This case summary is part of a collection of summaries describing the cases before the International Criminal Tribunal for the Former Yugoslavia (ICTY). See the Online Resource Hub pages on the ICTY and International Criminal Law, and the table of ICTY case summaries for additional information.
Trial Judgment: 15 March 2006; Appeal Judgment: 22 April 2008
Enver Hadžihasanović and Amir Kubura, both senior ABiH officers in the ABiH 3rd Corps, stood trial for allegedly having ordered and exercised command over ABiH and EMD units who acted unlawfully against Bosnian Serbs and Bosnian Croats, including through damage to Serb and Croat institutions and public buildings and detention of non-Muslims in camps and their subsequent mistreatment; this case marks the first time the ICTY considered whether the ABiH had effective control over the EMD, Muslim freedom fighters from Islamic countries who went to fight with the Bosnian Muslims, including whether the EMD, which were notoriously brutal, were subordinated to the ABiH. The prosecution accused them of superior criminal responsibility for violations of the laws and customs of war for murder, cruel treatment, wanton destruction not justified by military necessity, and plunder of private or public property, and additionally charged Hadžihasanović with destruction or willful damage done to institutions dedicated to religion.
In 2006, the Trial Chamber convicted Hadžihasanović of superior criminal responsibility for violations of the laws or customs of war for murder and cruel treatment; the Trial Chamber convicted Kubura of violations of the laws or customs of war for plunder; the Trial Chamber found that it could not be proven that the EMD was subordinated to the ABiH, but did determine that the defendants failed to punish or prevent crimes by the El Mujahedin when they were incorporated into their forces, and that the defendants had knowledge of crimes committed by their subordinates.
In 2008, the Appeals Chamber decided that the Trial Chamber erred when it convicted Hadžihasanović for failing to prevent or punish acts of mistreatment in the Bugojno Detention Facilities as the Trial Chamber did not provide support for the evidence that Hadžihasanović knew or should have known of these crimes; the Appeals Chamber also reversed Hadžihasanović conviction for failing to prevent crimes of cruel treatment and the Murder of Dragan Popović for the same reasons, as there was no determination of effective control beyond a reasonable doubt. The Appeals Chamber found that the Trial Chamber committed an error of law and found that Kubura’s knowledge of his subordinates’ acts of plunder was sufficient to trigger his duty to punish. The Trial Chamber sentenced Hadžihasanović to five years’ imprisonment and Kubura to two-and-a-half years’ imprisonment, which were reduced to three-and-a-half and two years, respectively, by the Appeals Chamber.