Trial Chambers

The Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic -
Case No. IT-96-23 & IT-96-23/1 - A

"Appeals Judgement"

12 June 2002
Judges Jorda (Presiding), Shahabuddeen, Schomburg, Güney and Meron

Article 3 of the Statute - Existence of an Armed Conflict and Nexus therewith - Material Scope of Article 3 of the Statute and common Article 3 of the Geneva Conventions - Elements of Article 5 of the Statute - Definition of the Crime of Enslavement - Definition of the Crime of Rape - Definition of the Crime of Torture.

(1) A violation of the laws or customs of war may occur at a time when and in a place where no fighting is actually taking place.
(2) The existence of an armed conflict must have played a substantial part in the perpetrator's ability to commit a crime, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.
(3) So as to determine whether or not acts in questions are sufficiently related to the armed conflict, the following factors may be taken into account: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator's official duties.
(4) The attack need not be part of the armed conflict. In the context of a crime against humanity, the attack is not limited to the use of armed force and encompasses any mistreatment of the civilian population.
(5) To determine whether the attack satisfies either or both requirements of a "widespread" or "systematic" attack on a civilian population, the following criteria, inter alia, must be met: the consequences of the attack on the targeted population, the number of victims, the nature of the acts, the possible participation of officials or authorities or any identifiable patterns of crimes.
(6) The existence of a policy or plan may be evidentially relevant, but it is not a legal element of the crime.
(7) The acts of the accused must be part of the attack against the civilian population, but they need not be committed in the midst of that attack.
(8) It is the attack, not the acts of the accused, which must be directed against the target population and the accused need only know that his acts are part thereof. The fact that the accused acted for purely personal reasons could, at most, be indicative of a rebuttable assumption that he was not aware that his acts were part of the attack.
(9) Enslavement as a crime against humanity concerns the destruction of the juridical personality of a victim as a result of the exercise of any or all the powers attaching to the right of ownership.
(10) The lack of consent is not an element of the crime of enslavement. Consent may be relevant from an evidential point of view as going to the question whether the Prosecutor has established the element of the crime relating to the exercise by the accused of any or all of the powers attaching to the right of ownership.
(11) The requirement of resistance has no basis in customary international law and is absurd on the facts. Force or threat of force provides clear evidence of non-consent, but is not an element per se of rape.
(12) The public official requirement is not a requirement under customary international law in respect of criminal responsibility of an individual for torture outside the framework of the torture Convention.
(13) Certain acts establish per se the suffering of those upon whom they are inflicted. Sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture.
(14) If one prohibited purpose of the crime of torture is fulfilled by the conduct, the fact that such conduct was also intended to achieve a non-listed purpose (even one of a sexual nature) is immaterial.

Procedural Background

· On 22 February 2001, the three co-accused were sentenced to 28, 20 and 12 years of imprisonment respectively.1 The accused all appealed the Judgement. The Appeals Chamber identified five grounds of appeals common to two of the three appellants, who alleged that the Trial Chamber erred with respect to: (i) its finding that Article 3 of the Statute applies to their conduct; (ii) its finding that Article 5 of the Statute applies to their conduct; (iii) its definitions of the offences charged; (iv) cumulative charging; and (v) cumulative convictions.

The Judgement

The Appeals Chamber found that it was "unable to discern any error" in the Trial Chamber's assessment of the evidence It dismissed all the common grounds of appeals as well as the appeals of each of the Appellants. However it did find that the Trial Chamber should have considered the family situations of Appellants Kunarac and Vukovic as mitigating factors, but found that these errors were not "weighty enough" to vary the sentences imposed. It confirmed the sentences handed down against Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, sentenced to 28, 20 and 12 years of imprisonment respectively.

