1 Wednesday, 12 June 2002
2 [Appeal Proceedings]
3 [Open session]
4 --- Upon commencing at 4.40 p.m.
5 JUDGE JORDA: [Interpretation] Please be seated. First of all, I'm
6 going to ask the registrar to have the accused brought into the
8 [The appellants entered court]
9 JUDGE JORDA: [Interpretation] You may be seated.
10 Madam Registrar, would you please call the case which is the
11 subject of our hearing this afternoon.
12 THE REGISTRAR: [Interpretation] Yes, Mr. President. Good
13 afternoon, Mr. President; good afternoon to Your Honours. This is case
14 number IT-96-23-A and IT-96-23/1-A, the Prosecutor versus
15 Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic. Thank you.
16 JUDGE JORDA: [Interpretation] Thank you very much. I would ask
17 for the appearances, please. Let me first turn to the Prosecution.
18 MR. CARMONA: Your Honours, my name is Anthony Carmona, and I
19 appear on behalf of the Prosecution. Appearing with me are
20 Ms. Norul Rashid, Ms. Helen Brady, and Ms. Susan Lamb. Mr. Wolfgang
21 Sakulin is our case manager. Thank you.
22 JUDGE JORDA: [Interpretation] Thank you very much. I would like
23 the appearances for the Defence. Perhaps we will start with counsel for
24 Mr. Kunarac.
25 MR. PRODANOVIC: [Interpretation] Good afternoon, Your Honours. My
1 name is Slavisa Prodanovic, and I'm co-counselled by Mr. Dejan Savatic.
2 We are here representing Mr. Kunarac.
3 JUDGE JORDA: [Interpretation] Thank you. Counsel for Mr.
4 Radomir Kovac, please.
5 MR. KOLESAR: [Interpretation] Good afternoon, Your Honours. My
6 name is Momir Kolesar. I'm appearing on behalf of Mr. Kovac. Thank you.
7 JUDGE JORDA: [Interpretation] Thank you. And lastly, I would like
8 to have the appearances for counsel for Mr. Zoran Vukovic.
9 MR. JOVANOVIC: [Interpretation] Your Honour, Goran Jovanovic and
10 Ms. Jelena Lopicic appearing on behalf of Mr. Vukovic.
11 JUDGE JORDA: [Interpretation] Very well. Thank you. Please be
13 This session will be devoted to the reading of a summary of the
14 Appeals Chamber judgement in the case called by Madam Registrar.
15 The Appeals Chamber of the International Criminal Tribunal for the
16 former Yugoslavia is today holding a public hearing to pronounce its
17 judgement only in the appeal in the case The Prosecutor versus Kunarac,
18 Kovac, and Vukovic. The judgement elucidates the definition of several
19 crimes under our jurisdiction, and in particular, the Appeals Chamber
20 clarifies the status of rape as a crime under customary international
21 law. I call your attention to the fact that the following summary, of
22 course, has no legal force. Only the Appeals judgement signed by the five
23 Judges of the Bench has such force. Pursuant to Rule 15 bis of the Rules
24 of Procedure and Evidence, today's hearing will take place without
25 Judge Mehmet Guney, who cannot be here.
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13 English transcripts.
1 And lastly, I point out to you this is not common at this
2 Tribunal. The judgement, the entire judgement, will be provided to you at
3 the completion of this hearing, both in English and in French.
4 I will first start, on behalf of my colleagues, to provide a brief
5 summary of the facts and the decision of the Trial Chamber.
6 From April 1992 to February 1993 at least, the area of Foca was
7 the scene of an armed conflict. The crimes of which Dragoljub Kunarac,
8 Radomir Kovac, and Zoran Vukovic were found guilty by the Trial Chamber
9 were closely related to this armed conflict. Non-Serb civilians were
10 killed, raped, or otherwise mistreated as a direct consequence of that
11 armed conflict. Kunarac, Kovac, and Vukovic also participated in this
12 campaign, which sought, inter alia, to rid the area of Foca of its
13 non-Serb inhabitants. One of the targets of the campaign were the Muslim
14 civilians, women in particular. They were detained in various centres
15 where the conditions of hygiene were intolerable and where they were
16 subjected to many acts of physical violence, including multiple rapes.
