IN THE APPEALS CHAMBER
Before:
Judge Claude Jorda, Presiding
Judge Mohamed Shahabuddeen
Judge Wolfgang Schomburg
Judge Mehmet Güney
Judge Theodor Meron
Registrar:
Mr. Hans Holthuis
Judgement of:
12 June 2002
PROSECUTOR
V
DRAGOLJUB KUNARAC
RADOMIR KOVAC
AND
ZORAN VUKOVIC
_______________________________________
JUDGEMENT
_______________________________________
Counsel for the Prosecutor:
Mr. Anthony Carmona
Ms. Norul Rashid
Ms. Susan Lamb
Ms. Helen Brady
Counsel for the Accused:
Mr. Slavisa Prodanovic and Mr. Dejan Savatic for the accused Dragoljub
Kunarac
Mr. Momir Kolesar and Mr. Vladimir Rajic for the accused Radomir Kovac
Mr. Goran Jovanovic and Ms. Jelena Lopicic for the accused Zoran Vukovic
The Appeals Chamber of the International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International Humanitarian Law
Committed in the Territory of the Former Yugoslavia since 1991 is seised of
appeals against the Trial Judgement rendered by Trial Chamber II on 22 February
2001 in the case of Prosecutor v Dragoljub Kunarac, Radomir Kovac
and Zoran Vukovic.
Having considered the written and oral submissions of the parties, the Appeals
Chamber
HEREBY RENDERS ITS JUDGEMENT.
INTRODUCTION
A. Findings
- The Appeals Chamber endorses the following findings of the Trial Chamber
in general.
- From April 1992 until at least February 1993, there was an armed conflict
between Bosnian Serbs and Bosnian Muslims in the area of Foca. Non-Serb civilians
were killed, raped or otherwise abused as a direct result of the armed conflict.
The Appellants, in their capacity as soldiers, took an active part in carrying
out military tasks during the armed conflict, fighting on behalf of one of
the parties to that conflict, namely, the Bosnian Serb side, whereas none
of the victims of the crimes of which the Appellants were convicted took any
part in the hostilities.
- The armed conflict involved a systematic attack by the Bosnian Serb Army
and paramilitary groups on the non-Serb civilian population in the wider area
of the municipality of Foca. The campaign was successful in its aim of “cleansing”
the Foca area of non-Serbs. One specific target of the attack was Muslim women,
who were detained in intolerably unhygienic conditions in places like the
Kalinovik School, Foca High School and the Partizan Sports Hall, where they
were mistreated in many ways, including being raped repeatedly. The Appellants
were aware of the military conflict in the Foca region. They also knew that
a systematic attack against the non-Serb civilian population was taking place
and that their criminal conduct was part of this attack.
- The Appeals Chamber now turns to the findings of the Trial Chamber in relation
to each individual Appellant.
1. Dragoljub Kunarac
- Dragoljub Kunarac was born on 15 May 1960 in Foca. The Trial Chamber found
that, during the relevant period, Kunarac was the leader of a reconnaissance
unit which formed part of the local Foca Tactical Group. Kunarac was a well-informed
soldier with access to the highest military command in the area and was responsible
for collecting information about the enemy.1 In
rejecting Kunarac’s alibi for certain specific periods, the Trial Chamber
found him guilty on eleven counts for crimes under Articles 3 and 5 of the
Statute, violations of the laws or customs of war (torture and rape) and crimes
against humanity (torture, rape and enslavement).2
The Trial Chamber found the following to have been established beyond reasonable
doubt.3
- As to Counts 1 to 4 (crimes against humanity (torture and rape) and violations
of the laws or customs of war (torture and rape)), Kunarac, sometime towards
the end of July 1992, took FWS-75 and D.B. to his headquarters at Ulica Osmana
Djikica no 16, where Kunarac raped D.B. and aided and abetted the gang-rape
of FWS-75 by several of his soldiers. On 2 August 1992, Kunarac took FWS-87,
FWS-75, FWS-50 and D.B. to Ulica Osmana Djikica no 16, where he raped FWS-87
and aided and abetted the torture and rapes of FWS-87, FWS-75 and FWS-50 at
the hands of other soldiers. Furthermore, between 20 July and 2 August 1992,
Kunarac transferred FWS-95 from the Partizan Sports Hall to Ulica Osmana Djikica
no 16, where he raped her.4
- With regard to Counts 9 and 10 (crime against humanity (rape) and violation
of the laws or customs of war (rape)), Kunarac took FWS-87 to a room on the
upper floor of Karaman's house in Miljevina, where he forced her to have sexual
intercourse with him, in the knowledge that she did not consent.5
- As to Counts 11 and 12 (violations of the laws or customs of war (torture
and rape)), Kunarac, together with two other soldiers, took FWS-183 to the
banks of the Cehotina river in Foca near Velecevo one evening in mid-July
1992. Once there , Kunarac threatened to kill FWS-183 and her son while he
tried to obtain information or a confession from FWS-183 concerning her alleged
sending of messages to the Muslim forces and information about the whereabouts
of her valuables. On that occasion , Kunarac raped FWS-183.6
- Finally, with regard to Counts 18 to 20 (crimes against humanity (enslavement
and rape) and violation of the laws or customs of war (rape)), on 2 August
1992, Kunarac raped FWS-191 and aided and abetted the rape of FWS-186 by the
soldier DP 6 in an abandoned house in Trnovace. FWS-186 and FWS-191 were
kept in the Trnovace house for a period of about six months, during which
time Kunarac visited the house occasionally and raped FWS-191. While FWS-191
and FWS-186 were kept at the Trnovace house, Kunarac and DP 6 deprived the
women of any control over their lives and treated them as their property.
Kunarac established these living conditions for FWS-191 and FWS-186 in concert
with DP 6, and both Kunarac and DP 6 personally committed the act of enslavement.
By assisting in setting up the conditions at the house, Kunarac also aided
and abetted DP 6 with respect to his enslavement of FWS-186.7
- The Trial Chamber sentenced Kunarac to a single sentence of 28 years’ imprisonment
.
2. Radomir Kovac
- Radomir Kovac was born on 31 March 1961 in Foca. The Trial Chamber found
that Kovac fought on the Bosnian Serb side during the armed conflict in the
Foca region and was a member of a military unit formerly known as the “Dragan
Nikolic unit” and led by DP 2. The Trial Chamber found Kovac guilty on four
counts for crimes under Articles 3 and 5 of the Statute (violations of the
laws or customs of war (rape and outrages upon personal dignity) and crimes
against humanity (rape and enslavement)). The Trial Chamber found the following
to have been proven beyond reasonable doubt.8
- As general background, the Trial Chamber held that, on or about 30 October
1992, FWS-75, FWS-87, A.S. and A.B. were transferred to Kovac’s apartment
in the Lepa Brena building block, where a man named Jagos Kostic also lived.
While kept in the apartment, these girls were raped, humiliated and degraded.
They were required to take care of the household chores, the cooking and the
cleaning and could not leave the apartment without Kovac or Kostic accompanying
them. Kovac completely neglected the girls’ diet and hygiene.
- As to Count 22 (crime against humanity (enslavement)), FWS-75 and A.B.
were detained in Kovac’s apartment for about a week, starting sometime at
the end of October or early November 1992, while FWS-87 and A.S. were held
for a period of about four months. Kovac imprisoned the four girls and exercised
his de facto power of ownership as it pleased him. It was Kovac’s intention
to treat FWS -75, FWS-87, A.S. and A.B. as his property.
- With regard to Counts 23 and 24 (crime against humanity (rape) and violation
of the laws or customs of war (rape)), throughout their detention, FWS-75
and A. B. were raped by Kovac and by other soldiers. During the period that
FWS-87 and A.S. were kept in Kovac’s apartment, Kovac raped FWS-87, while
Kostic raped A.S..
- Kovac had sexual intercourse with FWS-75, FWS-87 and A.B. in the knowledge
that they did not consent and he substantially assisted other soldiers in
raping those girls and A.S.. He did this by allowing other soldiers to visit
or stay in his apartment and to rape the girls or by encouraging the soldiers
to do so, and by handing the girls over to other men in the knowledge that
they would rape them .
- As to Count 25 (violation of the laws or customs of war (outrages upon
personal dignity)), whilst kept in Kovac’s apartment, FWS-75, FWS-87, A.S.
and A.B. were constantly humiliated and degraded. On an unknown date between
about 31 October 1992 and about 7 November 1992, Kovac forced FWS-87, A.S.
and A.B. to dance naked on a table while he watched them. The Trial Chamber
found that Kovac knew that this was a painful and humiliating experience for
the three girls, particularly because of their young age.
- In December 1992, Kovac sold A.B. to a man called “Dragec” for 200 deutschmarks
and handed FWS-75 over to DP 1 and Dragan “Zelja” Zelenovic. On or about 25
February 1993, Kovac sold FWS-87 and A.S. for 500 deutschmarks each to some
Montenegrin soldiers . The Trial Chamber found that the sales of the girls
constituted a particularly degrading attack on their dignity.
- The Trial Chamber sentenced Kovac to a single sentence of 20 years’ imprisonment
.
3. Zoran Vukovic
- Zoran Vukovic was born on 6 September 1955 in Brusna, a village in the
municipality of Foca. The Trial Chamber found that, during the armed conflict,
Vukovic was a member of the Bosnian Serb forces fighting against the Bosnian
Muslim forces in the Foca region. Vukovic was a member of the same military
unit as the Appellant Kovac. The Trial Chamber found Vukovic guilty on four
counts for crimes under Articles 3 and 5 of the Statute (violations of the
laws or customs of war (torture and rape ) and crimes against humanity (torture
and rape)). The Trial Chamber found the following to have been established
beyond reasonable doubt.
- With regard to Vukovic’s defence in relation to exculpatory evidence, there
was no reasonable possibility that any damage to Vukovic’s testis or scrotum
rendered him impotent during the time material to the charges against him.
Accordingly, the suggestion that Vukovic was unable to have sexual intercourse
at the relevant time was rejected.
- As to Counts 33 to 36 (crimes against humanity (torture and rape) and violations
of the laws or customs of war (torture and rape)), sometime in mid-July 1992,
Vukovic and another soldier took FWS-50 from the Partizan Sports Hall to an
apartment near Partizan where Vukovic raped her. Vukovic had full knowledge
that FWS-50 was only 15 years old and did not consent when he forced her to
have sexual intercourse with him.9
- The Trial Chamber sentenced Vukovic to a single sentence of 12 years’ imprisonment
.
B. Appeal
- All of the Appellants are now appealing from their convictions and from
the sentences imposed by the Trial Chamber. The Appeals Chamber has identified
certain grounds of appeal that are common to two or all three of the Appellants.
These common grounds are dealt with in sections III-VII of the Judgement.
Where there are separate grounds of appeal relating to one of the Appellants,
these are addressed in individual sections of the Judgement.
- Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic have five common grounds
of appeal. They allege errors by the Trial Chamber 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 Appeals Chamber now turns to the individual grounds of appeal of each
Appellant against his convictions and sentence.
1. Dragoljub Kunarac
(a) Convictions
- The Appellant Kunarac appeals from his convictions on five separate grounds
. He alleges errors by the Trial Chamber with respect to: (i) its rejection
of his alibi defence; (ii) its evaluation of evidence and findings relating
to Counts 1 to 4; (iii) its findings in relation to Counts 9 and 10; (iv)
its evaluation of the evidence and its reliance on the testimony of certain
witnesses in relation to Counts 11 and 12; and (v) its findings relating to
Counts 18 to 20.
(b) Sentencing
- The Appellant Kunarac appeals from his sentence on five separate grounds.
