaten. The only other witness who mentions Mr. Delic in relation to the victim is Witness P, who testified that, a few days before the death, he told Mr. Delic that Mr. Jovanovic’s condition was very poor and that he needed treatment in Building 22, which was not given. The conclusion cannot be reached that Mr. Delic was a party to the killing of Mr. Jovanovic on the basis that he did not follow this advice.

845. On the basis of the above discussion, the Trial Chamber finds that the death of Simo Jovanovic as a result of the injuries inflicted upon him during a prolonged and vicious beating, amounts to wilful killing and murder. Due to his participation in this beating, at the very least as an aidor and abettor who knowingly facilitated the beating inflicted by others, Esad Landzo is thus found guilty under counts 5 and 6 of the Indictment. On account of the lack of evidence brought concerning the participation of Hazim Delic in the acts causing the death of Mr. Jovanovic, the Trial Chamber finds him not guilty under these counts.

5. Killing of Bosko Samoukovic - Counts 7 and 8

846. Paragraph 19 of the Indictment further alleges that the accused Esad Landzo is responsible for the killing of Bosko Samoukovic, a detainee in the Celebici prison-camp, who was 60 years of age and confined in Hangar 6. This alleged killing is charged in counts 7 and 8 of the Indictment as follows:

Sometime in July 1992, Esad LANDZO beat a number of detainees from Bradina with a wooden plank. During the beatings, Esad LANDZO repeatedly struck Bosko SAMOUKOVIC, aged approximately 60 years. After Bosko SAMOUKOVIC lost consciousness from the blows, he was taken out of the detention facility and he died soon after from his injuries. By his acts and omissions, Esad LANDZO is responsible for:

Count 7. A Grave Breach punishable under Article 2(a)(wilful killing) of the Statute of the Tribunal; and

Count 8. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(murder) of the Geneva Conventions.

(a) Prosecution Case

847. The Prosecution contends that, a few days after an incident in July 1992 when a number of Bosnian military policemen were attacked and killed near the village of Bradina, Esad Landzo selected Bosko Samoukovic from among the detainees in the Celebici prison-camp and so mercilessly beat him that he died around 15 to 20 minutes later in the so-called infirmary within the prison-camp.

848. In support of these allegations, the Prosecution relies upon the testimony of several of its witnesses, namely, Mirko Babic, Stevan Gligorevic, Nedeljko Draganic, Dragan Kuljanin, Mladen Kuljanin, Petko Grubac, Risto Vukalo, Mirko Dordic, Rajko Draganic and Witnesses F, N, P, M, B, and R. The Prosecution also refers to the testimony given by Esad Landzo in his own defence. It should also be noted that Miro Golubovic, Branko Sudar and Branko Gotovac provided further testimony in relation to the death of Mr. Samoukovic.

(b) Defence Case

849.In his oral testimony before the Trial Chamber, Esad Landzo admitted that he had beaten Bosko Samoukovic, but denied that he had ever intended to kill him. In this context he pointed out that he himself had taken Mr. Samoukovic to the so-called infirmary in the prison-camp and had asked the doctor to cure him. In justification of his mistreatment of the deceased, Mr. Landzo referred to an incident which occurred on 12 July 1992, in which a patrol party containing members of the local military police was ambushed near Bradina by armed Serbs and, as a result, all of the party were killed. Mr. Landzo stated that the assailants had mutilated the bodies of these military policemen, among whom were persons close to him, and, having seen their dead bodies, he felt extremely perturbed. Immediately thereafter and in this state of mind, he had inflicted the beating on Mr. Samoukovic.

(c) Discussion and Findings

850. Bosko Samoukovic was a Bosnian Serb from the village of Bradina, who was about 60 years of age and worked as a railway worker. He was arrested along with his two sons shortly after the forces of the Bosnian government wrested control of the village from the Bosnian Serbs who had been holding it. Upon his arrest he was detained in Hangar 6 in the Celebici prison-camp.

851. It is not disputed by the Defence for Mr. Landzo that Bosko Samoukovic was beaten inside Hangar 6. In addition, with the exception of Witness P and Dr. Petko Grubac, all of the other witnesses mentioned above were confined in the same Hangar and were in a position to see the beating inflicted upon Mr. Samoukovic. These witnesses have stated, with minor variations, that Esad Landzo walked up to the deceased, asked him his name and ordered him to stand up. Mr. Landzo then began beating him with a wooden plank, which was around one metre long and five or six centimetres thick, and which was ordinarily used to secure the door of the Hangar. This beating lasted for some time, until, ultimately, Bosko Samoukovic fell down. He was then carried to the makeshift infirmary in Building 22, where he succumbed to his injuries.

852. At the so-called infirmary the two doctors who were housed there examined Mr. Samoukovic. They observed that he was finding it difficult to breathe and had some broken ribs. Witness P testified that, on his inquiry, Mr. Samoukovic told him that he had been beaten by Esad Landzo. He further deposed that, before the arrival of the deceased in the infirmary, he had been hearing cries and the sound of blows from elsewhere in the prison-camp for about 20 minutes. Both Witness P and Dr. Grubac stated that Bosko Samoukovic died within 20 minutes of his arrival in the infirmary.

853. From the testimony of Witness P it would seem that the arrival of Esad Landzo at the infirmary was not out of any concern for the health of Bosko Samoukovic. This witness stated that Mr. Landzo in fact issued him with a threat, saying that Mr. Samoukovic should be "ready" by 6 o’clock or he (that is, the witness) should be "ready". Witness P understood this threat as implying that Bosko Samoukovic should be made ready for a another beating by the evening or he himself should get ready to receive a beating instead.

854. According to Dr. Grubac, Hazim Delic also came to the infirmary and, when he saw the condition of Bosko Samoukovic, he sent for Esad Landzo and inquired from him what he had done. Thereupon Esad Landzo asked the doctor to see that Mr. Samoukovic was treated and, indeed, to "cure" him.

855. Even should it be conceded that Mr. Landzo’s request to Dr. Grubac is evidence of some remorse for his actions, rather than a mere expression of his fear of recriminations from Mr. Delic, this can hardly detract from the gross nature of his conduct in mercilessly beating an elderly person with a heavy implement. It appears that the only reason for his assault on Mr. Samoukovic was that the latter was a Serb from Bradina and thus somehow deserving of punishment for the acts of other Serbs from Bradina in killing several Bosnian police officers. The ferocity of the attack can further be gauged from the fact that the victim did not survive for more than half an hour afterwards. Such a brutal beating, inflicted on an old man and resulting in his death, clearly exhibits the kind of reckless behaviour illustrative of a complete disregard for the consequences which this Trial Chamber considers to amount to wilful killing and murder. In these circumstances, any subsequent pleas to the doctor cannot detract from the gravity of Mr. Landzo’s inhuman conduct.

856. For the reasons stated above, the Trial Chamber finds Esad Landzo guilty under counts 7 and 8 of the Indictment for the wilful killing and murder of Bosko Samoukovic.

6. Killing of Slavko Susic - Counts 11 and 12

857. In paragraph 21 of the Indictment, Hazim Delic and Esad Landzo are alleged to be responsible for the killing of Slavko Susic, another of the detainees in the Celebici prison-camp. The acts of these two accused in this respect are charged in counts 11 and 12 as follows:

Sometime around the latter part of July, or in August 1992, a group including Hazim DELIC and Esad LANDZO repeatedly selected Slavko SUSIC for severe beatings. Hazim DELIC, Esad LANDZO and others beat Slavko SUSIC with objects, including a bat and a piece of cable. They also tortured him using objects including pliers, lit fuses, and nails. After being subjected to this treatment for several days, Slavko SUSIC died from his injuries. By their acts and omissions, Hazim DELIC and Esad LANDZO are responsible for:

Count 11. A Grave Breach punishable under Article 2(a)(wilful killing) of the Statute of the Tribunal; and

Count 12. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(murder) of the Geneva Conventions.

(a) Prosecution Case

858. In respect of these two counts, the Prosecution brought and examined seven witnesses, namely, Grozdana Cecez, Miljoka Antic, Miro Golubovic, Novica Dordic, Milenko Kuljanin, and Witnesses J and P. Relying on these witnesses, the Prosecution contends that Slavko Susic was tortured to death by Hazim Delic and Esad Landzo in order to obtain information about a radio transmitter which he was suspected of having in his possession and using for guiding Serb gun-fire on his village.

(b) Defence Case

859. Both Hazim Delic and Esad Landzo have denied that they had killed Slavko Susic in the Celebici prison-camp. However, neither of these two accused dispute that Mr. Susic died while detained in the prison-camp as a result of violence. The position taken by Hazim Delic in his interview with the Prosecution investigators of 19 July 1996 (Exhibit 103), is that Mr. Susic was killed by a fellow Serb, who was also confined in Tunnel 9. For his part, Esad Landzo admitted during his oral testimony that he had once hit Mr. Susic in the back, by way of a push as he was being led by some guards into the Tunnel, but did not make any statement concerning the death of Mr. Susic. The Defence for Mr. Landzo, in its Closing Brief, seeks to attribute responsibility for this killing to another of the detainees in the prison-camp.

(c) Discussion and Findings

860. Slavko Susic was from the village of Celebici, where he was a teacher. After his arrest in June 1992, he was confined in the Celebici prison-camp, in Tunnel 9, which was apparently utilised to house those detainees considered to be the most dangerous.

861. It appears from the testimony of the Prosecution witnesses listed above that Hazim Delic and Esad Landzo mistreated Slavko Susic on one particular day in July 1992, over a continuous period, in order to extract information from him in respect of a radio transmitter. According to Milenko Kuljanin, Hazim Delic even deputed Zara Mrkajic, another of the detainees, to try to persuade Mr. Susic to disclose the location of the transmitter, but this had no success. As a result of further serious mistreatment by Mr. Delic and Esad Landzo, including being beaten with a heavy implement, Mr. Susic apparently finally offered to identify the place where the transmitter was lying hidden, whereupon Hazim Delic and some other guards accompanied him to his house. On the failure there to recover the transmitter, Mr. Susic was brought back to the prison-camp and subjected to a further severe beating.

862. Milenko Kuljanin also testified that he had seen Esad Landzo pulling the tongue of Slavko Susic with pliers, tying fuses round his legs and waist and then lighting them. He further stated that, while thus mistreating Mr. Susic, Esad Landzo was questioning him about the whereabouts of the abovementioned radio transmitter. It should be noted that Tunnel 9 had an iron door, which Mr. Kuljanin claimed was open at the time when Mr. Landzo was thus mistreating Mr. Susic. However, it is difficult to believe that, from the position that he occupied in the tunnel, Milenko Kuljanin could be in a position to see what was happening outside the door. It is to be noticed that the tunnel was below ground level and sloped downwards. There were also several steps in front of the door. A person who did not sit right beside the door thus could not have a clear view of what was occurring outside. There were six persons sitting between Mr. Kuljanin and the entrance to the tunnel and so his position was a short distance down the slope of the tunnel floor. The Trial Chamber is not convinced that from this location he would have been able to have a clear sight of the mistreatment meted out to Slavko Susic.

863. Of the witnesses examined by the Prosecution only three, namely, Novica Dordic, Milenko Kuljanin and Witness J, were confined in Tunnel 9. Mr. Dordic testified that he was inside the tunnel when Hazim Delic and Esad Landzo took Slavko Susic away. He deposed that, after a long time, Mr. Susic was pushed back into the tunnel and died shortly afterwards. Witness J claimed that, at the relevant time, he was present outside Tunnel 9 as he had been ordered to clear cigarette butts from the area. From this location he saw Slavko Susic with Esad Landzo, Zara Mrkajic and a guard apparently by the name of Focak. Witness J testified that these persons were pulling out Mr. Susic’s tongue with some kind of implement. Unlike Milenko Kuljanin, this witness made no mention of the use of fuses to mistreat Mr. Susic. Milenko Kuljanin also deposed that the body of Mr. Susic remained in the tunnel for two nights and a day after his death. This is contrary to the version of the other witnesses from the tunnel, who stated that the body of the deceased was removed on the morning following the events leading to his death.

864. Grozdana Cecez testified before the Trial Chamber that she had seen Hazim Delic beating Slavko Susic from a window of the reception building (Building A) where she was detained and that there was another guard with him at that time. Although she did not recognise this second guard, she thought that his name was Makaron. She further stated that, on the next day, she learnt from another guard that Slavko Susic had been killed by Zara Mrkajic. Milojka Antic also testified that she had seen Hazim Delic beating Mr. Susic and Delic had another guard with him at that time, whom she did not know. Another witness, Miro Golubovic, stated that, at the relevant time, he was confined in Building 22 and from there he saw Hazim Delic beating Slavko Susic. This witness mentioned the presence of Esad Landzo on the occasion and stated that as Slavko Susic fell on the concrete floor, Esad Landzo dragged him by the arms. Witness P further testified that he saw Hazim Delic and Esad Landzo beating Slavko Susic from the window of Building 22 and that Hazim Delic had a blunt weapon with him. He also stated that he saw Mr. Susic in the tunnel when he visited that place to give a penicillin injection to a prisoner there and that Mr. Susic was in extremely bad shape and appeared exhausted. Later, Witness P heard that Mr. Susic had been killed by one Macic.

865. Despite the varying nature of the testimony of its witnesses in relation to these charges, the Prosecution maintains that Slavko Susic died inside Tunnel 9 as a result of the injuries inflicted upon him by Hazim Delic and Esad Landzo. However, as observed above, the testimony of the three witnesses from the tunnel itself, who were examined in support of this allegation, is not entirely consistent in relation to the events leading to the death of Slavko Susic. Although there is strong suspicion that Mr. Susic died as a result of the severe beating and mistreatment inflicted upon him by Hazim Delic and Esad Landzo, it is not absolutely clear who inflicted the fatal injuries upon him and some of the Prosecution witnesses have indeed attributed the killing to other persons. In these circumstances, the Trial Chamber cannot be certain that the direct cause of the death of Slavko Susic was the beating and mistreatment given to him by these two accused.

866. Nonetheless, it is clear that Mr. Delic and Mr. Landzo were, at the very least, the perpetrators of heinous acts which caused great physical suffering to the victim and, while they are not charged in this manner, it is a principle of law that a grave offence includes a lesser offence of the same nature. Accordingly, the Trial Chamber finds Hazim Delic and Esad Landzo not guilty of the charges of wilful killing and murder but finds them guilty of wilfully causing great suffering or serious injury to body or health, a grave breach of the Geneva Conventions of 1949 punishable under Article 2 of the Statute, and cruel treatment, a violation of the laws or customs of war punishable under Article 3 of the Statute.

7. Various Murders in Paragraph 22 of the Indictment - Counts 13 and 14

867. Paragraph 22 of the Indictment states that:

With respect to the murders committed in Celebici camp, including: the murder in June 1992 of Milorad KULJANIN, who was shot by guards, one of whom said they wished a sacrifice for the Muslim festival of Bairaim; the murder of Zeljko CECEZ, who was beaten to death in June or July 1992; the murder of Slobodan BABIC, who was beaten to death in June 1992; the murder of Petko GLIGOREVIC, who was beaten to death in the latter part of May 1992; the murder of Gojko MILJANIC, who was beaten to death in the latter part of May 1992; the murder of Zeljko KLIMENTA, who was shot and killed during the latter part of July 1992; the murder of Miroslav VUJICIC, who was shot on approximately 27 May 1992; the murder of PERO MRKAJIC, who was beaten to death in July 1992; and including all the murders described above in paragraphs sixteen to twenty-one...

Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged as superiors who knew or had reason to know that their subordinates were about to commit the above alleged acts or had done so, and had failed either to take the necessary and reasonable steps to prevent those acts or to punish the perpetrator thereof. Accordingly, they are charged as follows:

Count 13. A Grave Breach punishable under Article 2(a)(wilful killings) of the Statute of the Tribunal; and

Count 14. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(murders) of the Geneva Conventions.

868. The Trial Chamber’s findings as to the offences alleged in paragraphs 16 to 19 and 21 of the Indictment, as charged here, have been set out above. Further, as discussed above⁸⁸⁷, the Trial Chamber restricts itself to addressing the specific allegations in the Indictment and will, accordingly, limit itself to a consideration of the following eight factual allegations of murder.

(a) Murder of Milorad Kuljanin

869. The Indictment alleges that Milorad Kuljanin was shot by guards in the Celebici prison-camp in June 1992. In seeking to establish the facts in relation to this charge, the Prosecution relies principally upon the evidence given by Witness R, who testified that he could observe the killing from a point "maybe one step away" from where the act occurred⁸⁸⁸ . Witness R testified that he saw Milorad Kuljanin being called out of Hangar 6 and questioned by one of the guards. He was then ordered to lie face down in a canal filled with urine, where, after being questioned further, he was shot in the head at close range. In his testimony, Witness R stated that Milorad Kuljanin’s death had occurred on Bairam, because he recalled that the guards, for several days prior to this incident, had repeatedly threatened that if they did not "slaughter ten of you [the detainees] for Bairam we are no [sic] good Muslims"⁸⁸⁹. The Prosecution submits that Witness R’s account of Mr. Kuljanin’s death is supported by the testimony of Stevan Gligorevic, Witness N, Dragan Kuljanin, Witness M, Mladen Kuljanin and Mirko Dordic. The Prosecution also relies upon Exhibit 185, a funeral certificate, to establish the alleged victim’s death.

870. The Defence⁸⁹⁰ contends that the evidence in relation to the present charge is so widely at variance that no reliance properly can be put upon it. It submits in this respect, inter alia, that the accounts of the killing of Milorad Kuljanin given by Witness N and Witness R, who both testified to having witnessed the incident, contain irreconcilable discrepancies. It further notes the existence of discrepancies in the evidence before the Trial Chamber as to the identity of the guard who called Milorad Kuljanin out of Hangar 6 prior to his death, and to the number of shots subsequently fired. On this basis, the Defence submits that the Prosecution has failed to prove the killing of Milorad Kuljanin beyond a reasonable doubt.

871. In addition to the seven witnesses relied upon by the Prosecution, evidence in relation to the present charge was given by the Prosecution witnesses Risto Vukalo and Witness F. The testimony of these nine witnesses is consistent as to the fact that Milorad Kuljanin was killed in the Celebici prison-camp on or around the religious holiday of Bajram in 1992. The Trial Chamber notes, however, that there exist significant inconsistencies in the evidence as to the precise circumstances surrounding this man’s death. In his testimony before the Trial Chamber, Witness R gave a detailed account of the killing of Milorad Kuljanin, which he stated he had observed from a very short distance. According to this witness, he was part of a group of five or six persons who were outside Hangar 6 in order to relieve themselves, when he observed Milorad Kuljanin being taken out of the Hangar by guards. Milorad Kuljanin was then subjected to questioning immediately in front of the group, forced to lie down in a ditch filled with urine where, after further questioning, he was shot three times from a distance of 20 to 30 centimetres. The Trial Chamber has not found it possible to reconcile this version of events with that provided by Witness N. In testimony, this witness described how he was in a group of ten other detainees who were visiting the latrines when they passed Milorad Kuljanin. The witness stated that four or five of the detainees who were in front of the group were forced to hit Milorad Kuljanin and that one of the guards thereafter pointed a gun at the victim’s forehead and fired two shots directly into his head. It will be noted that these two accounts differ in significant respects not only as to the events said to immediately precede the killing of Milorad Kuljanin, but also with respect to the number of detainees present on this occasion. In the latter respect, Mirko Dordic, in contrast to the foregoing accounts, testified that there were only three detainees outside Hangar 6 at the relevant time.

872. In view of these divergent accounts with respect to fundamental aspects of the alleged events, the Trial Chamber finds there exists a sufficient degree of uncertainty concerning the circumstances surrounding Milorad Kuljanin’s death as to prevent it from reaching any conclusive factual findings in relation to this charge. Accordingly, the Trial Chamber finds that it has not been proved beyond a reasonable doubt that the killing of Milorad Kuljanin constitutes wilful killing under Article 2 or murder under Article 3.

(b) Murder of Zeljko Cecez

873. The Indictment alleges that Zeljko Cecez was beaten to death in the Celebici prison-camp in June or July 1992. In establishing the facts in relation to this event, the Prosecution relies on the testimony of Witness R. According to the testimony of this witness, Zeljko Cecez was called out of Hangar 6 in the evening of the same day that Milorad Kuljanin was killed. From his position inside the Hangar, the witness could then, for a period of about half an hour, hear the sound of a human body being beaten, together with the cries and moans of Zeljko Cecez. The witness testified that Zeljko Cecez was then brought back into the Hangar, where he first lay moaning but soon fell silent. The following morning, the witness had an opportunity to observe Zeljko Cecez’s lifeless body at close range for more than an hour. The body was covered in bruises and had an ash grey colour "as if there was never a drop of blood in that body"⁸⁹¹. The body was carried out of the Hangar by a detainee the same morning. The Prosecution submits that corroboration of this testimony is provided by the testimony of Witness N, Dragan Kuljanin, Mladen Kuljanin, Risto Vukalo, Witness F, Stevan Gligorevic, and Mirko Dordic, who were all present inside Hangar 6 at the time of the alleged events. In order to establish the death of the victim, the Prosecution further relies on Exhibit 185, a funeral certificate. The Prosecution further submits that the evidence suggests that Zeljko Cecez may have been killed because he had been a witness to the killing of Milorad Kuljanin. It relies in this respect on the testimony of Witness R, Witness F and Witness M.

874. The Defence submits that the Prosecution’s evidence in support of this alleged killing contains numerous inconsistencies. It thus observes that two of the Prosecution witnesses, Witness F and Mladen Kuljanin were unable to identify the individual who called Zeljko Cecez out of Hangar 6, while three other Prosecution witnesses, Mirko Dordic, Risto Vukalo and Witness R, testified that it was Esad Landzo who called him out. It further notes that the witnesses’ accounts of how Zeljko Cecez was brought back into the Hangar after the alleged beatings also differ. For example, while Stevan Gligorevic and Mladen Kuljanin assert that, after the beating, Zeljko Cecez was carried back to the Hangar by detainees, Witness N and Mirko Dordic contend that he was simply thrown back into the Hangar, whereas Witness R asserts that he was brought back by some guards who were accompanied by Esad Landzo.

875. With respect to the present charge, Witness R and Mirko Dordic have provided precise and fundamentally consistent accounts, barring insignificant discrepancies, of the incident alleged in the Indictment. This evidence, which the Trial Chamber accepts as accurate and truthful, is further supported in all material respects by the testimony of Witness N, Dragan Kuljanin, Mladen Kuljanin, Risto Vukalo, Witness F, Stevan Gligorevic, and Witness M. While noting the inconsistencies in the Prosecution’s evidence as pointed out by the Defence, the Trial Chamber does not believe them to be significant for the purposes of its findings in relation to this offence, recognizing that the type of incident herein described is alleged to have occurred with some frequency in the Celebici prison-camp and considering the period of time that elapsed between the events at issue and the witnesses’ testimony.

876. Based upon this evidence, the Trial Chamber finds it proven beyond reasonable doubt that Zeljko Cecez, on the relevant day, was called out of Hangar 6 in the Celebici prison-camp by one or more of the prison-camp guards. Outside the Hangar he was subjected to a prolonged and severe beating. Thereafter, Zeljko Cecez was taken back to the Hangar where, as a result of the injuries thus inflicted upon him, he died later that same night. The severity of the beating inflicted on Zeljko Cecez is attested to by the extent of the bruising on his body, as observed by Witness R the morning after his death.

877. In relation to the present charge and on the basis of the foregoing facts, the Trial Chamber finds that the act of severely beating Zeljko Cecez over a prolonged period of time evidences an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, and as we have been left in no doubt that the injuries inflicted upon Zeljko Cecez in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Zeljko Cecez, as described above, constitutes the offence of wilful killing under Article 2 and murder under Article 3 of the Statute.

(c) Murder of Slobodan Babic

878. The Indictment alleges that Slobodan Babic was beaten to death in June 1992 in the Celebici prison-camp. The Prosecution acknowledges that Slobodan Babic was severely injured when he was brought to the prison-camp, and that these injuries would have contributed to his death. However, the Prosecution submits that, since the victim was detained in the Celebici prison-camp for several days without receiving any kind of medical care, during which time he was subjected to additional beatings, the Trial Chamber may conclude that a proximate cause of Mr. Babic’s death was his treatment in the prison-camp.

879. In order to establish the facts in relation to these allegations, the Prosecution notes that while various witnesses stated that when Mr. Babic arrived at the Celebici prison-camp he was in very poor physical condition, Mirko Babic testified that he did not see anyone in the Celebici prison-camp provide Slobodan Babic with medical care. The Prosecution further relies on the testimony of Witness N, who recounted that he observed Slobodan Babic being beaten in Building 22 by people in uniform soon after he was brought to the Celebici prison-camp. The Prosecution alleges that Mr. Babic was thereafter transferred to the "3^rd March" School. Witness P, who treated Mr. Babic at the "3^rd March" School, testified that Mr. Babic was severely injured when he arrived and remained unconscious until his death, a few days later. Witness P’s testimony in this respect was supported by that of Dr. Petko Grubac. The Prosecution also relies upon Exhibit 185, a funeral certificate, to establish Slobodan Babic’s death.

880. With reference to the testimony of Mirko Babic, Branko Gotovac, Witness N and Risto Vukalo, the Defence notes the weight of evidence to suggest that Slobodan Babic had been severely beaten and injured before his arrival at the Celebici prison-camp. Specifically, it contends that the beatings described by Risto Vukalo are consistent with the injuries described in the evidence given by Witness P and Dr. Petko Grubac. Conversely, the Defence contends that there is no evidence that Slobodan Babic died as a result of any injuries or lack of treatment he received in the Celebici prison-camp.

881. In his testimony before the Trial Chamber, Risto Vukalo described how Slobodan Babic, prior to his arrival at the Celebici prison-camp, was subjected to severe physical abuse which resulted in serious injuries. This evidence is supported by the testimony of Mirko Babic. Further, Branko Sudar, Witness N, and Branko Gotovac all testified as to the poor physical condition of Slobodan Babic during his detention in the Celebici prison-camp. For example, Branko Sudar testified that, upon his arrival in Building 22, he saw Slobodan Babic "covered in blood and lying on the floor."⁸⁹²

882. The foregoing evidence is not disputed between the parties. Moreover, the Defence does not dispute the testimony of Witness P and Dr. Petko Grubac, that Slobodan Babic died a few days after being transferred to the temporary medical centre at the "3rd March" School.

