By Björn Elberling

The ICTY Appeals Chamber today partially granted the appeals of Enver Hadzihasanovic (pictured left) and Amir Kubura, high-ranking officers in the Bosnian army during the Bosnian war. The Trial Chamber had found them guilty of failing to prevent or punish crimes committed by their subordinates and sentenced them to five years and 2 years, six months, respectively. The Appeals Chamber reversed some of these finding and accordingly lowered the sentences to three years, six months and two years, respectively. (The Trial Chamber judgment can be found here, a summary of the Appeals Judgment is available here) As Hadzihasanovic has already spent more than three years in detention and may well be eligible for early release, it is to be expected that he will be released very soon. Kubura had already been granted early release shortly after the Trial Chamber Judgment. [UPDATE: Hadzihasanovic has indeed been released the day after the Appeals Judgment] [And a final UPDATE: The judgment is now available here] Legally, the Judgment is, of course, interesting in dealing with command responsibility, but this would be for another post. Instead, some words on the factual findings: Inter alia, the Judgment deals with the Muslim Mujahedin fighters from various countries in North Africa and the Near and Middle East who came to Bosnia to fight beside/in the Bosnian army during the Bosnian civil war (and of whom many still reside in Bosnia). The Appeals Chamber considers these units to have been pretty much beyond the authority of regular army commanders like Hadzihasanovic, despite them having been officially incorporated into the Bosnian army (In fact, it characterizes the relationship as "close to overt hostility". Hadzihasanovic was thus acquitted of any responsibility for crimes committed by the Mujaheddin. This case is in many ways similar to that of another case, also currently on appeal, that of Naser Oric, commander of Bosnian army units in and around Srebrenica before the fall of the city. There, the Trial Chamber had also found that quite a number of crimes against the Serb population had been committed in that area, but had found Oric not responsible for most of these crimes and thus sentenced him to only two years’ imprisonment. It is interesting to note that none of those allegedly personally responsible for these crimes has been indicted before the Tribunal, including not one Mujaheddin – in contrast to, e.g., quite a number of Serb paramilitaries, including those operating in rather limited geographical areas. I am not aware of much legal writing on these questions – the makeup of the various factions (which, in the Bosnian war at least, all seemed to consist of some sort of mix between regular military, paramilitary and, at least according to some reports, organized crime – see, e.g., the Guardian obituary of "Arkan" Raznatovic) and the way the court dealt with these various factions and sub-factions – indictment policy, findings on superior responsibility, etc. I think this aspect would have to be central in any serious attempt to verify allegations of ICTY bias towards/against one or the other of the various Yugoslav factions.