Press Release . Communiqué de presse
(Exclusively for the use of the media. Not an official document)
The Hague, 29 May 1998
PROSECUTOR’S RESPONSE TO DEFENDANT’S MOTION
TO DISMISS THE INDICTMENT
On 27 May 1998, The Prosecutor issued a response to the Defendant’s motion to dismiss the indictment against the Accused Anto FURUNDZIJA (see Press Release CC/PIU/318-E).
The Prosecution stated that the Defence’s motion should be dismissed on the basis that "the offences charged in Counts 13 and 14 constitute violations of the laws and customs of war as recognised by Article 3 of the Statute. The offences of torture and outrages upon personal dignity, including rape, are prohibited under international humanitarian law as distinct offences for all
armed conflicts, whether international or internal, and can be charged under Article 3 of the Statute".
The Prosecution first stated that "the international humanitarian law violations of torture and outrages upon personal dignity, including rape, are prohibited under common Article 3 of the Geneva Conventions. The Appeals Chamber has held that violations of common Article 3 may be prosecuted under Article 3 of the Statute. Moreover, "[…] the prohibitions contained
in common Article 3 […] are applicable under customary law to all conflicts, whether international or internal".
Related to the offence of rape, the Prosecutor considered that "[it] is prohibited for both international conflicts […] and internal conflicts […]. These prohibitions are recognised as part of international customary law […]. Accordingly, rape is a prosecutable offence under Article 3 during any armed conflict […]".
The Prosecution further expressed the view that "[…] Article 3 cannot be relied upon to prosecute grave breaches, crimes against humanity, or genocide. Article 3, however, permits the prosecution of all other serious violations of international humanitarian law […]". It then asserted that "[…] the alleged violations in the present case of torture and outrages upon
personal dignity, including rape, which are contained in the prohibitions of common Article 3, may be charged under Article 3 as they have not been charged as grave breaches, crimes against humanity, or genocide".
Consequently, the Prosecutor requested the Trial Chamber to deny the Defence’s motion.