883. In relation to the treatment to which Slobodan Babic was subjected in the Celebici prison-camp itself, Witness N testified as to how uniformed men entered the building where he and Slobodan Babic were detained, and hit the latter several times. According to this witness "though he [Slobodan Babic] was half dead, they continued hitting him". ⁸⁹³

884. The Trial Chamber finds that Slobodan Babic, as a result of physical mistreatment following his arrest, was seriously injured prior to his arrival in the Celebici prison-camp. He was detained in the prison-camp for a period of several days, during which time he was, on one occasion, hit repeatedly by a number of uniformed men. He was subsequently transferred to the temporary medical clinic at the "3^rd March" School, where he remained until his death a few days later.

885. In relation to the present charge and on the basis of the foregoing facts, the Trial Chamber cannot exclude the possibility that Slobodan Babic’s death was caused by perpetrators unconnected to the Celebici prison-camp after his transfer to the "3^rd March" School. Accordingly, the Trial Chamber finds that the charge of wilful killing and murder of Slobodan Babic has not been proven beyond reasonable doubt.

(d) Murder of Petko Gligorevic

886. The Indictment alleges that Petko Gligorevic was beaten to death in the latter part of May 1992 in the Celebici prison-camp. In establishing the facts in relation to this incident, the Prosecution relies on the testimony of four witnesses. Stevan Gligorevic testified that, upon his arrival at the Celebici prison-camp, he and the other new detainees were forced to stand up against a wall with their hands raised. They were subjected to verbal abuse and severe beatings with rifle butts, sticks, and other objects, by several groups of uniformed men, over a period of many hours. The witness testified that he saw that Petko Gligorevic had died as a result of the beatings. The Prosecution further relies on the supporting accounts provided by Mladen Kuljanin, Zoran Ninkovic and Witness F, all of whom belonged to the group of detainees who were subjected to the beatings, and each of whom was able to confirm that Petko Gligorevic died as a result of those beatings. Mladen Kuljanin specfically testified to seeing how "[a]t one point, he [Petko Gligoervic] fell down from the beating and some soldiers came over and ordered two prisoners to pull him up. Then he got up. When the next group came over to beat us, Petko fell down again and never got up again."⁸⁹⁴ Mladen Kuljanin further identified Hazim Delic as one of the people participating in the beatings⁸⁹⁵. Similarly, Zoran Ninkovic testified that at one point during the beatings he observed Hazim Delic standing in the area where the beatings occured. ⁸⁹⁶

887. The Defence contends that the Prosecution has presented no evidence demonstrating that any person associated with the Celebici prison-camp participated in the alleged collective beating or any other act which may have lead to the death of Petko Gligorevic.

888. The Trial Chamber finds the testimony of the four witnesses relied upon by the Prosecution to be trustworthy. All four were present during the events leading up to the death of Petko Gligorevic and their respective accounts are, in all material respects, consistent.

889. The Trial Chamber finds that Petko Gligorevic, upon his arrival at the Celebici prison-camp, was forced to stand against a wall with his hands raised, along with the other new detainees. Thereafter, he was subjected to savage beatings by several groups of uniformed men. The perpetrators used rifle butts and other wooden and metal objects to beat the detainees. The beatings continued for a period of several hours and, for at least a part of this period, Hazim Delic was present. As a direct result of the injuries he sustained from these beatings, Petko Gligorevic died sometime during the beatings, or soon thereafter.

890. Considering the severity of the beatings to which Petko Gligorevic was subjected and the fact that the perpetrators used metal and wooden objects to inflict the blows, the Trial Chamber finds that the beatings were administered with an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, as we have been left in no doubt that the injuries inflicted upon Petko Gligorevic in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Petko Gligorevic, as described above, constitutes wilful killing under Article 2 and murder under Article 3 of the Statute.

(e) Murder of Gojko Miljanic

891. The Indictment alleges that Gojko Miljanic was beaten to death in the Celebici prison-camp in the latter part of May 1992. The Prosecution alleges that this victim died as a result of injuries sustained in a collective beating which commenced upon his arrival at the Celebici prison-camp. The Prosecution contends that this was the same incident in which Petko Gligorevic was killed. In order to establish the facts in relation to this incident, it relies on the evidence of Witness N, Stevan Gligorevic, Witness F, Mladen Kuljanin and Zoran Ninkovic. The latter four of these witnesses formed part of the group of prisoners that were subjected to beatings on this occasion and in their testimony they described the nature and duration of the beatings they were forced to endure. Stevan Gligorevic, Mladen Kuljanin and Witness F also testified to having seen Gojko Miljanic in Hangar 6 after the beatings and stated that he died the next morning as a result of the severe injuries he had sustained. Witness N also stated that he saw the victim die in his son’s arms in the Hangar.

892. The Defence contends that the Prosecution has presented no evidence showing that any person associated with the Celebici prison-camp participated in the alleged collective beating or any other act which may have lead to the death of Gojko Miljanic.

893. As stated above, in connection with the Trial Chamber’s findings in relation to the killing of Petko Gligorevic, the Trial Chamber finds the firsthand accounts of Zoran Ninkovic, Stevan Gligorevic, Witness F and Mladen Kuljanin to be trustworthy with respect to the collective beating as a result of which Gojko Miljanic is alleged to have died. Further, the Trial Chamber accepts the testimony of the latter three witnesses, as supported by Witness N, as to the death of Gojko Miljanic in Hangar 6 sometime during the following 24 hour period. Accordingly, the Trial Chamber finds that Gojko Miljanic, upon his arrival at the Celebici prison-camp, was subjected to a collective beating in the same manner as found for the killing of Petko Gligorevic. After the beatings, Mr. Miljanic was taken back to Hangar 6, where he subsequently died as a result of the injuries he sustained.

894. Considering the severity of the beatings to which Gojko Miljanic was subjected and the fact that the perpetrators used rifle butts and other metal and wooden objects to inflict the blows, the Trial Chamber finds that the beatings were administered with an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, as we are convinced that the injuries inflicted upon Gojko Miljanic in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Gojko Miljanic, as described above, constitutes wilful killing under Article 2 and murder under Article 3 of the Statute.

(f) Murder of Zeljko Klimenta

895. The Indictment alleges that Zeljko Klimenta was shot and killed during the latter part of July 1992 in the Celebici prison-camp. To establish the facts in relation to this incident, the Prosecution relies upon the testimony of eight witnesses, including that of Vaso Dordic, who provided an eyewitness account of this killing. The Prosecution further relies on the supporting accounts of this killing as provided by a number of witnesses who were inside the Hangar at the relevant time, including Mirko Babic, Nedeljko Draganic, Dragan Kuljanin, Mladen Kuljanin, Mirko Dordic and Witness R. These witnesses all described hearing Zeljko Klimenta being called out of the Hangar. Several minutes later they heard a shot. Soon thereafter, one or more of the other detainees entered the Hangar to announce that Mr. Klimenta had just been killed. Further, Witness N and Mladen Kuljanin testified to having seen Zeljko Klimenta’s body near the Hangar soon afterwards. The Prosecution also relies upon Exhibit 185, a funeral certificate, to establish the death of the victim.

896. The Defence notes that the Prosecution evidence in relation to the instant charge contains numerous inconsistencies. It submits, inter alia, that contradictory accounts have been given by Milovan Kuljanin and Vaso Dordic, who both claim to have been eyewitnesses to the killing. It contends that it is impossible to reconcile the different accounts given by these two witnesses and that, therefore, their evidence cannot be relied upon. In addition, the Defence seeks to impeach the testimony of Vaso Dordic by pointing out inconsistencies between his testimony and his previous statement made to the Prosecution as regards the circumstances surrounding the killing of Mr. Klimenta. The Defence further contest the Prosecution’s assertion that the killing was intentional, submitting that there is some evidence to suggest that it could have been accidental and that the Prosecution has therefore failed to carry its burden of proving beyond a reasonable doubt that the killing of Zeljko Klimenta constitutes wilful killing or murder.

897. The Trial Chamber heard evidence from 18 witnesses in relation to the circumstances surrounding the death of Zeljko Klimenta. The testimony of these witnesses was uniformly consistent with respect to the fact that Zeljko Klimenta was shot by a guard in the Celebici prison-camp and died as a result of his injuries soon thereafter. Indeed, the Defence for Zejnil Delalic concedes this much in its final submissions⁸⁹⁷. However, the accounts of these witnesses as to the details of the circumstances surrounding Zeljko Klimenta’s death conflict in a number of ways. Most critically, the testimony of the two witnesses who stated that they had personally observed the killing differs significantly as to the circumstances surrounding this event. In his testimony, Vaso Dordic described how he and Zeljko Klimenta were ordered to take the latrine bucket out of Hangar 6. According to this witness, he and the victim were engaged in cleaning the bucket at the toilet behind the Hangar when a guard called to Zeljko Klimenta to approach him. After the guard and Zeljko Klimenta had lit up cigarettes, the latter started moving towards the Hangar. The guard aimed his rifle at him and called out, telling the victim not to run or he would kill him, whereupon Zeljko Klimenta started running towards the Hangar. The guard then fired his rifle at Zeljko Klimenta, hitting him in the small of the neck. In contrast, Milovan Kuljanin testified that Mr. Klimenta went outside Hangar 6 in order to relieve himself and that as he was walking towards the latrine ditch, a guard fired at him, hitting him in the back of the head and killing him instantly.

898. While the Trial Chamber has been left in no doubt that Zeljko Klimenta was killed whilst being detained at the Celebici prison-camp, the nature of the inconsistencies in the evidence presented on this issue prevents the Trial Chamber from reaching any conclusive factual findings concerning the specific circumstances surrounding his death. Accordingly, the Trial Chamber finds that it has not been proven beyond a reasonable doubt that the killing of Zeljko  Klimenta constitutes wilful killing under Article 2 or murder under Article 3.

(g) Murder of Miroslav Vujicic

899. The Indictment alleges that Miroslav Vujicic was shot in the Celebici prison-camp on approximately 27 May 1992. The Prosecution alleges that Miroslav Vujicic was shot and killed by a guard after attempting to escape a collective beating to which he, among others, was subjected immediately upon his arrival in the Celebici prison-camp. It is alleged that this was the same incident in which Petko Gligorevic died and that Hazim Delic was present during the beatings. The Prosecution seeks to establish the facts in relation to this count by relying on the testimony of Witness F, Stevan Gligorevic, Witness N, Mladen Kuljianin, Zoran Ninkovic and on Exhibit 185.

900. The Defence attempts to cast doubt on the testimony of the Prosecution’s witnesses relating to this count by pointing out that their accounts of the killing differed as to the number of shots fired.

901. As stated above, in connection with the Trial Chamber’s findings in relation to the killing of Petko Gligorevic, the Trial Chamber accepts as trustworthy the firsthand accounts of Stevan Gligorevic, Witness F, Mladen Kuljanin and Zoran Ninkovic with respect to the collective beating in connection with which Miroslav Vujicic is alleged to have been killed. Specifically in relation to the present charge, Witness F testified how, at one point during the beating Miroslav Vujicic was taken out of the line up, made to lie down on the ground and hit several times. Miroslav Vujicic then got up and started running away from the scene of the beatings, whereupon shots were fired, killing him. This account is supported by the testimony of Witness F and Stevan Gligorevic. While the latter of these witnesses stated that he was unable observe these events, he testified to hearing shots being fired and later seeing the victim’s body lying in the grass. The death of Miroslav Vujicic was further supported by Exhibit 185, a funeral certificate.

902. Accordingly, the Trial Chamber finds that a group of detainees were collectively beaten in the same manner as found for the killing of Petko Gligorevic upon arrival at the Celebici prison-camp. At some point during this beating, Miroslav Vujicic started to run away from the scene of this physical abuse, whereupon he was shot and killed by one of the individuals participating in the collective beatings.

903. In the instant case it is established that Miroslav Vujicic was shot and killed by one of the individuals participating in the collective beating, as described above, in the Celebici prison-camp. The Trial Chamber finds that, under these circumstances, the use of a firearm against an unarmed individual demonstrates an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, the Trial Chamber finds that the killing of Miroslav Vujicic constitutes the offences of wilful killing under Article 2 and murder under Article 3 of the Statute.

(h) Murder of Pero Mrkajic

904. The Indictment alleges that Pero Mrkajic was beaten to death in July 1992. In seeking to establish the facts in relation to this charge, the Prosecution relies upon the testimony of five witnesses. Both Dragan Kuljanin and Witness F testified that, upon his arrival at the Celebici prison-camp, Pero Mrkajic was in a serious medical condition. Dragan Kuljanin further testified that Mr. Mrkajic was beaten outside Hangar 6. This was supported by the testimony of Dr. Petko Grubac. Both Witness P and Dr. Grubac, who worked in the makeshift prison-camp infirmary, attested to the extensive bruising and injuries on Mr. Mrkajic’s body and confirmed the fact that Mr. Mrkajic died in this infirmary. The Prosecution further relies on Exhibit 185, a funeral certificate.

905. Noting the existence of evidence that Pero Mrkajic was already badly injured upon his arrival at the Celebici prison-camp, and that he suffered from diabetes, the Defence contends that both or either of these facts caused his death, rather than any unlawful act committed by a person in the Celebici prison-camp.

906. In his testimony before the Trial Chamber, Dragan Kuljanin described how Pero Mrkajic was severely beaten prior to his arrival at the Celebici prison-camp. This evidence is consistent with that given by Witness F, who testified that Pero Mrkajic was in a very poor physical condition when he arrived at the Celebici prison-camp. Dragan Kuljanin further testified that Pero Mrkajic, like himself, had been subjected to beatings outside Hangar 6. This evidence is supported by the testimony of Dr. Petko Grubac, who stated that Pero Mrkajic told him that he had been beaten up, and that his injuries had been inflicted in Hangar 6. Dr Petko Grubac and Witness P, who both had an opportunity to observe the medical condition of the victim, testified that he died some days after his arrival at the infirmary. In his testimony, Dr. Grubac clearly stated that, in his opinion, Pero Mrkajic did not die as a result of his diabetic condition.

907. Based upon this evidence, the Trial Chamber finds that Pero Mrkajic was already seriously injured when he arrived at the Celebici prison-camp. Despite the serious nature of his medical condition, Mr. Mrkajic was subjected to further beatings during his period of detention within the prison-camp. He was subsequently transferred to the so-called infirmary, where he remained until his death a few days later.

908. In relation to the present charge and based upon the foregoing facts, the Trial Chamber finds that the act of beating Pero Mrkajic, given the serious nature of his medical condition, demonstrates an intent on the part of the perpetrators to kill or to inflict serious injury in reckless disregard of human life.

909. The Trial Chamber notes that it is a well-recognised legal principle that a wrongdoer must take the victim as he finds him. Thus, if a perpetrator by his acts shortens the life of his victim, it is legally irrelevant that the victim may have died shortly thereafter from another cause. To establish criminal liability in situations where there are pre-existing physical conditions which would cause the victim’s death, therefore, it is only necessary to establish that the accused’s conduct contributed to the death of the victim. Based upon the facts set out above, the Trial Chamber is convinced that this test is satisfied in relation to the present charge. Accordingly, the Trial Chamber finds that the killing of Pero Mrkajic constitutes the offence of wilful killing under Article 2 and murder under Article 3 of the Statute.

(i) Responsibility of the Accused

910. Under the counts of the Indictment here under consideration, Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged with responsibility as superiors pursuant to Article 7(3) of the Statute. As set out above, Zejnil Delalic and Hazim Delic have respectively been found not to have exercised superior authority over the Celebici prison-camp. For this reason, the Trial Chamber finds Zejnil Delalic and Hazim Delic not guilty of wilful killings and murders, as charged in counts 13 and 14 of the Indictment.

911. The Trial Chamber has above established that Zdravko Mucic was in a de facto position of superior authority over the Celebici prison-camp. It has further found that Zdravko Mucic in this position knew or had reason to know of the violations of international humanitarian law committed in the Celebici prison-camp, but failed to prevent these acts or punish the perpetrators thereof. For this reason, and on the basis of the findings made above, the Trial Chamber finds Zdravko Mucic responsible pursuant to Article 7(3) of the Statute for the wilful killing and murder of Zeljko Cecez, Petko Gligorevic, Gojko Miljanic, Miroslav Vujicic and Pero Mrkajic. Also on the basis of the findings made above, the Trial Chamber finds that Zdravko Mucic is not responsible for the wilful killing and murder of Milorad Kuljanin, Slobodan Babic and Zeljko Klimenta, as alleged in Indictment.

912. In his position as a superior, Zdravko Mucic is further responsible for the wilful killing and murder of Scepo Gotovac, Zeljko Milosevic, Simo Jovanovic and Bosko Samoukovic, as alleged in paragraphs 16, 17, 18 and 19 of the Indictment, and found proven by the Trial Chamber above. The Trial Chamber finds that Zdravko Mucic is not responsible for wilful killing and murder of Slavko Susic as alleged in paragraph 21 of the Indictment. However, in accordance with the findings made above, Zdravko Mucic is responsible for wilfully causing great suffering or serious injury to body or health to, and cruel treatment of, Slavko Susic.

8. Torture or Cruel Treatment of Momir Kuljanin - Counts 15, 16 and 17

913. In paragraph 23 of the Indictment, Hazim Delic and Esad Landzo are alleged to be responsible for the torture or cruel treatment of Momir Kuljanin, a detainee at the Celebici prison-camp. The acts of these two accused in this respect are charged in counts 15, 16 and 17 as follows:

Sometime beginning around 25 May 1992 and continuing until the beginning of September 1992, Hazim DELIC, Esad LANDZO and others repeatedly and severely beat Momir KULJANIN. The beatings included being kicked to unconsciousness, having a cross burned on his hand, being hit with shovels, being suffocated, and having an unknown corrosive powder applied to his body. By their acts and omissions, Hazim DELIC and Esad LANDZO are responsible for:

Count 15. A Grave Breach punishable under Article 2(b) (torture) of the Statute of the Tribunal; [and]

Count 16. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (torture) of the Geneva Conventions; or alternatively

Count 17. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (cruel treatment) of the Geneva Conventions.

(a) Prosecution Case

914. The Prosecution relies on the testimony of Witness M, Witness P, Dragan Kuljanin, Mirko Dordic, Milenko Kuljanin, Witness R, Stevan Gligorevic and Mladen Kuljanin in support of the allegations made in these counts of the Indictment. In addition, it places emphasis on the admissions made by Esad Landzo while appearing as a witness in his own defence. Witness N and Milovan Kuljanin also provided testimony about these alleged incidents, although the Prosecution does not seek to rely upon them in its Closing Brief.

(b) Defence Case

915. Hazim Delic has denied that he tortured or cruelly treated Momir Kuljanin in the Celebici prison-camp. In his interview with the Prosecution investigators, Mr. Delic took the position that he did not even know Mr. Kuljanin, although he might be able to recognise him if he saw him.

916. Esad Landzo admitted before the Trial Chamber that he had on occasion burnt Momir Kuljanin’s hand, but stated that he had done so at the instigation of an unidentified "muslim" from the village Homolje and under the orders of Hazim Delic. According to Mr. Landzo, this "muslim" had some prior grudge against Momir Kuljanin and had approached Hazim Delic, who then ordered Landzo to "teach the Chetnik a lesson and to burn a bit his hands so that he wouldn’t be touching in connection with some women [sic]".⁸⁹⁸

(c) Discussion and Findings

917. Momir Kuljanin is a Bosnian Serb who lived in the village of Bradina and was employed in the marketing section of the Yugoslav railway company. He was also the treasurer of the local branch of the SDS and belonged to the local police force reserves. When the joint forces of the TO, HVO and MUP launched their operation to regain control of Bradina in May 1992, Mr. Kuljanin took part in the resistance mounted by the local Bosnian Serbs, but on the successful conclusion of the operation he surrendered to these Bosnian government forces with the automatic rifle which he possessed as a member of the reserve police, and was taken to the Celebici prison-camp for detention. To begin with, he was confined in Tunnel 9 but was later moved to Hangar 6.

918. In support of these counts, the main witness for the Prosecution was the victim himself, who stated that he was beaten almost daily whilst in the prison-camp. In addition, on one particular occasion Hazim Delic and Esad Landzo took him out of the Hangar and, while Delic walked over to his car parked around 10 metres away, Landzo started kicking and hitting the victim with karate chops, which rendered him unconscious. Esad Landzo then collected some papers, which he set on fire and over which he heated a knife. Mr. Landzo forced Momir Kuljanin to hold the heated knife in his hand, the result of which was the infliction of a serious burn on his palm. Mr. Landzo then cut two lines across Mr. Kuljanin’s hand with the same knife. The resulting blisters led to the swelling of his hand and, due to the lack of medical attention, the wound subsequently became septic.

919. The victim testified that, on another occasion, Hazim Delic and Esad Landzo took him out of Hangar 6 and, in the presence of some other guards, a gasmask was put on his head and the screws tightened. With this mask on he could hardly breathe. His trousers were then taken off up to the knees and some powder was applied on his body which did not hurt him at that time. He was then taken to a manhole where water was thrown on him and he experienced terrible pain and a burning sensation. With the mask still in place, he also felt choked and became unconscious. He was then thrown back into the Hangar. He also stated that, as a result of the beatings that he received at that time, five of his ribs were fractured.

920. Momir Kuljanin was twice examined in the so-called infirmary in Building 22, by Witness P. In his testimony, Witness P referred to the burnt hand of Mr. Kuljanin, but made no mention of his broken ribs. It seems unlikely that Witness P would have failed to mention that such further injuries had also occurred and this discrepancy therefore indicates that there may be some doubt cast on the accuracy of this part of the victim’s testimony. Thus, the Trial Chamber cannot safely rely upon his testimony without other evidence in support of it.

921. Insofar as the burning of his hand is concerned, there is sufficient additional evidence available from the testimony of some of the other detainees confined in Hangar 6 at the relevant time. In this context we may refer particularly to the statements of Dragan Kuljanin, Mirko Dordic, Milenko Kuljanin and Witness R. According to these witnesses, Esad Landzo took Momir Kuljanin out of the Hangar and, when he returned, he had burns on his hand. Stevan Gligorevic also saw the burnt hand of Mr. Kuljanin. It should also be noted that Esad Landzo himself has admitted that he had inflicted the burns on Mr. Kuljanin’s hand.

922. With regard to the other allegations contained in the three counts, concerning the beatings, use of the gasmask to choke the victim, and application of a corrosive powder, the Trial Chamber has not been presented with any evidence in support of the testimony of the victim himself and, in light of the discrepancy noted above, considers it unsafe to hold that these allegations are also proven.

923. There is, furthermore, no evidence on the record which supports the assertion of Esad Landzo that he burnt the hand of Momir Kuljanin at the instance of an unidentified "muslim" or under the direction of Hazim Delic. The actions of Mr. Landzo are clearly of a cruel nature, inflicted with the intent of causing severe pain and suffering to Mr. Kuljanin, and for the purposes of punishing and intimidating him, as well as contributing to the atmosphere of terror reigning in the camp and designed to intimidate all of the detainees. Furthermore, Mr. Landzo’s acts were perpetrated in his role as a guard at the Celebici prison-camp and, as such, he was an official of the Bosnian authorities running the prison-camp.

924. Accordingly, the Trial Chamber finds Esad Landzo guilty of torture under counts 15 and 16 of the Indictment. Count 17 is thus dismissed, being charged in the alternative to count 16. On the basis of the lack of sufficient evidence of his participation in the acts alleged, the Trial Chamber finds Hazim Delic not guilty under any of the three counts.

9. Torture and Rape of Grozdana Cecez - Counts 18, 19 and 20

925. Paragraph 24 of the Indictment states that:

Sometime beginning around 27 May 1992 and continuing until the beginning of August 1992, Hazim DELIC and others subjected Grozdana CECEZ to repeated incidents of forcible sexual intercourse. On one occasion, she was raped in front of other persons, and on another occasion she was raped by three different persons in one night. By his acts and omissions, Hazim DELIC is responsible for:

Count 18. A Grave Breach punishable under Article 2(b) (torture) of the Statute of the Tribunal;

Count 19. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(torture) of the Geneva Conventions; or alternatively

Count 20. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(cruel treatment) of the Geneva Conventions

(a) Prosecution Case

926. In support of these counts, the Prosecution relies on the testimony of Ms. Cecez, the victim of the multiple rapes alleged, and that of Witness P, Witness D, Dr. Grubac and Witness T. Ms. Cecez testified before the Trial Chamber that, after her arrival in the Celebici prison-camp, on 27 May 1992, she was taken to a room in Building B, where Hazim Delic, who was using a crutch at the time, interrogated her about the whereabouts of her husband. She further stated that she was then required to go to another room where she was raped by Mr. Delic in front of two other men. On her third night in the Celebici prison-camp, and her first night in Building A, she testified that she was raped by four other men, one of whom was a witness for the Prosecution and who denied this allegation during his testimony. Ms. Cecez also testified that she was raped by another man at the end of July 1992.

927. The Prosecution contends that the following witnesses, including Defence witnesses, confirmed that Mr. Delic was using a crutch at the time in question: Mirko Dordic, Dr. Grubac, Witness T, Dr. Jusufbegovic, Agan Ramic, Nurko Tabak and Emir Dzajic. Further, it seeks to rely on a medical report showing the period when Mr. Delic was in hospital, between 21-25 May 1992, for an injury to his right leg. ⁸⁹⁹

928. The Prosecution submits that other witnesses support the account given by Ms. Cecez. Witness D, one of the members of the Military Investigative Commission working in the prison-camp, reported that a typist at the prison-camp had told him that the guards were boasting of having raped women prisoners, including Ms. Cecez. This testimony was, in the view of the Prosecution, confirmed by a 1992 document signed by members of the Commission which stated they had learned from the female detainees that they had each been taken out during the night but they did not want to say what had happened to them. Further, this document stated that some members of prison-camp security had stated that the women had been sexually abused⁹⁰⁰. Further, the Prosecution seeks to rely on Witness T, who testified that Hazim Delic had boasted to him that he had raped 18 Serb women and it was his intention to rape more in the future, and the testimony of Esad Landzo, who said that Delic had bragged to him, while they were in prison together, that he had raped both Ms. Cecez and Ms. Antic. The Prosecution also refers to the evidence of Dr. Grubac, who testified that he was informed by Ms. Cecez that the women in the prison-camp were being raped.

929. Ms. Cecez testified that, during the rape, Hazim Delic told her she was in the Celebici prison-camp because of her husband and that she would not have been there if he had been around. Further, she testified that Zdravko Mucic had asked about the whereabouts of her husband. The Prosecution submits that the evidence of Witness D supported this, by stating that Ms. Cecez had to stay in the Celebici prison-camp because there was information that her husband was hiding in the vicinity of Konjic.

