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 B

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

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

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

a. The Meaning of "All Formations"

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

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

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

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

b. Nature of Tactical Group 1

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

     (a) it is temporary in nature and disbands immediately after its mission is accomplished;

(b) the authority of the commander is limited to the units assigned to it by the Supreme Command and such command did not confer on the commander authority over any other units or over a geographical region; and

(c) the assignment of specific tasks or missions to the commander of TG 1 over and above his usual authority, by order of the Supreme Command, were specific to the mission and did not expand the authority of the commander beyond the terms of the specific order.⁷⁵⁰

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

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

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

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

c. Not a Regional Commander

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

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

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

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

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

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

(d) The Vienna Documents

(i) Introduction

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

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

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

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

     (ii) The Authenticated Exhibits

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

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

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

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

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

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

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

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

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

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

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

     (v) The Videos

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

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

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

     (vi) Conclusion

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

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

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

5. Conclusion

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

D. Superior Responsibility of Zdravko Mucic.

1. Introduction

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

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

2. The Indictment

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

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

     [. . .]

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

      

     3. Arguments of the Parties

(a) The Prosecution

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

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

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

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

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

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

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

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

4. Discussion and Findings

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

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

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

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

(a) The Status of Zdravko Mucic(b) as a Commander

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) Knowledge of the Accused

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

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

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

(c) Failure to Act

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

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

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

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

5. Conclusion

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

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

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