17 The criminal conduct of the three appellants was part of this systematic
18 attack on the non-Serb civilians. All three knew that the area of Foca
19 was the scene of an armed conflict. They also knew that an attack on the
20 non-Serb civilian population had been launched and that their criminal
21 acts occurred within or were part of this attack.
22 On 22 February 2001, the Trial Chamber found Dragoljub Kunarac
23 guilty of crimes against humanity on the counts of enslavement, rape and
24 torture, as well as violations of the laws or customs of war on the counts
25 of rape and torture. In the same decision, Radomir Kovac was found guilty
1 of crimes against humanity on the counts of enslavement and rape, as well
2 as violations of the laws or customs of war on the count of outrages upon
3 personal dignity. Zoran Vukovic was found guilty of crimes against
4 humanity on the counts of rape and torture, as well as violations of the
5 laws or customs of war on the counts of rape and torture. The three
6 accused were given single sentences of 28, 20, and 12 years' imprisonment
8 On 6 March 2001, Radomir Kovac and Zoran Vukovic filed a notice of
9 appeal against the Trial Chamber judgement and sentence. On 7 March 2001,
10 Dragoljub Kunarac did so as well.
11 The appellants presented several grounds of appeal. The Appeals
12 Chamber noted that five of those grounds were common to at least two of
13 the three appellants and dealt with them in chapters III to VII of this
14 appeals judgement. Each of the grounds raised by one of the appellants
15 alone is addressed in a separate chapter. In the name of my colleagues, I
16 will first give an analysis of the common grounds of appeal relating to
17 Article 3 of the Statue, violations of the laws or customs of war.
18 According to the appellants, they said that there was an armed
19 conflict -- concluded that it was armed conflict in two municipalities
20 bordering on the municipality of Foca, namely, the municipalities of Gacko
21 and Kalinovik.
22 I hope that I'm not reading it too quickly for the interpreters,
23 and for the interpreters [as interpreted].
24 First of all, as regards the existence of an armed conflict and
25 the nexus of the criminal conduct therewith, according to the appellants,
1 the Trial Chamber erred in concluding that there was an armed conflict in
2 two municipalities bordering the municipality of Foca, namely, the
3 municipalities of Gacko and Kalinovik. Given that these municipalities
4 are contiguous and neighbouring municipalities of Foca, and given also
5 that the appellants conceded that there was an armed conflict in the area
6 of Foca, the Appeals Chamber considers that the Prosecutor did not have to
7 prove that there was an armed conflict in each and every square inch of
8 the area in question, recalling that the state of armed conflict is not
9 limited to the areas of actual military combat but exists across the
10 entire territory under the control of the warring parties. Ample evidence
11 was adduced before the Trial Chamber to justifiably conclude that an armed
12 conflict was taking place in the territory of the three municipalities in
14 These grounds then led to the question of whether the Trial
15 Chamber committed an error in formulating the criterion applicable for
16 determining whether the required nexus between the armed conflict and the
17 criminal behaviour did indeed exist. All three appellants held that the
18 criterion used by the Appeals Chamber was insufficient. In their opinion,
19 the existence of a nexus should have been established for each crime, and
20 it would have been appropriate to ask whether the acts in question may be
21 perpetrated even if there is no armed conflict. The Appeals Chamber
22 states that the required nexus is not, however, one of cause and effect
23 between the armed conflict and the commission of the crime. It is
24 sufficient, according to the Appeals Chamber, that the existence of the
25 armed conflict must have played a substantial part in the perpetrator's
1 ability to commit the crime, his decision to commit it, the manner in
2 which he committed it, or the purpose for which he committed it.
3 Consequently, the Trial Chamber was justified in taking into account,
4 inter alia, the following factors: the fact that the perpetrators are
5 combatants, the fact that the victims are non-combatants, the fact that
6 the victims are members of the opposing party, and the fact that the acts
7 may be said to serve the ultimate goal of a military campaign. However,
8 in this case, it was established that the perpetrators acted in
9 furtherance of or under the guise of an armed conflict. This is
10 sufficient to conclude that their acts were closely related to that
11 conflict, as required under Article 3 of the Statute. The Appeals Chamber
12 can consider only that the Trial Chamber's finding on that point is
14 As regards the material scope of Article 3 of the Statute and
15 Common Article 3 of the 1949 Geneva Conventions, in accordance with the
16 jurisprudence of the Tribunal, the Appeals Chamber does not accept the
17 appellants' unsupported assertions that Article 3 of the Statute is
18 restricted in such a way as to be limited to the protection of property
19 and the proper use of permitted weapons and that it does not cover serious
20 violations of Common Article 3 of the 1949 Geneva Conventions and that it
21 is concerned only with the rights of warring parties as opposed to the
22 protection of private individuals. This ground is therefore rejected.