(b) Defence Case

930. Hazim Delic was the only accused charged as a direct participant in these counts of the Indictment and, as such, only his Defence made submissions in relation to them⁹⁰¹. The Defence for Mr. Delic submits that the only direct evidence of the rapes comes from the alleged victim, and that the remainder of the evidence is indirect. It is submitted that the testimony of Ms. Cecez is unsatisfactory and evasive and, if she was in fact telling the truth, her evidence cast severe doubt on her ability to recall and recount past events.

931. In his interview with the Prosecution investigatiors, given on 19 July 1996, Mr. Delic denied having raped Ms. Cecez. He admitted that Ms. Cecez was brought to the Celebici prison-camp because of her husband but that he only ever had coffee with her. Mr. Delic denied that he had heard reports that Ms. Cecez had been raped.⁹⁰²

932. The Defence contends that there is no evidence that the purpose of the alleged rapes was to elicit information from Ms. Cecez. At trial, Ms. Cecez gave evidence that she was raped on 27 May 1992 by Mr. Delic, after which he mentioned her husband as the reason that she was in the prison-camp, but not as the reason for the alleged rape. Further, the Defence argues that the interrogation regarding her husband ended before the alleged rape began and was not resumed after the rape, which, in the view of the Defence, would have to be proven if the purpose of the alleged rape was to obtain information. There is no evidence that information had been sought or given prior to the other alleged rapes.

933. Further, the Defence maintains that Ms. Cecez had identified Hazim Delic as a perpetrator of rape on the basis that he was using a crutch but was unable to identify the accused in the Prosecution’s photo array.

934. The Defence additionally submits that the testimony of Ms. Cecez lacks credibility for a number of other reasons. First, she made corrections to the statements she had previously made to the Prosecution and was, accordingly, contradicting facts she had formerly asserted as being true. Secondly, she claimed she was unable to recall having spoken to Belgrade TV, and the Defence claims that it is extraordinary that she would forget such an incident. Thirdly, Ms. Cecez testified to having had contraceptive pills in the Celebici prison-camp, which she stated had been prescribed by her doctor, but her doctor denied this. Similarly, Ms. Antic testified that Ms. Cecez provided her with contraceptive pills, but Ms. Cecez denied this. Fourthly, Ms. Cecez alleged that a machine gun had been fired near her. Such an incident would not be easily forgotten and the fact that she mentioned it for the first time at trial, in the opinion of the Defence, indicates that she had manufactured this evidence.

935. With respect to the supporting evidence, the Defence states that Witness P testified that he deduced that Ms. Cecez had been raped based upon certain statements made by Mr. Delic, but he provided no explanation as to how or why he had drawn this conclusion. Secondly, statements by Ismeta Pozder, the typist in the prison-camp, relating to a rape by Mr. Delic and introduced into evidence by Witness P and Witness D, represents hearsay evidence. Thirdly, the fact that Witness D claimed not to know who to report the rape to, despite being a former police officer and secret policeman was incredible and casts serious doubt on his evidence as a whole. Fourthly, Emir Dzajic, a witness for the Defence, asserted that Ms. Cecez had never complained to him about having been subjected to sexual assaults and denied having been present when such assaults took place. Furthermore, he denied that rape was part of the normal interrogation process in the Celebici prison-camp.

(c) Discussion and Findings

936. The Trial Chamber notes that sub-Rule 96(i) of the Rules provides that no corroboration of the testimony of a victim of sexual assault shall be required. It is alleged in the Indictment that Ms. Cecez was raped by Hazim Delic and by other persons. The Trial Chamber finds the testimony of Ms. Cecez, and the supporting testimony of Witness D and Dr. Grubac, credible and compelling, and thus concludes that Ms. Cecez was raped by Mr. Delic, and others, in the Celebici prison-camp.

937. Ms. Cecez, born on 19 April 1949, was a store owner in Konjic until May 1992. She was arrested in Donje Selo on 27 May 1992, and taken to the Celebici prison-camp. She was kept in Building B for the first two nights of her detention and was then taken to Building A on the third night, where she stayed until her release on 31 August 1992. Upon her arrival at the prison-camp she was taken by a driver, Mr. Dzajic, to a room where a man with a crutch was waiting, whom she subsequently identified as Hazim Delic. Another man subsequently entered the room. Ms. Cecez was interrogated by Mr. Delic, who asked her about the whereabouts of her husband and slapped her. She was then taken to a second room with three men, including Mr. Delic. Hazim Delic who was in uniform and carrying a stick, then ordered her to take her clothes off. He then partially undressed her, put her face down on the bed and penetrated her vagina with his penis. He subsequently turned her over on to her back, took off the remainder of her clothes and again penetrated her vagina with his penis. During this time, Mr. Dzajic was lying on another bed in the same room and the other man present was standing guard at the door of the room. Mr. Delic told her that the reason she was there was her husband, and that she would not be there if he was. Later that evening Zdravko Mucic came to the room where she was being kept and asked about the whereabouts of her husband. He noticed her appearance and asked her whether anyone had touched her. She did not dare to say anything as Delic had instructed her not to do so. However Mr. Mucic "could notice that I [Ms. Cecez] had been raped because there was a big trace of sperm left on the bed". ⁹⁰³

938. The effect of this rape by Hazim Delic was expressed by Ms. Cecez, when she stated: "… he trampled on my pride and I will never be able to be the woman that I was"⁹⁰⁴. Ms. Cecez lived in constant fear while she was in the prison-camp and was suicidal. Further, Ms. Cecez was subjected to multiple rapes on the third night of her detention in the prison-camp when she was transferred from Building B to a small room in Building A. After the third act of rape that evening she stated "[i]t was difficult for me. I was a woman who only lived for one man and I was his all my life, and I think that I was just getting separated from my body at this time."⁹⁰⁵ In addition, she was subjected to a further rape in July 1992. As a result of her experiences in the prison-camp Ms. Cecez stated that "[p]sychologically and physically I was completely worn out. They kill you psychologically." ⁹⁰⁶

939. The fact that Ms. Cecez was being kept in the Celebici prison-camp was supported by the evidence of Witness D, a member of the Investigative Commission, who stated that Ms. Cecez had to be kept there due to information from the field that her husband was armed and hiding in the vicinity of Konjic. In further evidence in support of these counts, Witness D was also told by a typist in the prison-camp that the guards had boasted of having raped Ms. Cecez. Witness D then testified that he told the typist that she should advise Zejnil Delalic and she stated that she would do so. Further credence is added to the evidence of Ms. Cecez by Dr. Grubac, a fellow inmate, who testified that he had observed that the women in the prison-camp were crying, in a difficult condition and that he had the impression that they were ashamed. When Dr. Grubac asked Ms. Cecez what was wrong with them, she told him that women were being taken out and raped each night.

940. The Trial Chamber finds that acts of vaginal penetration by the penis under circumstances that were coercive, quite clearly constitute rape. These acts were intentionally committed by Hazim Delic who was, an official of the Bosnian authorities running the prison-camp.

941. The purposes of the rapes committed by Hazim Delic were, inter alia, to obtain information about the whereabouts of Ms. Cecez’s husband who was considered an armed rebel; to punish her for her inability to provide information about her husband; to coerce and intimidate her into providing such information; and to punish her for the acts of her husband. The fact that these acts were committed in a prison-camp, by an armed official, and were known of by the commander of the prison-camp, the guards, other people who worked in the prison-camp and most importantly, the inmates, evidences Mr. Delic’s purpose of seeking to intimidate not only the victim but also other inmates, by creating an atmosphere of fear and powerlessness. In addition, the violence suffered by Ms. Cecez in the form of rape, was inflicted upon her by Delic because she is a woman. As discussed above, this represents a form of discrimination which constitutes a prohibited purpose for the offence of torture.

942. Finally, there can be no question that these rapes caused severe mental pain and suffering to Ms. Cecez. The effects of the rapes that she suffered at the hands of Hazim Delic are readily apparent from her own testimony and included living in a state of constant fear and depression, suicidal tendencies, and exhaustion, both mental and physical.

943. For these reasons, the Trial Chamber finds Hazim Delic guilty of torture, under count 18 and count 19 of the Indictment for the rape of Ms. Cecez. As count 20 of the Indictment is charged in the alternative to count 19, it is dismissed in light of the guilty finding for count 19 of the Indictment.

10. Torture and Rape of Witness A - Counts 21, 22 and 23

944. Paragraph 25 of the Indictment states that:

Sometime beginning around 15 June 1992 and continuing until the beginning of August 1992, Hazim DELIC subjected a detainee, here identified as Witness A, to repeated incidents of forcible sexual intercourse, including both vaginal and anal intercourse. Hazim DELIC raped her during her first interrogation and during the next six weeks, she was raped every few days. By his acts and omissions, Hazim DELIC is responsible for:

Count 21. A Grave Breach punishable under Article 2(b) (torture) of the Statute of the Tribunal;

Count 22. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(torture) of the Geneva Conventions; or alternatively

Count 23. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(cruel treatment) of the Geneva Conventions.

945. Ms. Milojka Antic is referred to in the Indictment as Witness A. During the hearing and prior to her testimony, the Prosecution advised the Trial Chamber that she was not a protected witness and on this basis she has been subsequently referred to by her full name.

(a) Prosecution Case

946. The Prosecution submits that Ms. Antic was raped on three separate occasions in the Celebici prison-camp. Ms. Antic testified that, upon her arrival at the Celebici prison-camp on 15 June 1992, she was taken to Building A and interrogated with another detainee, by persons including Hazim Delic and Zdravko Mucic. Subsequently, during her first night in the prison-camp, she was called out and brought to Mr. Delic, who interrogated her once again and raped her. In addition to her testimony, the Prosecution relies upon the statement of Ms. Cecez, who said, "Hazim Delic raped Milojka that first night. The girl cried for 24 hours. She could not stop."⁹⁰⁷

947. Ms. Antic further testified that she was raped a second time by Hazim Delic. On this occasion, she said that she was ordered by Mr. Delic to go to Building B with Ms. Cecez, to take a bath. She stated that she complied with this order, and was then taken to the same room where she had been raped previously. She testified that Delic started to rape her anally causing her great pain and her anus to bleed. She stated that he turned her on to her back and raped her vaginally. Ms. Antic also testified that she was raped a third time by Hazim Delic. On this occasion he came to the door of her room in Building A and ordered Ms. Cecez to go out into the corridor, after which he raped her. Further supporting testimony was presented by the Prosecution through Ms. Cecez’s testimony that "Delic would make me go to the front room and he raped her [Ms. Antic] in broad daylight". ⁹⁰⁸

948. The Prosecution refers to other supporting evidence in relation to these counts. This includes the testimony of Witness P, who stated that the typist in Building B had told him that Hazim Delic had said that he was keeping Ms. Antic for himself and that she was a virgin; the testimony of Witness T, who informed the Trial Chamber that Mr. Delic had boasted of raping Serb women; the testimony of Esad Landzo, who said that Mr. Delic had boasted of raping Ms. Cecez and Ms. Antic; the testimony of Witness D, who testified that the typist told him that women in the prison-camp were being raped; the testimony of Dr. Grubac, who stated that he had been told by Ms. Cecez that women were being raped; and Exhibit 162, a report from the Military Investigative Commission which reported that female detainees were being sexually abused.

(b) Defence Case

949. Hazim Delic is the only accused charged as a direct participant in these counts and, as such, only his Defence counsel made submissions in relation to them⁹⁰⁹. The Defence for Mr. Delic submits that the only eyewitness evidence to the alleged acts came from the alleged victim, and that the remainder of the evidence was indirect. This evidence cannot, therefore, provide a basis for a finding of guilt beyond reasonable doubt.

950. In his interview with Prosecution investigators, on 19 July 1996, Mr. Delic claimed that he did not know Ms. Antic. He asserted that he had never raped anybody and that he did not know of any women being raped at the Celebici prison-camp.⁹¹⁰

951. The Defence submits that the Prosecution has presented no evidence that the purpose of the first alleged rape was to elicit information. While Ms. Antic testified that she was first raped after being interrogated by Mr. Delic, she did not allege that the interrogation was resumed after the rape, which, in its view, would have been the logical course of events if its purpose was to secure answers to interrogation. Further, the Defence seeks to discredit Ms. Antic’s evidence on the first rape on the basis that she did not mention it to anyone, whereas Ms. Cecez claimed that Ms. Antic had told her of rape. Thus, the Defence contends that both accounts can not be correct.

952. Concerning the alleged second rape, the Defence submits that Ms. Antic’s testimony contradicted the evidence of Ms. Cecez. While Ms. Antic testified that she had a bath before being raped for a second time, Ms. Cecez’s testimony does not support this claim.

953. The Defence also makes a number of general submissions in order to discredit the alleged victim’s evidence. First, Ms. Antic failed to inform either of the doctors who examined her - Witness P and Dr. Grubac - that she had been raped. Secondly, Ms. Antic was unable to identify the accused from a photo array, although she mentioned that one of the images looked familiar and she recognised the forehead, nose and mouth, whereas one would expect the perpetrator’s face to be imprinted on her mind. Thirdly, Ms. Antic had previously told the Prosecution’s investigators that she had been raped every two or three days during her first six weeks at the Celebici prison-camp. This is inconsistent with the evidence she gave at trial, where she said she was raped on three occasions. Fourthly, Ms. Antic gave evidence at trial that she had overheard Zdravko Mucic referring to her as the "right type for you" to Mr. Delic, but she did not include this in her prior statement to the Prosecution’s investigators.

954. Further, Ms. Antic testified that she had been offered contraceptive pills by Ms. Cecez, but that she had refused them as unnecessary. According to the Defence, this was denied by Ms. Cecez and contradicts an earlier statement made by Ms. Antic where she stated that she had taken the contraceptive pills as she was afraid of becoming pregnant. In fact, Ms. Antic had undergone a hysterectomy some years before the conflict and could not therefore have been at risk from pregnancy. When questioned at trial regarding this inconsistency in her testimony, Ms. Antic said she hadn’t known the results of the operation. Thereafter, Dr. Jusufbegovic, a medical practitioner, testified that it was unlikely that a doctor would not disclose, nor a woman ask about, the success of such an operation. In this regard, the Defence submits that her testimony is wholly contradictory.

(c) Discussion and Findings

955. Ms. Antic is a Bosnian Serb born in 1948. In 1992, she lived in the village of Idbar with her mother. She was arrested in her village on 15 June 1992 and taken to the Celebici prison-camp. After her arrival, she was detained in Building A along with other women, where she was kept until her release on 31 August 1992. Upon her arrival at the Celebici prison-camp, she was immediately interrogated together with another woman, by Hazim Delic, Zdravko Mucic and another person. In answer to a question by Mr. Mucic, she stated that she was not married, at which point Mr. Mucic said to Mr. Delic, "[t]his is just the right type for you".

956. The Trial Chamber notes that Sub-rule 96(i) of the Rules, provides that no corroboration of the victim’s testimony shall be required. It agrees with the view of the Trial Chamber in the Tadic Judgment, quoted in the Akayesu Judgement, that this sub-Rule:

accords to the testimony of a victim of sexual assault the same presumption of reliability as the testimony of victims of other crimes, something long been denied to victims of sexual assault by the common law.⁹¹¹

957. Despite the contentions of the Defence, the Trial Chamber accepts Ms. Antic’s testimony, and finds, on this basis, and the supporting evidence of Ms. Cecez, Witness P and Dr. Petko Grubac, that she was subjected to three rapes by Hazim Delic. The Trial Chamber finds Ms. Antic’s testimony as a whole compelling and truthful, particularly in light of her detailed recollection of the circumstances of each rape and her demeanour in the court room in general and, particularly, under cross-examination. The alleged inconsistencies between her evidence at trial and prior statements are immaterial and were sufficiently explained by Ms. Antic. She consistently stated under cross-examination that, when she made those prior statements, she was experiencing the shock of reliving the rapes that she had "kept inside for so many years"⁹¹². Further, the probative value of these prior statements is considerably less than that of direct sworn testimony which has been subjected to cross-examination.

958. The Trial Chamber thus finds that Ms. Antic was raped for the first time on the night of her arrival in the prison-camp. On this occasion she was called out of Building A and brought to Hazim Delic in Building B, who was wearing a uniform. He began to interrogate her and told her that if she did not do whatever he asked she would be sent to another camp or she would be shot. Mr. Delic ordered her to take her clothes off, threatened her and ignored her crying pleas for him not to touch her. He pointed a rifle at her while she took her clothes off and ordered her to lie on a bed. Mr. Delic then raped her by penetrating her vagina with his penis, he ejaculated on the lower part of her stomach and continued to threaten and curse her.

959. She was brought back to her room in Building A in tears, where she stated that she exclaimed, "Oh, fuck you, God, in case you exist. Why did you not protect me from this?"⁹¹³ The following day, Hazim Delic came to the door of the room where she was sleeping and she began crying upon seeing him. He then said to her "[w]hy are you crying? This will not be your last time". Ms. Antic stated during her testimony "I felt so miserably [sic], I was constantly crying. I was like crazy, as if I had gone crazy."⁹¹⁴ The rape and the severe emotional psychological suffering and injury experienced by Ms. Antic was also reported by Ms. Cecez and Dr. Grubac.

960. The second rape occurred when Hazim Delic came to Building A and ordered Ms. Antic to go to Building B to wash herself. After doing so, she was led to the same room in which she was first raped, where Delic, who had a pistol and a rifle and was in uniform, was sitting on a desk. She started crying once again out of fear. He ordered her to take her clothes off. She kept telling him that she was sick and asking him not to touch her. Out of fear that he would kill her she complied with his orders. Mr. Delic told her to get on the bed and to turn around and kneel. After doing so he penetrated her anus with his penis while she screamed from pain. He was unable to penetrate her fully and she started to bleed. Mr. Delic then turned her around and penetrated her vagina with his penis and ejaculated on her lower abdomen. After the rape Ms. Antic continued crying, felt very ill and experienced bleeding from her anus, which she treated with a compress, and was provided with tranquillisers.

961. The third rape occurred in Building A. It was daylight when Hazim Delic came in, armed with hand grenades, a pistol and rifle. He threatened her and she again said that she was a sick woman and asked him not to touch her. He ordered her to undress and get on the bed. She did so under pressure and threat. Mr. Delic then pulled his trousers down to his boots and raped her by penetrating her vagina with his penis. He then ejaculated on her abdomen.

962. The Trial Chamber finds that acts of vaginal penetration by the penis and anal penetration by the penis, under circumstances that were undoubtedly coercive, constitute rape. These rapes were intentionally committed by Hazim Delic who was an official of the Bosnian authorities running the prison-camp.

963. The rapes were committed inside the Celebici prison-camp and on each occasion Hazim Delic was in uniform, armed and viciously threatening towards Ms. Antic. The purpose of these rapes was to intimidate, coerce and punish Ms. Antic. Further, at least with respect to the first rape, Delic’s purpose was to obtain information from Ms. Antic, as it was committed in the context of interrogation. In addition, the violence suffered by Ms. Antic in the form of rape, was inflicted upon her by Delic because she is a woman. As discussed above, this represents a form of discrimination which constitutes a prohibited purpose for the offence of torture.

964. Finally, there can be no question that these rapes caused severe mental and physical pain and suffering to Ms. Antic. The effects of the rapes that she suffered at the hands of Hazim Delic, including the extreme pain of anal penetration and subsequent bleeding, the severe psychological distress evidenced by the victim while being raped under circumstance where Mr. Delic was armed and threatening her life, and the general depression of the victim, evidenced by her constant crying, the feeling that she was going crazy and the fact that she was treated with tranquilizers, demonstrate most emphatically the severe pain and suffering that she endured.

965. For these reasons, the Trial Chamber finds Hazim Delic guilty of torture under count 21 and count 22 of the Indictment for the multiple rapes of Ms. Antic. As count 23 of the Indictment was charged in the alternative to count 22, it is dismissed in light of the guilty finding for count 22 of the Indictment.

11. Torture or Cruel Treatment of Spasoje Miljevic - Counts 24, 25 and 26

966. In paragraph 26 of the Indictment, Hazim Delic and Esad Landzo are alleged to be responsible for the torture of Spasoje Miljevic, another detainee in the Celebici prison-camp. The acts of these two accused in this respect are charged in counts 24, 25 and 26 as follows:

Sometime beginning around 15 June 1992 and continuing until August 1992, Hazim DELIC, Esad LANDZO and others mistreated Spasoje MILJEVIC on multiple occasions by placing a mask over his face so he could not breath, by placing a heated knife against parts of his body, by carving a Fleur de Lis on his palm, by forcing him to eat grass, and by severely beating him using fists, feet, a metal chain, and a wooden implement. By their acts and omissions, Hazim DELIC and Esad LANDZO are responsible for:

Count 24. A Grave Breach punishable under Article 2(b) (torture) of the Statute of the Tribunal; [and]

Count 25. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (torture) of the Geneva Conventions; or alternatively

Count 26. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (cruel treatment) of the Geneva Conventions.

(a) Prosecution Case

967. In support of the allegations made in relations to these counts, the Prosecution relies primarily on the testimony of Witness N, along with that of Branko Gotovac, Dragan Kuljanin, Branko Sudar, Risto Vukalo, Rajko Draganic and Witnesses F, R, and P. The Prosecution also makes reference to the testimony of Mr. Landzo himself.

(b) Defence Case

968. In his interview with Prosecution investigators on 19 July 1996 (Exhibit 103), Hazim Delic denied that he had taken part in the mistreatment of Spasoje Miljevic and, in fact, stated that he did not even know that Spasoje Miljevic was a detainee in the Celebici prison-camp. Mr. Delic told the Prosecution investigators that, if Mr. Miljevic had been tortured in the camp, there should have been a report about it in the camp commander’s office.

969. During his oral testimony Esad Landzo admitted before the Trial Chamber that he had beaten and caused burns to Spasoje Miljevic. Apparently in justification, he stated that he had once caught Mr. Miljevic stealing food intended for the elderly detainees and that it was on this occasion that he had beaten the victim. As regards the infliction of burns to Mr. Miljevic, Mr. Landzo contended that he had been instructed by Hazim Delic to inflict them.

(c) Discussion and Findings

970. Spasoje Miljevic is a Bosnian Serb from the village of Homolje who, in May 1992, was working in a restaurant in the neighbouring village of Viniste, several kilometres away from Konjic town. He was arrested on 23 May 1992 by the forces of the Bosnian government and was taken to the Celebici prison-camp that evening. There he was confined in Building 22. The victim testified that he was severely beaten by some persons in uniform in the prison-camp on the morning of 24 May while being questioned, as result of which his jaw was cracked and some teeth knocked out and he could not eat anything, nor was he able to stand up unassisted. He stayed in Building 22 for around 13 days and was then moved to Hangar 6. While he was detained in the Hangar, Hazim Delic and Esad Landzo continued to mistreat him.

971. Apart from his general mistreatment, which consisted of frequent beatings and kickings, the victim referred during his testimony to three specific incidents. He stated that, on 15 July 1992, Esad Landzo took him out of the Hangar and made him sit on the floor behind an adjoining building. Mr. Landzo put a gasmask on his head, tightened the screws such that he felt suffocated, and then repeatedly heated a knife and burnt the victim’s hands, left leg and thighs. When he had finished inflicting these burns upon the victim, Esad Landzo removed the mask and proceeded to kick and hit him on the way back to the Hangar. On this same occasion, Mr. Landzo also forced the victim to eat grass, as well as filling his mouth with clover and forcing him to drink water. The burns thus inflicted subsequently became septic, and were bandaged several days later in Building 22.

972. Describing a later incident, the victim stated that Esad Landzo called him out of the Hangar, put a mask on his head to stop him from making noise and covered the front of the mask with a piece of white cloth to ensure that he could not see his tormentors. Mr. Landzo and several other persons then started beating him with a baseball bat. He thought (although he was not sure) that Hazim Delic had been present and watched this incident. The victim also testified that, on yet another occasion, Esad Landzo took him out of the Hangar, along with Branko Gotovac and his two sons, and beat them with a wooden plank, as well as placing a lit match underneath the victim’s thumb nail.

973. Branko Gotovac provided testimony in support of this latter incident, stating that he and his two sons were taken out of Hangar 6 at the same time as Spasoje Miljevic, on one of the occasions of the latter’s mistreatment. He was thus in a position to see that Mr. Miljevic had a mask put on his head by Mr. Landzo, as did one of his sons, and they were hit. Witness F, Dragan Kuljanin and Witness R were inside the Hangar when the incident relating to the burning of Spasoje Miljevic took place. They stated that on this occasion Spasoje Miljevic was taken out of the Hangar and when he returned they could see that he had burns on his hands. Risto Vukalo testified that he had been told by the victim that Esad Landzo had heated a knife and burnt his hands. Branko Sudar and Rajko Draganic further stated that Spasoje Miljevic was burnt inside the Hangar, although this testimony is contrary to that of the victim himself and the other witnesses. Witness P testified that he had treated Spasoje Miljevic for his burn injuries which were on the lower parts of his legs as well as on the portion just above the knees.

974. As already stated, Esad Landzo has admitted that he had caused the burn injuries to the legs of Spasoje Miljevic. Thus, on this basis and that of the testimony of the other witnesses, this part of the case of the Prosecution stands established. In addition, there is no reason to disbelieve the testimony of the victim when he said that Esad Landzo had placed a gasmask on his head, had forced him to eat grass, had filled his mouth with clover and water and had beaten him.

975. Insofar as Hazim Delic is concerned, the victim stated that he had seen him standing by the tin wall of the Hangar on one occasion when he was being taken out by Esad Landzo for the purpose of mistreatment. He was not, however, sure if Hazim Delic actually viewed the mistreatment. In these circumstances and in the absence of other substantiating evidence from the Prosecution, it is not safe to hold that Hazim Delic was a party to the mistreatment of Spasoje Miljevic at the hands of Esad Landzo. Moreover, the victim himself testified that, sometime after Esad Landzo had caused burns on his person, Hazim Delic inquired from him if Mr. Landzo had "played" with him. This apparently provocative query by Mr. Delic suggests that he may have been unaware of the precise circumstances in which the victim was burnt.