He alleges that the Trial Chamber: (i) should have pronounced an individual
sentence for each criminal offence for which he was convicted, in accordance
with the Rules ; (ii) erred in imposing a sentence which exceeded the maximum
possible sentence prescribed by the sentencing practice in the former Yugoslavia;
(iii) failed to assess properly various aggravating factors; (iv) erred in
overlooking certain mitigating factors; and (v) was ambiguous in its application
of Rule 101 of the Rules with respect to credit for time served.
2. Radomir Kovac
(a) Convictions
- The Appellant Kovac appeals from his convictions on eight separate grounds.
He alleges errors by the Trial Chamber with respect to: (i) its reliance on
certain identification evidence; (ii) its findings relating to the conditions
in his apartment ; (iii) its findings relating to offences committed against
FWS-75 and A.B.; (iv ) its findings relating to offences committed against
FWS-87 and A.S.; (v) its findings relating to outrages upon personal dignity;
(vi) its finding that he sold FWS-87 and A.S.; (vii) its findings as regards
force used in the commission of the crime of rape; and (viii) his cumulative
convictions for both rape and outrages upon personal dignity under Article
3 of the Statute.
(b) Sentencing
- The Appellant Kovac appeals from his sentence on five separate grounds.
He alleges that the Trial Chamber: (i) prejudiced his rights through its retroactive
application of Rule 101 of the Rules; (ii) erred in disregarding the sentencing
practice in the former Yugoslavia; (iii) failed to assess properly various
aggravating factors; (iv) erred in overlooking certain mitigating factors;
and (v) would infringe his rights if it did not allow credit for time served.
3. Zoran Vukovic
(a) Convictions
- The Appellant Vukovic appeals from his convictions on four separate grounds
. He alleges errors by the Trial Chamber with respect to: (i) alleged omissions
in Indictment IT-96-23/1; (ii) its acceptance of the unreliable evidence of
FWS- 50 as a basis upon which to find him guilty of the charges of her rape
and torture ; (iii) its acceptance of certain identification evidence; and
(iv) its rejection of his exculpatory evidence relating to the rape of FWS-50.
(b) Sentencing
- The Appellant Vukovic appeals from his sentence on five separate grounds.
He alleges that the Trial Chamber: (i) erred in its retroactive application
of Rule 101 of the Rules; (ii) erred in disregarding the sentencing practice
in the former Yugoslavia; (iii) failed to assess properly various aggravating
factors; (iv) erred in overlooking certain mitigating factors; and (v) was
not clear as to whether there would be credit for time served.
C. Findings of the Appeals Chamber
1. Convictions
- The Appeals Chamber finds that it is unable to discern any error in the
Trial Chamber’s assessment of the evidence or its findings in relation to
any of the grounds of appeal set out above. Therefore, the Appeals Chamber
dismisses the appeals of each of the Appellants on their convictions, as well
as all common grounds of appeal .
2. Sentencing
- The Appeals Chamber finds that the Trial Chamber should have considered
the family situations of the Appellants Kunarac and Vukovic as mitigating
factors. However, the Appeals Chamber finds that these errors are not weighty
enough to vary the sentences imposed by the Trial Chamber. The Appeals Chamber
rejects the other grounds of appeal against sentence of the Appellants Kunarac
and Vukovic and all those of the Appellant Kovac, on the basis that the Trial
Chamber came to reasonable conclusions and that no discernible errors have
been identified.
- For the reasons given in the parts of the Judgement that follow, the Appeals
Chamber has decided in terms of the disposition set out in section XII below.
II. STANDARD OF REVIEW
- Article 25 of the Statute sets out the circumstances in which a party may
appeal from a decision of the Trial Chamber. The party invoking a specific
ground of appeal must identify an alleged error within the scope of this provision,
which states:
1. The Appeals Chamber shall hear appeals from persons convicted by the
Trial Chambers or from the Prosecutor on the following grounds:
(a) an error on a question of law invalidating the decision; or
(b) an error of fact which has occasioned a miscarriage of justice […]
- The overall standard of review was summarised as follows by the Appeals
Chamber in the Kupreskic Appeal Judgement:10
As has been held by the Appeals Chamber on numerous occasions,
an appeal is not an opportunity for the parties to reargue their cases.
It does not involve a trial de novo. On appeal, parties must limit
their arguments to matters that fall within the scope of Article 25 of the
Statute. The general rule is that the Appeals Chamber will not entertain
arguments that do not allege legal errors invalidating the judgement, or
factual errors occasioning a miscarriage of justice, apart from the exceptional
situation where a party has raised a legal issue that is of general significance
to the Tribunal’s jurisprudence. Only in such a rare case may the Appeals
Chamber consider it appropriate to make an exception to the general rule.
- The Statute and settled jurisprudence of the Tribunal provide different
standards of review with respect to errors of law and errors of fact.
- Where a party contends that a Trial Chamber has made an error of law, the
Appeals Chamber, as the final arbiter of the law of the Tribunal, must determine
whether such an error of substantive or procedural law was in fact made. However,
the Appeals Chamber is empowered only to reverse or revise a Trial Chamber’s
decision when there is an error of law “invalidating the decision”. Therefore,
not every error of law leads to a reversal or revision of a decision of a
Trial Chamber.
- Similarly, only errors of fact which have “occasioned a miscarriage of
justice ” will result in the Appeals Chamber overturning the Trial Chamber’s
decision.11 The appealing party alleging an error
of fact must, therefore, demonstrate precisely not only the alleged error
of fact but also that the error caused a miscarriage of justice,12
which has been defined as “[a] grossly unfair outcome in judicial proceedings,
as when a defendant is convicted despite a lack of evidence on an essential
element of the crime.”13 The responsibility for
the findings of facts and the evaluation of evidence resides primarily with
the Trial Chamber. As the Appeals Chamber in the Kupreskic Appeal
Judgement held:14
Pursuant to the jurisprudence of the Tribunal, the task
of hearing, assessing and weighing the evidence presented at trial is left
primarily to the Trial Chamber. Thus, the Appeals Chamber must give a margin
of deference to a finding of fact reached by a Trial Chamber. Only where
the evidence relied on by the Trial Chamber could not have been accepted
by any reasonable tribunal of fact or where the evaluation of the evidence
is “wholly erroneous” may the Appeals Chamber substitute its own finding
for that of the Trial Chamber. It must be borne in mind that two judges
, both acting reasonably, can come to different conclusions on the basis
of the same evidence.
- In the Kupreskic Appeal Judgement it was further held that:15
The reason that the Appeals Chamber will not lightly disturb
findings of fact by a Trial Chamber is well known. The Trial Chamber has
the advantage of observing witnesses in person and so is better positioned
than the Appeals Chamber to assess the reliability and credibility of the
evidence. Accordingly, it is primarily for the Trial Chamber to determine
whether a witness is credible and to decide which witness’ testimony to
prefer, without necessarily articulating every step of the reasoning in
reaching a decision on these points.
- Pursuant to Article 23(2) of the Statute, the Trial Chamber has an obligation
to set out a reasoned opinion. In the Furundzija Appeal Judgement,
the Appeals Chamber held that Article 23 of the Statute gives the right of
an accused to a reasoned opinion as one of the elements of the fair trial
requirement embodied in Articles 20 and 21 of the Statute. This element, inter
alia, enables a useful exercise of the right of appeal available to the
person convicted.16 Additionally, only a reasoned
opinion allows the Appeals Chamber to understand and review the findings of
the Trial Chamber as well as its evaluation of evidence.
- The rationale of a judgement of the Appeals Chamber must be clearly
explained. There is a significant difference from the standard of reasoning
before a Trial Chamber. Article 25 of the Statute does not require the Appeals
Chamber to provide a reasoned opinion such as that required of the Trial Chamber.
Only Rule 117(B) of the Rules calls for a “reasoned opinion in writing.” The
purpose of a reasoned opinion under Rule 117(B) of the Rules is not to provide
access to all the deliberations of the Appeals Chamber in order to enable
a review of its ultimate findings and conclusions. The Appeals Chamber must
indicate with sufficient clarity the grounds on which a decision has been
based.17 However, this obligation cannot be understood
as requiring a detailed response to every argument.18
- As set out in Article 25 of the Statute, the Appeals Chamber’s mandate
cannot be effectively and efficiently carried out without focused contributions
by the parties.19 In a primarily adversarial
system,20 like that of the International Tribunal,
the deciding body considers its case on the basis of the arguments advanced
by the parties. It thus falls to the parties appearing before the Appeals
Chamber to present their case clearly, logically and exhaustively so that
the Appeals Chamber may fulfil its mandate in an efficient and expeditious
manner. One cannot expect the Appeals Chamber to give detailed consideration
to submissions of the parties if they are obscure, contradictory, vague, or
if they suffer from other formal and obvious insufficiencies.21
Nonetheless , the Appeals Chamber has the obligation to ensure that the accused
receives a fair trial.22
- An appellant must therefore clearly set out his grounds of appeal as well
as the arguments in support of each ground. Furthermore, depending on the
finding challenged, he must set out the arguments supporting the contention
that the alleged error has invalidated the decision or occasioned a miscarriage
of justice. Moreover , the appellant must provide the Appeals Chamber with
exact references to the parts of the records on appeal invoked in its support.
The Appeals Chamber must be given references to paragraphs in judgements,
transcript pages, exhibits or other authorities , indicating precisely the
date and exhibit page number or paragraph number of the text to which reference
is made.
- Similarly, the respondent must clearly and exhaustively set out the arguments
in support of its contentions. The obligation to provide the Appeals Chamber
with exact references to all records on appeal applies equally to the respondent.
Also , the respondent must prepare the appeal proceedings in such a way as
to enable the Appeals Chamber to decide the issue before it in principle without
searching , for example, for supporting material or authorities.
- In the light of the aforementioned settled jurisprudence, the procedural
consequence of Article 25(1)(b) of the Statute is that the Appeals Chamber
ought to consider in writing only those challenges to the findings of facts
which demonstrate a possible error of fact resulting in a miscarriage of justice.
The Appeals Chamber will in general, therefore, address only those issues
for which the aforementioned prerequisites have been demonstrated precisely.
- Consonant with the settled practice, the Appeals Chamber exercises its
inherent discretion in selecting which submissions of the parties merit a
“reasoned opinion ” in writing. The Appeals Chamber cannot be expected to
provide comprehensive reasoned opinions on evidently unfounded submissions.
Only this approach allows the Appeals Chamber to concentrate on the core issues
of an appeal.
- In principle, therefore, the Appeals Chamber will dismiss, without providing
detailed reasons, those Appellants’ submissions in the briefs or the replies
or presented orally during the Appeal Hearing which are evidently unfounded.
