In its Judgement of 22 April 2008, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) upheld in part the Trial Chamber’s findings in the case of Enver Hadžihasanović and Amir Kubura. However, the Appeals Chamber reduced the former Bosnian commanders’ sentences to three years and six months’ imprisonment and two years’ imprisonment, respectively, after allowing some grounds of their appeals.
Enver Hadžihasanović and Amir Kubura were senior officials in the Army of Bosnia and Herzegovina (ABiH). On 19 March 2006, the Trial Chamber had convicted them on a number of counts of violations of the laws and customs of war on the basis of their superior criminal responsibility. The crimes were committed by their subordinates in central Bosnia in 1993.
In considering Hadžihasanović’s appeal, the Appeals Chamber upheld the Trial Chamber’s finding that he failed to take the required measures to prevent or punish his subordinates for the cruel treatment of detainees from May to September 1993. However, the Appeals Chamber reversed the Trial Chamber’s findings that Hadžihasanović failed to take the necessary and reasonable measures to punish those responsible for the cruel treatment of six prisoners and the murder of another in Bugojno on 5 August 1993. The Appeals Chamber found that the measures he had taken were, in the circumstances, reasonable.
Hadžihasanović was also acquitted of having failed to take the appropriate measures to prevent or punish the cruel treatment of detainees committed in detention facilities in Bugojno in August 1993. Further, the Appeals Chamber reversed the Trial Chamber’s finding that Hadžihasanović failed to prevent the murder of Dragan Popović and the cruel treatment of several other detainees committed in the Orašac camp during October 1993 by the El Mujahedin detachment. The Appeals Chamber found that it had not been proven beyond reasonable doubt that Hadžihasanović had effective control over the detachment as the only way for the ABiH command to control the El Mujahedin detachment was to “attack them as if they were a distinct enemy force”.
Regarding the second appellant, the Appeals Chamber upheld Kubura’s convictions for having failed to take the necessary and reasonable measures to punish the plunder of villages by his subordinates in June 1993. However, the judges found that Kubura took the necessary and reasonable measures to prevent certain acts of plunder committed by his subordinates in Vareš in November 1993 and reversed the Trial Chamber’s findings in this respect.
The Appeals Chamber dismissed the Prosecution’s appeal in its entirety.
Hadžihasanović, who was granted provisional release on 20 June 2007, was given credit for time already spent in custody and has now been permanently released. Kubura was granted early release in April 2006.
Defence rests in Delić case
Like Hadžihasanović and Kubura, Rasim Delić is also currently being charged on the basis of command responsibility, for his alleged failure to prevent or punish the crimes of the El Mujahedin Detachment members from 1993-1995. The Prosecution alleges that the detachment was part of the Bosnian Army’s chain of command, whereas the Defence claims that the detachment was only formally part of the ABiH.
The Prosecution and the Defence will deliver their respective closing arguments on 10 June 2008.
Commentary / Commentaire
Recurrent crimes: the commander's duty to prevent?
Crimes répétés: obligation du commandant de prévenir ?