976. The contention of Esad Landzo that he had caused the burn injuries to Spasoje Miljevic under the directions of Hazim Delic stands entirely unsupported by any other evidence on record. The Trial Chamber therefore has no hesitation in rejecting it as unsubstantiated. As in the case of other acts of mistreatment perpetrated by Mr. Landzo, the Trial Chamber is appalled by the cruel nature of his conduct, which was clearly intended to cause severe pain and suffering to Spasoje Miljevic, for the purposes of punishing and intimidating him, as well as contributing to the atmosphere of terror reigning in the prison-camp and designed to intimidate all of the detainees. Furthermore, Mr. Landzo’s acts were perpetrated in his role as a guard at the Celebici prison-camp and, as such, he was an official of the Bosnian authorities running the prison-camp.

977. For the reasons recorded above the Trial Chamber finds Esad Landzo guilty of torture under counts 24 and 25 of the Indictment. Count 26 is accordingly dismissed, being in the alternative to count 25. Due to the insuffiency of evidence relating to the participation of Hazim Delic in these acts of torture , the Trial Chamber finds Hazim Delic not guilty under any of these three counts.

12. Torture and Cruel Treatment of Mirko Babic - Counts 27, 28 and 29

978. In paragraph 27 of the Indictment, Hazim Delic and Esad Landzo are alleged to be responsible for the torture of Mirko Babic, a detainee in the Celebici prison-camp. The acts of these two accused in this respect are charged in counts 27, 28 and 29 as follows:

Sometime around the middle of July 1992, Hazim DELIC, Esad LANDZO and others mistreated Mirko BABIC on several occasions. On one occasion, Hazim DELIC, Esad LANDZO, and others placed a mask over the head of Mirko BABIC and then beat him with blunt objects until he lost consciousness. On another occasion, Esad LANDZO burned the leg of Mirko BABIC. By their acts and omissions, Hazim DELIC and Esad LANDZO are responsible for:

Count 27. A Grave Breach punishable under Article 2(b) (torture) of the Statute of the Tribunal; [and]

Count 28. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (torture) of the Geneva Conventions; or alternatively

Count 29. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (cruel treatment) of the Geneva Conventions.

(a) Prosecution Case

979. In relation to these charges, the Prosecution brought and examined six witnesses to support the testimony of the victim himself, Mirko Babic. These witnesses were Branko Gotovac, Witnesses N and R, Branko Sudar, Risto Vukalo and Rajko Draganic.

(b) Defence Case

980. Hazim Delic, in his interview with Prosecution investigators, on 19 July 1996, (Exhibit 103) denied that he had tortured or cruelly treated Mirko Babic. Esad Landzo also made a similar denial in testimony before the Trial Chamber. Both stated that they did not even know Mr. Babic. However, in his interview with Prosecution investigators, recorded on 18 July 1996, (Exhibit 102) Esad Landzo did admit that he knew Mirko Babic but repudiated the allegations of maltreatment.

981. As discussed below, the Defence for Mr. Landzo also relied on the testimony of Ramo Salihovic as well as a photograph provided by a doctor who examined Mr. Babic in the Netherlands (Defence Exhibit D2/4), which was discussed also by the Defence witness, Dr. Eduardo Bellas.

(c) Discussion and Findings

982. Mirko Babic is a Bosnian Serb from Bjelovcina, a village about 15 kilometres from Konjic town, and was 59 years of age at the time relevant to the Indictment. He was a forest guard and a member of the SDS, although, according to his own testimony, not an active one. According to the testimony of the victim himself, the forces of the Bosnian government engaging the Bosnian Serbs in the region entered Bjelovcina on 21 May 1992, whereupon Mr. Babic fled into the forest, carrying a revolver which he owned. He was, however, arrested on the following day by soldiers in green camouflage uniforms, whom he identified as bearing the insignia of the TO. Upon his arrest, he was taken to his house and severely beaten and mistreated. He was then, on the evening of 23 May, taken to the Celebici prison-camp. There, he was kept in Building 22, which was extremely overcrowded, for the first 20 days. During that time he did not receive any physical mistreatment. He was then transferred to Hangar 6 and finally was released from the prison-camp on 1 September 1992.

983. Mr. Babic appeared as the primary witness for the Prosecution in relations to these counts of the Indictment and testified that Hazim Delic and Esad Landzo had mistreated him on several occasions while he was confined in Hangar 6. On one particular occasion, these two accused took him out of the Hangar to a place about 15 metres away, where they put some kind of mask on his head and, together with some other person or persons, started beating him. As a consequence of this beating and being hit with a wooden plank, he lost consciousness. Mr. Babic further deposed that some days later, around 20 July 1992, Esad Landzo once again took him out of the Hangar to the same place and asked him to lie down and bare his legs up to the knees. Mr. Landzo then poured some petrol on his right leg and set it alight. His leg was thus seriously burnt and later developed blisters.

984. In relation to this particular burning incident, Mr. Babic made a prior written statement to Prosecution investigators which differed slightly from his oral testimony (Exhibit D1/4). In this prior statement, he told the Prosecution that Esad Landzo had ripped off his trousers with a knife and, as a result, he became naked. Before the Trial Chamber, his relation of these events was that Esad Landzo made him lie down on the floor and asked him to roll up his trousers and bare his leg before burning him.

985. Branko Gotovac is from a neighbouring village to that where Mirko Babic resided and, according to the testimony of the former, they were very close to each other. It is, therefore, surprising that, in his evidence before the Trial Chamber, Mr. Gotovac does not refer to the burning of the leg of Mirko Babic. Similarly, Branko Sudar and Risto Vukalo say nothing in respect of this incident. Witness N, during his testimony, stated first that he had seen Mr. Babic’s leg burning when he returned to the Hangar, but later this witness contradicted this statement by testifying that he had seen only the scar of the burn on Mr. Babic’s leg. Rajko Draganic, on the other hand, stated that Mirko Babic was burnt inside the Hangar, which is contrary to the testimony of the victim himself. Witness R deposed that Esad Landzo took Mirko Babic out of the Hangar and when the latter returned after some time, his trousers were burning. However, according to the prior written statement of Mirko Babic, the fire on his leg was extinguished within 20 seconds of being lit. If this statement is accepted, Witness R could not have seen Mr. Babic’s trousers burning.

986. The Defence for Mr. Landzo led evidence to show that at some time prior to 1992, Mirko Babic had burnt his leg in an accident and he was seen by a number of persons at that time with a bandaged leg. The most important Defence witness in this regard is Ramo Salihovic, who was also from Bjelovcina and was the neighbour of Mirko Babic. Mr. Salihovic testified that, around 1980 or 1981, a lime pit where Mirko Babic was working caught fire and burnt a number of persons, including Mr. Babic. After this accident the witness used to see Mr. Babic walking with a bandaged leg. This witness also stated that Mirko Babic was the President of the local branch of the SDS and thus not "inactive" as Mr. Babic himself testified.

987. It may also be noted that, at the request of the Defence for Mr. Landzo, Dr. Bellas, an expert witness for the Defence of Hazim Delic, examined in the courtroom a photograph of the leg of Mirko Babic at the time of his testimony before the International Tribunal. This photograph (Exhibit D2/4) does show a healed scar, the age of which, in the view of the doctor, could not be determined. It will be noticed that the presence of an old scar on Mr. Babic’s leg is not inconsistent with the position advocated by the Defence.

988. For these reasons, there remains a reasonable doubt as to whether Esad Landzo inflicted burns on the leg of Mirko Babic, as alleged in the Indictment. The testimony of Mirko Babic that Hazim Delic and Esad Landzo took him out of Hangar 6, put a mask on his head and, together with some others, beat him with blunt objects, has not been supported by any other witness. In light of this fact and that the Trial Chamber does not consider Mr. Babic’s own account of the mistreatment which he received wholly reliable, it is not possible, in the absence of such supporting evidence, to establish the verity of this account.

989. For these reasons, the Trial Chamber finds Hazim Delic and Esad Landzo not guilty under counts 27, 28 and 29 of the Indictment.

13. Torture or Cruel Treatment of Mirko Dordic - Counts 30, 31 and 32

990. In paragraph 28 of the Indictment, Esad Landzo is alleged to be responsible for the torture of Mirko Dordic, another of the detainees in the Celebici prison-camp. The alleged acts of Esad Landzo in this respect are charged in counts 30, 31 and 32 as follows:

Sometime around the beginning of June 1992 and continuing to the end of August 1992, Esad LANDZO subjected Mirko DORDIC to numerous incidents of mistreatment, which included beating him with a baseball bat, forcing him to do push-ups while being beaten, and placing hot metal pincers on his tongue and in his ear. By his acts and omissions, Esad LANDZO is responsible for:

Count 30. A Grave Breach punishable under Article 2(b) (torture) of the Statute of the Tribunal; [and]

Count 31. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (torture) of the Geneva Conventions; or alternatively

Count 32. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (cruel treatment) of the Geneva Conventions.

(a)  Prosecution Case

991. To support the testimony of the victim himself, the Prosecution relies on the statements of ten witnesses, namely, Steven Gligorevic, Mladen Kuljanin, Vaso Dordic, Novica Dordic and Witnesses F, N, B, T, R and P.

(b) Defence Case

992. Esad Landzo denied the allegations contained in this part of the Indictment and said that he did not know Mirko Dordic, although he did not rule out the possibility that something may have happened to him in the Celebici prison-camp at the instigation of other prison-camp guards.

(c) Discussion and Findings

993. Mirko Dordic is a Bosnian Serb from the village of Bradina, who was 36 years of age at the time relevant to the Indictment. He was a waiter and worked in Konjic town. According to his own testimony, he participated in the resistance mounted by the Bosnian Serb residents of Bradina when the village was the target of operations by the Bosnian government forces towards the end of May 1992. He possessed an automatic rifle, but when the government forces overcame the Bosnian Serbs in the village, he fled with his family towards Serb-held territory, leaving his rifle behind. A patrol party of soldiers, apparently bearing the insignia of the HVO, TO and possibly also the HOS, subsequently captured him in the evening of 28 May 1992 and he was transferred to the Celebici prison-camp on the evening of 30 May 1992, where he was confined in Hangar 6. He remained in the Hangar in the prison-camp until 21 August 1992, when he was transferred to the Musala sports hall in Konjic town, which was also being used as a detention facility. After 10 days he was returned to the Celebici prison-camp, where he remained until December 1992. He was finally released from detention in the sports hall in Konjic in October 1994, as part of an exchange of prisoners.

994. Mirko Dordic testified before the Trial Chamber that, in the second part of June 1992, Esad Landzo, who was carrying a baseball bat at the time, took him out of Hangar 6 to another hangar. Mr. Landzo made him lean against a wall and asked him about the whereabouts of some hand grenades and pistols. When Mr. Dordic was unable to provide him with any information in respect of these items, Esad Landzo put a piece of metal in his mouth so that he could not make any noise and then started hitting him with the baseball bat on his legs and rib cage. This went on for a long time and Mr. Dordic fell down and fainted many times. When this occurred, Esad Landzo would make him stand once more and again start beating him. Ultimately, Mr. Landzo allowed Mr. Dordic to return to the Hangar. This beating was so severe that he could not get up unassisted and he remained immobile for quite some time. Subsequently, one of the other inmates of the Hangar told him that he had received about 200 to 250 blows.

995. Mirko Dordic further testified that Esad Landzo was extremely harsh to him throughout his entire stay inside Hangar 6, for, whenever he passed by him, he would give him a kick or two. Mr. Landzo would also force him to perform ten full push-ups and sometimes to do as many as fifty. In the process of attempting to do these, Mr. Landzo would often kick him. Mr. Dordic also testified about another particular occasion, towards the middle of July 1992, when Esad Landzo took him to a corner of Hangar 6, forced him to open his mouth, and placed a pair of heated pincers on his tongue. As a result, his mouth, lips and tongue were burnt. Mr. Landzo then put these heated pincers into Mr. Dordic’s ear.

996. All of the abovementioned witnesses who testified for the Prosecution in relation to these counts of the Indictment claimed that they had seen burns on the face of Mirko Dordic and some testified that they had seen Esad Landzo inflict them upon him. In this regard, the testimony of Witness P is the most important, for it was he who treated Mr. Dordic for his burns. Witness P deposed that he saw that Mr. Dordic’s lips and tongue had been burnt and that pincers had been placed in his ear, from which pus was being excreted. The Trial Chamber finds no reason not to believe the testimony of Mirko Dordic that Esad Landzo had caused these injuries.

997. The allegation of Mirko Dordic that Esad Landzo would force him to do push-ups finds support from the testimony of Stevan Gligorevic and Witness B, although the latter of these witnesses made an allegation of a general nature in this regard, without naming any particular victim. There is no reason why this part of the case of the Prosecution should not be accepted as true, supported as it is by the evidence of the victim and two other witnesses who were confined in the same place.

998. For the above reasons, the Trial Chamber is satisfied that Esad Landzo did cause serious injury to Mirko Dordic by burning his lips, tongue and ear with heated pincers, as well as subjecting him to more general mistreatment. This particular injury and mistreatment was inflicted with the intent to cause severe pain and suffering to the victim and with the purposes of punishing and intimidating him, as well as contributing to the atmosphere of terror reigning in the prison-camp, which was designed to intimidate all of the detainees. Furthermore, Mr. Landzo’s acts were perpetrated in his role as a guard at the Celebici prison-camp and, as such, he was an official of the Bosnian authorities running the prison-camp. The Trial Chamber therefore finds Esad Landzo guilty of torture under counts 30 and 31 of the Indictment. Count 32 is hereby dismissed, being charged in the alternative to count 31.

14. Responsibility of Superiors for Acts of Torture - Counts 33, 34 and 35

999. Paragraph 29 of the Indictment contains the following factual allegations:

With respect to the acts of torture committed in Celebici camp, including placing Milovan KULJANIN in a manhole for several days without food or water, and including those acts of torture described in paragraphs twenty-three to twenty-eight, Zejnil DELALIC, Zdravko MUCIC, and Hazim DELIC knew or had reason to know that subordinates were about to commit those acts or had done so, and failed either to take the necessary and reasonable steps to prevent those acts or to punish the perpetrators.

In connection with the foregoing allegations, Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged as superiors as follows:

Count 33. A Grave Breach punishable under Article 2(b) (torture) of the Statute of the Tribunal;

Count 34. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(torture) of the Geneva Conventions; or alternatively

Count 35. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a)(cruel treatment) of the Geneva Conventions.

1000. The Trial Chamber’s findings as to the offences alleged in paragraphs 23-28 of the Indictment, as charged here, are contained above. Further, as discussed above, the Trial Chamber restricts itself to addressing the specific allegations in the Indictment and therefore will not consider the numerous other acts of torture for which evidence was led during trial, but which are not specifically alleged in the Indictment. Accordingly, the Trial Chamber will here limit itself to considering the factual allegations as they relate to one victim - Milovan Kuljanin.

(a) Prosecution Case

1001. The Indictment alleges that in the Celebici prison-camp, Milovan Kuljanin was placed in a manhole for several days without food or water. The Prosecution further alleges that Mr. Kuljanin, upon leaving the manhole, was taken to Building 22 where he was beaten and subsequently questioned. To establish the facts in relation to this charge, the Prosecution relies principally on the victim’s own testimony. The Prosecution submits that Mr. Kuljanin’s account in relation to this charge is substantially supported by the testimony of Miro Golubovic, who stated that he and Mr. Kuljanin were ordered into the manhole together. In further support of these allegations, the Prosecution cites the interview with Hazim Delic conducted by Prosecution investigators on 19 July 1996 (Exhibit 103), as well as the testimony of Esad Landzo and witnesses, P, R, and T.

(b) Defence Case

1002. The Defence contends that the two eyewitness accounts provided by Mr. Kuljanin and Miro Golubovic as to the events preceding their imprisonment in the manhole, contain irreconcilable discrepancies. The Defence further seeks to impeach Mr. Kuljanin’s testimony by pointing out prior inconsistent statements made by Mr. Kuljanin, including the date on which he was first taken prisoner and the sequence of events upon his arrival at the Celebici prison-camp.

(c) Discussion and Findings

1003. The Trial Chamber finds the testimony of Milovan Kuljanin to be trustworthy. The Trial Chamber is unpersuaded by the efforts on behalf of the Defence to impeach Mr. Kuljanin’s testimony by reference to any prior inconsistent statements he may have made regarding his experiences in the Celebici prison-camp. As the Prosecution pointed out, most of the prior statements cited by the Defence were taken in the Celebici prison-camp under circumstances that necessarily call their voluntary nature into question. Further, the significance of any opportunity Mr. Kuljanin may have had to revise his statements must be assessed in light of his own admission in that context that he did not believe he could add the entire and complete truth to the statements he gave to the Bosnian authorities. ⁹¹⁶

1004. The Trial Chamber further finds that, although some discrepancies exist between the statements of the two eyewitnesses in respect of the events preceding their alleged imprisonment in the manhole, the testimony is consistent with respect to the material facts. In this respect, the Trial Chamber further notes that the events to which these witnesses are testifying occurred over five years ago. Therefore, in reliance on the testimony of Mr. Kuljanin and the supporting evidence of Miro Golubovic, the Trial Chamber makes the following findings with respect to the acts alleged in paragraph 29 of the Indictment.

1005. Soon after Mr. Kuljanin’s arrival at the Celebici prison-camp, he was taken, by Hazim Delic and others, to a manhole. There, Hazim Delic ordered that he and another detainee, Miro Golubovic, descend into the manhole using a ladder, whereupon the iron lid of the manhole was closed and locked. As described by Mr. Kuljanin in his testimony, the manhole was set vertically into the ground with dimensions of approximately 2.5 metres depth and 2.5 metres width. The manhole was dark and had insufficient air. The Trial Chamber finds that Mr. Kuljanin was kept in this manhole for at least a night and a day, during which time he was not provided with either food or water. Hazim Delic and Mr. Zdravko Mucic were present when Mr. Kuljanin was allowed to leave the manhole. Mr. Kuljanin testified that, on emerging from the manhole, he suffered a period of blurred and distorted vision. Mr. Golubovic’s account of the conditions in the manhole fully supports Mr. Kuljanin’s testimony.⁹¹⁷

1006. Based upon the testimony of Mr. Kuljanin, the Trial Chamber further finds that, subsequent to his release from the manhole, he was taken to Building 22, where he was beaten with a number of objects, including shovels and electric wires, by some of the camp guards. Following the beatings, Mr. Kuljanin was taken for formal questioning by two individuals. Hazim Delic entered the room once during the inteview, carrying a wooden object which he used to strike Mr. Kuljanin.

1007. The Trial Chamber finds that the act of imprisoning Mr. Kuljanin in a manhole for at least a night and a day without food or water constitutes torture. A person commits torture when he, as an official, or as an individual acting in an official capacity, intentionally inflicts severe pain or suffering for a prohibited purpose. Here, Hazim Delic, an individual acting in an official capacity imprisoned Milovan Kuljanin in an unlit manhole with insufficient air and without food or water for at least a night and a day. In his testimony, Mr. Kuljanin recalled his condition on emerging from the manhole as "helpless."⁹¹⁸ It is evident that the victim suffered severely during the course of his confinement. The fact that he was beaten and then questioned soon after being released from the manhole demonstrates that the reason for incarcerating Mr. Kuljanin in this manner was to intimidate him prior to interrogation.

1008. For the reasons stated above, this Trial Chamber finds the offence of torture under Articles 2 and 3 of the Statute in respect of Milovan Kuljanin to be proven beyond reasonable doubt.

(d) Responsibility of the Accused

1009. Under the counts of the Indictment here under consideration, Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged with responsibility as superiors pursuant to Article 7(3) of the Statute. The Indictment does not charge Hazim Delic as a direct participant in the torture of Milovan Kuljanin. As set out above, Zejnil Delalic and Hazim Delic have respectively been found not to have exercised superior authority over the Celebici prison-camp. For this reason, the Trial Chamber finds Zejnil Delalic and Hazim Delic not guilty of torture or cruel treatment, as charged in counts 33 to 35 of the Indictment.

1010. The Trial Chamber has above established that Zdravko Mucic was in a de facto position of superior authority over the Celebici prison-camp. It has further found that Zdravko Mucic, in this position, knew or had reason to know of the violations of international humanitarian law committed in the Celebici prison-camp, but failed to prevent these acts or punish the perpetrators thereof. For this reason, and on the basis of the finding made above, the Trial Chamber finds that Zdravko Mucic is responsible pursuant to Article 7(3) of the Statute for the torture of Milovan Kuljanin. In his position as superior, Zdravko Mucic is further responsible for the torture of Momir Kuljanin, Grozdana Cecez, Milojka Antic, Spasoje Miljevic and Mirko Dordic, as alleged in paragraphs 23, 24, 25, 26 and 28 of the Indictment, and found proven by the Trial Chamber above. On the basis of the findings made above, the Trial Chamber further finds that Zdravko Mucic is not responsible for torture of Mirko Babic, as alleged in paragraph 27 of the Indictment.

1011. For the foregoing reasons, the Trial Chamber finds Zdravko Mucic guilty of torture under Article 2 and 3 of the Statute, as charged in counts 33 and 34 of the Indictment. Count 35 of the Indictment, which is charged in the alternative to count 34, is accordingly dismissed.

15. Wilfully Causing Great Suffering or Serious Injury to, and Cruel Treatment of, Nedeljko Draganic - Counts 36 and 37

1012. In paragraph 30 of the Indictment, Esad Landzo is alleged to be responsible for causing great suffering or serious injury to body or health and the cruel treatment of Nedeljko Draganic, a detainee at the Celebici prison-camp. The alleged acts of the accused Esad Landzo in this respect are charged in counts 36 and 37 as follows:

Sometime beginning around the end of June 1992 and continuing until August 1992, Esad LANDZO and others repeatedly mistreated Nedeljko DRAGANIC by tying him to a roof beam and beating him, by striking him with a baseball bat, and by pouring gasoline on his trousers, setting them on fire and burning his legs. By his acts and omissions, Esad LANDZO is responsible for:

Count 36. A Grave Breach punishable under Article 2(c) (wilfully causing great suffering or serious injury) of the Statute of the Tribunal; and

Count 37. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (cruel treatment) of the Geneva Conventions.

(a) Prosecution Case

1013. In support of these allegations the Prosecution relies primarily on the testimony of Nedeljko Draganic himself. In addition, the Prosecution finds further support from the testimony of 11 other witnessses, namely, Branko Gotovac, Mladen Kuljanin, Mirko Dordic, Branko Sudar, Petko Grubac, Milovan Kuljanin and Witnesses F, N, B, P and R. With the exception of Witness P and Petko Grubac, these witnesses were all confined in Hangar 6 at the relevant time and were thus in a position to observe the treatment meted out to Nedeljko Draganic.

(b) Defence Case

1014. When testifying in his own defence, Esad Landzo stated that he knew Nedeljko Draganic from his school days and that he had seen Mr. Draganic after he had been beaten by the other guards in a "workshop" in the Celebici prison-camp⁹¹⁹. He had denied that he knew anything about burns to Mr. Draganic, but he did notice that Mr. Draganic walked slowly when going to the toilet in the prison-camp. In his interview with the Prosecution investigators, given on 18 July 1996 (Exhibit 102), Mr. Landzo also stated that he knew that Mr. Draganic had been beaten, but did not identify the perpetrators.

(c) Discussion and Findings

1015. Nedeljko Draganic is from the village Cerici, which is at a short distance from Konjic town, and was arrested on 23 May 1992, when he was 19 years of age, after his village had been shelled by the forces of the Bosnian government. Upon his arrest, he was taken to the Celebici prison-camp, where he was kept for the first three days in Tunnel 9. Thereafter, he was first moved to Building 22 and then to Hangar 6. He was released from the prison-camp at the end of August 1992.

1016. Nedeljko Draganic himself testified that on one occasion towards the end of June or beginning of July 1992, while he was confined in the Celebici prison-camp, Esad Landzo and three other guards took him to another hangar, where they tied his hands to a beam in the ceiling and started hitting him with wooden planks and rifle butts, while asking him disclose where a rifle, which they believed him to own, was hidden, and during which he fainted two or three times. Thereafter, he was beaten almost every day by Esad Landzo, usually with a baseball bat and he was also forced, along with other detainees, to drink urine from the area where they were taken to urinate. On another occasion, Mr. Draganic testified that Esad Landzo took him to the same building and made him sit on the floor, against the wall, with his legs close together. Mr. Landzo then poured some gasoline on the lower part of his trousers and set them alight. As a consequence, his legs were badly burnt and, for lack of subsequent medical attention, the blisters caused by the burning became septic, requiring him to be taken to the so-called infirmary in Building 22 for treatment about a week later.

1017. While Esad Landzo claimed not to remember these incidents of mistreatment during his oral testimony, the Trial Chamber finds no reason to disregard the sworn testimony of Nedeljko Draganic. His allegations in relation to the burning of his trousers and legs are supported by the evidence of Branko Gotovac, Witnesses F, N and R, Mirko Dordic, Branko Sudar and Milovan Kuljanin. These witnesses all saw Mr. Draganic’s burnt legs and Witnesses F, R, Mirko Dordic, and Branko Sudar also saw Esad Landzo taking Mr. Draganic out of Hangar 6 some time before he returned with the burn injuries. In Building 22, Witness P treated Mr. Draganic and he testified that he founds burns on the lower and upper parts of his legs.

1018. The Trial Chamber finds no reason not to believe Mr. Draganic’s further testimony about being beaten by Mr. Landzo on several occasions and being forced to drink urine. These forms of mistreatment, it will be noted, were favoured by Mr. Landzo in relation to several of the detainees in the prison-camp. All of these abovementioned forms of mistreatment clearly caused serious mental and physical suffering to the victim and there is, therefore, enough reliable evidence available on the record to substantiate the charges of wilfully causing great suffering or serious injury to body or health, and the cruel treatment of, Nedeljko Draganic, contained in counts 36 and 37 of the Indictment. The Trial Chamber accordingly finds Esad Landzo guilty under both of these counts.

16.  Responsibility of Superiors for Causing Great Suffering or Serious Injury - Counts 38 and 39

1019. Paragraph 31 of the Indictment contains the following factual allegations:

With respect to the acts causing great suffering committed in Celebici camp, including the severe beatings of Mirko KULJANIN and Dragan KULJANIN, the placing of a burning fuse cord around the genital areas of Vukasin MRKAJIC and Dusko BENDO, and including those acts causing great suffering or serious injury described above in paragraph thirty...

Zejnil Delalic, Zdravko Mucic, Hazim Delic are charged as superiors who knew or had reason to know that their subordinates were about to commit the above alleged acts or had done so, and had failed either to take the necessary and reasonable steps to prevent those acts or to punish the perpetrator. Accordingly, they are charged as follows:

Count 38. A Grave Breach punishable under Article 2(c) (wilfully causing great suffering or serious injury) of the Statute of the Tribunal; and

Count 39. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3((1)(a)(cruel treatment) of the Geneva Conventions.