Objections will be dismissed without detailed reasoning where:
1. the argument of the appellant is clearly irrelevant;
2. it is evident that a reasonable trier of fact could have come to the
conclusion challenged by the appellant; or
3. the appellant’s argument unacceptably seeks to substitute his own evaluation
of the evidence for that of the Trial Chamber. 23
III. COMMON GROUNDS OF APPEAL RELATING TO ARTICLE 3 OF THE STATUTE
A. Submissions of the Parties
1. The Appellants
- The Appellants’ first contention in respect of Article 3 of the Statute
is that the Trial Chamber erred in establishing that there was an armed conflict
in two municipalities bordering the municipality of Foca, namely, the municipalities
of Gacko and Kalinovik.24 The Appellants concede
that there was an armed conflict in the area of Foca at the relevant time
, that they knew about it and that all three actively participated in carrying
out military tasks as soldiers of the army of the Republika Srpska.25
The Appellants submit, however, that no evidence was adduced before the Trial
Chamber which would demonstrate that such an armed conflict was taking place
in the municipalities of Gacko and Kalinovik at the relevant time and that,
when they attempted to show the Trial Chamber that no armed conflict existed
in those municipalities, they were prevented from presenting the matter.26
As a result, the Appellants claim, they regarded this issue as being outside
the scope of matters being litigated between the parties.27
The Appellants submit that this was crucial, because, under Article 3 of the
Statute , an armed conflict must exist in the location where the crime has
allegedly been committed.28
- Secondly, the Appellants argue that, even if the allegations against them
were established, their acts were not sufficiently connected to the armed
conflict to be regarded, for the purpose of Article 3 of the Statute, as being
“closely related to the armed conflict.”29 According
to the Appellants, this requirement implies that the crimes could not have
been committed but for the existence of an armed conflict, and this must be
established in respect of every crime with which they were charged.30
The Appellants contend that it is not sufficient that there was an armed conflict
, that they took part therein as soldiers and that the alleged victims were
civilians .31
- Finally, the Appellants claim that Article 3 of the Statute is only concerned
with a limited set of protected interests, namely, “the property and proper
use of permitted weapons”, and only protects the rights of warring parties
as opposed to the rights and interests of private individuals.32
Furthermore, the Appellants contend that this Article of the Statute does
not encompass violations of Common article 3 of the Geneva Conventions.33
2. The Respondent
- The Respondent argues that the Trial Chamber correctly held that it was
sufficient that an armed conflict occurred at the time and place relevant
to the Indictments and that it is immaterial whether the armed conflict existed
only in Foca or whether it extended throughout the neighbouring municipalities
of Gacko and Kalinovik.34 The Respondent points
out that, in any case, a state of armed conflict existed throughout Bosnia
and Herzegovina at the time, and that the Appellants conceded before trial
that an armed conflict existed in the area of Foca.35
Once it is established that there is an armed conflict, the Respondent asserts,
international humanitarian law applies to the entire territory under the control
of a party to the conflict, whether or not fighting takes place at a certain
location , and it continues to apply beyond the cessation of hostilities up
until the general conclusion of peace.36 The
Respondent also points out that the municipalities of Gacko and Kalinovik
are contiguous and neighbouring to that of Foca, and that the stipulation
made between the parties refers to the area of Foca, not merely to its municipality.37
The Respondent adds that no suggestion was made during trial that the geographical
scope of the armed conflict was not envisaged by both parties to extend to
all three municipalities and that an objection to that effect is raised for
the first time in this appeal.38
- The Respondent submits that the Trial Chamber’s conclusion in respect of
the required link between the acts of the accused and the armed conflict was
irreproachable . The Respondent argues that such close nexus could be established,
as was done by the Trial Chamber, by demonstrating that the crimes were closely
related to the armed conflict as a whole.39 The
Respondent argues that the test propounded by the Appellants is unacceptable
and wholly unsupported by any practice.40 It
is unacceptable, the Respondent claims, because each and every crime capable
of being committed outside of a wartime context would be excluded from the
realm of Article 3 of the Statute and it would render Common article 3 of
the Geneva Conventions completely inoperative.41
- Finally, the Respondent submits that the scope of Article 3 of the Statute
is much broader than the Appellants are suggesting.42
The Respondent asserts that the Appeals Chamber in the Tadic Jurisdiction
Decision held that Article 3 of the Statute is a residual clause covering
all violations of international humanitarian law not falling under Articles
2, 4 or 5 of the Statute, including offences against a person. The Respondent
also refers to the finding of the Appeals Chamber in the Celebici case,
in which it was decided that violations of Common article 3 of the Geneva
Conventions are within the realm of Article 3 of the Statute.43
B. Discussion
1. The Existence of an Armed Conflict and Nexus therewith
- There are two general conditions for the applicability of Article 3 of
the Statute: first, there must be an armed conflict; second, the acts of the
accused must be closely related to the armed conflict.44
- 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”.45
- There is no necessary correlation between the area where the actual fighting
is taking place and the geographical reach of the laws of war. The laws of
war apply in the whole territory of the warring states 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 continue
to apply until a general conclusion of peace or, in the case of internal armed
conflicts, until a peaceful settlement is achieved.46
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. As indicated by
the Trial Chamber, 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.47
It would be sufficient , for instance, for the purpose of this requirement,
that the alleged crimes were closely related to hostilities occurring in other
parts of the territories controlled by the parties to the conflict.48
- What ultimately distinguishes a war crime from a purely domestic offence
is that a war crime is shaped by or dependent upon the environment – the armed
conflict – in which it is committed. It need not have been planned or supported
by some form of policy . The armed conflict need not have been causal to the
commission of the crime, but 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. Hence, if it can be established, as in
the present case, that the perpetrator acted in furtherance of or under the
guise of the armed conflict, it would be sufficient to conclude that his acts
were closely related to the armed conflict. The Trial Chamber’s finding on
that point is unimpeachable.
- In determining whether or not the act in question is sufficiently related
to the armed conflict, the Trial Chamber may take into account, inter alia,
the following factors: 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.
- The Appellants’ proposition that the laws of war only prohibit those acts
which are specific to an actual wartime situation is not right. The laws of
war may frequently encompass acts which, though they are not committed in
the theatre of conflict, are substantially related to it. The laws of war
can apply to both types of acts . The Appeals Chamber understands the Appellants’
argument to be that if an act can be prosecuted in peacetime, it cannot be
prosecuted in wartime. This betrays a misconception about the relationship
between the laws of war and the laws regulating a peacetime situation. The
laws of war do not necessarily displace the laws regulating a peacetime situation;
the former may add elements requisite to the protection which needs to be
afforded to victims in a wartime situation.
- Concerning 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 makes the following remarks: 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.49 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 appeal.50
Likewise, a party should not be permitted to raise an issue which 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.
- In the present instance, the Appellants raised the question of the existence
of an armed conflict in the municipalities of Gacko and Kalinovik for the
first time in their Defence Final Trial Brief without substantiating their
argument, thereby depriving the Prosecutor of her ability to fully litigate
the issue.51 The Appeals Chamber finds this to
be unacceptable. If, as the Appellants suggest , the issue was of such importance
to their case, the Appellants should have raised it at an earlier stage, thus
giving fair notice to the Prosecutor and allowing her to fully and properly
litigate the matter in the course of which she could put this issue to her
witnesses. This the Appellants failed to do. This ground of appeal could be
rejected for that reason alone.
- In addition, and contrary to what is alleged by the Appellants, the Appeals
Chamber finds that the Appellants were never prevented by the Trial Chamber
from raising any issue relevant to their case. In support of their argument
on that point, the Appellants refer to an incident which occurred on 4 May
2000. According to the Appellants, on that day, the Trial Chamber prevented
them from raising issues pertaining to the existence of an armed conflict
in the municipalities of Gacko and Kalinovik.52
It is clear from the record of the trial that the Appellants did not attempt
to challenge the existence of an armed conflict in Gacko and Kalinovik as
they alleged in their appeal, nor that they were in any way prevented from
asking questions about that issue in the course of the trial. 53
- Finally, the Appellants conceded that there was an armed conflict “in the
area of Foca” at the relevant time and that they knew about that conflict
and took part therein.54 Referring to that armed
conflict, the Appellants later said that it existed only in the territory
of the “[m]unicipality of Foca”.55 The Appeals
Chamber notes that the municipalities of Gacko and Kalinovik are contiguous
and neighbouring municipalities of Foca. Furthermore, the Appeals Chamber
considers that the Prosecutor did not have to prove that there was an armed
conflict in each and every square inch of the general area. 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. The
Appeals Chamber finds that ample evidence was adduced before the Trial Chamber
to demonstrate that an armed conflict was taking place in the municipalities
of Gacko and Kalinovik at the relevant time.56
The Trial Chamber did not err in concluding that an armed conflict existed
in all three municipalities, nor did it err in concluding that the acts of
the Appellants were closely related to this armed conflict.57
- The Trial Chamber was therefore correct in finding that there was an armed
conflict at the time and place relevant to the Indictments, and that the acts
of the Appellants were closely related to that conflict pursuant to Article
3 of the Statute. The Appeals Chamber does not accept the Appellants’ contention
that the laws of war are limited to those acts which could only be committed
in actual combat . Instead, it is sufficient for an act to be shown to have
been closely related to the armed conflict, as the Trial Chamber correctly
found. This part of the Appellants’ common grounds of appeal therefore fails.
2. Material Scope of Article 3 of the Statute and Common Article 3
of the Geneva Conventions
- Four conditions must be fulfilled before an offence may be prosecuted under
Article 3 of the Statute:58 (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.
- 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. As was once noted, the laws of war
“are not static , but by continual adaptation follow the needs of a changing
world”.59 There is no question that acts such
as rape (as explained in paragraph 195), torture and outrages upon personal
dignity are prohibited and regarded as criminal under the laws of war and
that they were already regarded as such at the time relevant to these Indictments.
- Article 3 of the Statute is a general and residual clause covering all
serious violations of international humanitarian law not falling under Articles
2, 4 or 5 of the Statute.60 It includes, inter
alia, serious violations of Common article 3. This provision is indeed
regarded as being part of customary international law,61
and serious violations thereof would at once satisfy the four requirements
mentioned above.62
- For the reasons given above, the Appeals Chamber does not accept the Appellants’
unsupported assertion that Article 3 of the Statute is restricted in such
a way as to be limited 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 only concerned with the rights of warring parties as opposed
to the protection of private individuals. This does not represent the state
of the law. Accordingly, this part of the Appellants’ common grounds of appeal
relating to Article 3 of the Statute is rejected.
- All three aspects of the common grounds of appeal relating to Article 3
of the Statute are therefore rejected and the appeal related to that provision
consequently fails.
IV. COMMON GROUNDS OF APPEAL RELATING TO ARTICLE 5 OF THE STATUTE
A. Submissions of the Parties
1. The Appellants
- The Appellants raise a number of complaints in respect of the chapeau
elements of Article 5 of the Statute as established by the Trial Chamber.
First , the Appellants reiterate their contention that their acts, even if
established , were not sufficiently connected to the armed conflict to qualify
as having been “committed in armed conflict” pursuant to Article 5 of the
Statute. The Appellants contend that, pursuant to Article 5 of the Statute,
such a link supposes the need for a substantive nexus to be established between
the acts of an accused and the armed conflict, and for the acts and the conflict
to coincide temporally.63
- Secondly, the Appellants contend that the Trial Chamber erred in establishing
that there was an attack against the non-Serb civilian population of Foca,
as opposed to a purely military confrontation between armed groups, and that,
in coming to its conclusion in that respect, the Trial Chamber took into account
inappropriate or irrelevant factors or erred when assessing the evidence relating
to the alleged attack.64 The Appellants further
claim that the Trial Chamber failed to give due consideration to their argument
concerning what they regard as the Muslims’ responsibility for starting the
conflict and the existence of a Muslim attack upon the Serb population.65
- The third aspect of the Appellants’ ground of appeal in respect of Article
5 of the Statute is the contention that the regrettable consequences which
may have been borne by non-Serb citizens of the municipality of Foca were
not the consequence of an attack directed against the civilian population
as such, but the unfortunate result of a legitimate military operation. In
other words, these were “collateral damages”.66
The Appellants also challenge the Trial Chamber’s conclusion that an attack
may be said to have been “directed against” the non-Serb civilian population
of Foca and, in view of their limited number, contest that the victims identified
by the Trial Chamber may be said to have constituted a “population” pursuant
to Article 5 of the Statute.67
- Fourthly, the Appellants argue that the evidence of crimes committed against
non-Serb civilians, even if accepted, would not be sufficient for the Tribunal
to conclude that the attack was either widespread or systematic.68
In particular, the Appellants claim that the incidents mentioned by the Trial
Chamber are too isolated both in scope and number to amount to a fully fledged
widespread and systematic attack against the civilian population.69
In addition, the Appellants argue that, in law, the attack must be both widespread
and systematic.70
- Finally, in their fifth and sixth complaints, the Appellants claim that
the Trial Chamber erred in concluding that the acts of the Appellants were
linked to the attack of which, they assert, they did not even know.71
The Appellants contend that their acts and activities during the relevant
time were limited to and purely of a military sort and that they did not in
any manner take part in an attack against the civilian population.72
In particular, the Appellants contend that the required nexus between the
acts with which they were charged and the attack requires that there be a
plan or a policy to commit those crimes, as well as knowledge on the part
of the Appellants of that plan or policy and a demonstrated willingness to
participate therein.73 The Appellants underline
the fact that they did not interact during the war, that they were not related
by any common plan or common purpose, and that the Prosecutor failed to establish
that there was any plan to commit sexual crimes against Muslim women.74
2. The Respondent
- The Respondent submits that the requirement contained in Article 5 of the
Statute , that the crimes be “committed in armed conflict”, implies a link
between the acts of the accused and the armed conflict of a different and
lesser sort than that under Article 3 of the Statute.75
According to the Respondent, there is no requirement under Article 5 of the
Statute for a substantial connection between the acts of the Appellants and
the armed conflict ; they must merely co-exist in either a geographical or
temporal sense.76 This requirement is, the Respondent
argues, squarely met in the present case.
