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ICTY appeals judgment in Hadzihasanovic & Kubura case striking

Aleksandar Momirov [Lecturer, Erasmus University of Rotterdam]: "If the recent acquittal of Ramush Haradinaj by the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) had all the characteristics of a judicial earthquake, then it is only fair to say that the subsequent Appeals Chamber's Judgment in the case against Enver Hadzihasanovic and Amir Kubura, rendered on 22 April 2008, had the impact of a significant aftershock.

The case covers the activities of the Army of Bosnia and Herzegovina (commonly known as 'ABiH' and considered by many to merely have been the military wing of the Bosnian Muslim political party, the SDA), defending the interests of the Sarajevo based Muslim government of Bosnia during 1993 and 1994. During the fighting against the other warring factions in the divided state, Hadžihasanović was Commander of the ABiH 3rd Corps, later becoming Chief of the Supreme Command Staff of ABiH. Kubura was Chief of Staff of the 7th Muslim Mountain Brigade of the ABiH 3rd Corps. In 2006 both men were convicted, based exclusively on Article 7 (3) of the ICTY Statute (superior criminal responsibility) for violations of laws or customs of war, having failed to prevent or punish the crimes committed under their command. Hadžihasanović was sentenced to five years of imprisonment. Kubura received a sentence of two and a half years and was granted early release less than one month after his conviction. Upholding the Trial Chamber's judgment in part, partially granting the appeal of the Defense and dismissing all points of appeal coming from the Prosecution, the Appeals Chamber reversed several points of conviction and reduced Hadžihasanović's sentence to 3 years and 6 months. Kubura saw his sentence drop to 2 years.

At best, the Hadžihasanović and Kubura case deserves the epithet of 'striking'; an epithet justified by substance, proceedings and final outcome alike. Some noteworthy tidbits are illustrative.

The Hadžihasanović case is remarkable for it is the Tribunal's principal case where the presence and infamous conduct of the Mujahedin in Bosnia is considered in some depth. Often euphemistically referred to as 'foreign combatants', the Mujahedin were comprised of men from the Middle East, Northern Africa and local Muslim fighters and were notorious for their 'fighting tactics' throughout central Bosnia. The Mujahedin had training camps all across territory held by the ABiH. Their combat related conduct, including practices such as ritual decapitation of hostage-taken Serbs and Croats, as well as their demeanor in general was widely deemed repugnant. While under-reported during the war and at times even dismissed as an imaginary product of the Serbian propaganda machinery, elements of the Mujahedin and controversies surrounding their naturalization have remained embedded in Bosnia up until today. (for a fascinating read see OTP expert witness in Delić, Evan F. Kohlmann: Al-Qaida's Jihad in Europe: The Afghan-Bosnian Network)

Going beyond factual substance, the current case dealt with the question of whether the activities of the Mujahedin could be linked to the ABiH, and more specifically to the ABiH 3rd Corps which was under the command of Hadžihasanović. While the Trial Chamber had found that Hadžihasanović indeed had effective command and control over the El Mujahedin unit, the Appeals Chamber reversed this finding. Some of the Mujahedin were simultaneously members of the ABiH. Above all, the El Mujahedin detachment came de jure under the authority of Hadžihasanović. The Appeals Chamber, however, reaffirmed that de jure authority — in and of itself - does not axiomatically imply effective command and control: de jure or de facto authority are merely indicators helpful in determining whether a relationship including effective command and control exists. Thus, the Appeals Chamber concluded that while de jure or de facto authority justifies a prima facie assumption of effective command and control, the burden of proof beyond reasonable doubt that effective command and control exists remains with the Prosecution. Three distinct elements remain crucial in the establishment thereof:

1. The power to give orders and have them executed.

During trial, the Chamber relied heavily on numerous re-subordination orders concerning the El Mujahedin detachment in dealing with this initial criterion. Previously, re-subordination orders have been considered essential in other cases where the link needed to be established between separate units such as police units on the one side and military units on the other. However, the Appeals Chamber sets these orders aside as insufficient, arguing that some of these orders were not followed by the Mujahedin. Indeed, several incidental refusals were not considered a matter of internal disobedience but were taken as indicative of the independence of the Mujahedin.