The Reasoning

The applicability of Article 3 of the Statute2

The Appeals Chamber first recalled the two general conditions for the applicability of Article 3 of the Statute, as set out in the Tadic Jurisdiction Decision3: there must be an armed conflict and the acts of the accused must be closely related to the armed conflict. It then stated that there is no necessary correlation between the area of the actual fighting and the geographical reach of the laws of war. This is explained by the fact that the laws of war apply in the whole territory of the warring parties or -in the case of internal armed conflicts- the whole territory under the control of a party to the conflict (whether or not actual combat takes place there), and because they continue to apply until a general conclusion of peace or, in the case of internal armed conflicts, until a peaceful settlement is achieved.4 It concluded that "a violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place".5

Confirming the findings of the Trial Chamber, it indicated that the requirement that the acts of the accused must be closely related to the armed conflict would not be negated if the crimes were temporally and geographically remote from the actual fighting.6

The Appeals Chamber noted that the armed conflict need not have been causal to the commission of the crime to underline that "the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator's ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed".7 It must be proved that the perpetrator acted "in furtherance of or under the guise"8 of the armed conflict in order to conclude that his acts were closely related to the armed conflict.

The Appeals Chamber further set out that to determine whether or not acts in questions are sufficiently related to the armed conflict the following factors may be taken into account: "the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator's official duties".9

In response to the Appellants' argument that they were prevented from disproving that there was an armed conflict in the municipalities of Gacko and Kalinovik the Appeals Chamber stated that "a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and raise it only in the event of a finding against the party". This follows the practice of the Tribunal.10 Therefore if a party fails to raise any objection to a particular issue before the Trial Chamber, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to adduce the issue as a valid ground of appeals. Likewise, a party should not be permitted to raise an issue it considers to be of significance to its case at a stage when the issue can no longer be fully litigated by the opposing party. The Appeals Chamber pointed out that such ground of appeals could have been rejected for that reason alone. It nevertheless insisted on the fact that "the state of armed conflict is not limited to the areas of actual military combat but exists across the entire territory under the control of the warring parties".11

The scope of Article 3 of the Statute and common Article 3 of the Geneva Conventions

The Appeals Chamber recalled the four criteria for prosecuting a crime under Article 3 of the Statute,12 among which a violation must constitute an infringement of a rule of international humanitarian law under treaty or customary law. It affirmed that "the determination of what constitutes a war crime is therefore dependent on the development of the laws and customs of war at the time when an act charged in an indictment was committed".13

It rejected the Appellants' assertions that Article 3 is restricted to the protection of property and the proper use of permitted weapons, that it does not cover serious violations of common Article 3 and that it is concerned only with the rights of warring parties as opposed to the protection of private individuals.

Elements of Article 5 of the Statute14

Nexus with an armed conflict

The Appeals Chamber confirmed the Trial Chamber's finding that the requirement of a nexus with the armed conflict under Article 5 of the Statute is not equivalent to Article 3 of the Statute's requirement that the acts be closely related to the armed conflict. The requirement in Article 5 is a purely jurisdictional prerequisite satisfied by proof that there was an armed conflict and that objectively the acts of the accused are linked with the armed conflict both geographically and temporally.15 The Appeals Chamber rejected the ground of appeals challenging the Trial Chamber's finding that there was an armed conflict at the time and place relevant to the Indictments.

A widespread or systematic attack "directed against any civilian population"

To amount to a crime against humanity, the acts of an accused must be part of a widespread or systematic attack "directed against any civilian population ". The Appeals Chamber, referring to the Tadic Appeals Judgement, upheld the Trial Chamber's finding in respect of the five elements encompassed by this phrase.16 It then reiterated that the concepts of "attack" and "armed conflict" are not identical and confirmed that when comparing the content of customary international law to the Tribunal's Statute, "the two - the 'attack on the civilian population' and the 'armed conflict' - must be separate notions, without omitting to precise that under Article 5 of the Statute the attack on 'any civilian population' may be part of an 'armed conflict'". It finally set out that if, under customary international law, the attack could precede, "outlast",17 or continue during the armed conflict, "the attack (…) need not be part of it [the armed conflict]",18 in order to specify that the attack, in the context of a crime against humanity, "is not limited to the use of armed force" and "encompasses any mistreatment of the civilian population".19