- The Respondent further claims that the Appellants’ submission that the
Muslims should be blamed for causing the attack demonstrates a fundamental
misapprehension of the notion of “attack against the civilian population”,
confusing the legitimacy of resort to armed hostilities with the prohibitions
which apply in all types of armed conflicts once under way.77
According to the Respondent, far from being a device for the attribution of
legal responsibility for the outbreak of hostilities, the concept of “attack”
is instead an objective contextual element for crimes against humanity.78
Consequently, the Respondent argues, the issue of which party provoked the
attack and the alleged blameworthiness of the Muslims forces in that respect
is irrelevant .79
- The Respondent also submits that the Trial Chamber was correct in finding
that the notion of “attack against a civilian population” is not negated by
the mere fact that a parallel military campaign against the Muslim armed forces
might have co-existed alongside the attack against the civilian population.80
In addition, concerning the Appellants’ claim that the victims do not constitute
a “population” pursuant to Article 5 of the Statute, the Respondent notes
that there is no legal requirement that the population as a whole be subjected
to the attack , but merely that the crimes be of a collective nature.81
- The Respondent is of the view that the requirements of “widespreadedness”
and “systematicity” apply to the attack and not to the armed conflict or the
acts of the accused, and that these requirements are disjunctive in that either
or both need to be satisfied.82 The systematic
character of an attack may be inferred, the Respondent claims, from the way
in which it was carried out, and from discernible patterns of criminal conduct
such as those identified by the Trial Chamber.83
In the present case, the Respondent submits that the conduct of the Appellants
comprised criminal acts on a very large scale and the repeated and continuous
commission of associated inhumane acts against civilians.84
- In addition, the Respondent contends that the Trial Chamber correctly stated
that the nexus between the acts of the accused and the attack requires proof
that the acts comprised part of a pattern of widespread or systematic crimes
directed against a civilian population.85 Furthermore,
she asserts that, as the Trial Chamber ascertained, the notion of a plan is
arguably not an independent requirement for crimes against humanity. 86
- Finally, concerning the required mens rea for crimes against humanity
, the Respondent first points out that the Appellants adduced no credible
proof to rebut the factual findings of the Trial Chamber that they knew of
the attack and that they were aware that their acts were a part thereof.87
The Respondent further contends that the alleged perpetrator of a crime against
humanity need not approve of a plan to target the civilian population, or
personally desire its outcome.88 According to
the Respondent, it was sufficient for the Trial Chamber to establish that
the Appellants intentionally carried out the prohibited acts within the context
of a widespread or systematic attack against a civilian population, with knowledge
of the context into which these crimes fitted and in full awareness that their
actions would contribute to the attack.89
B. Discussion
1. Nexus with the Armed Conflict under Article 5 of the Statute
- A crime listed in Article 5 of the Statute constitutes a crime against
humanity only when “committed in armed conflict.”
- As pointed out by the Trial Chamber, this requirement is not equivalent
to Article 3 of the Statute’s exigency that the acts be closely related to
the armed conflict.90 As stated by the Trial
Chamber, the requirement contained in Article 5 of the Statute is a purely
jurisdictional prerequisite which is satisfied by proof that there was an
armed conflict and that objectively the acts of the accused are linked geographically
as well as temporally with the armed conflict.91
- The Appeals Chamber agrees with the Trial Chamber’s conclusions that there
was an armed conflict at the time and place relevant to the Indictments and
finds that the Appellants’ challenge to the Trial Chamber’s finding is not
well founded . This part of the Appellants’ common grounds of appeal therefore
fails.
2. Legal Requirement of an “attack”
- In order 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 ”. This phrase has been interpreted by the Trial Chamber, and the
Appeals Chamber agrees, as encompassing five elements:92
(i) There must be an attack.93
(ii) The acts of the perpetrator must be part of the attack.94
(iii) The attack must be directed against any civilian population.95
(iv) The attack must be widespread or systematic.96
(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.97
- The concepts of “attack” and “armed conflict” are not identical.98
As the Appeals Chamber has already noted 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,
although of course under Article 5 of the Statute the attack on 'any civilian
population' may be part of an 'armed conflict'”.99
Under customary international law, the attack could precede, outlast, or continue
during the armed conflict, but it need not be a part of it.100
Also, the attack in the context of a crime against humanity is not limited
to the use of armed force; it encompasses any mistreatment of the civilian
population. The Appeals Chamber recognises, however, that the Tribunal will
only have jurisdiction over the acts of an accused pursuant to Article 5 of
the Statute where the latter are committed “in armed conflict”.
- As noted by the Trial Chamber, when establishing whether there was an attack
upon a particular civilian population, it is not relevant that the other side
also committed atrocities against its opponent’s civilian population.101
The existence of an attack from one side against the other side’s civilian
population would neither justify the attack by that other side against the
civilian population of its opponent nor displace the conclusion that the other
side’s forces were in fact targeting a civilian population as such.102
Each attack against the other’s civilian population would be equally illegitimate
and crimes committed as part of this attack could, all other conditions being
met , amount to crimes against humanity.
- Evidence of an attack by the other party on the accused’s civilian population
may not be introduced unless it tends “to prove or disprove any of the allegations
made in the indictment”,103 notably to refute
the Prosecutor’s contention that there was a widespread or systematic attack
against a civilian population. A submission that the other side is responsible
for starting the hostilities would not, for instance, disprove that there
was an attack against a particular civilian population.104
- The Appeals Chamber is satisfied that the Trial Chamber correctly defined
and interpreted the concept of “attack” and that it properly identified the
elements and factors relevant to the attack. The Appellants have failed to
establish that they were in any way prejudiced by the Trial Chamber’s limitations
on their ability to litigate issues which were irrelevant to the charges against
them and which did not tend to disprove any of the allegations made against
them in the Indictments . All of the Trial Chamber’s legal as well as factual
findings in relation to the attack are unimpeachable and the Appeals Chamber
therefore rejects this part of the Appellants’ common grounds of appeal.
3. The Attack must be Directed against any Civilian Population
- As was correctly stated by the Trial Chamber, the use of the word “population
” does not mean that the entire population of the geographical entity in which
the attack is taking place must have been subjected to that attack.105
It is sufficient to show that enough individuals were targeted in the course
of the attack, or that they were targeted in such a way as to satisfy the
Chamber that the attack was in fact directed against a civilian “population”,
rather than against a limited and randomly selected number of individuals.
- As stated by the Trial Chamber, the expression “directed against” is an
expression which “specifies that in the context of a crime against humanity
the civilian population is the primary object of the attack”.106
In order to determine whether the attack may be said to have been so directed,
the Trial Chamber will consider, 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. To the extent that
the alleged crimes against humanity were committed in the course of an armed
conflict, the laws of war provide a benchmark against which the Chamber may
assess the nature of the attack and the legality of the acts committed in
its midst.
- The Appeals Chamber is satisfied that the Trial Chamber correctly defined
and identified the “population” which was being attacked and that it correctly
interpreted the phrase “directed against” as requiring that the civilian population
which is subjected to the attack must be the primary rather than an incidental
target of the attack. The Appeals Chamber is further satisfied that the Trial
Chamber did not err in concluding that the attack in this case was directed
against the non- Serb civilian population of Foca. This part of the Appellants’
common grounds of appeal is therefore rejected.
4. The Attack must be Widespread or Systematic
- The requirement that the attack be “widespread” or “systematic” comes in
the alternative.107 Once it is convinced that
either requirement is met, the Trial Chamber is not obliged to consider whether
the alternative qualifier is also satisfied. Nor is it the role or responsibility
of the Appeals Chamber to make supplementary findings in that respect.
- As stated by the Trial Chamber, the phrase “widespread” refers to the large
-scale nature of the attack and the number of victims,108
while the phrase “systematic” refers to “the organised nature of the acts
of violence and the improbability of their random occurrence”.109
The Trial Chamber correctly noted that “patterns of crimes – that is the non-accidental
repetition of similar criminal conduct on a regular basis – are a common expression
of such systematic occurrence”.110
- As stated by the Trial Chamber, the assessment of what constitutes a “widespread
” or “systematic” attack is essentially a relative exercise in that it depends
upon the civilian population which, allegedly, was being attacked.111
A Trial Chamber must therefore “first identify the population which is the
object of the attack and, in light of the means, methods, resources and result
of the attack upon the population, ascertain whether the attack was indeed
widespread or systematic ”.112 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, could be taken into account to determine
whether the attack satisfies either or both requirements of a “widespread”
or “systematic” attack vis-à-vis this civilian population.
- As correctly stated by the Trial Chamber, “only the attack, not the individual
acts of the accused, must be widespread or systematic”.113
In addition, the acts of the accused need only be a part of this attack and,
all other conditions being met, a single or relatively limited number of acts
on his or her part would qualify as a crime against humanity, unless those
acts may be said to be isolated or random.
- The Trial Chamber thus correctly found that the attack must be either “widespread
” or “systematic”, that is, that the requirement is disjunctive rather than
cumulative . It also correctly stated that the existence of an attack upon
one side’s civilian population would not disprove or cancel out that side’s
attack upon the other’s civilian population. In relation to the circumstances
of this case, the Appeals Chamber is satisfied that the Trial Chamber did
not err in concluding that the attack against the non-Serb civilian population
of Foca was systematic in character. The Appellants’ arguments on those points
are all rejected and this part of their common grounds of appeal accordingly
fails.
5. The Requirement of a Policy or Plan and Nexus with the Attack
- Contrary to the Appellants’ submissions, neither the attack nor the acts
of the accused needs to be supported by any form of “policy” or “plan”. There
was nothing in the Statute or in customary international law at the time of
the alleged acts which required proof of the existence of a plan or policy
to commit these crimes .114 As indicated above,
proof that the attack was directed against a civilian population and that
it was widespread or systematic, are legal elements of the crime. But to prove
these elements, it is not necessary to show that they were the result of the
existence of a policy or plan. It may be useful in establishing that the attack
was directed against a civilian population and that it was widespread or systematic
(especially the latter ) to show that there was in fact a policy or plan,
but it may be possible to prove these things by reference to other matters.
Thus, the existence of a policy or plan may be evidentially relevant, but
it is not a legal element of the crime.
- The acts of the accused must constitute part of the attack.115
In effect, as properly identified by the Trial Chamber, the required nexus
between the acts of the accused and the attack consists of two elements:116
(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.117
- 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. A
crime which is committed before or after the main attack against the civilian
population or away from it could still, if sufficiently connected, be part
of that attack. The crime must not, however, be an isolated act.118
A crime would be regarded as an “isolated act” when it is so far removed from
that attack that, having considered the context and circumstances in which
it was committed , it cannot reasonably be said to have been part of the attack.119
- The Appeals Chamber is satisfied that the Trial Chamber identified and
applied the proper test for establishing the required nexus between the acts
of the accused and the attack and that the Trial Chamber was correct in concluding
that there is no requirement in the Statute or in customary international
law that crimes against humanity must be supported by a policy or plan to
carry them out. The Appeals Chamber is also satisfied that the acts of the
Appellants were not merely of a military sort as was claimed, but that they
were criminal in kind, and that the Trial Chamber did not err in concluding
that these acts comprised part of the attack against the non-Serb civilian
population of Foca. This part of the Appellants’ common grounds of appeal
therefore fails.
