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The Hague, 10 December 1998
Furundzija Case: The Judgement of the Trial Chamber
Anto Furundzija found guilty on both charges and sentenced to 10 years in prison
Today, Thursday 10 December 1998, Trial Chamber II, consisting of Judge Florence Mumba (presiding), Judge Antonio Cassese and Judge Richard May, pronounced their judgement in the case The Prosecutor v. Anto Furundzija. This judgement is the third to be rendered after trial by the International Criminal Tribunal for the former Yugoslavia (ICTY), and marks the sixth time that sentences have been handed down.
THE SENTENCES IMPOSED
The Trial Chamber found Anto Furundzija GUILTY, as a co-perpetrator of torture, a Violation of the laws or customs of war, for which he has been sentenced to 10 years’ imprisonment.
The Trial Chamber also found Anto Furundzija GUILTY, of aiding and abetting in outrages upon personal dignity, including rape, which constitutes a Violation of the laws or customs of war, for which he has been sentenced to 8 years’ imprisonment.
These multiple sentences are to be served concurrently.
Further to a sealed indictment, Furundzija was detained by SFOR on 18 December 1997. An amended indictment, issued on 2 June 1998, alleged that the accused was the local commander of a special unit of the military police of the Croatian Defence Council (HVO) known as the "Jokers". In this capacity he and another soldier interrogated Witness A. During the questioning, Witness A had a knife rubbed against her inner thigh and lower stomach by the other soldier, who threatened to put his knife inside her vagina should she not tell the truth. The amended indictment further alleged that Furundzija continued to interrogate Witness A and Victim B while they were beaten on the feet with a baton by the other soldier and further, that Furundzija stood by, failing to intervene in any way, while Witness A was forced to have oral and vaginal sexual intercourse with the other soldier.
The trial of Furundzija commenced on 8 June 1998 and the proceedings continued until 22 June 1998, at which time the hearing was closed with judgement reserved to a later date. Following a motion filed by the Defence, the Trial Chamber ordered that the proceedings be reopened. These further proceedings covered a period of four days and the trial was finally closed on 12 November 1998.
The judgement is a document of approximately 100 pages, which this press release does not summarise. It is merely an outline of the most significant legal aspects of the judgement and an overview of the findings reached by the Chamber.
The full text of the official summary as read out in Court by the Presiding Judge and of the judgement itself will be mailed upon request by the Public Information Unit.
THE MOST SIGNIFICANT LEGAL ASPECTS
For Article 3 of the Statute (Violations of the laws or customs of war) to apply, the existence of an armed conflict had to be established. The Trial Chamber relied on the test formulated by the Appeals Chamber in the Tadić case. Accordingly, based on the evidence submitted by both parties, the Trial Chamber found that, at the material time, a state of armed conflict existed in central Bosnia and Herzegovina between the HVO and the Army of Bosnia and Herzegovina. Furthermore, the Trial Chamber found a connection between this armed conflict and the acts underlying the charges against the accused.
The proceedings that took place in November 1998 essentially dealt with the reliability of Witness A’s evidence in light of any psychological disorder caused by her traumatic ordeal. The Trial Chamber found that the expert evidence demonstrated that, even when a person is suffering from PTSD [post-traumatic stress disorder], he or she may still be a reliable witness, and accepted Witness A’s testimony that she had sufficiently recollected the material aspects of the relevant events.
The judgement furthermore provides a definition of torture under international humanitarian law. In this regard, the Trial Chamber found that the prohibition against torture has attained the status of jus cogens, which can be defined as a peremptory norm of international law from which no derogation is permitted.
According to the summary, as read out in court, the Trial Chamber found the elements of the offence of torture to be as follows: "the intentional infliction, by act or omission, of severe pain or suffering, whether physical or mental, for the purpose of obtaining information or a confession or of punishing, intimidating, humiliating or coercing the victim or a third person, or of discriminating on any ground against the victim or a third person. For such an act to constitute torture, one of the parties thereto must be a public official or must, at any rate, act in a non-private capacity, e.g. as a de facto organ of a State or any other authority wielding entity."
Having found that it is indisputable that rape and other serious sexual assaults in situations of armed conflict entail criminal liability of the perpetrators, the Trial Chamber upheld the finding in the recent judgement in the Ćelebići case that, in certain circumstances, rape may amount to torture under international law. However, the Trial Chamber has seen fit to expand the definition of rape first formulated by Trial Chamber I of the International Criminal Tribunal for Rwanda (ICTR) in the Akayesu case and followed in the ICTY Ćelebići judgement.
According to the summary of the judgement, the Trial Chamber found that under international criminal law the offence of rape comprises the following elements: "the sexual penetration, however slight, either of the vagina or anus of the victim by the penis of the perpetrator, or any other object used by the perpetrator, or of the mouth of the victim by the penis of the perpetrator, where such penetration is effected by coercion or force or threat of force against the victim or a third person."
As to individual criminal responsibility under Article 7(1) of the Statute, the Trial Chamber found that aiding and abetting under international criminal law requires practical assistance, encouragement, or moral support having a substantial effect on the perpetration of the crime (actus reus), and knowledge that such acts assist the commission of the offence (mens rea).
Furthermore, the Chamber is determined that an accused who, under this standard would be liable for aiding and abetting torture, is responsible as a co-perpetrator of torture, if he or she participates in an integral part of the torture and partakes of the prohibited purpose behind the torture, i.e. the intent to obtain information or a confession, to punish or intimidate, humiliate, coerce or discriminate against the victim or a third person.
CREDIT FOR TIME SERVED
According to the Rules of Procedure and Evidence, Mr. Furundzija is entitled to credit for time spent in custody pending surrender to the Tribunal and time spent in detention pending trial or appeal. Accordingly, the Trial Chamber determined that 11 months and 22 days will be deducted from the sentence today imposed on Furundzija, together with such additional time as he may serve pending the determination of any final appeal.
International Criminal Tribunal for the former Yugoslavia
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