23 There were common grounds of appeal relating to Article 5 of the
24 Statute and these were brought forth by the appellants who raised numbers
25 of complaints in respect of the general conditions established by the
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13 English transcripts.
1 Trial Chamber, particularly as regards the nexus with the armed conflict,
2 as regards the existence of an attack, as regards the conditions according
3 to which the attack must be directed against any civilian population, as
4 regards the widespread or systematic nature of the attack or the mens rea
5 or the connection with that attack.
6 As regards, first of all, with the nexus with the armed conflict
7 under Article 5 of the Statute. This requirement set out in Article 5 is
8 only a prerequisite to the exercise of the Tribunal's jurisdiction. It is
9 satisfied merely by the proof that there was an armed conflict and,
10 contrary to the appellants' arguments, does not require a material nexus
11 between the acts of the accused and the armed conflict. In adopting the
12 Trial Chamber's conclusion that there was an armed conflict in the area
13 and on the dates set out in the indictments, the Appeals Chamber rejects
14 these grounds of appeal.
15 As regards the existence of an attack: The appellants argue that
16 the Trial Chamber erred in stating that there was an attack on the
17 non-Serb civilian population of Foca. The Appeals Chamber is satisfied,
18 however, that the Trial Chamber correctly defined and interpreted the
19 concept of attack which it regarded as a type of conduct resulting in acts
20 of violence. In the definition of a crime against humanity, the word
21 "attack" is not limited to the use of armed force but encompasses, inter
22 alia, situations in which persons not taking any active part in the
23 hostilities are mistreated or situations in which a non-combatant entity
24 is targeted, that is, any civilian population. The Trial Chamber's
25 conclusions in relation to the attack are unimpeachable and the Appeals
1 Chamber therefore rejects these grounds of appeal.
2 As regards -- as regards the condition according to which the
3 attack must be directed against any civilian population, the appellants
4 state that what happened to the non-Serb citizens of the Foca municipality
5 was not the regrettable consequence of an act directed against the
6 civilian population as such but, rather, the unfortunate result of a
7 legitimate military operation. In other words, there was collateral
8 damage. Certain elements, however, were sufficient to reasonably convince
9 the Trial Chamber Judges that the attack was effectively directed against
10 the civilian population rather than against a limited number of
11 individuals chosen at random, inter alia, the means and method used in the
12 course of the attack, the status of the victims, their number, the
13 discriminatory nature of the attack, the nature of the crimes committed in
14 its course.
15 The Appeals Chamber is satisfied that the Trial Chamber did not
16 err in concluding that such an attack occurred. Moreover, in identifying
17 the attacked population, that is the non-Serb population of Foca, it was
18 thus able to discern an attempt to disguise criminal acts as a military
19 enterprise. And these grounds of appeal are therefore rejected.
20 As regards the widespread or systematic nature of the attack,
21 according to the appellants, even if accepted, the evidence of the crimes
22 committed against the non-Serb civilians would not suffice to conclude
23 that the attack was widespread or systematic due to its restricted
24 character both in terms of significance and quantity. The appellants add
25 that in legal terms, the attack must be widespread and systematic.
1 However, the Appeals Chamber considers that the Trial Chamber correctly
2 defined the adjective "widespread" as referring inter alia to the number
3 of victims of the attack and to its being carried out on a wide scale.
4 And the adjective "systematic" was analysed as referring to the organised
5 or repetitive character of the acts of violence. In order to determine
6 what constitutes a widespread or systematic attack, a Trial Chamber relies
7 in particular on the means, methods, and resources of the attackers, the
8 consequences of the attack upon the targeted population, the number of
9 victims, the discriminatory nature of the acts, the possible participation
10 of officials or authorities or any other identifiable patterns of the
11 crimes. Moreover, the Appeals Chamber correctly, and in accordance with
12 law, recalled that the act had to be either widespread or systematic,
13 specifying that the requirement is disjunctive rather than cumulative. In
14 relation to the circumstances of this case, the Trial Chamber did not err
15 in concluding that the attack against the non-Serb civilian population of
16 Foca was systematic, and, therefore, the Appeals Chamber rejects these
17 grounds of appeals.