6. Mens rea for Crimes against Humanity
- Concerning the required mens rea for crimes against humanity, the
Trial Chamber correctly held that the accused must have had the intent to
commit the underlying offence or offences with which he is charged, and that
he must have known “that there is an attack on the civilian population and
that his acts comprise part of that attack, or at least Sthat he tookC the
risk that his acts were part of the attack.”120
This requirement, as pointed out by the Trial Chamber, does not entail knowledge
of the details of the attack.121
- For criminal liability pursuant to Article 5 of the Statute, “the motives
of the accused for taking part in the attack are irrelevant and a crime against
humanity may be committed for purely personal reasons.”122
Furthermore, the accused need not share the purpose or goal behind the attack.123
It is also irrelevant whether the accused intended his acts to be directed
against the targeted population or merely against his victim. 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. At most, evidence
that he committed the acts for purely personal reasons could be indicative
of a rebuttable assumption that he was not aware that his acts were part of
that attack.
- The Appellants’ contention that a perpetrator committing crimes against
humanity needs to know about a plan or policy to commit such acts and that
he needs to know of the details of the attack is not well founded. Accordingly,
the Appeals Chamber rejects this part of the common grounds of appeal.
- In conclusion, the Appeals Chamber is satisfied that the Trial Chamber
correctly identified all five elements which constitute the chapeau elements
or general requirements of crimes against humanity under customary international
law, as well as the jurisdictional requirement that the acts be committed
in armed conflict, and that it interpreted and applied these various elements
correctly in the present instance. The Appellants’ common grounds of appeal
relating to Article 5 of the Statute are therefore rejected.
V. GROUNDS OF APPEAL RELATING TO THE TRIAL CHAMBER’S DEFINITION OF
THE OFFENCES
A. Definition of the Crime of Enslavement (Dragoljub Kunarac and
Radomir Kovac)
1. Submissions of the Parties
(a) The Appellants (Kunarac and Kovac)
- The Appellants Kunarac and Kovac contend that the Trial Chamber’s definition
of the crime of enslavement is too broad and does not define clearly the elements
of this crime.124 In particular, the Appellants
believe that a clear distinction should be made “between the notion of enslavement
(slavery) as interpreted in all the legal sources (…) and the detention as
listed in the Indictment”.125 The Appellants
put forward the following alternative elements for the crime of enslavement
.
- First, for a person to be found guilty of the crime of enslavement, it
must be established that the accused treated the victim “as its own ownership”.126
The Appellants contend that the Prosecutor failed to prove that any of the
accused charged with the crime of enslavement behaved in such a way to any
of the victims .
- Secondly, another constitutive element of the crime of enslavement is the
constant and clear lack of consent of the victims during the entire time of
the detention or the transfer.127 The Appellants
submit that this element has not been proven as the victims testified that
they had freedom of movement within and outside the apartment and could therefore
have escaped or attempted to change their situation.128
Similarly, the Appellants contend that the victims were not forced to do household
chores but undertook them willingly.129
- Thirdly, the victim must be enslaved for an indefinite or at least for
a prolonged period of time.130 According to
the Appellants, the time period must “indicate a clear intention to keep the
victim in that situation for an indefinite period of time. Any other shorter
period of time could not support the crime of enslavement”.131
- Lastly, as far as the mental element of the crime of enslavement is concerned
, the Appellants submit that the required mens rea is the intent to
detain the victims under constant control for a prolonged period of time in
order to use them for sexual acts.132 The Appellants
contend that such an intent has not been proven beyond reasonable doubt by
the Prosecutor in respect of any of the Appellants. The Appellant Kovac argues
that such an intent was not proved and did not exist, as he accepted the victims133
in his apartment in order to organise their transfer outside of the theatre
of the armed conflict.134
- The Appellants therefore conclude that the Trial Chamber, by defining enslavement
as the exercise of any or all of the powers attaching to the right of ownership,
has committed an error of law which renders the decision invalid. They further
contend that the Prosecutor has not proved beyond reasonable doubt that the
conduct of the Appellants Kunarac and Kovac satisfied any of the elements
of the crime of enslavement as defined in their submission.135
(b) The Respondent
- The Respondent submits that the Trial Chamber has not committed any error
of law which would invalidate the decision. She contends that the Trial Chamber’s
definition of enslavement correctly reflects customary international law at
the time relevant to the Indictments.136 She
asserts that, even if some treaties have defined the concept of slavery narrowly
, today “enslavement as a crime against humanity must be given a much broader
definition because of its diverse contemporary manifestations”.137
The crime of enslavement is “closely tied to the crime of slavery in terms
of its basic definition (…) but encompasses other contemporary forms of slavery
not contemplated under the 1926 Slavery Convention and similar or subsequent
conventions”.138
- The Respondent further contends that the Trial Chamber correctly identified
the indicia of enslavement to include, among other factors, the absence of
consent or free will of the victims. Such consent is often rendered impossible
or irrelevant by a series of influences such as detention, captivity or psychological
oppression .139 She further submits that this
series of influences rendered the victims “unable to exert [their] freedom
and autonomy ”.140
- In response to the argument put forward by the Appellants that the victim
must be enslaved for an indefinite or at least a prolonged period of time,
the Respondent contends that duration is only one of the many factors that
the Tribunal can look at and that it generally needs to be viewed in the context
of other elements.141
- Lastly, the Respondent submits that the mens rea element identified
by the Trial Chamber is correct and that customary international law does
not require any specific intent to enslave but rather the intent to exercise
a power attaching to the right of ownership.142
2. Discussion
- After a survey of various sources, the Trial Chamber concluded “that, at
the time relevant to the indictment, enslavement as a crime against humanity
in customary international law consisted of the exercise of any or all of
the powers attaching to the right of ownership over a person”.143
It found that “the actus reus of the violation is the exercise of any
or all of the powers attaching to the right of ownership over a person”, and
the “ mens rea of the violation consists in the intentional exercise
of such powers ”.144
- The Appeals Chamber accepts the chief thesis of the Trial Chamber that
the traditional concept of slavery, as defined in the 1926 Slavery Convention
and often referred to as “chattel slavery”,145
has evolved to encompass various contemporary forms of slavery which are also
based on the exercise of any or all of the powers attaching to the right of
ownership. In the case of these various contemporary forms of slavery, the
victim is not subject to the exercise of the more extreme rights of ownership
associated with “chattel slavery”, but in all cases, as a result of the exercise
of any or all of the powers attaching to the right of ownership, there is
some destruction of the juridical personality;146
the destruction is greater in the case of “chattel slavery” but the difference
is one of degree. The Appeals Chamber considers that, at the time relevant
to the alleged crimes, these contemporary forms of slavery formed part of
enslavement as a crime against humanity under customary international law.
- The Appeals Chamber will however observe that the law does not know of
a “right of ownership over a person”.147 Article
1(1) of the 1926 Slavery Convention speaks more guardedly “of a person over
whom any or all of the powers attaching to the right of ownership are exercised.”
That language is to be preferred.
- The Appeals Chamber considers that the question whether a particular phenomenon
is a form of enslavement will depend on the operation of the factors or indicia
of enslavement identified by the Trial Chamber. These factors include the
“control of someone’s movement, control of physical environment, psychological
control, measures taken to prevent or deter escape, force, threat of force
or coercion, duration, assertion of exclusivity, subjection to cruel treatment
and abuse, control of sexuality and forced labour”.148
Consequently , it is not possible exhaustively to enumerate all of the contemporary
forms of slavery which are comprehended in the expansion of the original idea;
this Judgement is limited to the case in hand. In this respect, the Appeals
Chamber would also like to refer to the finding of the Trial Chamber in paragraph
543 of the Trial Judgement stating:
The Prosecutor also submitted that the mere ability to
buy, sell, trade or inherit a person or his or her labours or services could
be a relevant factor. The Trial Chamber considers that the mere ability
to do so is insufficient, such actions actually occurring could be a
relevant factor.
However, this particular aspect of the Trial Chamber’s Judgement not having
been the subject of argument, the Appeals Chamber does not consider it necessary
to determine the point involved.
- In these respects, the Appeals Chamber rejects the Appellants’ contention
that lack of resistance or the absence of a clear and constant lack of consent
during the entire time of the detention can be interpreted as a sign of consent.
Indeed , the Appeals Chamber does not accept the premise that lack of consent
is an element of the crime since, in its view, enslavement flows from claimed
rights of ownership ; accordingly, lack of consent does not have to be proved
by the Prosecutor as an element of the crime. However, 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. In this respect,
the Appeals Chamber considers that circumstances which render it impossible
to express consent may be sufficient to presume the absence of consent. In
the view of the Appeals Chamber, the circumstances in this case were of this
kind.
- The Appellants contend that another element of the crime of enslavement
requires the victims to be enslaved for an indefinite or at least for a prolonged
period of time. The Trial Chamber found that the duration of the detention
is another factor that can be considered but that its importance will depend
on the existence of other indications of enslavement.149
The Appeals Chamber upholds this finding and observes that the duration of
the enslavement is not an element of the crime. The question turns on the
quality of the relationship between the accused and the victim. A number of
factors determine that quality. One of them is the duration of the relationship.
The Appeals Chamber considers that the period of time, which is appropriate,
will depend on the particular circumstances of each case.
- Lastly, as far as the mens rea of the crime of enslavement is concerned
, the Appeals Chamber concurs with the Trial Chamber that the required mens
rea consists of the intentional exercise of a power attaching to the right
of ownership .150 It is not required to prove
that the accused intended to detain the victims under constant control for
a prolonged period of time in order to use them for sexual acts.
- Aside from the foregoing, the Appeals Chamber considers it appropriate
in the circumstances of this case to emphasise the citation by the Trial Chamber
of the following excerpt from the Pohl case: 151
Slavery may exist even without torture. Slaves may be
well fed, well clothed, and comfortably housed, but they are still slaves
if without lawful process they are deprived of their freedom by forceful
restraint. We might eliminate all proof of ill-treatment, overlook the starvation,
beatings, and other barbarous acts, but the admitted fact of slavery - compulsory
uncompensated labour - would still remain . There is no such thing as benevolent
slavery. Involuntary servitude, even if tempered by humane treatment, is
still slavery.
The passage speaks of slavery; it applies equally to enslavement.
- For the foregoing reasons, the Appeals Chamber is of the opinion that the
Trial Chamber’s definition of the crime of enslavement is not too broad and
reflects customary international law at the time when the alleged crimes were
committed. The Appellants’ contentions are therefore rejected; the appeal
relating to the definition of the crime of enslavement fails.
B. Definition of the Crime of Rape
1. Submissions of the Parties
(a) The Appellants
- The Appellants challenge the Trial Chamber’s definition of rape. With negligible
differences in diction, they propose instead definitions requiring, in addition
to penetration, a showing of two additional elements: force or threat of force
and the victim’s “continuous” or “genuine” resistance.152
The Appellant Kovac, for example, contends that the latter requirement provides
notice to the perpetrator that the sexual intercourse is unwelcome. He argues
that “(r(esistance must be real throughout the duration of the sexual intercourse
because otherwise it may be concluded that the alleged victim consented to
the sexual intercourse ”.153
(b) The Respondent
- In contrast, the Respondent dismisses the Appellants’ resistance requirement
and largely accepts the Trial Chamber’s definition. In so doing, however,
the Respondent emphasises an important principle distilled from the Trial
Chamber’s survey of international law: “serious violations of sexual autonomy
are to be penalised”.154 And she further notes
that “force, threats of force, or coercion” nullifies “true consent”.155
2. Discussion
- After an extensive review of the Tribunal’s jurisprudence and domestic
laws from multiple jurisdictions, the Trial Chamber concluded: 156
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.157
- The Appeals Chamber concurs with the Trial Chamber’s definition of rape.
