In a rare move, prosecutors in the Hague war crimes trial of Enver Hadzihasanovic and Amir Kubura have applied to reopen their case - just as the trial is reaching the end of the defence phase.
The request follows the acquisition of what they believe is important new evidence against the accused.
Prosecutors hope that the documents they obtained after the close of their case in July 2004 could be the final proof of what they say are firm links between a notorious unit of foreign fighters – the mujahedin – and the regular Bosnian army units under the command of the accused.
The defendants are answering charges for a series of crimes committed by the troops under their command against Bosnian Croat and Serb civilians and prisoners during the war in central Bosnia between January and October 1993.
This is the first case to be tried at the tribunal that is based entirely on the notion of “command responsibility” – the idea that in war commanders can be held personally responsible for the crimes committed by their subordinates, even if they did not order them. The two are not accused of planning or ordering any of the crimes themselves.
At the time the alleged crimes took place, Hadzihasanovic was commander of the Third Corps, with temporary headquarters in Zenica. Kubura commanded the Third Corps’ Seventh Muslim Mountain Brigade, which is alleged to have had foreign fighters in its ranks as part of the El Mujahed unit, formed in mid-to-late 1993.
The indictment states that these foreign fighters under their command were responsible for abusing and killing Bosnian Croat and Bosnian Serb prisoners of war and subjecting detainees to inhuman treatment.
It also states that the mujahedin operated and staffed a torture camp in the village of Orasac, near Travnik in central Bosnia, where Bosnian Serbs and Croats were beaten and psychologically abused.
During their part of the case, the prosecutors were trying to prove that defendants had effective control over these foreign fighter subordinates – something that the defence of both officers has been busy disproving since the beginning of their case in October last year.
The evidence the prosecutors have since obtained lists the names, some on Third Corps letterhead, of the foreign fighters who were members of the Bosnian army, as well as those who were given Bosnian citizenship or residing there.
The first ten of a total 24 documents show a series of military and citizenship lists, naming between one and two hundred foreign fighters. The documents, some of which appear to be computer-generated and some typewritten, and many without official stamps or seals, come from three main sources - the Bosnian intelligence service, the Bosnian government, and the Third Corps command.
Prosecutors contend the documents demonstrate that these foreign fighters were indeed in the Bosnian army, in Third Corps units, as early as June 1992. They believe this new evidence could affect the outcome of the trial.
Furthermore, prosecutors state that the evidence is relevant because it shows the recruitment process of locals and foreigners to the El-Mujahed unit, and it also demonstrates the large number of local soldiers who joined the unit in 1993.
Allegedly included in the new evidence is a defence ministry certificate of membership to the Bosnian army for an alleged mujahedin fighter, Abduladhim Maktouf, a long-term resident of Bosnia who originally came from Iraq. Another piece of evidence apparently shows his military posts and places of service.
Maktouf faces trial in Bosnia on suspicion of abducting five civilians – four Croats and one Serb – from the central Bosnian town of Travnik in 1993 and taking them to a mujahedin camp outside the town, where the five were allegedly severely beaten. The Serb captive was eventually beheaded. [See Bosnia Charges Alleged Mujahedin - http://www.iwpr.net/index.pl?archive/tri/tri_373_3_eng.txt - by Beth Kampschror in Sarajevo (TU No 373, 17-Sep-04)]
Prosecutors believe that other intelligence agency documents are relevant because they contain information about foreigners whose names have been “frequently referred to throughout the course of these proceedings”.
For example, Abu Haris – identified as a Libyan native in the new evidence – was known in the El Mujahed unit as someone who spoke the Bosnian language, according to witness testimony in the trial.
Some of the other documents obtained from the Bosnian intelligence agency concern the Turkish “Gerila” unit, which the prosecution states included Muslim fighters from Turkey and was connected to the Third Corps.
They claim the evidence shows Kemal Turcin, or Kemal the Turk, “came to Zenica in 1993 with 70 other Turks” and joined the Seventh Muslim Brigade. According to the prosecution, this group later separated from the brigade and formed their own “Gerila” unit.
The last collection of documents, also from the Bosnian defence ministry as well as the Zenica Cantonal Court, concerns crimes committed by Ramo Durmis, who was a member of the Seventh Muslim Brigade and then the El Mujahed unit.
In an interview with the police, dated October 1993, Durmis says that for a long time his unit had “been carrying out various war assignments within the Third Corps”.
He also states that after April 1993, the mujahedin soldiers broke away from the Seventh Muslim Brigade and began operating as an independent detachment, and that there were a number of Bosnian Muslims and foreigners in this group.
The prosecution claims that the El Mujahed unit was still under the command of the Third Corps, and that they had the consent of the authorities.
The prosecution is keen to contradict defence claims that there was no superior to subordinate relationship between the accused and the mujahedin, and that their clients did not exercise effective control over the unit.
Numerous defence witnesses have told the trial that foreign fighters were seen as a hindrance to the Bosnian army’s military plans.
But Jean-Daniel Ruch, political advisor to the chief prosecutor at the Hague tribunal, told IWPR that the prosecutors hope new documents would contradict defence arguments that these foreigners were not regular members of the Bosnian army.
“The documents confirm the presence of foreigners in the Bosnian army at the period relevant to the indictment,” he said.
Despite as many as 40 attempts to obtain the material from the Bosnian government and its intelligence agencies since January 2000, prosecutors started receiving the new evidence only in October 2004, three months after they had rested their case. They obtained the final pieces of documentation from the Bosnian authorities only this March.
In the tribunal’s history, prosecutors have only made two attempts to reopen their case, and both were unsuccessful. Judges rejected such claims in both the Celibici trial and that of former Bosnian Serb general Radislav Krstic.
The defence is submitting a motion to challenge the prosecution’s request. The trial chamber is expected to deliver its decision on the reopening of the case within the next two weeks.
Samira Puskar is an IWPR intern in The Hague.