1020. The Trial Chamber’s findings as to the events alleged in paragraph 30 of the Indictment, as charged here, are set out above. Further, as discussed above, the Trial Chamber restricts itself to addressing the specific allegations in the Indictment and therefore will not consider the other acts of wilfully causing great suffering or serious injury to body or health, and cruel treatment, for which evidence was led during trial, but which are not specifically alleged in the Indictment. Accordingly, the Trial Chamber here limits itself to considering the factual allegations as they relate to Mirko Kuljanin, Dragan Kuljanin, Vukasin Mrkajic, and Dusko Bendo.

1021. The Trial Chamber notes that, while the present paragraph of the Indictment further provides that "[w]ith respect to those counts above where Hazim Delic is charged as a direct participant, he is also charged here as a superior", no charge of criminal responsibility pursuant to Article 7(1) of the Statute has been made against Hazim Delic with respect to the acts for which superior responsibility is charged under the present counts.

(a) Mirko Kuljanin

1022. The Indictment alleges that Mirko Kuljanin was severely beaten in the Celebici prison-camp. In order to establish the facts in relation to this charge, the Prosecution relies on the testimony of Mirko Kuljanin and Witness F.

1023. The Defence⁹²⁰contends that the worst beatings to which Mr. Kuljanin was subjected occurred outside of the Celebici prison-camp and that he was not really beaten severely inside the camp. The Defence further submits that it is not clear from the Prosecution’s evidence that the individuals who participated in the alleged beatings were under the command of the Celebici prison-camp commander.

1024. In his testimony, Mirko Kuljanin declared that the most severe beatings he received were administered prior to his arrival at the Celebici prison-camp. He further testified that, upon his arrival in the Celebici prison-camp, he was taken to a wall inside the camp, where he and the other newly arrived detainees were beaten. However, Mr. Kuljanin stated that he was not really beaten on this occasion, as he was already unable to stand. He testified: "Maybe they hit me three times. Somebody hit me three times and then some people pulled me inside. I was not really severely beaten there."⁹²¹ Witness F testified to seeing Mr. Kuljanin in Hangar 6 sometime thereafter, in a seriously injured condition. The Trial Chamber finds the testimony of these two witnesses to be credible in relation to this charge.

1025. Accordingly, the Trial Chamber finds that, upon his arrival in the Celebici prison-camp, Mr Kuljanin was seriously injured, having previously been subjected to severe beatings. He and the other newly arrived detainees were taken in a van to a wall inside the camp compound. There, they found many other detainees with their hands up against the wall, being beaten. Mr. Kuljanin testified that he could hear moans and cries from outside the van. The van was then opened and he and the other detainees were told to get out. At this point, Mr. Kuljanin’s distress was so acute that he tried to commit suicide by attempting to drive a nail through his head. At the wall, Mr Kuljanin, who was unable to stand on account of his previously inflicted injuries, was hit several times before being pulled away from the scene of the beatings into Tunnel 9.

1026. The Trial Chamber finds that it has not been presented with sufficient evidence to enable it to assess whether the nature of the beatings to which Mr. Kuljanin was subjected inside the Celebici prison-camp caused him suffering or injury of the character required to constitute the offence of wilfully causing great suffering or serious injury to body or health. However, in the Trial Chamber’s view, the act of hitting an individual who is so seriously injured that he is unable to stand, necessarily entails, at a minimum, a serious affront to human dignity. Accordingly, on the basis of the foregoing facts, the Trial Chamber finds that the physical mistreatment of Mirko Kuljanin constitutes the offence of inhuman treatment under Article 2, and cruel treatment under Article 3 of the Statute.

(b) Dragan Kuljanin

1027. The Indictment alleges that Dragan Kuljanin was subjected to severe beatings in the Celebici prison-camp. In seeking to prove this factual allegation the Prosecution relies upon the testimony of Dragan Kuljanin and Witness R.

1028. The Defence submits that, as regards the incident wherein Dragan Kuljanin alleges he was forced to pass between two rows of people while they inflicted blows upon him, the Prosecution evidence does not establish that the individuals who participated in the beatings were under the command of the Celebici prison-camp commander. The Defence further seeks to undermine Dragan Kuljanin’s testimony by reference to prior inconsistent statements made by him to the Prosecution.

1029. In his testimony, Mr. Kuljanin provided detailed descriptions of the beatings he received inside the Celebici prison-camp. In reliance upon Mr. Kuljanin’s testimony, the Trial Chamber makes the following findings.

1030. When Dragan Kuljanin first arrived at the prison-camp between ten and fifteen people were lined up in two rows between the vehicle, from which he and other newly arrived detainees were emerging, and the entrance to Hangar 6. Each of the detainees in turn was then forced to pass between the lines of people, while repeated blows were inflicted upon them. Mr. Kuljanin testified that, when his turn came, he was kicked and beaten for about fifteen minutes. The perpetrators used sticks and chains to inflict the blows. Hazim Delic was present for at least some period during the beatings.

1031. On a separate occasion, a guard called Salko took Mr. Kuljanin out behind Hangar 6 and kicked him several times in the ribs. The guard then proceeded to hit Mr. Kuljanin with his rifle butt. The beating lasted for about ten or fifteen minutes. On his way back to the Hangar, Mr. Kuljanin encountered Esad Landzo, who hit him five or six times in the chest with his rifle butt.

1032. On two further occasions, Esad Landzo came into the Hangar and forced Mr. Kuljanin to do push-ups, while inflicting blows to his body, once with kicks and a second time with a baseball bat.

1033. The severity of the physical injuries sustained by the victim is illustrated by the fact that Mr. Kuljanin testified that even now, five years after the events, he still suffers certain physical consequences of the ill-treatment he received in the Celebici prison-camp. Specifically, Mr. Kuljanin testified to experiencing the following clinical problems: "Sometimes I urinate blood. I don’t hear well on my left ear. . . . I have pains and it impedes my speech. Sometimes I have kidney pains."⁹²²

1034. The foregoing facts demonstrate that Dragan Kuljanin was subjected to deliberate ill-treatment on numerous occasions during his detention in the Celebici prison-camp. The Trial Chamber finds that the beatings described above caused Mr. Kuljanin serious suffering and physical injury. Accordingly, with respect to each separate act of ill-treatment found above, the Trial Chamber finds that the offences of wilfully causing great suffering or serious injury to body or health under Article 2, and cruel treatment under Article 3 of the Statute, have been proven beyond a reasonable doubt.

(c) Vukasin Mrkajic

1035. The Indictment alleges that, on one occasion, Vukasin Mrkajic had a burning fuse placed around his genital area. In addition to this specific allegation, the Prosecution asserts that Vukasin Mrkajic, on numerous occasions, was beaten by guards and others in the Celebici prison-camp. In support of this allegation, the Prosecution relies on the testimony of the following ten witnesses: Stevan Gligorevic, Mirko Dordic, Risto Vukalo, Witness F, Mirko Kuljanin, Dragan Kuljanin, Branko Sudar, Mladen Kuljanin, Witness N and Rajko Draganic. The Prosecution also called and examined Witness R who gave evidence relating to the present charge.

1036. In relation to the present charge, the Defence for Zejnil Delacic concedes that the Prosecution has presented consistent evidence that Vukasin Mrkajic was assaulted by having a fuse tied round him and set alight by Esad Landzo. However, the Defence further appears to argue that one of the elements of the offences with which the accused are charged under the present counts, is the showing of a prohibited purpose, and, further, that the Prosecution has failed to prove that the acts alleged were carried out with such a purpose. ⁹²³

1037. The evidence presented to the Trial Chamber demonstrates that Vukasin Mrkajic, during his period of detention in the Celebici prison-camp, was repeatedly subjected to physical mistreatment by several of the guards. In their evidence, Mirko Dordic, Witness R and Stevan Gligorevic gave consistent and reliable accounts of how Vukasin Mrkajic was one of the prisoners targeted for beatings by Hazim Delic, who would hit him "almost every time he would come to the hangar". ⁹²⁴

1038. With respect to the act specifically alleged in the Indictment, Branko Sudar, Risto Vukalo, Rajko Draganic, Witness R, Mirko Dordic, Witness N, Witness F and Mladen Kuljanin all testified to having witnessed an incident when Esad Landzo placed a burning fuse around Vukasin Mrkajic’s body. In his detailed account of this event, Mirko Dordic described how Esad Landzo removed Vukasin Mrkajic’s trousers and placed a slow-burning fuse against his bare skin around his waist and genitals. He ordered the victim to put the trousers back on, whereupon he set light to the fuse. Rajko Draganic and Mladen Kuljanin both testified that Vukasin Mrkajic was forced to run around between the rows of prisoners inside Hangar 6, while screaming from the pain of the burning fuse. While there is some variation in the accounts given of this incident, the foregoing version of events is, in all material respects, supported by the other witnesses who testified to this incident. In his testimony, Witness R described how he could observe that Vukasin Mrkajic, as a result of this ill-treatment, developed blisters filled with liquid, which later developed into open wounds. This witness further stated that Vukasin Mrkajic was never given any medical treatment for his injuries.

1039. Based upon this evidence, the Trial Chamber finds that on one occasion during the victim’s detention in the Celebici prison-camp, Esad Landzo placed a burning fuse-cord directly against Vukasin Mrkajic’s bare skin in the genital area, thereby inflicting serious pain and injury upon him.

1040. Although the Defence contends otherwise, the Trial Chamber has found that it is not a necessary element of the offence of wilfully causing great suffering or serious injury to the body or health that the harmful act be perpetrated for any particular purpose. Accordingly, in relation to the present charge, the Trial Chamber finds that the intentional act of placing of a burning fuse cord against Vukasin Mrkajic’s bare body caused the victim such serious suffering and injury that it constitutes the offence of wilfully causing great suffering or serious injury to body or health under Article 2, and cruel treatment under Article 3 of the Statute.

(d) Dusko Bendo

1041. The Indictment alleges that, on one occasion in the Celebici prison-camp, a burning fuse cord was placed around the genital area of Dusko Bendo. In support of its allegations of serious mistreatment of this victim, the Prosecution relies on the testimony of the following twelve witnesses: Witness R, Witness F, Mirko Dordic, Dragan Kuljanin, Mladen Kuljanin, Witness N, Vaso Dordic, Dr. Petko Grubac, Branko Gotovac, Witness B, Branko Sudar and Rajko Draganic. The Prosecution also called and examined Stevan Gligorevic, Nedeljko Draganic and Witness B, who gave evidence relating to this incident.

1042. Relying, inter alia, on the testimony of Witness R, the Prosecution alleges that Dusko Bendo on one occasion received burns to his legs. With reference to the evidence given by Vaso Dordic, it further contends that on another occasion, Esad Landzo burned Dusko Bendo with a heated knife. The Prosecution concedes that there is some ambiguity concerning whether Dusko Bendo, in addition to this mistreatment, also had a burning fuse put around him, as alleged in the Indictment. The Prosecution asserts, however, that, given that there can be no doubt that Dusko Bendo was burned, the exact manner in which this mistreatment was perpetrated should not be considered to be legally dispositive. Submitting that the evidence demonstrates that prison-camp personnel subjected the victim to severe pain and caused him great suffering or serious injury, it accordingly contends that all the elements necessary for the crime of causing great suffering and cruel treatment have been met.

1043. The Defence, noting the existence of evidence that Dusko Bendo was beaten regularly and that he was set on fire, contends that the testimony relied upon by the Prosecution differs as to where the latter act occurred. It submits that this discrepancy casts doubt upon the reliability of the witnesses and upon the truth of the incident itself.

1044. The Trial Chamber heard evidence from 15 witnesses in relation to the present charge. All but two of these witnesses testified that Dusko Bendo, during his detention in the Celebici prison-camp, suffered severe burns. While Vaso Dordic, in his testimony, described how Esad Landzo used a heated knife to burn Dusko Bendo’s body, Witness R, Mirko Dordic, Rajko Draganic, Mladen Kuljanin, Witness N and Stevan Gligorevic all variously described how Esad Landzo set the victim’s trousers on fire, causing serious burns to his legs.

1045. The Trial Chamber notes, however, that there is no allegation in the Indictment with respect to the incidents recounted by these witnesses. Conversely, the Prosecution has presented no evidence in relation to the alleged placing of a burning fuse cord around the genital area of Dusko Bendo. As discussed above, where evidence has been led at trial in relation to alleged criminal acts not specified in the Indictment, the Trial Chamber, in fairness to the accused, does not consider the unspecified acts to form part of the charges against the accused. In the instant case, the Prosecution has failed to present any evidence in support of the acts specifically alleged in the Indictment. Accordingly, the Trial Chamber must conclude that the present charge of wilfully causing great suffering or serious injury to body or health, and cruel treatment, as alleged in the Indictment, has not been proven.

(e) Responsibility of the Accused

1046. Under the counts of the Indictment here under consideration, Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged with responsibility as superiors pursuant to Article 7(3) of the Statute. As set out above, Zejnil Delalic and Hazim Delic have been found not to have exercised superior authority over the Celebici prison-camp. For this reason, the Trial Chamber finds Zejnil Delalic and Hazim Delic not guilty of wilfully causing great suffering or serious injury to body or health and cruel treatment, as charged in counts 38 and 39 of the Indictment.

1047. The Trial Chamber has above established that Zdravko Mucic was in a de facto position of superior authority over the Celebici prison-camp. It has further found that Zdravko Mucic, in this position, knew or had reason to know of the violations of international humanitarian law committed in the Celebici prison-camp, but failed to prevent these acts or punish the perpetrators thereof. For this reason, and on the basis of the finding made above, the Trial Chamber finds that Zdravko Mucic is responsible pursuant to Article 7(3) of the Statute for wilfully causing great suffering or serious injury to body or health to, and cruel treatment of, Dragan Kuljanin and Vukasin Mrkajic, and the inhuman treatment and cruel treatment of Mirko Kuljanin. On the basis of the finding made above, the Trial Chamber finds that Zdravko Mucic is not responsible for the acts alleged in the Indictment in respect of Dusko Bendo.

1048. In his position as a superior, Zdravko Mucic is further responsible for wilfully causing great suffering or serious injury to body or health to, and cruel treatment of, Nedeljko Draganic, as alleged in Paragraph 30 of the Indictment, and found proven by the Trial Chamber above.

17. Inhumane Acts Involving the Use of Electrical Device - Counts 42 and 43

1049. Paragraph 33 of the Indictment states that:

Sometime beginning around 30 May 1992 and continuing until the latter part of September 1992, Hazim DELIC used a device emitting electrical current to inflict pain on many detainees, including Milenko KULJANIN and Novica DORDIC.

In relation to this factual allegation, Hazim Delic is charged as direct participant as follows:

Count 42. A Grave Breach punishable under Article 2(b)(inhuman treatment) of the Statute of the Tribunal; and

Count 43. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (cruel treatment) of the Geneva Conventions.

(a) Prosecution Case

1050. In seeking to prove these counts of the Indictment, the Prosecution relies upon the evidence of the following witnesses: Stevan Gligorevic, Novica Dordic, Witness P, Witness B, Milenko Kuljanin and Witness R. The Prosecution alleges that, during the months of July and August 1992, Hazim Delic frequently used a painful device which emitted an electrical current, upon a great number of detainees in the Celebici prison-camp including Milenko Kuljanin and Novica Dordic. It contends that the shocks that this device emitted were so severe that victims suffered convulsions and burns. In addition, it submits that Hazim Delic derived pleasure from the use of this device. On the basis of the foregoing, the Prosecution submits that Mr. Delic inflicted severe pain, suffering and indignity, out of proportion to the treatment expected of one human being of another.

(b) Defence Case

1051. Hazim Delic is the only accused charged as a direct participant in the acts alleged in this section of the Indictment. In the Motion to Dismiss, his Defence submits that the Prosecution has failed to satisfy the general requirements of Articles 2 and 3 of the Statute⁹²⁵. In his interview with Prosecution investigators, on 19 July 1996, Mr. Delic claimed that there never was an electrical device such as that described in the Celebici prison-camp⁹²⁶. However, apart from general attempts to impeach the credibility of Prosecution witnesses, no other direct factual allegations have been specifically made by the Defence in respect of these counts.

(c) Discussion and Findings

1052. The Trial Chamber is persuaded by the volume and consistency of the Prosecution evidence in relation to these counts. It finds that, during the months of July and August 1992, Hazim Delic used a device which emitted an electrical current and inflicted pain and injury upon detainees in the Celebici prison-camp.

1053. The device used by Mr. Delic, which emitted electric shocks, was variously described as "an electric prod for cattle",⁹²⁷ "a device used …when cattle were slaughtered"⁹²⁸, "a device for horses … it produces strong electrical shocks"⁹²⁹ "a gadget which produced electric shocks"⁹³⁰, and "a device that causes electrical shocks"⁹³¹. Witness P described the device as an electric stick about the size of two cigarette packets, with a button. Milenko Kuljanin, upon whom this device was used, described it in the most detail and stated that it was an electrical device in the form of a packet of cigarettes but much larger, with two wires on the top that were connected to a button.

1054. The Trial Chamber finds that this device was used on both Milenko Kuljanin and Novica Dordic. On one occasion Mr. Delic walked into Tunnel 9 and gave Milenko Kuljanin two electric shocks on his chest just below his neck. On another occasion, Mr. Delic took prisoners from Tunnel 9 outside and selected Novica Dordic, who was made to sit on a stone block, naked from the waist up, while Delic applied the device to his chest, despite his pleas for mercy. After the shock, the victim fell off the block whereupon Mr. Delic caught him by the leg and kept the device on his chest for a prolonged period of time.

1055. In addition, Witness B stated that Hazim Delic had used the device upon him. Stevan Gligorevic and Witness R testified that he had used it upon Davor Kuljanin and Novica Dordic stated that the device was inflicted upon Vukasin Mrkajic. Witness P, testified of its use by Mr. Delic upon Risto Zuza. Milenko Kuljanin also stated that Delic used this device on five named detainees from Tunnel 9. This was supported by the evidence of Witness B, who said that Mr. Delic used the device on many prisoners; Novica Dordic, who testified that Mr. Delic used the device on most of the prisoners in Tunnel 9; and Witness R, who stated that Mr. Delic had developed a habit or custom of placing it against the shoulder or neck of prisoners and turning it on. Thus, the evidence before the Trial Chamber consistently shows that Hazim Delic inflicted this electrical device on numerous prisoners, primarily from Tunnel 9, and on numerous occasions in the Celebici prison-camp.

1056. The electric shocks emitted by the device caused pain, burns, convulsions and scarring, and frightened the victims and other prisoners. Novica Dordic testified that the device inflicted a small burn, like the burn from a cigarette, but that the electrical charge was very high and would frighten the victim to the point where he felt he would not be able to survive. In relation to the occasion when the device was used on Novica Dordic, the victim testified that Hazim Delic kept the device on his skin for a long time. This caused a large burn, which subsequently became infected and as a result of which he bears a scar. Milenko Kuljanin also stated that the device caused horrible and terribly unpleasant pain, convulsions and twitching, and that he suffered a burn and scarring as a result of its use on him. In addition, Witness B testified that when Mr. Delic used the device on prisoners, they would go into spasms. This is supported by Witness P, who testified that when Mr. Delic used the device on Risto Zuza he had a spasm and was thrown into the corner of Tunnel 9.

1057. The evidence further establishes that Hazim Delic derived sadistic pleasure from the use of this device. Novica Dordic, stated that it was like a "toy" for Mr. Delic ⁹³²and Witness B testified that Delic found the use of this device "very amusing"⁹³³. Milenko Kuljanin testified that when Mr. Delic was using the device on him, he laughed and found it funny. In addition, he stated that when Delic was using the device on some of the other prisoners he,

talked during this and laughed at them as he was applying the device. Some of them begged him as they were in pain and unpleasant pain not to torture them, not to maltreat them, but he even hit some of them when they begged him to cease torturing them. He merely laughed.⁹³⁴

1058. The Trial Chamber finds that Hazim Delic deliberately used an electric shock device on numerous prisoners in the Celebici prison-camp during the months of July and August 1992. The use of this device by Mr. Delic caused pain, burns, convulsions, twitching and scaring. Moreover, it frightened the victims and reduced them to begging for mercy from Mr. Delic, a man who derived sadistic pleasure from the suffering and humiliation that he caused. Accordingly, the Trial Chamber finds that Mr. Delic, by his acts, intentionally caused serious physical and mental suffering, which also constituted a clear attack upon the human dignity of his victims.

1059. For these reasons, the Trial Chamber finds Hazim Delic guilty of inhuman treatment, under count 42 of the Indictment and of cruel treatment, under count 43 of the Indictment, with respect to the use of a device emitting an electrical current on Milenko Kuljanin and Novica Dordic.

18. Responsibility of Superiors for Inhumane Acts - Counts 44 and 45

1060. Paragraph 34 of the Indictment contains the following factual allegations:

With respect to the incidents of inhuman acts committed in Celebici camp, including forcing persons to commit fellatio with each other, forcing a father and son to slap each other repeatedly, and including those acts described above in paragraph thirty-three, Zejnil DELALIC, Zdravko MUCIC and Hazim DELIC knew or had reason to know that subordinates were about to commit those acts or had done so, and failed either to take the necessary or reasonable steps to prevent those acts or to punish the perpetrators.

In connection with the foregoing allegations, Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged as superiors as follows:

Count 44. A Grave Breach punishable under Article 2(b)(inhuman treatment) of the Statute of the Tribunal; and

Count 45. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (cruel treatment) of the Geneva Conventions.

1061. The Trial Chamber’s findings as to the offences described in paragraph 33 of the Indictment, as charged here, are set out above. Further, as discussed above, the Trial Chamber restricts itself to addressing the specific allegations in the Indictment and therefore will not consider the other numerous acts of ill-treatment alleged to have occurred at the Celebici prison-camp, but not specifically alleged in the Indictment. Accordingly, the Trial Chamber here limits itself to considering the factual allegations as they relate to the incidents wherein persons were forced to commit fellatio with each other and where a father and son were forced to slap each other repeatedly.

(a) Forcing Persons to Commit Fellatio with Each Other

1062. The Indictment alleges that, on one occasion, certain of the detainees were forced to perform fellatio on each other. In order to establish the facts in relation to this count, the Prosecution relies on the testimony of eleven witnesses, in addition to the testimony of the accused, Esad Landzo. Vaso Dordic gave an account of the incident, whereby Esad Landzo allegedly forced him and his brother to commit fellatio with each other in Hangar 6 in full view of the other detainees. The Prosecution submits that this account is supported by the testimony of various other witnesses, including Witness N, Mladen Kuljanin, Witness R, Rajko Draganic, Dragan Kuljanin, Mirko Dordic, Witness M, Witness B, Witness F and Risto Vukalo. In addition, the Prosecution relies on the admission of the accused, Esad Landzo, that he forced the Dordic brothers to commit fellatio with one another and that he put a burning fuse around their genitals. The Prosecution also relies on the testimony of Esad Landzo and the supporting testimony of Rajko Draganic to prove that Hazim Delic was present during the incident, giving instructions to Esad Landzo.

1063. The Defence notes that the accounts of the Prosecution witnesses are inconsistent as to the date on which this incident is alleged to have occcurred.

1064. The Trial Chamber finds the testimony of the victim and the supporting evidence of Witness F, Witness N, Dragan Kuljanin, Witness B, Risto Vukalo, Rajko Draganic, Witness R and Mirko Dordic to be trustworthy as regards the act of forcing two brothers to commit fellatio as alleged in these counts. This incident is alleged to have taken place insider Hangar 6, and as such, many of the former detainees who testified were able to observe the incident from their vantage point inside the Hangar. Further, Esad Landzo, provided a full confession as to his participation in this incident in his testimony before this Trial Chamber. The Trial Chamber has previously stated that it finds the testimony of Esad Landzo to be generally unreliable. However, in relation to the present count, where his testimony is consistent with that of so many additional witnesses, the Trial Chamber accepts Mr. Landzo’s admission.

1065. Accordingly, on the basis of the foregoing evidence, the Trial Chamber finds that, on one occasion, Esad Landzo ordered Vaso Dordic and his brother, Veseljko Dordic, to remove their trousers in front of the other detainees in Hangar 6. He then forced first one brother and then the other to kneel down and take the other one’s penis into his mouth for a period of about two to three minutes. This act of fellatio was performed in full view of the other detainees in the Hangar.

1066. The Trial Chamber finds that the act of forcing Vaso Dordic and Veseljko Dordic to perform fellatio on one another constituted, at least, a fundamental attack on their human dignity. Accordingly, the Trial Chamber finds that this act constitutes the offence of inhuman treatment under Article 2 of the Statute, and cruel treatment under Article 3 of the Statute. The Trial Chamber notes that the aforementioned act could constitute rape for which liability could have been found if pleaded in the appropriate manner.

(b) Forcing a Father and Son to Slap Each Other Repeatedly

1067. The Prosecution alleges that, on one occasion, a father and son, Danilo and Miso Kuljanin, were forced to slap each other repeatedly. In order to establish the facts in relation to this count, the Prosecution relies on the testimony of Mirko Dordic.

1068. The Defence has made no submissions in relation to this factual allegation in the Indictment.

1069. The Trial Chamber finds the testimony of Mirko Dordic in relation to this count to be trustworthy. Accordingly, it finds that, on one occasion, Esad Landzo came into Hangar 6 and ordered a father and son, Danilo and Miso Kuljanin, to get up and start hitting each other. Esad Landzo then ordered them to hit each other harder and so, for a period of at least ten minutes, Mr. Kuljanin and his son were forced to beat each other.

1070. The Trial Chamber finds that, through being forced to administer a mutual beating to one another, Danilo and Miso Kuljanin were subjected to serious pain and indignity. Accordingly, the Trial Chamber finds that the deliberate act of forcing Danilo Kuljanin and Miso Kuljanin, father and son, to beat one another repeatedly over a period of at least ten minutes constitutes inhuman treatment under Article 2 of the Statute and cruel treatment under Article 3 of the Statute.

(c) Responsibility of the Accused

1071. Under the counts of the Indictment here under consideration, Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged with responsibility as superiors pursuant to Article 7(3) of the Statute. As set out above, Zejnil Delalic and Hazim Delic have been found not to have exercised superior authority over the Celebici prison-camp. For this reason, the Trial Chamber finds Zejnil Delalic and Hazim Delic not guilty of inhuman and cruel treatment, as charged in counts 44 and 45 of the Indictment.

