Prosecutor v. Rasim Delić (TC)

Court	International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber I, The Netherlands
Case number	IT-04-83-T
Decision title	Judgment (public)
Decision date	15 September 2008
Parties	Prosecutor Rasim Delić
Categories	War crimes
Keywords	command responsibility, cruel treatment, Murder, war crimes
Links	Judgment (public)
Other countries involved	Bosnia and Herzegovina

Summary

In 1992, the so-called Mujahedin forces joined the military struggle of the Army of Bosnia and Herzegovina against the Serbian forces. During three incidents between 1993 and 1995, the Mujahedin forces maltreated and killed both civilians and soldiers of the adversaries.

Trial Chamber I found that these acts amounted to war crimes in the meaning of Article 3 of the ICTY Statute.

When considering whether Rasim Delić could be held responsible for failing to prevent and punish these crimes, the Chamber found that he was guilty only with respect to the cruel treatment of captured Serb soldiers during the Livade incident. It found Delić not guilty with respect to the incident of Bikoši due to the lack of superior-subordinate relationship between those who committed the crimes and Delic. Responsibility for the last incident – in Kesten – was also rejected due to Delić's lack of reason to know that the crimes were about to be committed.

Delić received a sentence of three years of imprisonment.

Procedural history

The amended indictment was filed on 14 July 2006. The trial commenced on 9 July 2007, and the closing arguments were heard between 9 and 11 June 2008.

Related developments

The parties appealed the decision of Trial Chamber I. The appeal hearing took place on 19 January 2010.

Rasim Delić passed away on 16 April 2010. Subsequently, the Appeals Chamber terminated the appeal proceedings on 29 June 2010, and upheld the trial judgment as final.

Legally relevant facts

In early 1992, a conflict developed between the Serb forces and the Army of Bosnia and Herzegovina (ABiH) (paras. 77 et seq.). The ABiH forces were assisted in their fight by foreign forces called Mujahedins (paras. 166 et seq.). Three incidents are relevant for the purposes of the trial.

In June 1993, Mujahedin forces killed and injured civilians and soldiers of the Croatian Defence Council after they were captured near the village of Bikoši (paras. 200 et seq.).

Between July and August 1995, the El Mujahedin Detachment (EMD) captured soldiers of the Army of the Republika Srpska (VRS), and kept them in a house in Livade. The EMD forces killed and subjected the VRS detainees to maltreatment, including beatings and infliction of electric shocks (paras. 238 et seq.).

The killings and maltreatments of the VRS soldiers continued in the vicinity of Kesten. In September 1995, captured VRS soldiers were taken to a camp, where the EMD soldiers subjected them to maltreatment, after which they were killed (paras. 285 et seq.).

Rasim Delić was the Commander of the Main Staff of the ABiH (para. 5).

Core legal questions

Do the conducts perpetrated during the above incidents amount to crimes under Article 3 of the ICTY Statute?
If so, can Rasim Delić be held individually responsible under the provisions of Article 7(3) of the ICTY Statute for failing to prevent and punish these crimes?

Specific legal rules and provisions

Articles 3 and 7(2) of the ICTY Statute.

Court's holding and analysis

Trial Chamber I first examined each incident, and determined that the elements of the charged crimes had been established (paras. 200-335).

In examining the superior-subordinate relationship, the Chamber was not satisfied that such relationship existed between the perpetrators and Delić during the events at Bikoši. Accordingly, Delić was not held responsible for those crimes (para. 355).

However, the Chamber found that Delić “had effective control over the EMD in the period between July and December 1995” (para. 471). Subsequently, the Chamber found that there was a superior-subordinate relationship between the perpetrators of the Livade and Kesten crimes and Rasim Delić. The Chamber held that Delic had reason to know that the crime of cruel treatment would occur during the Livade incident but took no measures to prevent or punish it (para. 513). This was not the case, however, with regard to the crime of murder (para. 517). The Chamber found that he had no knowledge or reason to know that the crimes of murder and cruel treatment would occur during the Kesten incident due to the lack of any sufficiently alarming information that would have put him on notice of these crimes (paras. 524; 535).

Delić was sentenced to three years of imprisonment (para. 597).