At the start of what is planned to be the shortest-ever defence case before the Hague tribunal, defence counsel for top Bosnian army general Sefer Halilovic said the prosecution had failed to prove that the accused had "effective control" over the units that committed crimes against Croat civilians in Hercegovina in September 1993.
"The prosecution has not established that Sefer Halilovic was effectively in charge of the troops there…that he was told of these crimes and that he knew what was going on," said defence counsel Peter Morrissey in his opening statement on June 27.
He indicated that over the next two weeks the defence will try to prove that Halilovic was never in de facto command of operation Neretva 93, aimed at lifting the siege of the city of Mostar, and that the accused, chief of staff of the Bosnian army at that time, "did not have an autonomous position in the chain of command" and only had the right "to issue certain orders" when authorised by his superior.
The first and only defence witness who appeared at the trial this week seemed to confirm some of these claims, but his testimony was full of inconsistencies - especially when compared to an earlier statement he gave to the tribunal's investigators - enabling the prosecution to throw doubt on the witness' credibility.
Sefer Halilovic, 53, has been charged with a single count of violations of the laws or customs of war in connection with the murders of 62 Bosnian Croats in the villages of Grabovica and Uzdol, during the military operation in September 1993.
He is charged on the basis of command responsibility of failing to both prevent the crimes committed by units allegedly subordinated to him and punish the perpetrators afterwards.
Halilovic's lawyers announced last week "a very short defence case", with only seven witnesses scheduled to testify in court, and another 23 providing written testimonies. It is so short that it led to some speculation about whether the lawyers have any evidence.
But tribunal insiders point out that in adversarial proceedings, such as those at the Hague court, the defence case can often end up providing ammunition to the prosecution's arguments - so a short defence case isn't automatically a weak one.
Three defence witnesses were scheduled for this week, but only one showed up in court. One of the absentees, who was ill, has been rescheduled for next week, and the defence, at the last minute, decided not to call the other.
At the time Neretva 93 took place, Mehmed Behlo was a twenty-three-year old middle-ranking officer in the Bosnian army's 317th brigade, which also participated in the operation.
He gave his original statement to the tribunal's investigator Nikolai Mikhailov in March 2001, he described how his brigade commander, Enver Zejnalagic, introduced him to Halilovic in September 1993 and the impression the accused left on him.
"Zejnalagic told me Sefer Halilovic was in charge of the operation and that he was in command. It was clear to me that Halilovic was in charge, because everyone reported to him," the witness apparently told investigator Mikhailov.
But this week, Behlo told the court he had never said these words.
"At that time, I was a Bosnian army officer, and we were automatically forbidden to comment on our superior officers. Therefore, I most likely couldn't have said anything like that," he told the judges.
Behlo claimed when Mikhailov approached him for an interview, he was under the impression that the questioning was related to "some book on crimes committed against Croat civilians in Bosnia". According to the witness, the investigator accused him of being "a war criminal", and told him he "should not tell anyone about [the interview] for his personal security". Behlo also told the court that he "had no idea what this interview was all about".
Halilovic's lawyer then asked the witness in some detail about the way this 2001 interview was conducted, implying that some irregularities in the process made the statement invalid in court.
According to the tribunal's rules of procedure and evidence, a written statement of a witness is admissible only "if it attaches a declaration by the person making the written statement that [its] contents are true and correct to the best of that person's knowledge and belief". The rules also require the witness to read the statement or have it read out to him by a certified interpreter in the language he understands, before he puts his signature on it.
But Behlo claimed the interpreter never read this statement to him - instead, the investigator Mikhailov, who apparently speaks Bosnian too, translated it to the witness directly from his laptop computer and the witness signed a copy in English, a language he says he doesn't understand.
During cross-examination, prosecutor Phillip Weiner challenged the witness over what he had told the court about the procedure. First, he presented Behlo with a declaration he signed in 2001 - in accordance with the tribunal's rules of procedure and evidence - which states "the statement was read out loud to me in Bosnian language, and it accurately presents what I remember".
The declaration also says that the witness was aware that he might be summoned to testify in front of the tribunal, which contradicted Behlo's claims in court that he didn't know the purpose of the interview with the tribunal's investigator.
"In this declaration, you said you knew your statement could be used for criminal proceedings at the tribunal," prosecutor Weiner further pressed the witness.
"Yes", the witness confirmed.
Weiner also said the interpreter in question signed a document last week in which he claims he personally translated Behlo's statement to him "word by word, phrase by phrase", after which the witness put his signature on it.
Although the prosecutors wanted the interpreter's statement to be admitted into evidence, the judges didn't allow it.
Next week, four witnesses are scheduled to testify, and the whole defence case could be over in about two weeks.
A judgment is expected by November at the latest.
Merdijana Sadovic is an IWPR reporter in The Hague.