1072. The Trial Chamber has above established that Zdravko Mucic was in a de facto position of superior authority over the Celebici prison-camp. It has further found that Zdravko Mucic, in this position, knew or had reason to know of the violations of international humanitarian law committed in the Celebici prison-camp, but failed to prevent these acts or punish the perpetrators thereof. For this reason, and on the basis of the findings made above, the Trial Chamber finds that Zdravko Mucic is responsible pursuant to Article 7(3) of the Statute for inhuman treatment and cruel treatment of Vaso Dordic, Veseljko Dordic, Danilo Kuljanin and Miso Kuljanin. In his position as a superior, Zdravko Mucic is further responsible for inhuman treatment and cruel treatment of Milenko Kuljanin and Novica Dordic, alleged in paragraph 33 of the Indictment and found proven by the Trial Chamber above.

19. Inhumane Conditions - Counts 46 and 47

1073. Paragraph 35 of the Indictment sets forth the following factual allegation:

Between May and October 1992, the detainees at Celebici camp were subjected to an atmosphere of terror created by the killing and abuse of other detainees and to inhumane living conditions by being deprived of adequate food, water, medical care, as well as sleeping and toilet facilities. These conditions caused the detainees to suffer severe psychological and physical trauma…

In connection with this factual allegation, Zdravko Mucic, Hazim Delic and Esad Landzo are charged with responsibility pursuant to Article 7(1) of the Statute for having directly participated in creating the alleged conditions. In addition, Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged with responsibility as superiors, pursuant to Article 7(3) of the Statute. The accused are charged in these capacities as follows:

Count 46. A Grave Breach punishable under Article 2(c)(wilfully causing great suffering) of the Statute of the Tribunal; and

Count 47. A Violation of the Laws or Customs of War punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) (cruel treatment) of the Geneva Conventions.

(a) Prosecution Case

1074. In support of the allegation contained in the Indictment, the Prosecution relies on a large body of evidence given by former detainees who, in their testimony before the Trial Chamber, described the conditions under which they were detained in the Celebici prison-camp. Based upon this evidence, the Prosecution, in its submissions, more specifically identified the following factors, which it alleges contributed to the inhumane conditions that have prevailed in the Celebici prison-camp.

1075. According to the Prosecution, a fundamental aspect of the inhumane conditions in the prison-camp was the all-pervasive atmosphere of terror to which the detainees were constantly subjected. In this respect, it is submitted that, even when not themselves subjected to such treatment, detainees frequently witnessed the mistreatment or killing of other prisoners. The Prosecution contends that ample evidence demonstrates that this atmosphere of terror was purposely maintained, and that this element by itself, even without the other inadequacies in the conditions prison-camp, would be sufficient to constitute inhumane conditions.

1076. With respect to the alleged deprivation of food and water, the Prosecution notes that many witnesses testified about the inadequacy of the food provided to the detainees, and that there were some protracted periods in which no food was provided at all. Similarly, it is submitted that the evidence demonstrates that, while there was no shortage of water, prisoners were denied access to drinking water in sufficient quantities. It further notes that, according to some witnesses, the detainees were forced to drink non-potable water. It is contended that, as a result of these conditions, many detainees suffered serious weight loss and a weakened physical state during their detention.

1077. According to the Prosecution, the testimony from the detainees further demonstrates that there was little medical care provided in the prison-camp. It submits that, although the prison-camp had a makeshift infirmary, it was very poorly equipped and was clearly inadequate to meet the substantial medical needs of the detainees. Further, the Prosecution contends that the evidence demonstrates that the detainees were often denied access to the limited medical facilities that were in fact available.

1078. The Prosecution further alleges that the sleeping conditions provided for the detainees were seriously inadequate. More specifically, it submits that the evidence demonstrates that the detainees imprisoned in Hangar 6 sat and slept in their assigned positions, on a concrete floor. They were not provided with beds or mattresses, and blankets were scarce. It is contended that the situation in Tunnel 9 was even more difficult and that conditions there were so cramped that it was almost impossible for the detainees to lie down. As in Hangar 6, no bedding was provided.

1079. The Prosecution also asserts that the detainees’ access to toilet facilities was limited and, more generally, that the standard of hygiene in the prison-camp fell seriously below acceptable standards. In this respect, it submits that the evidence shows that the toilet facilities available to the detainees in Hangar 6 consisted of an outside septic tank and a ditch, to which the detainees were allowed only restricted access during the day. It is further noted that, at some stage at least, one or two buckets were provided for the detainees to use as toilet facilities during the night, the capacities of which were clearly inadequate. As to the conditions in Tunnel 9, it is submitted that the evidence shows that the detainees were forced to relieve themselves at the bottom of the tunnel, with some of the prisoners being compelled to sit in the rising tide of excrement.

1080. The Prosecution further maintains that the arguments raised by the Defence cannot provide any defence to the charges of inhumane conditions. It thus submits, as a matter of law, that a detaining power which is not in a position to comply with the minimum standards of detention as prescribed by international humanitarian law, is under an obligation to release some, or all, of the prisoners in order to allow humane conditions to be created for those detained. Furthermore, it submits that the evidence contradicts the Defence claim that the conditions in the Celebici prison-camp were in fact the best that could be provided at the time. In this respect it notes that no justification based on lack of resources could possibly be provided for the constant physical abuse, the refusal to allow the detainees to avail themselves of the existing water supply, or the failure to provide acceptable toilet and hygiene facilities.

(b) Defence Case

1081. In response to the allegations made in the Indictment, the Defence contends that a State may lawfully detain individuals under conditions which fall below the minimum requirements of international humanitarian law, provided that a good faith effort is made to ensure that the conditions of detention are as humane as possible under the circumstances. It accordingly asserts that if, in view of the available resources, the conditions of confinement are the best that can be provided, no criminal liability can attach to the individuals who act on behalf of the detaining State. On this basis, the Defence contends that the standard by which the acts of the accused should be measured is whether they acted reasonably in providing food, shelter and other facilities to the detainees in the Celebici-prison-camp. Noting the very difficult conditions which prevailed in the Konjic municipality at the time, it submits that the Prosecution has failed to demonstrate that the quantities of food supplied to the detainees of the Celebici prison-camp, or the physical facilities available to them, could reasonably have been increased or improved at the time the prison-camp was in operation.

1082. With respect to the actual conditions of confinement in the Celebici prison-camp, the Defence notes that several witnesses testified to the efforts made to ensure that the detainees were properly fed, despite the extremely difficult situation which existed in Konjic in 1992. The Defence relies in this respect on the evidence of Sefkija Kevric, the assistant commander of logistics in the Municipal TO staff in Konjic, Zlatko Ustalic, a driver who delivered food to the Celebici prison-camp, and Emir Dzajic, a driver for the MUP who was stationed in the prison-camp in May and June 1992. In particular, the Defence observes that, according to the latter of these two witnesses, food for the staff and detainees of the Celebici prison-camp was delivered three times a day. According to the Defence, the two groups ate the same food, which for breakfast consisted of tea, coffee with milk, some eggs and for a while some honey. For lunch there were such things as lentils and beans. Further, it submits that each detainee received one quarter loaf of bread per day, and that the food supplies delivered to the prison-camp also included rice, macaroni and tins of meat.

1083. In response to the allegation that the health care provided for the detainees in the prison-camp was inadequate, the Defence observes, inter alia, that an infirmary was established in the Celebici prison-camp. This was situated in Building 22 and was staffed by two doctors, Dr. Petko Grubac and Witness P. The Defence further submits that the logistics body of the Municipal TO in Konjic provided the prison-camp with medicine. This was done through the Health Centre in Konjic, which Hazim Delic personally visited once a week to collect medication and bandages for the infirmary.

1084. More generally, the Defence notes that the Celebici barracks were not designed to accommodate a large number of people. This complex of bindings was intended as a storage facility, manned by a relatively small number of troops and, consequently, had only a limited number of toilets, showers and other facilities. Relying on the testimony of Emir Dzajic and Nurko Tabak, the Defence submits that, despite these limitations, conditions in the camp were not of the character alleged by the Prosecution. Thus, the Defence contends that the detainees in the so-called infirmary in Building 22 and the women in Building A used the toilet facilities in Building 22, and that the toilet facilities outside Hangar 6 and Tunnel 9 were similar to field toilets used in the military. It submits that there was a sufficient supply of clean water in the prison-camp, and that the same water was supplied both to the personnel and the detainees. Similarly, it asserts that the sleeping facilities for the detainees were not crowded. With reference to the conditions in Tunnel 9, the Defence asserts that the detainees there had blankets, food and water, and were permitted to use the toilet upon request. In addition, it is contended that family members were allowed to visit the prison-camp three times a week to bring food and clothing to the detainees.

(c) Discussion and Findings

1085. The Indictment characterises the conditions prevailing in the Celebici prison-camp as "inhumane" and alleges that the exposure of the detainees to these conditions constitutes the offences of wilfully causing great suffering or serious injury to body or health, and cruel treatment. The Trial Chamber here considers the different aspects of these alleged conditions in turn.

(i) Atmosphere of terror

1086. During the course of these proceedings, the Trial Chamber was presented with extensive evidence regarding the physical and psychological abuse to which the detainees in the Celebici prison-camp were continually subjected. This evidence clearly demonstrates that those individual acts specifically alleged in the Indictment, and found proven by the Trial Chamber, in no way represent the totality of the cruel and oppressive acts committed against the detainees in the Celebici prison-camp. However, from the evidence reviewed above, it is already clear that the detainees in the Celebici prison-camp were continuously witnessing the most severe physical abuse being inflicted on defenceless victims. This evidence further demonstrates how the detainees in crowded conditions of detention were obliged to helplessly observe the horrific injuries and suffering caused by this mistreatment, as well as the bodies of detainees who had died from the abuse to which they were subjected. In his testimony, Mirko Dordic gave the following description of how he was in this way confronted with the lifeless body of Zeljko Cecez, who had died as a result of the ill-treatment to which he was subjected: "We were all shivering with fear. We didn’t dare even look, because few of us had contact with dead people. We are [sic] afraid of corpses. He lay there in our midst for three or four hours, maybe even longer".⁹³⁵

1087. It is clear that, by their exposure to these conditions, the detainees were compelled to live with the ever-present fear of being killed or subjected to physical abuse. This psychological terror was compounded by the fact that many of the detainees were selected for mistreatment in an apparently arbitrary manner, thereby creating an atmosphere of constant uncertainty. For example, Witness M, when asked whether he was generally given a reason as to why he had been selected for mistreatment responded: "Sometimes yes, sometimes no."⁹³⁶ Similarly, Witness N, who in his testimony described how he repeatedly was subjected to severe physical abuse, declared that he had no knowledge as to why he, in particular, was subjected to this kind of mistreatment⁹³⁷. Further, Branko Sudar, in his evidence, explained that "[t]he guards beat us to tell you the truth. They beat us, it depended. Sometimes somebody would go out and get hit, someone else would not get hit. It all depended."⁹³⁸

1088. Many of the former detainees testified directly as to the fear they had experienced during their detention in the Celebici prison-camp on account of the frequency with which ill-treatment was arbitrarily meted out. In his evidence, Witness F; stated: "I was afraid of everyone down there. Whoever walked in, I was afraid of them, and prayed to God not to be taken out, because I was not sure that I would come back alive if I were taken out"⁹³⁹. This witness further testified that whenever the detainees in Hangar 6 heard the voice of Esad Landzo they grew terrified: "When he [Esad Landzo] was speaking outside, we knew immediately that he was coming, and we were already in fear"⁹⁴⁰. Witness N provided supporting testimony as to the fear inspired amongst the detainees by Esad Landzo: "I just know that he [Esad Landzo] beat people, that he came, that he was there during that period non-stop. We were all afraid."⁹⁴¹ Similarly, Mirko Babic, speaking of Hazim Delic’s daily visits to Hangar 6, testified that when Hazim Delic entered the Hangar "everybody was in fear. Almost - your heart would almost burst".⁹⁴² Grozdana Cecez and Risto Vukalo also gave accounts of the fear experienced during their detention, the latter declaring that he was "terrified and thinking only how I could avoid beatings".⁹⁴³

1089. The evidence further demonstrates that the guards in the Celebici prison-camp would often threaten to kill the detainees, thereby aggravating their sense of physical insecurity and fear. For example, Witness M stated: "I was mistreated and threatened with death, that I would be sentenced to death."⁹⁴⁴ Similarly, Risto Vukalo testified to one occasion on which he and Damir Gotovac were called out of the hangar. He described how he

saw Damir there, Zenga [Esad Landzo] was hitting him and he fainted and fell to the ground. Then Zenga told me to kill him, I mean to beat him to death. I said I could not do that. Let him kill me. Then they started hitting me, Zenga was there and Osman Dedic as well. They started hitting me and then they ordered Damir to kill me.⁹⁴⁵

Novica Dordic described one occasion on which he went to collect food for the detainees in Tunnel 9 and where he lost consciousness after being kicked by a guard. He further testified: "I couldn’t fully comprehend that this was happening and the guard threatened to kill me if I didn’t get up."⁹⁴⁶ A further example of such threatening behavior was provided by Witness R who, in his testimony, described how, when confronted with a request for medical care by a detainee, Hazim Delic would respond "sit down, you have to die anyway, whether you are given medical assistance or not".⁹⁴⁷

1090. The atmosphere of terror which pervaded the Celebici prison-camp, is further demonstrated by evidence showing that the detainees were afraid to report or complain about the mistreatment they received. Thus, Witness J described how he and other detainees, during the visit to the prison-camp by a delegation of the International Committee of the Red Cross, denied having been subjected to beatings: "[A]s soon as we saw them [the ICRC delegation], we all went numb. We were terrified, because we thought it would have been better if they had not come, because we thought we would be beaten again"⁹⁴⁸. In his evidence, Witness N similarly described how detainees would be beaten if they complained about their treatment, and how as a result "nobody dared say that they were beaten up to anyone"⁹⁴⁹. This account is consistent with the testimony of Miro Golubovic and Milovan Kuljanin, who both described how they, when asked by Zdravko Mucic, were too afraid to identify those who had mistreated them.⁹⁵⁰ Further, Witness P, who worked as a doctor in the so-called infirmary, testified how his fear of mistreatment affected his ability to fulfill this role: "I was unable to do any X-rays. That was not allowed, because I too was a detainee, and if I asked for anything, I would get beaten more, so that I had to protect myself too".⁹⁵¹

1091. Accordingly, the Trial Chamber finds that the detainees in the Celebici prison-camp were exposed to conditions in which they lived in constant anguish and fear of being subjected to physical abuse. Through the frequent cruel and violent deeds committed in the prison-camp, aggravated by the random nature of these acts and the threats made by guards, the detainees were thus subjected to an immense psychological pressure which may accurately be characterised as "an atmosphere of terror".

(ii) Inadequacy of Food

1092. Many of the witnesses who appeared before the Trial Chamber provided testimony concerning the inadequacy of the food provided to the detainees in the Celebici prison-camp. Although it appears from this evidence that the size and quality of the rations varied somewhat during the relevant time-period, the Trial Chamber has been left in no doubt that the food supplied to the detainees fell far short of any acceptable standard. In their consistent testimonies, Witness F, Grozdana Cecez, Witness R, Milenko Kuljanin, Stevan Gligorevic, Mirko Dordic, Branko Gotovac, Mirko Kuljanin, Mladen Kuljanin, Witness J, Nedeljko Draganic and Risto Vukalo, all variously described how the food given to the detainees mostly consisted of small amounts of bread, with one loaf being divided between as many as 15 to 17 persons. This was complemented by small quantities of thin soup, vegetables or other cooked food of inferior quality. It is clear that the absence of adequate food was further aggravated by the lack of acceptable facilities for eating. As described by Witness R: "Occasionally we would get some cold soup, which would be several days old, but the problem was how to eat the soup in Hangar number 6 in which there were between 250 and 270 prisoners; there were only five spoons". Similarly, Mirko Babic testified that,

there were five spoons for the 250 of us [the detainees in Hangar 6]. Five would go and eat. Sometimes it was something cooked, and this meal took about two hours. Somebody would take a little more. Then the next person had nothing. There was very little bread. We were all hungry.⁹⁵²

These accounts are further supported by the evidence of Stevan Gligorevic and Nedeljko Draganic.

1093. On the basis of the evidence on record, it is further clear that, on at least one occasion, no food at all was provided to the detainees for a period of several days. In their testimony, Mirko Babic, Milojka Antic, Stevan Gligorevic, Mirko Dordic, Witness J, Nedeljko Draganic and Dr. Petko Grubac all recalled having experienced an incident where there was no food for about three days. In this regard, Milojka Antic described how "[f]or three days we did not eat anything. So that I was completely weakened, and I was unable to stand up on my feet. Grozda [Grozdana Cecez] had to take me to the toilet"⁹⁵³. Similarly, Stevan Gligorevic stated that "[p]eople turned into skeletons. You could hardly recognise them. Many could not even stand up. They had to lean against something, and if they stood up against something, they would fall down". ⁹⁵⁴This evidence is further consistent with the evidence of Vaso Dordic, who recalled several occasions upon which the detainees were forced to go without food for two days in a row.

1094. The effects of this insufficient diet were described by a number of witnesses who, in their testimony, gave consistent accounts of the weight loss and weakened physical states suffered by themselves and other detainees. According to the testimony of Witness J, "the conditions were poor, so that we almost starved. We could not even move in the end. I weighed 95 kilos when I was brought in and then, when I finally left the camp, I weighed 58 kilos, so it was terrible".⁹⁵⁵ Similarly, Witness B testified that his weight was 90 kilograms before the war, and some 50 kilograms when he was released from the prison-camp. This witness also described the detainees as "living corpses", and stated that many were so weakened by the lack of food that they would faint when they got up to go to the toilet.⁹⁵⁶ In their evidence, Grozdana Cecez and Branko Sudar provided similar accounts, and stated that they lost around 30 kilograms in weight during their detention.

1095. In light of the consistent evidence of these witnesses, the Trial Chamber cannot accept the accounts given by Defence witnesses, Sefkija Kevric, Zlatko Ustalic and Emir Dzajic concerning the quantity and type of food provided to the detainees in the Celebici prison-camp. Further, to the extent that the Defence is arguing that the unsatisfactory diet provided by the prison-camp authorities was sufficiently compensated by the fact that family members were permitted to bring food to the detainees, the Trial Chamber finds that the evidence is to the contrary. In this respect, the evidence of Witness F, Witness P and Grozdana Cecez indicates that such food did not always reach the intended recipients. In any event, the evidence on record clearly demonstrates that any such extra supplies that in fact were made available in this way to the detainees, were insufficient to ensure that they received adequate nourishment during their detention in the prison-camp.

1096. Based upon the evidence reviewed above, the Trial Chamber accordingly finds that the detainees in the Celebici prison-camp were deprived of adequate food.

(iii) Lack of Access to Water

1097. The Trial Chamber heard compelling evidence from numerous witnesses as to the restrictions placed on the detainees’ access to water inside the Celebici prison-camp. Witness R, a former detainee in the Celebici prison-camp, testified that, although at first people were allowed to keep water in plastic bottles inside Hangar 6, after a while this practice was abolished. He further testified that, thereafter, access to water was increasingly restricted until it reached a stage where "under threat of heavy beatings and even death, not a drop of water could be brought in without the knowledge and permission of the deputy commander Hazim Delic."⁹⁵⁷ Mirko Dordic testified that during this latter period, water was distributed to the detainees in Hangar 6 twice or three times a day. The amounts were such that seven or eight detainees would be forced to share one bottle, and many of the witnesses testified that their intake of water invariably failed to meet their hydration needs. For example, Branko Sudar testified that the daily portions of water for the detainees amounted to "a spoonful of water, a ladleful."⁹⁵⁸ Similarly, Milko Kuljanin stated that "[w]ater was the biggest problem. . . . [y]ou couldn’t always get as much as you wanted and as much as you needed."⁹⁵⁹ In Tunnel 9, Miro Golubovic testified that, although the water supplied to the detainees was clean, "[t]he quantity wasn’t sufficient."⁹⁶⁰

1098. The detainees’ dehydration was exacerbated by the high temperatures that prevailed inside Hangar 6 on hot days. As Stevan Gligorevic stated: "Konjic is very hot in the summer. We perspired a lot. We needed quite a lot of liquid and we did not have that." ⁹⁶¹Dragan Kuljanin testified that inside Hangar 6 "[p]eople were almost fainting from thirst."⁹⁶² These accounts were supported by the testimony of Nedeljko Draganic⁹⁶³ and Witness N, the latter of whom testified to the extreme conditions inside Hangar 6: "It was hot. The walls were steel, so we lacked water. We didn’t have enough." ⁹⁶⁴

1099. Although there is some evidence to suggest that the water given to the detainees to drink was non-potable, the Trial Chamber finds that the weight of the evidence does not demonstrate that the water was of poor quality. The Trial Chamber further notes the testimony of Mirko Kuljanin, suggesting that the absence of sufficient drinking water for the detainees did not stem from an inadequate supply, as there was plenty of water available in the camp⁹⁶⁵. Indeed, even the Defence acknowledges that the water supply in the prison-camp was sufficient.

1100. Accordingly, based on the foregoing evidence, the Trial Chamber finds that the strict limits placed on the amount of water the detainees were permitted to drink rendered the detainees’ intake of water inadequate. This restriction placed on the detainees’ access to water appears to have been a deliberate policy on behalf of the prison-camp authorities rather than one borne of necessity, as there was no shortage of water in the prison-camp.

(iv) Lack of Proper Medical Care

1101. The Trial Chamber heard evidence as to the availability and quality of the medical care in the Celebici prison-camp from several former detainees, including two doctors who worked in the makeshift camp infirmary during the period of their detention in the prison-camp. The doctors, Witness P and Dr. Petko Grubac, testified as to the inadequacy of the medical care they were able to provide for the detainees. Witness P testified about the limited supplies at the infirmary. "We had a drum with gauze. We had one pincers [sic]. We had one scissors [sic], and I think that was all as far as the equipment was concerned, and some medicine."⁹⁶⁶ He further testified that, although there was a procedure for requesting additional medicine, they usually received only a very small portion of what they had requested.⁹⁶⁷ This evidence was supported by the testimony of Dr. Petko Grubac, who confirmed that the infirmary was very poorly equipped. Further, Witness N and Miro Golubovic both testified as to the paucity of medical supplies in the prison-camp infirmary. Witness N stated: "They changed the bandage that I had on my arm. They did not have any other supplies to do anything further,"⁹⁶⁸ while Miro Golubovic testified: "They just tried to treat my ear, nothing else, because they didn’t have anything." ⁹⁶⁹

1102. The Trial Chamber notes that Ahmed Jusufbegovic, director of the Health Centre in Konjic in 1992, testified that Hazim Delic, in June 1992, visited the Health Centre at least once a week to collect medicines and bandages. While this witness described the types of supplies requested by Mr. Delic on these occasions, he did not provide any specific information as to the types and amounts of medical supplies that actually were provided to the prison-camp. In light of the consistent testimony regarding the inadequacy of the medical supplies available in the prison-camp infirmary, therefore, this evidence cannot affect the Trial Chamber’s finding that the medical facilities available to the detainees suffered from a serious lack of basic medical supplies.

1103. In his testimony, Dr. Grubac further emphasised that, in the prison-camp, he was not permitted to exercise his medical discretion freely. Rather, the limits of his role as a doctor were defined by the camp authorities. "We had no power to decide as to the way the injured would be treated, nor when they were brought in or taken away or taken to any other institution. . . . [we] were prisoners like everyone else."⁹⁷⁰ Witness P supported this, testifying that he was never permitted to send anyone to a real hospital for diagnosis.⁹⁷¹ Further, Dragan Kuljanin, in his testimony, commented on the limitations imposed on the doctors in the infirmary in providing medical care for the detainees. "About ten times I looked for help and the doctor would come and see me and he would just shrug his shoulders and say: ‘There’s nothing I can do.’ He would whisper this to me. ‘It’s not up to me,’ he would say."⁹⁷²

1104. Further, the Trial Chamber was presented with substantial evidence demonstrating that the detainees were often denied access to the limited medical facilities that were available. Nedeljko Draganic, who was injured stated that "whenever I would ask to go there [the infirmary] so that they could clean the wound, very often Delic would not allow me to go. He often told me not to go and said ‘You don’t need that. You won’t last very long.’⁹⁷³" Similarly, Witness R testified that "Vukasin Mrkajic was never given any kind of medical care or treatment and when he addressed Mr. Delic, if he had occasion to do that, the answer he was given would be ‘you have to die anyway, so sit down.’"⁹⁷⁴ Mirko Dordic and Witness M both testified that, despite receiving serious injuries during their detention in the Celebici prison-camp, they were not provided with any medical treatment.⁹⁷⁵ Similarly, Risto Vukalo testified: "I was beaten many times [while in the camp] and never was any medical assistance extended to me."⁹⁷⁶

1105. Accordingly, based on the foregoing evidence, the Trial Chamber finds that the medical care provided for the detainees in the Celebici prison-camp was clearly inadequate, especially in light of the serious injuries suffered by many of the detainees during their detention. Further, the Trial Chamber finds that the detainees were often denied access to the basic medical facilities that were available.

(v) Inadequacy of Sleeping Facilities

1106. The Trial Chamber heard testimony from many of the former detainees in the Celebici prison-camp regarding the conditions under which they were compelled to sleep. This testimony was overwhelmingly consistent as to the inadequacy of the sleeping facilities for detainees in the prison-camp. For example, Witness R, who was incarcerated in Hangar 6, testified that, in order to sleep, the detainees would "just sort of stretch out on the concrete, in the same position at which we sat."⁹⁷⁷ Similarly, Mirko Kuljanin, Witness F, Nedeljko Draganic, Witness N, Mirko Dordic and Branko Sudar all testified that in Hangar 6 the detainees were required to sleep in their assigned positions on the bare concrete floor. Nedeljko Draganic further testified that one section of Hangar 6 always leaked when it rained and that the detainees in that area were consequently compelled to sleep in wet conditions.

1107. In Tunnel 9, the inadequacy of the sleeping facilities was exacerbated by the overcrowding of the detainees. Novica Dordic, who was detained in Tunnel 9 for some time, testified that the conditions in the tunnel were so cramped that sleeping was virtually impossible. In order to get any rest, the detainees had to lie parallel to the slope of the tunnel, each turned on his side, packed closely together to enable all the bodies to fit. According to his testimony, "[w]hen somebody couldn’t bear it any longer, then we would all have to wake up and turn round to the other side."⁹⁷⁸ These sleeping conditions evidently compounded the suffering of those detainees who were injured.