Nonetheless , the Appeals Chamber believes that it is worth emphasising two
points. First, it rejects the Appellants’ “resistance” requirement, an addition
for which they have offered no basis in customary international law. The Appellants’
bald assertion that nothing short of continuous resistance provides adequate
notice to the perpetrator that his attentions are unwanted is wrong on the
law and absurd on the facts.
- Secondly, with regard to the role of force in the definition of rape, the
Appeals Chamber notes that the Trial Chamber appeared to depart from the Tribunal’s
prior definitions of rape.158 However, in explaining
its focus on the absence of consent as the conditio sine qua non of
rape, the Trial Chamber did not disavow the Tribunal’s earlier jurisprudence
, but instead sought to explain the relationship between force and consent.
Force or threat of force provides clear evidence of non-consent, but force
is not an element per se of rape.159
In particular , the Trial Chamber wished to explain that there are “factors
[other than force] which would render an act of sexual penetration non-consensual
or non-voluntary on the part of the victim”.160
A narrow focus on force or threat of force could permit perpetrators to evade
liability for sexual activity to which the other party had not consented by
taking advantage of coercive circumstances without relying on physical force.
- The Appeals Chamber notes, for example, that in some domestic jurisdictions
, neither the use of a weapon nor the physical overpowering of a victim is
necessary to demonstrate force. A threat to retaliate “in the future against
the victim or any other person” is a sufficient indicium of force so
long as “there is a reasonable possibility that the perpetrator will execute
the threat”.161 While it is true that a focus
on one aspect gives a different shading to the offence , it is worth observing
that the circumstances giving rise to the instant appeal and that prevail
in most cases charged as either war crimes or crimes against humanity will
be almost universally coercive. That is to say, true consent will not be possible
.
- Under the chapter entitled “Crimes Against Sexual Self-Determination,”
German substantive law contains a section penalising sexual acts with prisoners
and persons in custody of public authority.162
The absence of consent is not an element of the crime. Increasingly, the state
and national laws of the United States — designed for circumstances far removed
from war contexts — support this line of reasoning. For example, it is a federal
offence for a prison guard to have sex with an inmate, whether or not the
inmate consents. Most states have similar prohibitions in their criminal codes.163
In State of New Jersey v Martin, the Appellate Division of the
New Jersey Superior Court commented on the purpose of such protections: “(the
legislature ( reasonably recognised the unequal positions of power and the
inherent coerciveness of the situation which could not be overcome by evidence
of apparent consent”.164 And, in some jurisdictions,
spurred by revelations of pervasive sexual abuse of women prisoners, sexual
contact between a correctional officer and an inmate is a felony.165
That such jurisdictions have established these strict liability provisions
to protect prisoners who enjoy substantive legal protections, including access
to counsel and the expectation of release after a specified period, highlights
the need to presume non-consent here .
- For the most part, the Appellants in this case were convicted of raping
women held in de facto military headquarters, detention centres and
apartments maintained as soldiers’ residences. As the most egregious aspect
of the conditions , the victims were considered the legitimate sexual prey
of their captors. Typically , the women were raped by more than one perpetrator
and with a regularity that is nearly inconceivable. (Those who initially sought
help or resisted were treated to an extra level of brutality). Such detentions
amount to circumstances that were so coercive as to negate any possibility
of consent.
- In conclusion, the Appeals Chamber agrees with the Trial Chamber’s determination
that the coercive circumstances present in this case made consent to the instant
sexual acts by the Appellants impossible. The Appellants’ grounds of appeal
relating to the definition of the crime of rape therefore fail.
C. Definition of the Crime of Torture (Dragoljub Kunarac and Zoran
Vukovic)
1. Submissions of the Parties
(a) The Appellants (Kunarac and Vukovic)
- Neither Appellant challenges the Trial Chamber’s definition of torture.166
Indeed, the Appellants seem to accept the conclusions of the Trial Chamber
identifying the crime of torture on the basis of three elements, these being
respectively an intentional act, inflicting suffering, and the existence of
a prohibited purpose . Nonetheless, they assert that these three constitutive
elements of the crime of torture have not been proven beyond reasonable doubt
in relation to either Kunarac 167 or Vukovic168
and that their convictions were thus ill-founded.169
- With regard to the first element of the crime of torture, the Appellant
Kunarac contends that he committed no act which could inflict severe physical
or mental pain or suffering and that the arguments raised by the Prosecutor,170
as well as the case-law to which she refers, are not sufficient to justify
the findings of the Trial Chamber that some of Kunarac’s victims experienced
such mental pain or suffering.171 Kunarac states
that he never asserted that rape victims, in general, could not suffer, but
rather that, in the instant case, no witness showed the effects of physical
or mental pain or suffering.172 In Kunarac’s
view , therefore, the first element of the crime of torture – the infliction
of severe pain or suffering – is not met in his case.
- The Appellant Vukovic, referring to paragraph 7.11 of Indictment IT-96-23-/
1, asserts that he was not charged with any act inflicting severe physical
or mental pain or suffering.173 The Appellant
Vukovic further challenges his conviction for torture through rape in the
form of vaginal penetration on the basis that FWS-50, who was allegedly raped
by Vukovic , did not mention the use of force or threats.174
The Appellant appears to conclude from the absence of evidence of the use
of physical force that the alleged rape of FWS-50 could not have resulted
in severe physical pain or suffering on the part of FWS-50.175
The Appellant thus asserts that the first element of the crime of torture
will only be satisfied if there is evidence that the alleged rape resulted
in severe mental pain or suffering on the part of FWS-50.176
In this regard, the Appellant first contends that FWS-50 did not claim to
have been inflicted with severe mental pain or suffering. Secondly, the Appellant
seems to argue that, objectively, FWS-50 would not have experienced severe
mental pain or suffering as a result of the alleged rape, as she had been
raped on previous occasions by other perpetrators. Thirdly, the Appellant
notes that two Defence expert witnesses testified that they did not find that
the victims of the alleged rapes had suffered severe consequences. Finally,
the Appellant states that the Prosecutor failed to prove beyond reasonable
doubt that FWS-50 was inflicted with severe physical or mental pain or suffering.
For these reasons, the Appellant Vukovic contends that the first element of
the crime of torture – the infliction of severe pain or suffering – is not
met in his case and that the Trial Chamber erred in its application of the
law and in finding him guilty of the crime of torture.177
- The Appellants submit that they did not intend to inflict pain or suffering
, rather that their aims were purely sexual in nature.178
The Appellants, therefore, argue that the second element of the crime of torture
– the deliberate nature of the act or omission – has not been proven in either
of their cases.179
- Both Appellants deny having pursued any of the prohibited purposes listed
in the definition of the crime of torture, in particular, the discriminatory
purpose .180 Kunarac further states that he
did not have sexual relations with any of the victims in order to obtain information
or a confession or to punish, intimidate or coerce the victim or a third person,
or to discriminate on any ground whatsoever.181
Vukovic seeks to demonstrate that the Trial Chamber erred when it established
that his acts were committed for a discriminatory purpose because the victim
was Muslim .182 Both Appellants thus conclude
that the third constitutive element of the crime of torture – the pursuance
of a prohibited purpose – was not established in their cases and that the
Trial Chamber erroneously applied the law and committed an error in finding
each guilty of the crime of torture.183
(b) The Respondent
- The Respondent claims that the pain and suffering inflicted on FWS-50 through
the Appellant Vukovic’s sexual acts was established.184
She asserts that, after leaving Foca, FWS-50 went to a physician who noted
physiological and psychological symptoms resulting from rape,185
that she felt the need to go to a psychiatrist,186
and that she testified to having experienced suffering and pain when orally
raped by Vukovic in Buk Bijela.187
- The Respondent asserts that the crime of torture, as defined by customary
international law, does not require that the perpetrator committed the act
in question with the intent to inflict severe physical or mental suffering,
but rather that the perpetrator committed an intentional act for the purpose
of obtaining information or a confession , or to punish, intimidate or coerce
the victim or a third person, or to discriminate on any ground whatsoever,
and that, as a consequence, the victim suffered. There is thus no need to
establish that the Appellants committed such acts with the knowledge or intention
that those acts would cause severe pain or suffering.188
- According to the Respondent and as noted by the Trial Chamber,189
there is no requirement under customary international law for the act of the
perpetrator to be committed solely for one of the prohibited purposes
listed in the definition of torture.190 The
Respondent also claims that the Trial Chamber reasonably concluded that the
Appellant Vukovic intended to discriminate against his victim because she
was Muslim.191 She further submits that, in
this case, all the acts of torture could be considered to be discriminatory,
based on religion, ethnicity or sex.192 Moreover,
all the acts of sexual torture perpetrated on the victims resulted in their
intimidation or humiliation.193
2. Discussion
(a) The Definition of Torture by the Trial Chamber
- With reference to the Torture Convention 194
and the case-law of the Tribunal and the ICTR, the Trial Chamber adopted a
definition based on the following constitutive elements: 195
(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.
- The Trial Chamber undertook a comprehensive study of the crime of torture,
including the definition which other Chambers had previously given,196
and found the Appellant Kunarac197 and the Appellant
Vukovic198 guilty of the crime of torture. The
Trial Chamber did not, however, have recourse to a decision of the Appeals
Chamber rendered seven months earlier199 which
addressed the definition of torture.200
- The Appeals Chamber largely concurs with the Trial Chamber’s definition
but wishes to hold the following.
- First, the Appeals Chamber wishes to provide further clarification as to
the nature of the definition of torture in customary international law as
it appears in the Torture Convention, in particular with regard to the participation
of a public official or any other person acting in a non-private capacity.
Although this point was not raised by the parties, the Appeals Chamber finds
that it is important to address this issue in order that no controversy remains
about this appeal or its consistency with the jurisprudence of the Tribunal.
- The definition of the crime of torture, as set out in the Torture Convention
, may be considered to reflect customary international law.201
The Torture Convention was addressed to States and sought to regulate their
conduct , and it is only for that purpose and to that extent that the Torture
Convention deals with the acts of individuals acting in an official capacity.
Consequently , the requirement set out by the Torture Convention that the
crime of torture be committed by an individual acting in an official capacity
may be considered as a limitation of the engagement of States; they need prosecute
acts of torture only when those acts are committed by “a public official...or
any other person acting in a non-private capacity.” So the Appeals Chamber
in the Furundzija case was correct when it said that the definition
of torture in the Torture Convention , inclusive of the public official requirement,
reflected customary international law.202
- Furthermore, in the Furundzija Trial Judgement, the Trial Chamber
noted that the definition provided in the Torture Convention related to “the
purposes of [the] Convention”.203 The accused
in that case had not acted in a private capacity, but as a member of armed
forces during an armed conflict, and he did not question that the definition
of torture in the Torture Convention reflected customary international law.
In this context , and with the objectives of the Torture Convention in mind,
the Appeals Chamber in the Furundzija case was in a legitimate position
to assert that “at least one of the persons involved in the torture process
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”.204 This assertion, which is tantamount
to a statement that the definition of torture in the Torture Convention reflects
customary international law as far as the obligation of States is concerned,
must be distinguished from an assertion that this definition wholly reflects
customary international law regarding the meaning of the crime of torture
generally.
- The Trial Chamber in the present case was therefore right in taking the
position 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. However, the
Appeals Chamber notes that the Appellants in the present case did not raise
the issue as to whether a person acting in a private capacity could be found
guilty of the crime of torture ; nor did the Trial Chamber have the benefit
of argument on the issue of whether that question was the subject of previous
consideration by the Appeals Chamber.
