Judgment of the International Criminal Tribunal for the Former Yugoslavia
in the case of

Delalic et al. (I.T-96-21) "Celebici" 16 November 1998

IV.Factual and legal findings:Part A

 

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

600. 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

601. 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 DelalicD.

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

626. Furthermore, the Prosecution maintains that, even if Zejnil Delalic’s authority and control over the prison-camp as a whole and its commander is not accepted and the arguments of the Defence are thus supported on this point, Mr. Delalic nevertheless possessed authority in respect of the prison-camp, including the ability to classify and release the detainees. It accordingly submits that it is clear that Mr. Delalic, at the very least, could have taken the following action:

     (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

641. According to the Defence, the evidence presented in this case demonstrates that Zejnil Delalic did not possess the requisite knowledge of the crimes alleged in the Indictment to be held criminally liable pursuant to Article 7(3) of the Statute. Among the arguments made in its analysis of the evidence brought by the Prosecution are the following.

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.

      

     e. 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.