1108. The evidence presented to the Trial Chamber further shows that none of the detainees were provided with beds or mattresses on which to sleep and, at least initially, few of them had blankets. According to Branko Gotovac, people used whatever they had, like coats and pieces of blankets to cover themselves at night.⁹⁷⁹ Mirko Kuljanin stated that he just slept in his shirt and trousers until he managed to find a piece of blanket.⁹⁸⁰ As noted by the Defence, there is evidence that Hazim Delic at one point ordered that the available blankets be cut into half, so as to be divided more evenly among the detainees. However, the evidence shows that even after the blankets were shared in this way, all the detainees were not provided with adequate sleeping facilities. Further, in light of the considerable weight of evidence to the contrary, the Trial Chamber cannot place reliance on Emir Dzajic’s testimony that the sleeping facilities for the detainees were not crowded and that all the detainees held in Tunnel 9 had blankets. Accordingly, the Trial Chamber finds that the sleeping facilities afforded to the detainees in the Celebici prison-camp were inadequate.

(vi) Inadequacy of Toilet Facilities

1109. Many witnesses testified as to the inadequacy of the toilet facilities in the Celebici prison-camp and, further, as to the restrictions placed on the detainees’ use of these basic facilities. This evidence suggests that the detainees initially were generally free to relieve themselves in an outside ditch and a septic tank behind Hangar 6. It is clear, however, that the detainees’ access even to these rudimentary toilet facilities subsequently was limited to twice a day, once in the morning and once in the evening. Moreover, the evidence shows that on these occasions, the detainees were afforded only a very brief time in which to relieve themselves. Mirko Dordic described the procedure in the following way:

"Hazim Delic would force us to go to urinate in a group of 30-40 people. We had to run there. Upon his command he would say: ‘Take it out. Stop.’ This was very short, the time we had. We just ran out and had to run back, so that there were people who just didn’t have enough time to finish."⁹⁸¹

Similar accounts of this practice were provided by Witness R, Branko Sudar, Risto Vukalo and Dragan Kuljanin. From the testimony of Witness N, Milovan Kuljanin⁹⁸² and Mirko Babic, it is further clear that at night the detainees in Hangar 6 were limited to the use of one or two toilet buckets.

1110. The evidence further shows that those detainees kept in Tunnel 9 were not permitted to leave the tunnel at all in order to relieve themselves. Witness R, testifying to his experience in Tunnel 9 stated: "We were not allowed to go out and relieve ourselves."⁹⁸³ Similarly, Mirko Kuljanin testified that the detainees in Tunnel 9 "often asked to be taken out, but they would not allow that."⁹⁸⁴ Miro Golubovic stated that, at one point, a toilet bucket was placed at the end of Tunnel 9 in which detainees could relieve themselves.⁹⁸⁵ However, the weight of the evidence presented demonstrates that any such container was either subsequently removed or proved to be woefully inadequate, as the detainees were eventually forced to relieve themselves at the bottom of the tunnel. Over time, the detainees who were positioned at the end of the tunnel were compelled to sit in the rising tide of excrement and the resulting stench in the rest of the tunnel became unbearable. One of the former detainees in Tunnel 9, Witness J, described the situation: "It is true that people were sitting in their excrement, because it was not cleaned, and as people relieved themselves, there was more and more of it and it climbed up."⁹⁸⁶ Similarly, Witness R testified that "people relieved themselves at the bottom of this tunnel, and as time went on, this excrement accumulated, and also that liquid started rising."⁹⁸⁷ In light of this testimony, the Trial Chamber cannot accept Emir Dzajic’s statement that the detainees in Tunnel 9 were permitted to visit the toilet whenever they wanted.

1111. The Defence, relying on the testimony given by Emir Dzajic, submits that the toilet facilities outside Hangar 6 and Tunnel 9 were similar to field toilets commonly used by the military. The Trial Chamber does not find it necessary to determine whether this is an accurate characterisation, as the evidence clearly demonstrates that unreasonable restrictions were placed upon the detainees’ use even of these rudimentary facilites. Accordingly, based on the foregoing evidence, the Trial Chamber finds that the detainees in the Celebici prison-camp were not provided with adequate toilet facilites.

(d) Legal Findings

1112. As described above, the Trial Chamber has heard compelling testimony from many former detainees regarding the inhumane conditions under which they were compelled to live during their detention in the Celebici prison-camp. Taken as a whole, their testimonies paint a vivid portrait of a group of people stretched both psychologically and physically to the very limits of human endurance.

1113. The evidence clearly demonstrates that, whilst incarcerated in the Celebici prison-camp, the detainees were deprived of even the most basic of human needs. Water, though apparently plentiful in the prison-camp, was only made available to the detainees in insufficient quantities. This was particularly true for the detainees in Hangar 6 who, on hot days, were forced to endure searing temperatures inside the Hangar, thereby aggravating their considerable thirst. Similarly, food rations for the detainees were grossly inadequate. Over time, the detainees, unable to sustain themselves on this impoverished diet, grew thin and weak.

1114. The evidence shows that the detainees were forced to sleep on the bare concrete, with very little to cover themselves. The conditions in Tunnel 9 were so cramped that, in order to lie down, people had to turn on their sides and attempt to sleep pressed up against one another. Further, the detainees’ access to the camp’s rudimentary toilet facilities was severely restricted, often to less than a minute, twice a day. Those held in Tunnel 9 were forced to relieve themselves at the end of the tunnel giving rise to a mounting pool of excrement.

1115. The evidence demonstrates that, although the prison-camp did have a makeshift infirmary, it was very poorly equipped and lacked even the most basic diagnostic facilities and medicine. The two detainees who worked as doctors in the so-called infirmary were severely limited in their roles, both by the chronic inadequacy of the medical supplies and, directly, by the camp authorities, who did not permit the doctors to exercise their medical judgement freely in respect of the detainees who sought treatment. Further, the detainees were often denied access to the medical treatment that was available.

1116. In addition to these harsh physical deprivations, the detainees were forced to endure constant psychological torment. As discussed above, the frequency with which arbitrary acts of violence occurred in the Celebici prison-camp gave rise to an all-pervasive atmosphere of terror, in which the detainees lived in mortal fear of being either beaten or killed.

1117. Before proceeding to determine whether these conditions constitute the offences alleged by the Prosecution, the Trial Chamber must here address the principle argument advanced by the Defence. It is the position of the Defence that, in light of the overall situation in the Konjic municipality at the time, no criminal liability can attach to the accused, as the conditions prevailing in the Celebici prison-camp were the best that could reasonably be provided. The Trial Chamber must, as a matter of law, reject this view. As set out above, the legal standards here at issue are absolute, not relative. They delineate a minimum standard of treatment, from which no derogation can be permitted. Accordingly, it is the Trial Chamber’s view that a detaining power, or those acting on its behalf, cannot plead a lack of resources as legal justification for exposing individuals to conditions of detention that are inhumane.

1118. Furthermore, the Trial Chamber cannot, as a matter of fact, accept the assertion made by the Defence that the conditions in the Celebici prison-camp were the result of the lack of resources available at the time. Even if the Trial Chamber were to accept this view in respect of the lack of food, medical supplies and adequate sleeping facilities in the camp, no such justification could possibly be provided for the mistreatment to which the detainees were subjected. Similarly, the refusal to allow the detainees sufficient water, or access to the existing toilet and medical facilities, clearly indicates that the inhumane conditions inflicted upon the detainees were the product of design, not necessity.

1119. The Trial Chamber finds that the chronic physical deprivation and the constant fear prevailing in the Celebici prison-camp caused serious mental and physical suffering to the detainees. Moreover, for the purposes of the offence of cruel treatment, exposure to these conditions clearly constituted an attack upon the human dignity of the detainees. Accordingly, on the basis of the foregoing evidence, the Trial Chamber finds that the creation and maintenance of an atmosphere of terror in the Celebici prison-camp, by itself and a fortiori, together with the deprivation of adequate food, water, sleeping and toilet facilites and medical care, constitutes the offence of cruel treatment under Article 3 of the Statute, and wilfully causing great suffering or serious injury to body or health under Article 2 of the Statute.

(e) Responsibility of the Accused

1120. In the counts of the Indictment here under consideration, Zdravko Mucic, Hazim Delic and Esad Landzo are charged with responsibility as direct participants pursuant to Article 7(1) of the Statute. In addition, Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged with responsibility as superiors pursuant to Article 7(3) of the Statute.

1121. As set out above, Hazim Delic has been found not to have exercised superior authority over the Celebici prison-camp. For this reason, the Trial Chamber finds that Hazim Delic cannot be held responsible as a superior, pursuant to Article 7(3) of the Statute, for the inhumane conditions that prevailed in the Celebici prison-camp. However, the Trial Chamber finds that, by virtue of his direct participation in those specific acts of violence with which he is charged in the Indictment and which the Trial Chamber has found proven above, Hazim Delic was a direct participant in the creation and maintenance of an atmosphere of terror in the Celebici prison-camp. Accordingly, the Trial Chamber finds Hazim Delic guilty pursuant to Article 7(1) of the Statute of the offence of wilfully causing great suffering or serious injury to body or health, under Article 2 of the Statute, and cruel treatment, under Article 3 of the Statute, as charged in counts 46 and 47 of the Indictment.

1122. The Trial Chamber further finds that, by virtue of his direct participation in those specific acts of violence with which he is charged in the Indictment and which the Trial Chamber has found proven above, Esad Landzo was a direct participant in the creation and maintenance of an atmosphere of terror in the Celebici prison-camp. Indeed, Esad Landzo in his testimony before this Trial Chamber admitted that he participated in the existence of an atmosphere of terror in the prison-camp.⁹⁸⁸ Accordingly, the Trial Chamber finds Esad Landzo guilty, pursuant to Article 7(1) of the Statute, of the offence of wilfully causing great suffering or serious injury to body or health, under Article 2 of the Statute, and cruel treatment, under Article 3 of the Statute, as charged in counts 46 and 47 of the Indictment.

1123. The Trial Chamber has above established that Zdravko Mucic was in a de facto position of superior authority over the Celebici prison-camp. The Trial Chamber finds that Zdravko Mucic by virtue of this position was the individual with primary responsibility for, and the ability to affect, the conditions in the prison-camp. By omitting to provide the detainees with adequate food, water, health care and toilet facilites, Zdravko Mucic participated in the maintenance of the inhumane conditions that prevailed in the Celebici prison-camp. Accordingly, he is directly liable for these conditions, pursuant to Article 7(1) of the Statute. Furthermore, in his position of superior authority Zdravko Mucic knew, or had reason to know, how the detainees, by the violent acts of his subordinates, were subjected to an atmosphere of terror, but failed to prevent these acts or to punish the perpetrators thereof. Accordingly, the Trial Chamber finds that Zdravko Mucic is responsible pursuant to Article 7(3) of the Statute for the atmosphere of terror prevailing in the Celebici prison-camp. For the foregoing reasons, the Trial Chamber finds Zdravko Mucic guilty of wilfully causing great suffering or serious injury to body or health, under Article 2 of the Statute, and cruel treatment, under Article 3 of the Statute, as charged in counts 46 and 47 of the Indictment.

1124. As set out above, Zejnil Delalic has been found not to have exercised superior authority over the Celebici prison-camp. For this reason, the Trial Chamber finds Zejnil Delalic not guilty of wilfully causing great suffering or serious injury to body or health, under Article 2, and cruel treatment, under Article 3, as charged in counts 46 and 47 of the Indictment.

20. Unlawful Confinement of Civilians - Count 48

1125. Paragraph 36 of the Indictment alleges that Zejnil Delalic, Zdravko Mucic and Hazim Delic are responsible for the unlawful confinement of numerous civilians in the Celebici prison-camp. The three accused are charged with direct participation in the unlawful confinement of civilians, pursuant to Article 7(1) of the Statute, as well as with responsibility as superiors pursuant to Article 7(3) of the Statute. This alleged unlawful confinement is charged in count 48 of the Indictment as follows:

Between May and October 1992, Zejnil DELALIC, Zdravko MUCIC, and Hazim DELIC participated in the unlawful confinement of numerous civilians at Celebici camp. Zejnil DELALIC, Zrdavko MUCIC, and Hazim DELIC also knew or had reason to know that persons in positions of subordinate authority to them were about to commit those acts resulting in the unlawful confinement of civilians, or had already committed those acts, and failed either to take the necessary and reasonable steps to prevent those acts or to punish the perpetrators after the acts had been committed. By their acts and omissions, Zejnil DELALIC, Zdravko MUCIC, and Hazim DELIC are responsible for:

Count 48. A Grave Breach punishable under Article 2(g) (unlawful confinement of civilians) of the Statute of the Tribunal.

(a) Prosecution Case

1126. The Prosecution contends that the confinement of numerous civilians in the Celebici prison-camp was unlawful under international humanitarian law. According to the Prosecution, the population of detainees in the Celebici prison-camp was not limited to individuals who had been armed or participated in military activities. It thus submits that many of those detained could not reasonably have been suspected of participating in any activities that could have justified their confinement under the provisions of Geneva Convention IV. The Prosecution accordingly contends that the confinement of civilians in the Celebici prison-camp was a collective measure aimed at a specific group of persons, based only on their ethnic background, and not a legitimate security measure. The Prosecution further contends that the confinement of civilians in the Celebici prison-camp was unlawful on the basis that most of the detainees were never informed as to why they had been arrested, and that their confinement was never properly and regularly reviewed in accordance with the provisions of Geneva Convention IV.⁹⁸⁹

1127. The Prosecution relies primarily on the testimony of thirteen witnesses to establish the facts in relation to these allegations, namely Grozdana Cecez, Branko Gotovac, Witness P, Nedeljko Draganic, Dragan Kuljanin, Novica Dordic, Vaso Dordic, Zoran Ninkovic, Witness D, Milenko Kuljanin, Branko Sudar, Petko Grubac and Gordana Grubac.

(b) Defence Case

1128. The Defence denies that the persons detained in the Celebici prison-camp were protected persons under article 4 of Geneva Convention IV. However, the Defence asserts that, even if the persons confined in the Celebici prison-camp were protected persons pursuant to Geneva Convention IV, it still must be proven beyond a reasonable doubt that their confinement was illegal, that is, that the fact of incarceration itself, regardless of the conditions of the detention, was in violation of international law.⁹⁹⁰ In this respect, the Defence submits that the detainees were incarcerated after an armed confrontation on Bosnian soil with officials of the duly constituted Bosnian government. According to the Defence, there is no evidence that it is impermissible under international law to confine an individual awaiting trial, or while an investigation is being conducted, to determine if there is evidence to indicate that the person has committed a crime⁹⁹¹. Furthermore, the Defence submits that the incarceration of those confined in the Celebici prison-camp was lawful under Bosnian law. ⁹⁹²

1129. The Defence for Hazim Delic submits that the persons confined in the Celebici prison-camp were given at least minimal due process rights, including a hearing conducted by a commission of the Bosnian government, to determine whether they had borne arms against Bosnia and Herzegovina, or otherwise had given aid and comfort to its enemies.⁹⁹³ The Defence for Zejnil Delalic argues that there is no evidence that Mr. Delalic had any command authority over the Celebici prison-camp, or that he participated in the unlawful confinement of civilians. Similarly, the Defence for Hazim Delic asserts that Mr. Delic did not have superior authority over the Celebici prison-camp.⁹⁹⁴

(c) Discussion and Findings

1130. It is clear that a considerable number of prisoners were detained in the Celebici prison-camp between the period of April and December 1992. The Trial Chamber has already determined that these individuals were civilians, protected under Article 4 of Geneva Convention IV. It is irrelevant for the determination of the instant charge whether, as alleged by the Defence, this detention was in conformity with Bosnian domestic law. The question that the Trial Chamber must address is instead whether the confinement of these civilians was justified under the relevant rules of international humanitarian law.

1131. The evidence before the Trial Chamber indicates that a number of the civilians detained in the Celebici prison-camp at the time of their capture were in possession of weapons which could have been used, or were in fact used, against the forces of Bosnia and Herzegovina in the Konjic area. It is difficult to ascertain precisely how many of those detained in the Celebici prison-camp in this way participated in acts of resistance against the TO, HVO and MUP forces and, therefore, arguably could have been lawfully detained. According to several witnesses, 100 to 105 detainees admitted in interviews conducted after their detention that they were in possession of weapons and that they participated actively in the defence of their villages.⁹⁹⁵ As previously noted by the Trial Chamber, the security measures which detaining forces are entitled to take are not specified in the relevant provisions of the Geneva Conventions, and the measure of activity deemed prejudicial to the internal or external security of the detaining power which justifies internment is therefore left largely to the discretion of the authorities of the detaining power itself. The Trial Chamber accordingly refrains from determining whether the confinement of this category of civilians actually was necessary for the security of the detaining forces, and therefore justifiable under international humanitarian law.

1132. However, it is clear that the confinement of a number of the civilians detained in the Celebici prison-camp cannot be justified by any means. While it must be recognised that a detaining power is given a large degree of discretion to determine the behaviour which it deems detrimental to its security, it is clear to the Trial Chamber that several of the civilians detained in the Celebici prison-camp cannot reasonably have been considered to pose any sufficiently serious danger to the detaining forces as to warrant their detention.

1133. This applies to, for example, Ms. Grozdana Cecez, a 42 year old mother of two children, who testified that she was neither armed nor a member of any armed group at the time of the military operation against her village.⁹⁹⁶ She testified that she was informed that she was detained in the Celebici prison-camp until her husband was found, that is, she was detained as a kind of a hostage⁹⁹⁷. Various other witnesses who had been detained in the prison-camp testified that they had not participated in any military activity, and posed no genuine threat to the forces that occupied the area. Thus Branko Gotovac denied that he had ever been politically active in his life, and said that the only reason he ever heard for his detention in the prison-camp was that he was a Serb.⁹⁹⁸ Witness P denied that he was involved in the defence of his village or that he had any weapon.⁹⁹⁹ Nedeljko Draganic testified that he took no part in the defence of his town and that he was not armed.¹⁰⁰⁰ Dragan Kuljanin said that he had no weapon when his village was attacked, and that neither he nor any of the other members of the group he was with at the time of his arrest had a weapon.¹⁰⁰¹ Vaso Dordic testified that he had no weapon at the time of his arrest, was not a member of any party, did not in any way take part in the defence of his village, and was not told why he was arrested.¹⁰⁰² Similarly, Petko Grubac denied that he was involved in the defence of his village or that he had any weapon, and stated further that he did not know how to use any armaments. ¹⁰⁰³

1134. The Trial Chamber is of the opinion that there is no reason to question the testimonies of these witnesses. In light of this evidence, the Trial Chamber cannot accept the Defence’s contention that all persons detained in the Celebici prison-camp were members of an armed rebellion against the Bosnian authorities. The Trial Chamber does not deem it necessary to decide whether all of the persons detained in the Celebici prison-camp were to be considered as "peaceful" civilians, not constituting any threat to the security of the detaining forces. However, the Trial Chamber is convinced that a significant number of civilians were detained in the Celebici prison-camp although there existed no serious and legitimate reason to conclude that they seriously prejudiced the security of the detaining power. To the contrary, it appears that the confinement of civilians in the Celebici prison-camp was a collective measure aimed at a specific group of persons, based mainly on their ethnic background, and not a legitimate security measure. As stated above, the mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living, and is not, therefore, a valid reason for interning him.

1135. Even were the Trial Chamber to accept that the initial confinement of the individuals detained in the Celebici prison-camp was lawful, the continuing confinement of these civilians was in violation of international humanitarian law, as the detainees were not granted the procedural rights required by article 43 of Geneva Convention IV. According to this provision, the decision to take measures of detention against civilians must be "reconsidered as soon as possible by an appropriate court or administrative board".

1136. The evidence before the Trial Chamber shows that the War Presidency in Konjic municipality decided to form an investigatory commission for the crimes allegedly committed by the persons confined in the Celebici prison-camp. In May 1992, the Joint Command formed such an organ for Investigations - the Military Investigations Commission. Several witnesses testified to the establishment and organisation of this Commission, which consisted of five members, one of which was Witness D. These members were representatives of the MUP and the HVO, as well as of the TO, and were appointed by their respective commanders. The evidence before the Trial Chamber shows that the Commission ceased to function as early as the end of June 1992, when its members resigned from their positions.

1137. It appears, particularly from the testimony of Witness D, that the members of the Commission took their task seriously. However, it is clear to the Trial Chamber that this Commission did not have the necessary power to finally decide on the release of prisoners whose detention could not be considered as being justified for any serious reason. To the contrary, the power of this Commission was limited to initiating investigations of the prisoners and conducting interviews with prisoners in order to obtain relevant information concerning other individuals suspected of armed rebellion outside the prison-camp. The members of the Commission did not have any possibility to supervise the actual release of prisoners who were suggested for release by its members.

1138. The evidence before the Trial Chamber further shows that the members of the Commission, after becoming aware of the conditions in the prison-camp, including the mistreatment of detainees and the continued incarceration of persons who were peaceful civilians, in June 1992 prepared a report detailing the problems and their inability to correct them¹⁰⁰⁴. In this report, the Commission stated, inter alia:

Detainees were maltreated and physically abused by certain guards from the moment they were brought in until the time their statement was taken i.e. until their interview was conducted. Under such circumstances, Commission members were unable to learn from a large number of detainees all the facts relevant for each detainee and the area from which he had been brought in and where he had been captured. We do not know whether this was the reason why certain guards and other people who were allowed into the barracks compound conducted private investigations while Commission members were absent…. [I]n the last ten days almost every dawn brought another dead detainee.… Commission members also interviewed persons arrested outside the combat zone; the Commission did not ascertain the reason for these arrests, but these detainees were subjected to the same treatment…. Persons who were arrested under such circumstances stayed in detention even after it had been established that they had been detained for no reason and received the same treatment as persons captured in the combat zone.… Because self-appointed judges have appeared, any further investigation is pointless until these problems are solved.¹⁰⁰⁵

1139. Similarly, Witness D, in his testimony before the Trial Chamber provided the following description of the role of the Commission:

We all realised that this was just a facade, this whole Commission, which was supposed to sort of provide some semblance of lawfulness to all this, but it was, in fact, nothing. ¹⁰⁰⁶

In addition, it is clear from the evidence on record that the way interviews and interrogations were conducted by no means respected the basic procedural rights of the concerned detainees. For example, Witness D testified that he saw how one detainee during interrogation was tied with a rope which interrupted the blood circulation in his hands.¹⁰⁰⁷

1140. For these reasons, the Trial Chamber finds that this Commission did not meet the requirements of article 43 of Geneva Convention IV.

1141. The Trial Chamber notes that, according to other witnesses, a second investigatory commission to examine the detainees in the Celebici prison-camp was established towards the end of 1992. However, the Trial Chamber does not deem it necessary to discuss the role and functioning of this commission in further detail, as it is clear from the above that during most of the period during which the Celebici prison-camp existed, from April until December 1992, there was no judicial body reviewing the detention of prisoners. Furthermore, the period after October 1992 falls outside the relevant period of the Indictment and is, therefore, not of relevance to the instant charge.

1142. For the reasons set out above, the Trial Chamber finds that the detention of civilians in the Celebici prison-camp was not in conformity with the relevant provisions of Geneva Convention IV. Accordingly, on the basis of the foregoing evidence, the Trial Chamber finds that this detention constitutes the offence of unlawful confinement of civilians, under Article 2 of the Statute.

(d) Responsibility of the Accused

1143. In the count of the Indictment here under consideration, Zejnil Delalic, Zdravko Mucic and Hazim Delic are charged with responsibility for the unlawful confinement of civilians, both as direct participants pursuant to Article 7(1) of the Statute, and as superiors pursuant to Article 7(3) of the Statute.

1144. Zejnil Delalic and Hazim Delic have respectively been found not to have exercised superior authority over the Celebici prison-camp. For this reason, the Trial Chamber finds that these two accused cannot be held criminally liable as superiors, pursuant to Article 7(3) of the Statute, for the unlawful confinement of civilians in the Celebici prison-camp. Furthermore, on the basis of these findings, the Trial Chamber must conclude that the Prosecution has failed to demonstrate that Zejnil Delalic and Hazim Delic were in a position to affect the continued detention of civilians in the Celebici prison-camp. In these circumstances, Zejnil Delalic and Hazim Delic cannot be deemed to have participated in this offence. Accordingly, the Trial Chamber finds that Zejnil Delalic and Hazim Delic are not guilty of the unlawful confinement of civilians, as charged in count 48 of the Indictment.

1145. The Trial Chamber has established that Zdravko Mucic was in a de facto position of superior authority over the Celebici prison-camp. The Trial Chamber finds that Zdravko Mucic, by virtue of this position, was the individual with primary responsibility for, and had the ability to affect, the continued detention of civilians in the prison-camp. Specifically, Zdravko Mucic, in this position, had the authority to release detainees. By omitting to ensure that a proper inquiry was undertaken into the status of the detainees, and that those civilians who could not lawfully be detained were immediately released, Zdravko Mucic participated in the unlawful confinement of civilians in the Celebici prison-camp. Accordingly, the Trial Chamber finds Zdravko Mucic guilty, pursuant to Article 7(1) of the Statute, of the unlawful confinement of civilians, as charged under count 48 of the Indictment.

21. Plunder of Private Property - Count 49

1146. Paragraph 37 of the Indictment contains the following allegations:

Between May and September 1992, Zdravko MUCIC and Hazim DELIC participated in the plunder of money, watches and other valuable property belonging to persons detained at Celebici camp. Zdravko MUCIC and Hazim DELIC also knew or had reason to know that persons in positions of subordinate authority to them were about to commit those acts resulting in the plunder of public property, or had already committed those acts, and failed either to take the necessary and reasonable steps prevent those acts or to punish the perpetrators after the acts had been committed. By their acts and omissions, Zdravko MUCIC, and Hazim DELIC are responsible for:

Count 49. A Violation of the Laws or Customs of War punishable under Article 3(e) (plunder) of the Statute of the Tribunal.

(a) Prosecution Case

1147. The Prosecution submits that the plunder of private property that took place in the Celebici prison-camp between May and September 1992, was carried out on a systematic basis, and that it concerned relatively large amounts of money or jewellery of significant monetary or sentimental value for most of the victims.¹⁰⁰⁸ Accordingly, the offences alleged amount to a serious violation of international humanitarian law and fall within the subject matter jurisdiction of the Tribunal.