(b) The Requirement of Pain and Suffering
- Torture is constituted by an act or an omission giving rise to “severe
pain or suffering, whether physical or mental”, but there are no more specific
requirements which allow an exhaustive classification and enumeration of acts
which may constitute torture. Existing case-law has not determined the absolute
degree of pain required for an act to amount to torture.
- The Appeals Chamber holds that the assumption of the Appellants that suffering
must be visible, even long after the commission of the crimes in question,
is erroneous . Generally speaking, some acts establish per se the suffering
of those upon whom they were inflicted. Rape is obviously such an act. The
Trial Chamber could only conclude that such suffering occurred even without
a medical certificate . 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.205
- Severe pain or suffering, as required by the definition of the crime of
torture , can thus be said to be established once rape has been proved, since
the act of rape necessarily implies such pain or suffering.206
The Appeals Chamber thus holds that the severe pain or suffering, whether
physical or mental, of the victims cannot be challenged and that the Trial
Chamber reasonably concluded that that pain or suffering was sufficient to
characterise the acts of the Appellants as acts of torture. The Appellants’
grounds of appeal in this respect are unfounded and, therefore, rejected.
- The argument that the Appellant Vukovic has not been charged with any act
inflicting severe pain or suffering, whether physical or mental, is erroneous
since he is charged , in paragraph 7.11 of Indictment IT-96-23/1, with the
crime of torture arising from rape. Moreover, the fact alleged in the Appeal
Brief, that Indictment IT-96 -23/1 does not refer to the use of physical force,
does not mean that there was none.
(c) Subjective Elements
- The Appellants argue that the intention of the perpetrator was of a sexual
nature, which, in their view, is inconsistent with an intent to commit the
crime of torture.207 In this respect, the Appeals
Chamber wishes to assert the important distinction between “intent” and “motivation”.
The Appeals Chamber holds that, even if the perpetrator’s motivation is entirely
sexual, it does not follow that the perpetrator does not have the intent to
commit an act of torture or that his conduct does not cause severe pain or
suffering , whether physical or mental, since such pain or suffering is a
likely and logical consequence of his conduct. In view of the definition,
it is important to establish whether a perpetrator intended to act in a way
which, in the normal course of events , would cause severe pain or suffering,
whether physical or mental, to his victims . The Appeals Chamber concurs with
the findings of the Trial Chamber 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, in particular the purpose of discrimination.
- The Appellant Kunarac claims that the requisite intent for torture, alleged
by the Prosecutor,208 has not been proven.209
Vukovic also challenges the discriminatory purpose ascribed to his acts.210
The Appeals Chamber finds that the Appellants have not demonstrated why the
conclusions of the Trial Chamber on this point are unreasonable or erroneous.
The Appeals Chamber considers that the Trial Chamber rightly concluded that
the Appellants deliberately committed the acts of which they were accused
and did so with the intent of discriminating against their victims because
they were Muslim. Moreover, the Appeals Chamber notes that in addition to
a discriminatory purpose, the acts were committed against one of the victims
with the purpose of obtaining information.211
The Appeals Chamber further finds that, in any case, all acts were committed
for the purpose of intimidating or coercing the victims.
- Furthermore, in response to the argument that the Appellant’s avowed purpose
of sexual gratification is not listed in the definition of torture, the Appeals
Chamber restates the conclusions of the Trial Chamber212
that acts need not have been perpetrated solely for one of the purposes prohibited
by international law. 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.
- The Appeals Chamber thus finds that the legal conclusions and findings
of the Trial Chamber are well-founded and rejects all grounds of appeal relating
to the crime of torture.
D. Definition of Outrages upon Personal Dignity (Radomir Kovac)
1. Submissions of the Parties
(a) The Appellant (Kovac)
- The Appellant Kovac submits that, since every humiliating or degrading
act is not necessarily an outrage upon personal dignity, the acts likely to
be outrages upon personal dignity must be defined, and he further argues that
the Trial Chamber did not do so.213
- Moreover, the Appellant asserts that to find a person guilty of outrages
upon personal dignity, a specific intent to humiliate or degrade the victim
must be established .214 In his opinion, the
Trial Chamber did not prove beyond any reasonable doubt that he acted with
the intention to humiliate his victims, as his objective was of an exclusively
sexual nature.215
(b) The Respondent
- In response to the Appellant’s claim that the Trial Chamber did not state
which acts constituted outrages upon personal dignity, the Respondent recalls
that the Trial Chamber considered that it had been proved beyond any reasonable
doubt that , during their detention in Kovac’s apartment, the victims were
repeatedly raped , humiliated and degraded.216
That the victims were made to dance naked on a table, that they were “lent”
and sold to other men and that FWS-75 and FWS-87 were raped by Kovac while
he was playing “Swan Lake” were all correctly characterised by the Trial Chamber
as outrages upon personal dignity.
- As to the requirement of specific intent, the Respondent, relying on the
case -law of the Tribunal, asserts that the perpetrator of the crime of outrages
upon personal dignity must only be aware that his act or omission could be
perceived by the victim as humiliating or degrading. The perpetrator need
not know the actual consequences of his act, merely the “possible” consequences
of the act or omission in question. Therefore, the Respondent submits that
the Trial Chamber correctly concluded that it was sufficient that Kovac knew
that his act or omission might have been perceived by his victims as humiliating
or degrading.
2. Discussion
- The Trial Chamber ruled that the crime of outrages upon personal dignity
requires: 217
(i) that the accused intentionally committed or participated in an act
or an omission which would be generally considered to cause serious humiliation,
degradation or otherwise be a serious attack on human dignity, and (ii)
that he knew that the act or omission could have that effect.
(a) Definition of the Acts which may Constitute Outrages upon Personal
Dignity
- Contrary to the claims of the Appellant, the Appeals Chamber considers
that the Trial Chamber was not obliged to define the specific acts which may
constitute outrages upon personal dignity. Instead it properly presented the
criteria which it used as a basis for measuring the humiliating or degrading
character of an act or omission. The Trial Chamber, referring to the Aleksovski
case, stated that the humiliation of the victim must be so intense that
any reasonable person would be outraged.218
In coming to its conclusion, the Trial Chamber did not rely only on the victim’s
purely subjective evaluation of the act to establish whether there had been
an outrage upon personal dignity, but used objective criteria to determine
when an act constitutes a crime of outrages upon personal dignity.
- In explaining that outrages upon personal dignity are constituted by “any
act or omission which would be generally considered to cause serious
humiliation, degradation or otherwise be a serious attack on human dignity”,219
the Trial Chamber correctly defined the objective threshold for an act to
constitute an outrage upon personal dignity. It was not obliged to list the
acts which constitute outrages upon personal dignity. For this reason, this
ground of appeal is dismissed .
(b) Mens rea for the Crime of Outrages upon Personal
Dignity
- According to the Trial Chamber, the crime of outrages upon personal dignity
requires that the accused knew that his act or omission could cause
serious humiliation, degradation or otherwise be a serious attack on human
dignity.220 The Appellant, however, asserts
that this crime requires that the accused knew that his act or omission would
have such an effect.221
- The Trial Chamber carried out a detailed review of the case-law relating
to the mens rea of the crime of outrages upon personal dignity.222
The Trial Chamber was never directly confronted with the specific question
of whether the crime of outrages upon personal dignity requires a specific
intent to humiliate or degrade or otherwise seriously attack human dignity.
However, after reviewing the case-law, the Trial Chamber properly demonstrated
that the crime of outrages upon personal dignity requires only a knowledge
of the “possible” consequences of the charged act or omission. The relevant
paragraph of the Trial Judgement reads as follows: 223
As the relevant act or omission for an outrage upon personal
dignity is an act or omission which would be generally considered to cause
serious humiliation, degradation or otherwise be a serious attack on human
dignity, an accused must know that his act or omission is of that character
– i.e., that it could cause serious humiliation , degradation or affront
to human dignity. This is not the same as requiring that the accused knew
of the actual consequences of the act.
- Since the nature of the acts committed by the Appellant against FWS-75,
FWS -87, A.S. and A.B. undeniably reaches the objective threshold for the
crime of outrages upon personal dignity set out in the Trial Judgement, the
Trial Chamber correctly concluded that any reasonable person would have perceived
his acts “to cause serious humiliation, degradation or otherwise be a serious
attack on human dignity”.224 Therefore, it appears
highly improbable that the Appellant was not, at the very least, aware that
his acts could have such an effect. Consequently this ground of appeal is
rejected.
VI. CUMULATIVE CHARGING
- The Appellants argue that they were inappropriately cumulatively charged.
The Appeals Chamber has consistently rejected this argument and it is not
necessary to rehearse this settled jurisprudence here.225
These grounds of appeal are, hereby, rejected.
VII. CUMULATIVE CONVICTIONS
A. General Principles
- The Appeals Chamber accepts the approach articulated in the Celebici
Appeal Judgement, an approach heavily indebted to the Blockburger
decision of the Supreme Court of the United States.226
The Appeals Chamber held that: 227
fairness to the accused and the consideration that only
distinct crimes justify multiple convictions, lead to the conclusion that
multiple criminal convictions entered under different statutory provisions
but based on the same conduct are permissible only if each statutory provision
involved has a materially distinct element not contained in the other. An
element is materially distinct from another if it requires proof of a fact
not required by the other.
Where this test is not met, the Chamber must decide on
the basis of the principle that the conviction under the more specific provision
should be upheld.
- Care, however, is needed in applying the Celebici test for, as Judges
Hunt and Bennouna observed in their separate and dissenting opinion in the
same case, cumulative convictions create “a very real risk of … prejudice”
to the accused .228 At the very least, such
persons suffer the stigma inherent in being convicted of an additional crime
for the same conduct. In a more tangible sense, there may be such consequences
as losing eligibility for early release under the law of the state enforcing
the sentence.229 Nor is such prejudice cured,
as the U.S. Supreme Court warned in Rutledge v U.S.,230
by the fact that the second conviction’s concomitant sentence is served concurrently.231
On the other hand, multiple convictions serve to describe the full culpability
of a particular accused or provide a complete picture of his criminal conduct.232
- Typically, the issue of multiple convictions or cumulative convictions
arises in legal systems with a hierarchy of offences in which the more serious
offences within a category require proof of an additional element or even
require a specific mens rea. It is, however, an established principle
of both the civil and common law that punishment should not be imposed for
both a greater offence and a lesser included offence. Instead, the more serious
crime subsumes the less serious (lex consumens derogat legi consumptae).
The rationale here, of course, is that the greater and the lesser included
offence constitute the same core offence , without sufficient distinction
between them, even when the same act or transaction violates two distinct
statutory provisions.233 Indeed, it is not possible
to commit the more serious offence without also committing the lesser included
offence.234
- In national laws, this principle is easier to apply because the relative
gravity of a crime can normally be ascertained by the penalty imposed by the
law. The Statute , however, does not provide a scale of penalties for the
various crimes it proscribes . Nor does the Statute give other indications
as to the relative gravity of the crimes. Indeed, the Tribunal has explicitly
rejected a hierarchy of crimes, concluding instead that crimes against humanity
are not inherently graver than war crimes.235
- The Celebici/Blockburger test serves to identify distinct offences
within this constellation of statutory provisions.236
While subscribing to this test, the Appeals Chamber is aware that it is deceptively
simple. In practice, it is difficult to apply in a way that is conceptually
coherent and promotes the interests of justice.
- For this reason, the Appeals Chamber will scrutinise with the greatest
caution multiple or cumulative convictions. In so doing, it will be guided
by the considerations of justice for the accused: the Appeals Chamber will
permit multiple convictions only in cases where the same act or transaction
clearly violates two distinct provisions of the Statute and where each statutory
provision requires proof of an additional fact which the other does not.