18 Lastly, as regards the nexus with the attack and the required mens
19 rea for the crime against humanity, the appellants alleged that the Trial
20 Chamber erred in concluding that there was a nexus between their acts and
21 the attack because they were not even aware of that attack, because their
22 acts had a purely military character and because they in no way wished to
23 participate in a possible attack against the civilian population. As
24 properly noted by the Trial Chamber, the nexus between the acts of the
25 accused and the attack consists of two elements: the commission of an act
1 which is objectively part of the attack, coupled with the knowledge on the
2 part of the accused that there is an attack on the civilian population and
3 that his act is part thereof. The Appeals Chamber is satisfied that the
4 Trial Chamber defined and applied the appropriate criterion regarding the
5 nexus between the acts of the accused and the attack, and these grounds of
6 appeal are therefore rejected.
7 The Appeals Chamber then reviewed the grounds of appeal relating
8 to the Trial Chamber's definition of the offences.
9 The Appeals Chamber carried out its analysis for the crime of
10 enslavement, for the crime of rape, for the crime of torture, and for the
11 crime of outrages upon personal dignity, the last crime relating more
12 specifically to the accused Kovac.
13 As regards the definition of the crime of enslavement, the
14 appellants propose to substitute the following elements for those
15 considered by the Trial Chamber for the crime of enslavement: The accused
16 must have considered the victim as its own ownership. There must have
17 been the constant and clear lack of consent of the victim. The victim
18 must have been detained for an indefinite or at least for a prolonged
19 period of time, and the accused must have had the intent to detain the
20 victim under constant control for a prolonged period in order to use that
21 victim for sexual acts. However, the Appeals Chamber does not accept the
22 premise that lack of consent is a constituent element of the crime. It
23 abides by the Trial Chamber's decision attributing a relative importance
24 to the duration of the detention and not considering it an element of the
25 crime. It concurs with the Trial Chamber that the required mens rea for
1 this crime consists of the intentional exercise of a power attached to the
2 right of ownership over the victims without it being necessary to prove
3 that the accused intended to detain the victims under constant control for
4 a prolonged period in order to use them for sexual acts.
5 Consequently, the Appeals Chamber is of the opinion that the Trial
6 Chamber's definition of the crime of enslavement is not too broad and does
7 indeed reflect customary international law at the time when the alleged
8 crimes were committed. The grounds of appeal relating to the definition
9 of the crime of enslavement are therefore rejected.
10 Now, as for the definition of the crime of rape. According to the
11 appellants, the crime of rape requires, in addition to penetration, the
12 showing of two addition elements: force or threat of force and the
13 victim's continuous or genuine resistance. The Appeals Chamber concurs
14 with the Trial Chamber's definition of rape following its extensive review
15 of the continental and common law legal systems, since the central element
16 in this definition arises from the victim's lack of consent. Moreover,
17 the Appeals Chamber states that it is appropriate to reject the
18 appellants' resistance requirement, justified neither in law or fact, and
19 that the use of force in itself is not an element constituting rape. The
20 coercive circumstances present in this case made the victims' consent to
21 the instant sexual acts impossible. The grounds of appeal relating to the
22 definition of the crime of rape are therefore rejected.
23 As for the definition of the crime of torture, the appellants
24 concerned did not challenge the definition of torture but asserted that
25 the constitutive elements of the crime of torture have not been proven
1 beyond reasonable doubt in this case. The Appeals Chamber wishes to
2 specify that some acts established per se the suffering of those upon whom
3 they are inflicted. Rape is obviously such an act. Moreover, the sexual
4 motivation to which the accused admitted certainly does not exclude the
5 intent to commit an act which has as a consequence severe pain and
6 suffering or the purpose of discrimination. The grounds of appeal
7 relating to the crime of torture are rejected.
8 Finally, as for the definition of the crime of outrages upon
9 personal dignity relating to Kovac. According to the appellant Kovac, the
10 Trial Chamber did not define which acts are likely to constitute outrages
11 upon personal dignity or establish a specific intent on his part to
12 humiliate or degrade the victim. However, the Appeals Chamber considers
13 that the Trial Chamber correctly defined the objective threshold for an
14 act to constitute an outrage upon personal dignity, that is, "any act or
15 omission which would be generally considered to cause serious humiliation,
16 degradation, or otherwise be a serious attack on human dignity."