1148. In order to establish the facts in relation to the allegations set forth in paragraph 37 of the Indictment, the Prosecution relies on the evidence given by a considerable number of former detainees of the Celebici prison-camp who, in their testimony, described how, either immediately upon their arrival in the prison-camp or subsequently during their detention, any valuable property in their possession was taken from them. The Prosecution relies on the testimony provided by Witness J, Witness M, Witness B, Witness P, Mladen Kuljanin and Rajko Draganic, who all described how, upon their arrival in the prison-camp, they and other newly arrived detainees were forced to hand over items, such as money, watches and gold to the guards. In particular, Witness M stated that he was forced to relinquish a chain, a ring, his wallets and the keys to his apartment, Witness P testified that his wallet, money, bank card and a signed cheque were taken, and Witness B stated that his watch was taken from him upon arrival and a ring about a month later. The Prosecution also refers to the testimony of Petko Grubac, who stated that his personal possessions were confiscated prior to his arrival at the Celebici prison-camp, in the police building in Konjic.

1149. The Prosecution also relies on the testimony of Mirko Babic, Mirko Kuljanin, Witness N, Milenko Kuljanin and Witness R, who gave accounts of how property was taken from them and others during the period of their detention in the Celebici prison-camp. In his evidence, Witness N described an incident where money and gold watches were taken from the prisoners detained in Building 22 by two persons in uniform. Mirko Kuljanin and Witness R described a similar incident in which the detainees in Tunnel 9 were ordered to put their valuables into a helmet that was passed around. Witness R observed that the property taken included watches, rings, bracelets, chains, crosses, and old Yugoslav money, a currency no longer used in Bosnia and Herzegovina. These witnesses testified to having had the following personal possessions confiscated; Mirko Kuljanin was forced to hand over a watch; Witness N handed over the money which he was carrying, Milenko Kuljanin had a ring and bracelet taken from him; and Witness R was made to surrender his wedding ring and a watch.

1150. In addition, the Prosecution relies on the testimony of Risto Vukalo, who described how Esad Landzo forced him to remove a ring from the finger of a detainee who had recently been killed and hand it over to him. Further, the Prosecution relies on the statement of Witness T, a guard at the Celebici prison-camp, who testified as to his participation in the taking of valuables from the detainees in Tunnel 9. According to this witness, the property taken in this manner from the detainees was subsequently returned, with the exception of a few old watches and a perhaps few gold rings, which had been sold to buy cigarettes. However, the Prosecution further refers to the testimony of Witness N, Mladen Kuljanin, Witness P, Witness M, Witness B, Milenko Kuljanin, Rajko Draganic and Petko Grubac, who all declared that the property taken from them was never returned.

(b) Defence Case

1151. According to the Defence¹⁰⁰⁹ there is no evidence that Mr. Mucic or Mr. Delic were principals in any plunder of property in the Celebici prison-camp. More generally, the Defence argues that, even if the acts alleged by the Prosecution occurred - which is not admitted - such acts do not amount to a serious violation of international humanitarian law. Accordingly, the Defence contends that the International Tribunal lacks subject matter jurisdiction over the alleged offences under Article 1 of the Statute.¹⁰¹⁰ The Defence relies in this respect on the Tadic Jurisdiction Decision, in which the Appeals Chamber specified as one of the conditions to be fulfilled for an offence to be subject to prosecution before the International Tribunal under Article 3 of its Statute that:

the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a "serious" violation of international law" although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary international law) whereby "private property must be respected" by an army occupying an enemy territory;¹⁰¹¹

1152. The Defence submits that, based on the Prosecution’s evidence, the facts of the instant case are legally identical to the hypothetical example provided by the Appeals Chamber. Submitting that it appears from the record that the property taken was of little or no value, it thus asserts that there is no evidence that the loss of any property taken from the detainees in the Celebici prison-camp constitutes a breach of a rule protecting important values or that it involved grave consequences for the victims.¹⁰¹² In this connection, the Defence refers inter alia to the evidence given by Witness M who, in his testimony stated that the Yugoslav money taken from him and other detainees at the time of his arrival at the prison-camp was of no value, but "simply a pile of paper circulating".¹⁰¹³

(c) Findings

1153. The Defence has challenged the Trial Chamber’s jurisdiction under Article 1 of the Statute on the ground that the allegations made by the Prosecution in relation to the charge of plunder do not display a serious violation of international humanitarian law. Accordingly, it is to this preliminary matter which the Trial Chamber first must address its attention.

1154. The Trial Chamber notes that it is in full agreement with the Appeals Chamber that in order for a violation of international humanitarian law to be "serious" within the meaning of the Statute, two elements must be fulfilled. First, the alleged offence must be one which constitutes a breach of a rule protecting important values. Secondly, it must also be one which involves grave consequences for the victim. As set out in greater detail above, it is the Trial Chamber’s view that the prohibition against unjustified appropriation of private or public property constitutes a rule protecting important values. However, even when considered in the light most favourable to the Prosecution, the evidence before the Trial Chamber fails to demonstrate that any property taken from the detainees in the Celebici prison-camp was of sufficient monetary value for its unlawful appropriation to involve grave consequences for the victims. Accordingly, it is the Trial Chamber’s opinion that the offences, as alleged, cannot be considered to constitute such serious violations of international humanitarian law that they fall within the subject matter jurisdiction of the International Tribunal pursuant to Article 1 of the Statute. Count 49 of the Indictment is thus dismissed.

____________________________

1155. Having thus considered each of these counts of the Indictment in detail, and having made its findings in relation to the criminal responsibility of each of the accused, as charged, the Trial Chamber must finally address the special defence of diminished responsibility, which has been raised by Esad Landzo. Upon completing its discussion of this special defence, the Trial Chamber proceeds, in Section V, to consider the matter of sentencing.

G. Diminished Responsibility

1156. In his defence and pursuant to sub-Rule 67(A)(ii)(b) of the Rules, Esad Landzo has advanced the pleas of diminished responsibility and limited physical capacity. A plea of diminished responsibility is to be distinguished from a plea of insanity which, in this case, was expressly disavowed by the Defence for Mr. Landzo. It should be noted, however, that both pleas are founded on an abnormality of mind. In the case of the plea of insanity, the accused is, at the time of commission of the criminal act, unaware of what he is doing or incapable of forming a rational judgement as to whether such an act is right or wrong. By contrast, the plea of diminished responsibility is based on the premise that, despite recognising the wrongful nature of his actions, the accused, on account of his abnormality of mind, is unable to control his actions.

1157. In every criminal act there is a presumption of sanity of the person alleged to have committed the offence. Thus, every person charged with an offence is presumed to be of sound mind and to have been of sound mind at any relevant time until the contrary is proven¹⁰¹⁴. Sub-Rule 67(A)(ii)(b) refers to special defences available to the accused, including that of diminished or lack of mental responsibility. It is important to observe that the phrase "special defence" is not defined in Rules 2 or 67, or in any other part of the Rules. The special defences referred to in sub-Rule 67(A)(ii)(b) may be construed ejusdem generis to be limited to special defences of the category relating to lack of mental capacity. If thus construed, mental incapacity resulting from insanity and partial delusion will be included. However, since the Rule is expressed as requiring a special defence without qualification or limitation, the expression cannot be so limited. It should be construed to include any special defence relied upon by the accused. The expression "includes" used in an enactment is one of enlargement and cannot be construed restrictively to deprive the accused of any special defence properly available. ¹⁰¹⁵

1158. In this instance, the most favourable meaning for the accused that can be read into sub-Rule 67(A)(ii)(b) is that a special defence is one apart from the general defence open to accused persons and is peculiar to the accused in the circumstances of a given case. Accordingly, the facts relating to a special defence raised by the accused are those peculiarly within his knowledge and should be established by him. In other words, he is to rebut the presumption of sanity.

1159. The Defence for Esad Landzo has criticised the Trial Chamber for its failure to lay down the legal test to be applied in a defence of diminished mental responsibility, to enable counsel to prepare the evidence of the accused to be presented to the Trial Chamber in respect of the defence. It is alleged that, in the absence of an explicit legal test, the accused has been prejudiced in the presentation of his case pursuant to Article 20(1) of the Statute. It has further been contended that the attitude of the Trial Chamber constitutes a violation of Articles 21(b) and 21(e) of the Statute. These Articles contain guarantees for an accused to have adequate time and facilities for the preparation of his defence and the right to examine, or have examined, the witnesses against him, and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. The Defence submits that it was forced to present its evidence as to the special defence without an understanding of the burden of proof. ¹⁰¹⁶

1160. In this respect, it is important to observe that the Defence for Mr. Landzo, in its submissions, concedes that the Trial Chamber has ruled that the burden of proof for a defence advanced pursuant to sub-Rule 67(A)(ii)(b) lies on the accused, and that the standard of proof is by a balance of probabilities.¹⁰¹⁷ What the Trial Chamber has omitted to do, and we believe should not do, is to outline the evidence which the Defence should adduce to satisfy this burden. The Trial Chamber is convinced that the evidence to support a special defence involves matters peculiarly within the knowledge of the accused and is thus a matter which the Trial Chamber cannot know until the evidence is adduced. The Trial Chamber has provided the accused with the necessary guidance for the defence it relies upon, namely, the nature of the burden and the required standard of proof.

1161. It is well settled that an interpretation of the Articles of the Statute and provisions of the Rules should begin with resort to the general principles of interpretation as codified in Article 31 of the Vienna Convention on the Law of Treaties.¹⁰¹⁸ Further, and as discussed above, the rules of interpretation of national legal systems may be relied upon, where applicable, under general principles of law. However, where national rules of interpretation are inconsistent with the plain language of the Statute and Rules and their object and purpose, their application becomes irrelevant. In the instant case, where the concept at issue is not defined in the Statute but is clearly defined and articulated in the laws of several national legal systems, in various forms, it is permissible to resort to such national legal systems in elucidation of the concept as expressed in the Rules.

1162. The plea of diminished responsibility is recognised in different forms, with varying legal consequences, in many national jurisdictions. It is usually hedged with a number of qualifications and does not offer the accused complete protection from the penal consequences of his criminal acts. In some States it merely reduces the gravity of the offence with which a defendant pleading such a defence may be charged. For example, in England and Wales a person who is found to have diminished responsibility may not be tried for murder, but must take a plea for manslaughter.¹⁰¹⁹ In a number of European countries a person suffering from such a disorder will only qualify for mitigation of sentence.¹⁰²⁰

1163. The closest analogy in law to the special defence provided for in sub-Rule 67(A)(ii)(b) would appear to be Section 2 of the English Homicide Act 1957 (hereafter "Homicide Act")¹⁰²¹. However, there are several significant differences between the two provisions which render such interpretation by analogy misleading. Section 2 of the Homicide Act provides as follows:

(1) Where a person kills or is a party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.
(2) On a charge of murder, it shall be for the defence to prove that the person charged is, by virtue of this section, not liable to be convicted of murder.
(3) A person who, but for this section, would be liable, whether as principal or as accessory, to be convicted of murder, shall be liable instead to be convicted of manslaughter.
(4) The fact that one party to a killing is, by virtue of this section, not liable to be convicted of murder, shall not affect the question whether the killing amounted to murder in the case of any other party to it.

1164. It is obvious from these provisions that only Section 2(2) is directly related to the special defence which is provided for in sub-Rule 67(A)(ii)(b) of the Rules. The requirement of sub-Rule 67(A)(ii)(b) is terse and merely refers to a defence of diminished or lack of mental responsibility. It does not refer to "abnormality of mind" and the conditions giving rise to it, as prescribed in Section 2(1) of the provision of the Homicide Act reproduced above. Sub-Rule 67(A)(ii)(b) is not referable, directly or by implication, to the concept used in the Homicide Act. Sub-Rule 67(A)(ii)(b) would indeed appear to suggest a complete defence since the words are without qualification or limitation.

1165. The provisions of Section 2 of the Homicide Act are a direct descendant of the recommendations by witnesses to the English Royal Commission on Capital Punishment in 1950.¹⁰²² The extension of the new defence of diminished responsibility, which already existed in Scotland, to England, was intended to restrict the application of the capital penalty. The purpose of the law was to avoid the inevitability of a judge passing the death sentence in situations of insanity falling outside the McNaughten Rules. The principal aim was to give a measure of legal recognition to diminished responsibility resulting from mental abnormality short of insanity. Thus, on a verdict founded on diminished responsibility, a judge could award such terms of imprisonment or other punishment or treatment as he thinks fit. The essential requirements of the defence are clearly articulated in Section 2(1) of the Homicide Act which only permits the defence when:

[the accused] was suffering from such abnormality of mind (whether arising from a condition of arrested or related development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.

1166. Thus, the accused must be suffering from an abnormality of mind which has substantially impaired his mental responsibility for his acts or omissions. The abnormality of mind must have arisen from a condition of arrested or retarded development of the mind, or inherent causes induced by disease or injury. These categories clearly demonstrate that the evidence is restricted to those which can be supported by medical evidence. Consequently, killings motivated by emotions, such as those of jealousy, rage or hate, appear to be excluded.

1167. The expressions, "abnormality of mind" ¹⁰²³and "substantially impaired mental responsibility" ¹⁰²⁴occupy a central place in the definition of the concept of diminished mental responsibility within Section 2 of the Homicide Act. The first attempt to define the phrase "abnormality of mind", within the meaning of Section 2, was in R. v. Byrne, where Lord Parker C.J., delivering the judgement of the court, stated as follows:

... it means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal.¹⁰²⁵

1168. This simplistic definition is one of common sense. It avoids fastening the condition to any particular kind of mental abnormality. As Lord Parker stated: "It appears to us to be wide enough to cover the mind’s activities in all its aspects . . . [including] the ability to exercise will power to control physical acts".¹⁰²⁶ It has been held that, for this section to apply, an individual’s inability to exercise his will to control his physical acts need not be congenital, provided that it is due to an abnormality of the mind as defined in Section 2 of the Homicide Act. ¹⁰²⁷

1169. It is, however, an essential requirement of the defence of diminished responsibility that the accused’s abnormality of mind should substantially impair his ability to control his actions. Thus, the Homicide Act requires the impairment of responsibility to be substantial, although it need not be total. The question of the substantiality of impairment is subjective and is one of fact. It is pertinent to observe that the ability to exercise self-control in relation to one’s physical acts, which is relevant to the defence of diminished responsibility, is distinct from the ability to form a rational judgement which must mean that it is distinct from the level of intelligence of the accused.

1170. The defence of diminished responsibility is more likely to be accepted if there is evidence of mental abnormality. The evidence of the defence psychiatrist must be to say that the accused suffers from abnormality of mind, as defined in Section 2 of the Homicide Act. It will assist in the determination of the responsibility of the accused in a defence of diminished mental responsibility if the medical expert is able to testify as to whether the accused’s abnormality of mind has substantially impaired his mental responsibility.

1171. The English law relating to diminished mental responsibility in Section 2 of the Homicide Act has been adopted in some common law countries. These include Australia (the Australian Capital Territory¹⁰²⁸, the Northern Territory¹⁰²⁹, New South Wales¹⁰³⁰ and Queensland¹⁰³¹), South Africa¹⁰³², Hong Kong¹⁰³³, Singapore¹⁰³⁴, Barbados¹⁰³⁵ and the Bahama Islands¹⁰³⁶. Similarly, in varying degrees of difference, France¹⁰³⁷, Germany¹⁰³⁸ and Italy¹⁰³⁹ have passed legislation providing for this defence. By contrast, the United States has no analogous provision. The provisions of Article 4 of the American Law Institute Model Penal Code are not in pari materia.¹⁰⁴⁰

1. Burden of Proof on the Defence in Relation to Diminished Mental Responsibility

1172. The provisions of Section 2 of the Homicide Act specifically require the issue of diminished mental responsibility to be raised as a matter of defence. Accordingly, the defence must be established according to a standard of proof not as heavy as the prosecutor’s burden in establishing the guilt of the accused. The accused is required to establish the defence of diminished mental responsibility on the balance of probabilities¹⁰⁴¹. This is in accord and consistent with the general principle that the burden of proof of facts relating to a particular peculiar knowledge is on the person with such knowledge or one who raises the defence.

2. Factual Findings

1173. To substantiate his plea of diminished responsibility, Esad Landzo called three forensic psychiatrists to testify on his behalf as expert witnesses. They were Dr. A.M.H. Van Leeuwen from the Netherlands, Dr. Marco Laggazi from Italy and Dr. Edward Gripon from the United States. The Trial Chamber also heard testimony from an Italian forensic psychiatrist, Dr. Alfredo Verde. These experts had the opportunity to meet with Esad Landzo a number of times at the Detention Unit in The Hague and hold long interviews with him before compiling their reports. In rebuttal, the Prosecution examined Dr. Landy Sparr, a psychiatrist from the United States who had similarly held fairly extensive sessions with Mr. Landzo.

1174. All of the Defence expert witnesses were of the opinion that Esad Landzo suffered from a personality disorder. Dr. Van Leeuwen’s expert opinion was that Mr. Landzo suffered from a mixed personality disorder with dependent and schizoid traits.¹⁰⁴² Further, Dr. Van Leeuwen contended that Mr. Landzo’s mental disorder could be described as an abnormality of mind leading to diminished capacity to exercise his free will. The following extract from the transcript of the testimony of Dr. Lagazzi, however, gives a slightly different impression:

Question: Did his [Landzo] abnormality of mind influence his inability in the setting as a guard in Celebici in 1992 from the forensic point of view?

Answer: With the qualification which I have already given I think I can say that in general, with respect to that particular period of time that is a probability that it did influence his behaviour. But we would have to go into discussion with the individual facts with him in order to give a more considered opinion.¹⁰⁴³

1175. Dr. Van Leeuwen also stated that, at the time the criminal acts with which he is charged are alleged to have been committed, Mr. Landzo was able to distinguish between right and wrong. Dr. Van Leeuwen thus did not rule out the possibility that some of the acts attributed to Mr. Landzo were the result of his own volition.¹⁰⁴⁴

1176. Dr. Alfredo Verde performed several psychiatric tests, on the basis of which he concluded that Esad Landzo had a

…state of mind that can be called marginal, borderline state....That does not mean in the DMS 4 sense, but it shows that the personality is functioning in a very complex and not well suited way. And that means that we are in the presence of a disorder, of a mental disorder. And that--there are lot of problems in the patient, yes. It is called borderline--borderline personality organisation. ¹⁰⁴⁵

1177. He went on to say that this disorder (which he also described as an abnormality of mind) had its origin in Mr. Landzo ’s childhood and was present in 1992, when he was serving as a guard in the Celebici prison-camp. Dr. Verde also opined that Mr. Landzo’s personality disorder influenced his ability to control his behaviour in his position as a guard. Consequently, during this period, Esad Landzo was in a state of diminished responsibility. ¹⁰⁴⁶

1178. Dr. Gripon was of the view that Esad Landzo exhibited a personality disorder which he called schizoid. In the United States, this disorder is associated with antisocial personality disorder and, under the International Code compiled by the World Health Organisation, with dissocial personality disorder.¹⁰⁴⁷ Dr. Gripon further testified that persons with such a disorder are frequently aggressive and, if they are given authority over others, very unpleasant results will generally follow.¹⁰⁴⁸ He also stated that Mr. Landzo would not have been in a position to resist an order given to him by his superior if the schizoid disorder from which he was alleged to be suffering was compounded by post traumatic stress disorder.¹⁰⁴⁹

1179. Dr. Laggazi was of the opinion that Esad Landzo suffered from a personality disorder which crossed well over the pathological threshold on the abnormality/behaviour curve.¹⁰⁵⁰ He further stated that this disorder meant that Mr. Landzo displayed the additional traits of dependency and narcissism,¹⁰⁵¹ with the result that his ability to exercise his free will in relation to the orders that he received was restricted.  ¹⁰⁵²

1180. Dr. Sparr took the view that the abnormality of personality which Esad Landzo exhibited had no pathological component, but merely reflected his personality traits.¹⁰⁵³

1181. It need hardly be pointed out at this stage that, for the purpose of assessing Esad Landzo’s diminished responsibility defence, the Trial Chamber must be concerned with the period during which he served as a guard in the Celebici prison camp. It is only for this period that it is relevant to determine whether Mr. Landzo suffered from an abnormality of mind that rendered him incapable of controlling his actions. Although the experts appearing for the Defence testified that the features of Mr. Landzo’s personality developed long before his tenure at the prison-camp, they were obviously suffering from the natural handicap of having to render their assessment approximately six years after the relevant period. Furthermore, by their own admission, the experts based their findings upon what Mr. Landzo himself told them, without having an opportunity to verify his story from any other sources. Dr. Gripon did visit Konjic to make some local inquiries, but he too admitted that he had based his report on what he had been told by Mr. Landzo himself.

1182. The Trial Chamber finds that the information provided by Esad Landzo relating to his own background cannot be relied upon. In this regard, the Trial Chamber notes that Mr. Landzo told the experts several stories about himself which he later changed or disowned. Indeed, there are so many such instances that it would be tedious to reproduce them all. For example, in his discussions with the various experts he took up the position that, while serving in the prison camp he would drink heavily and take pills to enhance the effect of the alcohol. However, in his testimony before the Trial Chamber he denied this.¹⁰⁵⁴ Similarly, before the experts, he recounted an incident where he allegedly threw a hand grenade into a room where some girls were present. Again, in his testimony, he changed this story, stating that he had merely fired a gun into the ceiling when he found some soldiers present in a room he had chosen for his use.¹⁰⁵⁵

1183. Dr Van Leeuwen’s expert opinion was that Mr. Landzo’s personality disorder was compounded in the Celebici prison-camp by the experience he allegedly underwent in a Croatian training camp. This opinion was based upon Esad Landzo’s unsupported account of running away in the summer of 1991 with a friend, to avoid a call-up from the JNA for compulsory military service. According to Mr. Landzo’s account, he and his friend spent the night in a village near the Croatian border. In the morning, their host took them to a Croatian training camp, where they spent the following 20 to 25 days. As part of the training, live demonstrations were held to show how to kill human beings. ¹⁰⁵⁶

1184. The Trial Chamber finds this account to be unreliable for the following reasons. Firstly, it appears somewhat unlikely that a person who had fled from his home in order to avoid being conscripted into mandatory military service would promptly join another military training facility. Further, Mr. Landzo was unable to recall either the name of the village where the training camp was located, or the true names of those who instructed him, even though, according to him, he spent 20 to 25 days there. The accused further contends that, after the training, he returned to his home town despite the fact that he had defied the JNA call-up notice. These considerations seriously compromise the reliability of this account and, in the absence of any independent support, the Trial Chamber is not convinced of its authenticity. Consequently, the opinion expressed by some of the experts that, while serving in the prison camp Mr. Landzo’s personality disorder was compounded by post traumatic stress disorder arising out of his experience in the Croatian training camp, loses much of its validity. Indeed, Dr. Van Leeuwen stated that, in his opinion, Mr. Landzo did not suffer from a post traumatic stress disorder during the relevant period.¹⁰⁵⁷

1185. As noted above, in his testimony, Dr Laggazi referred to the aspect of Mr. Landzo’s personality disorder which meant that he displayed dependency traits. In this context, he explained that an individual possessing a dependency trait will often conjure up in his mind a false self upon which to model his behaviour. Thus, Esad Landzo considered that, to be regarded as a good soldier, he had to obey the orders of his superiors. This diminished his ability to exercise his free will in relation to orders he received from his superiors. ¹⁰⁵⁸As to the facts of the instant case, the Trial Chamber is not convinced that the criminal acts attributed to Esad Landzo were not the product of his own free will, or that they were influenced by his desire to seek the approbation of others. Further, in the absence of independent supporting evidence, the Trial Chamber cannot accept Esad Landzo’s statement that he committed some of the criminal acts with which he is charged on the direction of his co-accused, Hazim Delic. In fact, Mr. Landzo admitted to Dr. Gripon that he would inflict pain and suffering on the prisoners for two reasons, being, first, because he was ordered to do so, and, secondly, because he was bored and frustrated. He further stated that he never experienced any difficulty in doing such things, that he actually enjoyed it and that he cannot explain why he found it to be not at all unpleasant.¹⁰⁵⁹ In this context, the Trial Chamber finds it relevant to note that, according to the expert opinion of Dr. Sparr, individuals who possess the personality traits exhibited by Esad Landzo have a tendency to blame others for their own faults.¹⁰⁶⁰

1186. For the reasons stated, the Trial Chamber is not persuaded by the defence of diminished responsibility as canvassed on behalf of Esad Landzo. The Defence does not contend that, at the relevant time, Esad Landzo was unable to distinguish between right and wrong. Although it does appear from the testimony of the experts that Mr. Landzo suffered from a personality disorder, the evidence relating to his inability to control his physical acts on account of abnormality of mind, is not at all satisfactory. Indeed, the Trial Chamber is of the view that, despite his personality disorder, Esad Landzo was quite capable of controlling his actions.

1187. As regards the plea of limited physical capacity, it seems that the accused did experience breathing problems and suffered from some form of impairment to his hand. However, he himself admitted to killing detainees, causing injuries and kicking and beating them. In the circumstances, this plea has lost all relevancy.

____________________________

1188. This concludes the Judgement of the Trial Chamber on the criminal responsibility of the accused, as charged in the Indictment.

1189. On 1 September 1998, the Trial Chamber concluded the hearing in this case and adjourned for judgement. Subsequently, on 18 September 1998, the Trial Chamber issued a scheduling order requiring the Prosecution and the Defence to submit written submissions in respect of sentencing, to be filed on 1 and 5 October 1998 respectively.¹⁰⁶¹ A four day hearing was thereafter held, commencing on 12 October 1998. These proceedings became necessary as a result of the amendments to the Rules relating to sentencing, adopted by the Judges of the Tribunal in their 18^th Plenary session on 9-10 June 1998. As discussed above in section I, whereas the previous Rules provided for a separate hearing on the matter of sentencing to be held after the rendering of the judgement as to the innocence or guilt of the accused, the new procedure adopted at the plenary enables sentence to be pronounced at the time of the delivery of the judgement. The effect of these amendments is that all evidence relating to sentencing, including evidence in mitigation or aggravation, is to be part of the main proceedings, thus eliminating the erstwhile procedure of pre-sentencing proceedings after the delivery of the judgement.

1190. By the provisions of Rule 6, an amendment of the Rules takes effect immediately. However, such an amendment is not to operate to prejudice the rights of the accused in a pending case.¹⁰⁶² The present proceedings were pending at the time of the relevant amendment. The Trial Chamber, cognisant of Article 20 and 21 of the Statute, considers it proper, and in the interests of justice, to apply the Rules, as amended.