Global Policy Forum

By Helen Warrell

Two high-ranking Bosnian Muslim commanders, Enver Hadzihasanovic and Amir Kubura, this week became the first tribunal indictees ever to be convicted solely for crimes committed by their subordinates. Hadzihasanovic, commander of the Bosnian Army's Third Corps, will serve five years in prison for murder and cruel treatment of Bosnian Croat and Serb civilians carried out by his troops. Meanwhile Kubura, who commanded the Third Corps Seventh Mountain Brigade, was sentenced to two-and-a-half years for plunder of Bosnian Croat and Serb dwellings by those under his control.

Both men have been found guilty on the basis of their "command responsibility" over Bosnian army forces in central Bosnia in 1993. At no point did the prosecution allege that either of the Bosnian army leaders had planned or ordered any of the crimes themselves. Hadzihasanovic has been found criminally responsible for "physical and psychological abuse" of Croat and Serb prisoners being held in various ad-hoc detention centres. In one incident, detainees were forced to walk in the dark through a line of soldiers who beat them with "wooden shovel handles".

According to tribunal rules, commanders bear individual criminal responsibility for crimes committed by their subordinates if they fail to prevent illegal actions or do not punish the perpetrators. Prosecutors suggested in their closing arguments that Hadzihasanovic should be sentenced to 20 years' imprisonment, and Kubura to ten years.

In November last year, another Bosnian Muslim commander, Sefer Halilovic, was acquitted of command responsibility for the murders of 62 Bosnian Croats in Grabovica and Uzdol in September 1993. Judges ruled that they were not convinced that Halilovic was exercising "effective control" over the relevant troops at the time of the killings.

Hadzihasanovic and Kubura, who were initially indicted for seven and six counts of violations of the laws or customs of war respectively, were found not guilty of the majority of the charges brought against them. In several instances, the trial judges found that prosecutors had failed to bring evidence to prove "beyond reasonable doubt" that the accused had been in breach of their military duties.

One of the most contested aspects of the case was Hadzihasanovic's alleged control over the "Mujahedin", Islamic militants, who arrived in central Bosnia in the second half of 1992. These foreign forces, who came from North Africa and the Middle East, intended to aid the Bosnian Muslim side in their fight against Serb aggressors.

Reading the judgment summary aloud in court, presiding Judge Jean-Claude Antonetti acknowledged that the Mujahedin "differed considerably" from the local Muslim population in respect of their "fighting methods". Judge Antonetti then confirmed that the chamber would not find the accused responsible for any acts committed by the Mujahedin before they came formally under his command through the establishment of the "El Mujahed" unit as a detachment of the Third Corps in August 1993.

Hadzihasanovic was therefore convicted of responsibility for crimes carried out at El Mujahed's Orasac detention camp in central Bosnia in October 1993. One of the incidents, which the judges identified as being "particularly heinous", was the beheading of one of the detainees, Dragan Popovic. According to the judgment, on October 21, 1993, Popovic and three other prisoners were taken to a pit and surrounded by 50 to 100 El Mujahed soldiers. Two of the soldiers beheaded Popovic with a hatchet, and the prisoners were made to kiss his severed head while the troops sang in "ritual celebration". The other guilty verdicts against Hadzihasanovic involve murders and cruel treatment by members of the Third Corps' various brigades against Bosnian Croat and Serb detainees in Bugojno and Zenica.

Kubura was judged guilty of failing to punish acts of plunder by the Seventh Brigade in the villages of Susanj, Ovnak, Brajkovici, Grahovici and Vares which occurred in June and November 1993. The judges' summary states that the accused "gave his consent" that members of his brigade could share the plundered goods. Judge Antonetti noted that both accused had already spent 828 days in the United Nations detention unit, which would be given as credit on their sentences. By this calculation, Hadzihasanovic has approximately two years and nine months yet to serve and Kubura should be released in just under three months' time.