17 Moreover, the Trial Chamber rightly considered that it sufficed that the
18 appellant knew, as any reasonable person would have, that his act could
19 cause serious humiliation, degradation, or otherwise be a serious attack
20 on human dignity. The grounds of appeal relating to the definition of
21 crime of outrages upon personal dignity are rejected.
22 The Chamber looked at the cumulative charges and convictions which
23 was one of the grounds raised by the appellants. The fourth part of this
24 summary will treat this question.
25 The Appeals Chamber rejects the argument that the crimes were
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13 English transcripts.
1 inappropriately charged and considers it even unnecessary to rehearse in
2 this appeals judgement a settled jurisprudence on this point.
3 With regard to the cumulative convictions, the Appeals Chamber
4 applied the methods set out in the Delalic (Celebici) appeals judgement.
5 It, like the Trial Chamber, considers that convictions for the same
6 conduct under Article 5 of the Statute (crimes against humanity) and
7 Article 3 of the Statute (violations of the laws or customs of war) are
8 permissible and dismisses the appeal on this point.
9 As regards the appellants' arguments in respect of cumulative
10 convictions under Article 5, given the circumstances of the case, the
11 Appeals Chamber concludes that all the constitutive elements of rape and
12 torture exist. It is also possible to cumulate, under Article 3 of the
13 Statute, a conviction for rape and a conviction for torture for the same
14 conduct. The crimes of rape and torture each contain one materially
15 distinct element. In this case, for cumulative convictions under both
16 Article 5 and Article 3, rape and sexual violence constitute acts of
17 torture. The Appeals Chamber therefore rejects the appeal on this point.
18 Finally, the appellant Kovac's separate ground of appeal. The
19 appellant Kovac argues that he was wrongly convicted of both rape and
20 outrages upon personal dignity under Article 3 of the Statute. The
21 Appeals Chamber rejects the argument, considering that the Trial Chamber
22 did not base its convictions on the same conduct.
23 All the other grounds of appeal relating to cumulative convictions
24 are rejected.
25 The Chamber looked at the individual grounds of appeal, first of
1 all, those raised by Kunarac. Now, for these grounds, errors of fact
2 alleged by Kunarac regarding the Trial Chamber's judgement. First of all,
3 errors of fact alleged by Kunarac:
4 The Appeals Chamber rejects all of the grounds of appeal raised by
5 Kunarac against the Trial Chamber's factual findings regarding his alibi
6 and counts 1 to 4, 9 and 10, 11 and 12, and 18 to 20. The appellant has
7 not shown that the Trial Chamber committed an error of fact occasioning a
8 miscarriage of justice.
9 Now, as for the errors of fact alleged by Kovac, the Appeals
10 Chamber rejects all of Kovac's grounds of appeal against the Trial
11 Chamber's factual findings regarding his identification, the conditions in
12 his apartment, the offences committed against FWS-75, AB, FWS-87, and AS,
13 the outrages upon personal dignity, the sale of FWS-87 and AS and the rape
14 convictions. The appellant has not shown that the Trial Chamber committed
15 an error of fact occasioning a miscarriage of justice.
16 Finally, as for the errors of fact alleged by Vukovic, the Appeals
17 Chamber rejects the appeal brought by the appellant Vukovic against the
18 Trial Chamber's findings regarding the alleged omissions noted in the
19 indictment, the rape of FWS-50, his identification, and the evaluation of
20 his exculpatory evidence. The appellant has not shown that the Trial
21 Chamber committed an error of fact occasioning a miscarriage of justice.
22 Now, grounds of appeal were also raised relating to sentencing.
23 First of all, as for the single sentence, the accused presented
24 grounds asserting, in substance, that the Rules do not authorise the
25 imposition of a single sentence and that for each crime of which an
1 accused has been convicted an individual sentence should be handed down.