2. The conduct of joint military operations.

Again the Appeals Chamber dismissed the way in which the Trial Chamber interpreted and applied this criterion. In essence, cooperation during military missions does not indicate effective control. Numerous joint missions were conducted and exhibits showed that the ABiH, in planning certain operations, counted on the engagement of the El Mujahedin detachment. In practice it seems that, however, the El Mujahedin unit often acted recklessly and beyond the requirements of the ABiH. Nevertheless, the Appeals Chamber applied a similar reasoning as regarding the first criterion and argued that such conduct illustrated the independence of the unit. Again, recalcitrant and excessive behavior, sometimes even resulting to outright hostility, was considered to indicate independence rather than turmoil within an otherwise cooperative, often mutually dependent and generally hierarchical constellation.

3. The absence of any other authority.

Finally, the Appeals Chamber made it clear that this third criterion was not to be seen as a tool through which, by way of elimination, effective command and control could be established. While the support of certain Sarajevo based state organs and high-ranking clergymen remained undisputed, the absence of real control by others was not sufficient to indicate effective command and control.

Consequently, Hadžihasanović was acquitted of any responsibility for the conduct of the Mujahedin or the failure to prevent and punish their activities — - even though the facts indisputably demonstrate that the ABiH 3rd Corps, at a minimum, coordinated with and relied on the Mujahedin in carrying out operations. The test itself, as fine-tuned throughout the case, seems not objectionable. However, it remains worrying that the Appeals Chamber in fact engaged in second-guessing the Trial Chamber's discretionary assessment of adduced evidence, witness testimonies and in essence the facts, to the extent that it completely overturned the findings. Probably being aware of the heavy-handedness thereof and the arguable inconsistency regarding the application of the effective command and control criteria between the current and some previous judgments, the Appeals Chamber reiterated that the probative value of existing indicators will have to be assessed on a case-to-case basis; a part of the Appeals judgment which most likely will be endorsed by a majority of the former Yugoslav communities. Albeit, rather as a potential sign of bias than of judicial caution.

Sticking to alleged bias, from a procedural point of view, the Appeals Chamber devoted considerable attention to the claims made by the Hadžihasanović Defense that the Trial Chamber at times showed unacceptable signs of animosity and outright offensive behavior toward defense witnesses. Despite unusual generosity towards the Defense coming from the Trial Chamber in terms of time allocation and approval of witnesses, the Hadžihasanović Defense argued that on several occasions the Trial Chamber failed to use its discretionary power in a neutral manner. The Defense gave examples of the bench questioning, virtually cross-examining, a defense witness for eight hours (though the Defense was informed in advance), and treating several others in an intimidating manner. The Appeals Chamber dismissed these allegations. Leaving aside the accuracy of the Defense allegations and the Appeals Chamber's findings, the current judgment clearly demonstrates an issue which remains intricate: the position of the bench in criminal proceedings before the ICTY. It reflects the uncertainty with which parties and witnesses are confronted in a legally hybrid system and institution, where the limits of the judges' discretionary powers are determined mostly by their personal habits (considering that in an international legal institution, parties and judges to a large extent remain hostages of their original jurisdictions) instead of statutory standards. As long as the current scope of the judges' discretionary powers is left undefined, the risk remains that despite assumed neutrality and benevolence, the conduct of judges throughout a specific case may at the end of the road be perceived as unfair and biased, consequently frustrating the process and ultimately compromising the legitimacy of the trial and its final outcome. This issue remains troublesome and continues to play a crucial role in ongoing proceedings before the ICTY.

Concluding, both substantive and procedural elements determine the way in which this latest ICTY judgment will be assessed in the following period. The reversals of the Appeals Chamber were accompanied with the lowering of already confounding and inconsequential sentences. Bearing in mind cases such as Halilović, Orić, Limaj et al. and Haradinaj et al., and in considering the final findings and sentences in light of the rank of both individuals as well as the factual underpinnings of the case, this de facto acquittal again leaves many with the question of how justice is done and whether it, when done in such a manner, furthers the individualization of guilt and strengthens reconciliation."

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