The word "population" does not imply that the entire population of the geographical entity in which the attack is taking place must have been subjected to that attack.20 It is sufficient to show that the attack was in fact "directed against a civilian 'population', rather than against a limited and randomly selected number of individuals".21

In the context of a crime against humanity, the civilian population must be the "primary object of the attack".22 In order to assess whether the attack was so directed, the Appeals Chamber set the criteria to be met, inter alia, "the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war".23

The attack must be "widespread" or "systematic"

It is well established in international criminal law that the requirement of a "widespread" or "systematic" attack is of a disjunctive character.24 The assessment of what constitutes a "widespread" or "systematic" attack depends essentially on the civilian population which was allegedly targeted, but also on the consequences of the attack upon the targeted population. To determine whether the attack satisfies either or both requirements of a "widespread" or "systematic" attack on this civilian population, the Appeals Chamber has identified criteria to be met: "the consequences of the attack upon the targeted population, the number of victims, the nature of the acts, the possible participation of officials or authorities or any identifiable patterns of crimes."25

The requirement of a policy or plan and the nexus with the attack

The Applicants argued that for their acts to constitute a crime against humanity they had to be supported by a form of "policy" or "plan". The Appeals Chamber did not find anything in the Statute or in customary international law to sustain this idea: "the existence of a policy or plan may be evidentially relevant, but it is not a legal element of the crime."26

For the requirement that the acts be connected to the attack,27 the Appeals Chamber specified that "the acts of the accused must be part of the 'attack' against the civilian population, but they need not be committed in the midst of that attack".28

The mens rea for crimes against humanity

The accused must have had the knowledge that his acts comprised part of the attack but does not need to know of the details of the attack: "it is the attack, not the acts of the accused, which must be directed against the target population and the accused need only know that his acts are part thereof."29 The Appeals Chamber also stated that the fact that the accused acted for purely personal reasons could, "at most", be indicative of a "rebuttable assumption" that he was not aware that his acts were part of the attack.30

Definition of the crime of enslavement

The Appeals Chamber reviewed the elements of the crime of enslavement in its various contemporary forms to assert that what is at stake is the "destruction of the juridical personality of a victim" as a result of the "exercise of any or all the powers attaching to the right of ownership".31

The Appeals Chamber clearly stated the alleged importance of the lack of consent is "not an element of the crime".32 It stated, however, that "consent may be relevant from an evidential point of view as going to the question whether the Prosecutor has established the element of the crime relating to the exercise by the accused of any or all of the powers attaching to the right of ownership".33

Definition of the crime of rape

The Appeals Chamber concurred with the Trial Chamber's definition of rape.34 It emphasised two points: the requirement of "resistance" has no basis in customary international law and is "absurd on the facts". Force or threat of force provides clear evidence of non-consent, but is "not an element per se of rape": coercive circumstances without relying on physical force may be deemed sufficient to determine the absence of consent.

Definition of the crime of torture

The Appeals Chamber concurred with the Trial Chamber's definition of torture35 It insisted on clarifying the nature of torture in customary international law, so as to avoid any controversy in particular with respect to the participation of a public official or any other person acting in a non-private capacity. The judges found that the definition of torture in the Torture Convention, inclusive of the public official requirement, reflects international customary law. They considered that "the public official requirement is not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the torture Convention".36

The Appeals Chamber noted that despite the fact that existing case law has not yet determined the absolute degree of pain required for an act to amount to torture, "certain acts establish per se the suffering of those upon whom they are inflicted".37 It then affirmed that "sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture".38

The Appeals Chamber pointed out that what it is important, with regard to the intent to commit the crime of torture, is that the Appellants "did intend to act in such a way as to cause severe pain or suffering, whether physical or mental, to their victims, in pursuance of one of the purposes prohibited by the definition of the crime of torture".39 It concluded that "if one prohibited purpose is fulfilled by the conduct, the fact that such conduct was also intended to achieve a non-listed purpose (even one of a sexual nature) is immaterial."40