2 The Appeals Chamber holds that neither Rule 87(C), nor Rule 101(C) of the
3 18th edition of the Rules prohibited a Trial Chamber from imposing a
4 single sentence and recalls that single sentences are not unknown in the
5 Tribunal's practice. These grounds are dismissed.
6 Again, regarding the sentence, recourse to the sentencing practice
7 in the courts of the former Yugoslavia:
8 The appellants argue that the Trial Chamber should have conformed
9 to the general sentencing practice in the former Yugoslavia, in
10 particular, in the sense that the sentence under appeal should not exceed
11 the maximum applied by the courts of the former Yugoslavia. The Appeals
12 Chamber holds that although a Trial Chamber must take into consideration
13 the general sentencing practice in the former Yugoslavia, it is not bound
14 by such practice. The Appeals Chamber confirms the findings of the trial
15 judgement, which stated that it is established case law at the Tribunal
16 that the practice of the courts in the former Yugoslavia does not bind the
17 Trial Chambers in the determination of a sentence. The Trial Chamber did
18 indeed review the sentencing practice applied by the courts of the former
19 Yugoslavia by way of hearing a Defence expert witness on the matter and
20 thereby complied with the provisions of Article 24(1) of the Statute and
21 Rule 101(B)(iii) of the Rules. It did not venture outside its discretion
22 in setting the sentence, nor did it err on this point. These grounds of
23 appeal are rejected.
24 Now, regarding the aggravating factors, the appellants submitted
25 that their crimes should not have incurred the sentences pronounced
1 because certain related aggravating factors were not properly evaluated.
2 Let us look at them.
3 First of all, vulnerability of certain victims. Article 24(2) of
4 the Statute states that in imposing the sentences, the Trial Chambers must
5 take into account the gravity of the offence. Whether or not the
6 vulnerability of the victim is an element of the crime of rape does not
7 affect its being evidence of the gravity of the crime and that, within the
8 meaning of the Statute, such gravity may be duly evaluated during the
9 determination of the sentence. The Trial Chamber committed no error in
10 this respect, and this ground of appeal is therefore rejected.
11 Alleged contradictions in the trial judgement (Kunarac):
12 The appellant Kunarac contends that the Trial Chamber reached
13 contradictory findings in paragraphs 858 and 863 with regard to his role
14 in the armed conflict in the former Yugoslavia. The two paragraphs at
15 issue clearly state that, as far as these crimes are concerned, he was not
16 considered as being in a position of command. This ground of appeal is
17 therefore without merit and the Chamber dismisses it.
18 Still in the aggravating circumstances, third question: issue of
19 the age of the victims, all but one younger than 19.
20 The Trial Chamber rightly took into consideration the evidence of
21 the Defence expert witness on the sentences incurred for the crime of rape
22 in the former Yugoslavia, who confirmed that, in that country, aggravated
23 factors were attached to the rape of young girls under the age of 18. In
24 the view of the Appeals Chamber, the expert's evidence did not contradict
25 the prevailing practice in the former Yugoslav Republic of Bosnia and
1 Herzegovina. By virtue of its inherent discretionary power, the Trial
2 Chamber was entitled to consider that the age of 19 is sufficiently close
3 to the protected age of special vulnerability for it to view that age as
4 an aggravating factor. As for the appellant Vukovic's allegation that an
5 error was committed in evaluating the age of victim FWS-50, the Appeals
6 Chamber responds that the fact that two slightly different ages were given
7 to the victim in the trial judgement (approximately 16 and 15 1/2
8 respectively) takes nothing away from the fact that she was young, and
9 that this could constitute an aggravating factor. The Appeals Chamber
10 therefore finds that the Trial Chamber did not make an error in taking
11 into consideration the young age of the victims specified in the trial
12 judgement. Accordingly, these grounds of appeal are dismissed.
13 Fourthly, aggravating factor of enslavement over a long period,
14 for the accused Kunarac, or the prolonged character of mistreatment
15 inflicted upon some of the victims, for the appellant Kovac.
16 The Appeals Chamber agrees with the Trial Chamber that duration
17 may be a factor to take into account "when considering whether someone was
18 enslaved," but that is not one of the elements of the offence. The longer
19 the period of enslavement, the more serious the offence. The Appeals
20 Chamber subscribes to the opinion of the Trial Chamber that the duration
21 of the crimes of enslavement, rape, and outrages upon personal dignity,
22 between one month and four months approximately, was sufficiently long to
23 incur an aggravation of the sentence. As such, these grounds of appeal
24 are dismissed.
25 Fifthly, issue raised, issue of the discriminatory grounds, an
1 element of the offences punishable under Article 5 of the Statute or an
2 aggravating factor:
3 The appellant Kunarac claimed that the Trial Chamber erred in
4 regarding the discriminatory intent as an aggravating factor as it
5 allegedly constitutes an element of the crimes specified under Article 5
6 of the Statute. In this regard, the Appeals Chamber recalls the Tadic
7 appeal judgement, which states that discriminatory intent "is an
8 indispensable legal ingredient of the offence only with regard to those
9 crimes for which this is expressly required, that is, for Article 5(h) of
10 the Statute, concerning various types of persecution." It is not required
11 for the other offences listed under Article 5 of the Statute.
12 Consequently, this ground of appeal is rejected.
13 The last issue, issue of retribution as a sentencing purpose, for
14 appellant Kovac:
15 In the case law of both this Tribunal and the ICTR, retribution
16 has always been taken into consideration as a purpose of the sentencing,
17 it being "interpreted [...] as punishment of an offender for his specific
18 criminal conduct." The appellant failed to substantiate his claim of an
19 alleged trend in international law which speaks differently from the one
20 followed by this Tribunal and the ICTR. The ground of appeal is therefore
22 Further to the applications of the appellants, reviewed all of the
23 mitigating circumstances, and it's reviewed each of the claims of the
24 accused and started with Kunarac [as interpreted].
25 The appellant claims that the fact that none of the victims has
1 suffered any severe consequences at his hands should be considered as a
2 mitigating factor, as should the fact that he is the father of three young
3 children. The inherent gravity of these offences, as the starting point
4 for the sentencing procedure, demands severe punishment, which will not be
5 diminished because the offences are claimed to have produced no serious
6 effects for the victims. This ground of appeal is therefore rejected.
7 The Appeals Chamber holds that the family aspect should have been
8 taken into consideration as a mitigating factor. This ground of appeal is
9 thus partly successful. However, in view of the number and severity of
10 the offences committed, the Appeals Chamber finds that the sentence
11 imposed by the Trial Chamber is the appropriate one and thus upholds the
12 decision in this regard.
13 As regards the accused Kovac, the appellant argues that the Trial
14 Chamber should have taken into account the fact that he had no intention
15 to harm Muslims, nor the knowledge that his actions formed part of a
16 widespread and systematic attack. Before the sentencing proceedings, the
17 Trial Chamber had already accepted these factors as having been proved
18 beyond all reasonable doubt, resulting in a conviction. The appellant
19 thus cannot re-litigate this issue in the course of the sentencing
20 appeal. This ground of appeal is therefore dismissed.
21 As regards the second mitigating factor raised by the appellant,
22 the Appeals Chamber merely notes that the four women he kept in his
23 apartment against their will and mistreated were Muslims, and it rejects
24 this unreasoned ground of appeal.
25 Lastly, the appellant pleads his relationship with FWS-87 and the
1 protection he extended to her and to AS. The Appeals Chamber agrees with
2 the Trial Chamber's view that the relationship between the appellant and
3 FWS-87 was not one of love but - I quote - "rather one of cruel
4 opportunism on his part, of constant abuses and domination over a girl
5 who, at the relevant time, was only 15 years old," and with the finding
6 that the appellant substantially assisted Jagos Kostic in raping AS. This
7 ground of appeal is rejected.
8 Lastly, as regards Vukovic, the appellant argues that he helped
9 "numerous [...] Muslim families," that no serious consequences arose from
10 his acts and that no force or compulsion was used. Lastly, the appellant
11 submits that the fact that he is married and has two children should also
12 be taken into consideration. The Appeals Chamber holds that the
13 appellant's help to other Muslims in the conflict does not change the fact
14 that he committed serious crimes against FWS-50, that his acts did have
15 serious consequences, and that, as the trial judgement rightly points out,
16 force or compulsion was used prior to rape. These grounds of appeal are
17 thus rejected.
18 As for the appellant's family situation, it should admittedly have
19 been considered as a mitigating factor, but, although it allows this
20 ground of appeal, the Appeals Chamber concurs with the length of the
21 imprisonment decided by the Trial Chamber.
22 Lastly, credit for time served:
23 The Trial Chamber did make an oral statement, on 22 February 2001,
24 stating that the time spent in custody would be credited to the sentences
25 of the three convicted persons. If the appellants had the slightest
1 doubt, they could have, through their counsel, raised the matter
2 immediately before the Trial Chamber for clarification. That would have
3 been the proper forum. These grounds of appeal are dismissed, provided
4 that the last paragraph of the trial judgement is read together with the
5 oral statement of the Trial Chamber of 22 February 2001. The appellants
6 will therefore receive credit for the time served in detention as
7 calculated from the moment they surrendered to the Tribunal or were placed
8 in its custody.