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1 See The Prosecutor v. Dragoljub Kunarac et al. ("Foca"), Case No. IT-96-23&23/1, Trial Chamber II, Judgement, 22 February 2001, (hereinafter "Kunarac Judgement"), for a summary of this Judgement see Judicial Supplement No. 23.
2.Article 3 (Violations of the laws or customs of war)
The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property.
3.See The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, (hereinafter "Tadic Jurisdiction Decision") in which the Appeals Chamber stated that an "armed conflict" is said to exist "whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State" (paras. 67 and 70).
4.Ibid., para. 70.
5.Para. 57.
6.See Kunarac Judgement, para. 568.
7.Para. 58.
8.Ibid.
9.Para. 59.
10.See The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001, para. 640 (summarised in Judicial Supplement No. 23, pages 5 to 11) and The Prosecutor v. Clément Kayishema, Case No. ICTR-95-1-A, Appeals Chamber, Judgement, 1 June 2001, para. 91. See also The Prosecutor v. Jean Kambanda, Case No. ICTR 97-23-A, Appeals Chamber, Judgement, 19 October 2000, para. 25 and The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR 96-4, Appeals Chamber, Judgement, 1 June 2001, para. 361.
11.Para. 64.
12.See Tadic Jurisdiction Decision, para. 94 and The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-A, Appeals Chamber, Judgement, 24 March 2000, para. 20 (summarised in Judicial Supplement No. 13), in which the Appeals Chamber stated that: "(i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met; (iii) the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; and (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule".
13.Para. 67.
14.Article 5 (Crimes against humanity)
The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.
15.See Kunarac Judgement para. 413. See also The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (hereinafter "Tadic Appeals Judgement"), paras. 249 and 251 (summarised in Judicial Supplement No. 6), The Prosecutor v. Zoran Kupreskic et al. ("Lasva River Valley"), Case No. IT-95-16-T, Trial Chamber I, Judgement, 14 January 2000, para. 546, hereinafter "Kupreskic Judgement" (summarised in Judicial Supplement No. 11) and The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-T, Trial Chamber II, Judgement, 07 May 1997 (hereinafter "Tadic Judgement"), para. 632.
16.See Tadic Appeals Judgement, paras 248 and 251: "(i) There must be an attack; (ii) The acts of the perpetrator must be part of the attack; (iii) The attack must be directed against any civilian population; (iv) The attack must be widespread or systematic; (v) The perpetrator must know that his acts constitute part of a pattern of widespread or systematic crimes directed against a civilian population and know that his acts fit into such a pattern."
17.See Kunarac Judgement, para. 420: "although the attack must be part of the armed conflict, it can also outlast it".
18.Para. 86.
19.Ibid.
20.See Kunarac Judgement, para. 424. See also Tadic Judgement, para. 644.
21.Para. 90.
22.See Kunarac Judgement, para. 421.
23.Para. 91.
24.See Tadic Appeals Judgement, para. 248 and Tadic Judgement, para. 648.
25.Para. 95.
26.See footnote 114 and text accompanying note, where the Appeals Chamber reviewed, in length, the practice in international criminal law, which "overwhelmingly support the contention that no such requirement exist under customary international law".
27.The required nexus between the acts of the accused and the attack consists of two elements: (i) the commission of an act which, by its nature or consequences, is objectively part of the attack; coupled with (ii) knowledge on the part of the accused that there is an attack on the civilian population and that his act is part thereof. See Kunarac Judgement, para. 418; Tadic Appeals Judgement, paras. 248, 251 and 271; Tadic Judgement, para. 659 and The Prosecutor v. Mile Mrksic et al. ("Vukovar"), Case No. IT-95-13-R61, Trial Chamber I, Review of Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, 03 April 1996, para. 30.
28.Para. 100
29.Para. 103.
30.Ibid.
31.Para. 117.
32.Para. 120.
33.Ibid.
34.Kunarac Judgement, para. 460: "the actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim".
35.Kunarac Judgement, para. 497: "(i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental; (ii) The act or omission must be intentional; (iii) The act or omission must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person".
36.Para. 148.
37.Para. 150.
38.Ibid.
39.Para. 153.
40.Para. 155.