9 After the presentation of the summary, I will ask the accused to
10 rise. They should know the disposition of this judgement.
11 First, the appeals of Dragoljub Kunarac against convictions and
12 sentence. First, as regards convictions.
13 The Appeals Chamber dismisses the appeal brought by Dragoljub
14 Kunarac against his convictions. Accordingly, the Appeals Chamber affirms
15 the convictions entered by the Trial Chamber for Dragoljub Kunarac on
16 counts 1 to 4, 9 to 12, and 18 to 20 of indictment IT-96-23.
17 As regards the sentence, the Appeals Chamber dismisses the appeal
18 brought by Dragoljub Kunarac against his sentence; corrects the formal
19 disposition of the trial judgement to reflect the oral statement made by
20 the Trial Chamber that credit should be given for time served.
21 Accordingly, Dragoljub Kunarac is entitled to credit for the time he has
22 spent in custody since his surrender on the 4th of March, 1998. And
23 considering the number and severity of the offences committed, finds that
24 the sentence imposed by the Trial Chamber is appropriate.
25 Accordingly the Appeals Chamber affirms the sentence of 28 years'
1 imprisonment as imposed by the Trial Chamber.
2 As regards the appeals of Radomir Kovac against convictions and
3 sentence: As regards the convictions, the Appeals Chamber dismisses the
4 appeal brought by Radomir Kovac against his convictions. Accordingly, the
5 Appeals Chamber affirms the convictions entered by the Trial Chamber for
6 Radomir Kovac on counts 22 to 25 of indictment IT-96-23.
7 As regards sentence: The Appeals Chamber dismisses the appeal
8 brought by Radomir Kovac against his sentence; corrects the formal
9 disposition of the trial judgement to reflect the oral statement made by
10 the Trial Chamber that credit should be given for time served and,
11 accordingly, Radomir Kovac is entitled to credit for the time he has spent
12 in custody since his arrest on the 2nd of August, 1999; and considering
13 the number and severity of the offences committed, finds that the sentence
14 imposed by the Trial Chamber is appropriate, and therefore, the Appeals
15 Chamber affirms the sentence of 20 years' imprisonment as imposed by the
16 Trial Chamber.
17 As regards the appeals by Zoran Vukovic against conviction and
18 sentence: As regards convictions, the Appeals Chamber dismisses the
19 appeal brought by Zoran Vukovic against his convictions. Accordingly, the
20 Appeals Chamber affirms the convictions entered by the Trial Chamber for
21 Zoran Vukovic on counts 33 through 36 of indictment IT-96-23/1. As
22 regards sentence, the Appeals Chamber dismisses the appeal brought by
23 Zoran Vukovic against his sentence; corrects the formal disposition of the
24 trial judgement to reflect the oral statement made by the Trial Chamber
25 that credit should be given for time served, and, accordingly, Zoran
1 Vukovic is entitled to credit for the time he has spent in custody since
2 his arrest on the 23rd of December, 1999; and considering the number and
3 severity of the offences committed, finds that the sentence imposed by the
4 Trial Chamber is appropriate.
5 Accordingly, the Appeals Chamber affirms the sentence of 12 years'
6 imprisonment as imposed by the Trial Chamber.
7 In respect of enforcement of sentences of the three accused, in
8 accordance with Rule 103(C) and 107 of the Rules, the Appeals Chamber
9 orders that Dragoljub Kunarac, Radomir Kovac, and Zoran Vukovic are to
10 remain in the custody of the International Tribunal pending the
11 finalisation of arrangements for their transfers to the state or states
12 where their respective sentences will be served.
13 Rendered today on the 12th day of June, 2002, at The Hague,
14 Netherlands. It has been rendered in English and French. The French
15 version is the authoritative version. Both versions are available to the
17 And as of today, it was signed by Judge Mohamed Shahabuddeen,
18 Judge Wolfgang Schomberg, Judge Mehmet Guney, and Judge Theodor Meron, as
19 well as Judge Claude Jorda, Presiding Judge of the Appeals Chamber.
20 The Court stands adjourned.
21 --- Whereupon the hearing was adjourned at 5.26 p.m.