- The Appeals Chamber wishes to emphasise that whether the same conduct violates
two distinct statutory provisions is a question of law. Nevertheless, the
Chamber must take into account the entire situation so as to avoid a mechanical
or blind application of its guiding principles.
B. The Instant Convictions
1. Inter-Article Convictions under Articles 3 and 5 of the Statute
- The Appeals Chamber will now consider the argument of the Appellants that
the Trial Chamber erred in convicting them for the same conduct under Articles
3 and 5 of the Statute.
- The Appeals Chamber agrees with the Trial Chamber that convictions for
the same conduct under Article 3 of the Statute (violations of the laws or
customs of war) and Article 5 of the Statute (crimes against humanity) are
permissible and dismisses the appeals on this point.237
Applying the Celebici test, subsequent judgements of the Appeals Chamber
have consistently held that crimes against humanity constitute crimes distinct
from crimes against the laws or customs of war in that each contains an element
that does not appear in the other.238 The Appeals
Chamber sees no reason to depart from this settled jurisprudence.
- As a part of this analysis, the Appeals Chamber reaffirms that the legal
prerequisites describing the circumstances of the relevant offences as stated
in the chapeaux of the relevant Articles of the Statute constitute
elements which enter the calculus of permissibility of cumulative convictions.239
The contrary view would permit anomalous results not intended by the Statute.240
- The Appeals Chamber notes that the permissibility of multiple convictions
ultimately turns on the intentions of the lawmakers.241
The Appeals Chamber believes that the Security Council intended that convictions
for the same conduct constituting distinct offences under several of the Articles
of the Statute be entered. Surely the Security Council, in promulgating the
Statute and listing in it the principal offences against International Humanitarian
Law, did not intend these offences to be mutually exclusive. Rather, the chapeaux
elements disclose the animating desire that all species of such crimes
be adequately described and punished.
2. Intra-Article Convictions under Article 5 of the Statute
(a) Rape and Torture
- The Appeals Chamber will now consider the Appellants’ arguments regarding
intra -Article convictions. The Appellants contend that the Trial Chamber
erred by entering convictions for both torture under Article 5(f) and rape
under Article 5(g) of the Statute on the theory that neither the law nor the
facts can reasonably be interpreted to establish distinct crimes. The Trial
Chamber found that the crimes of rape and torture each contain one materially
distinct element not contained in the other, making convictions under both
crimes permissible.242 As its earlier discussion
of the offences of rape and torture make clear, the Appeals Chamber agrees.
The issue of cumulative convictions hinges on the definitions of distinct
offences under the Statute which are amplified in the jurisprudence of the
Tribunal. That torture and rape each contain a materially distinct element
not contained by the other disposes of this ground of appeal. That is, that
an element of the crime of rape is penetration, whereas an element for the
crime of torture is a prohibited purpose, neither element being found in the
other crime.
- Nonetheless, the Appeals Chamber is bound to ascertain that each conviction
fits the crime on the facts of the case as found by the Trial Chamber.243
The Appellants contend that their object was sexual satisfaction, not infliction
of pain or any other prohibited purpose as defined in the offence of torture.
As has been discussed,244 the Appeals Chamber
does not agree with the Appellants’ limited vision of the crime of torture
. It has rejected the argument that a species of specific intent is required.
- In the Celebici Trial Judgement, the Trial Chamber considered the
issue of torture through rape.245 The Appeals
Chamber overturned the Appellant’s convictions under Article 3 of the Statute
as improperly cumulative in relation to Article 2 of the Statute, but the
Trial Chamber’s extensive analysis of torture and rape remains persuasive.
Grounding its analysis in a thorough survey of the jurisprudence of international
bodies, the Trial Chamber concluded that rape may constitute torture. Both
the Inter-American Commission on Human Rights and the European Court of Human
Rights have found that torture may be committed through rape. And the United
Nations Special Rapporteur on Torture listed forms of sexual assault as methods
of torture.246
- For rape to be categorised as torture, both the elements of rape and the
elements of torture must be present. Summarising the international case-law,
the Trial Chamber in the Celebici case concluded that “rape involves
the infliction of suffering at a requisite level of severity to place it in
the category of torture”.247 By way of illustration,
the Trial Chamber discussed the facts of two central cases , Fernando and
Raquel Mejía v Peru from the Inter-American Commission and Aydin
v Turkey from the European Commission for Human Rights.248
- Mejía v Peru involved the rape of a woman shortly after her
husband was abducted by soldiers. Peruvian soldiers entered the Mejías’ home
and abducted Fernando Mejía.249 One soldier
then re-entered the house, demanded that Raquel Mejía find her husband’s identity
documents , accused her of being a subversive and then raped her.250
The Inter-American Commission held that Mejía’s rape constituted torture.
In analysing the case, the Trial Chamber in the Celebici case observed
that “one must not only look at the physical consequences, but also at the
psychological and social consequences of the rape”.251
- In Aydin v Turkey, the European Commission of Human Rights
considered the case of a woman raped in a police station. Prior to referring
the case to the European Court of Human Rights, the Commission stated: 252
it appears to be the intention that the Convention with
its distinction between “torture” and “inhuman and degrading treatment”
should by the first of these terms attach a special stigma to deliberate
inhuman treatment causing very serious and cruel suffering…
In the Commission’s opinion, the nature of such an act,
which strikes at the heart of the victim’s physical and moral integrity,
must be characterised as particularly cruel and involving acute physical
and psychological suffering. This is aggravated when committed by a person
in authority over the victim. Having regard therefore to the extreme vulnerability
of the applicant and the deliberate infliction on her of serious and cruel
ill-treatment in a coercive and punitive context, the Commission finds that
such ill-treatment must be regarded as torture within the meaning of Article
3 of the Convention.
“Against this background,” the European Court of Human Rights concluded
in its turn, “the Court is satisfied that the accumulation of acts of physical
and mental violence inflicted on the applicant and the especially cruel
act of rape to which she was subjected amounted to torture in breach of
Article 3 of the Convention”.253
- In the circumstances of this case, the Appeals Chamber finds the Appellants’
claim entirely unpersuasive. The physical pain, fear, anguish, uncertainty
and humiliation to which the Appellants repeatedly subjected their victims
elevate their acts to those of torture. These were not isolated instances.
Rather, the deliberate and co-ordinated commission of rapes was carried out
with breathtaking impunity over a long period of time. Nor did the age of
the victims provide any protection from such acts. (Indeed, the Trial Chamber
considered the youth of several of the victims as aggravating factors.) Whether
rousted from their unquiet rest to endure the grim nightly ritual of selection
or passed around in a vicious parody of processing at headquarters, the victims
endured repeated rapes, implicating not only the offence of rape but also
that of torture under Article 5 of the Statute. In the egregious circumstances
of this case, the Appeals Chamber finds that all the elements of rape and
torture are met. The Appeals Chamber rejects, therefore, the appeal on this
point.
(b) Rape and Enslavement
- Equally meritless is the Appellants’ contention that Kunarac’s and Kovac’s
convictions for enslavement under Article 5(c) and rape under Article 5(g)
of the Statute are impermissibly cumulative. That the Appellants also forced
their captives to endure rape as an especially odious form of their domestic
servitude does not merge the two convictions. As the Appeals Chamber has previously
explained in its discussion of enslavement, it finds that enslavement, even
if based on sexual exploitation , is a distinct offence from that of rape.254
The Appeals Chamber, therefore, rejects this ground of appeal.
3. Article 3 of the Statute
(a) Scope of Article 3 of the Statute
- The Appellants argue that Article 3 of the Statute does not apply to their
actions because it is concerned only with battlefield violations (Hague law)
and not with the protection of individual physical security. That Article
3 of the Statute incorporates customary international law, particularly Common
article 3 of the Geneva Conventions, is clear from the discussions on the
Statute in the Security Council on 25 May 1993, and has since then been confirmed
in the consistent jurisprudence of the Tribunal.255
Alone among the Articles of the Statute, Article 3 is illustrative, serving
as a residual clause . It is not necessary to rehearse the arguments here
and, therefore, this ground of appeal is rejected.
(b) Intra-Article Convictions under Article 3 of the Statute
- The Appellants’ argument against convictions for rape and torture are made
also with regard to intra-Article convictions under Article 3 of the Statute.
As with intra-Article convictions for rape and torture under Article 5 of
the Statute , the Appellants argue that in the “absence of described distinct
infliction of physical or mental pain… the infliction of physical or mental
pain is brought down only to the very act of sexual intercourse, without the
consent of the victim” and that the convicted person’s conduct “can not be
deemed to be both the case of a criminal offence of rape and the criminal
offence of torture, because one act excludes the other”.256
- The Appeals Chamber has already explained in the context of intra-Article
5 crimes why, in the circumstances of this case, the rapes and sexual abuse
also amount to torture and that rape and torture each contain an element that
the other does not. This holds true for the present discussion. However, in
the context of cumulative convictions under Article 3 of the Statute, which
imports Common article 3 of the Geneva Conventions, the Appeals Chamber acknowledges
a specific problem, namely that Common article 3 refers to “cruel treatment
and torture” (3(1)(a)), and “outrages upon personal dignity, in particular
humiliating and degrading treatment” (3(1)( c)), but does not refer to rape.
- The Appeals Chamber finds the invocation and the application of Common
article 3, by way of a renvoi through Article 3 of the Statute, entirely
appropriate . The Trial Chamber attempted to ground the rape charges in Common
article 3 by reference to outrages upon personal dignity.257
Although the Appeals Chamber agrees that rape may be charged in this manner,
it notes that grounding the charge in Common article 3 imposes certain limitations
with respect to cumulative convictions. This is because, where it is attempted
to charge rape as an outrage upon personal dignity, the rape is only evidence
of the outrage; the substantial crime is not rape but the outrage occasioned
by the rape. This leaves open the argument that an outrage upon personal dignity
is substantially included in torture, with the consequence that convictions
for both may not be possible . However, as will be shown below, rape was not
in fact charged as an outrage upon personal dignity in this case.
- Where the Trial Chamber (or indeed the Prosecutor) chooses to invoke Common
article 3, it is bound by the text. In other words, each offence must be hanged
, as it were, on its own statutory hook. In the present case, a statutory
hook for rape is absent in Common article 3. The Indictments acknowledge the
absence of an express statutory provision. The Prosecutor charged Kunarac,
for instance , with both torture and rape under Article 3 of the Statute but
the language of the counts diverges:
Count 3: Torture, a VIOLATION OF THE LAWS OR CUSTOMS OF
WAR, punishable under Article 3 of the Statute of the Tribunal and recognised
by Common Article 3(1)(a)(torture) of the Geneva Conventions.
Count 4: Rape, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR,
punishable under Article 3 of the Statute of the Tribunal.
In the case of torture, there is an express statutory provision, while
in the case of rape, there is not.
- Whether rape is considered to constitute torture under Common article 3(1)(
a) or an outrage upon personal dignity under Common article 3(1)(c) depends
on the egregiousness of the conduct. The Appeals Chamber notes that in the
Furundzija Trial Judgement, the Trial Chamber found sexual abuse to
constitute an outrage upon personal dignity under Article 3 of the Statute
(incorporating Common article 3).258 The Trial
Chamber pronounced the accused guilty of one criminal offence, outrages upon
personal dignity, including rape. However, whether one regards rape as an
instrument through which torture is committed (Common article 3(1)(a)) or
one through which outrages upon personal dignity are committed (Common article
3(1)(c)), in either case, a separate conviction for rape is not permitted
under Common article 3, given the absence of a distinct statutory hook for
rape.
- This statutory limitation does not, however, dispose of the matter. As
the Appeals Chamber has noted, the Indictments charged Kunarac and Vukovic
with rape under Article 3 of the Statute without reference to Common article
3. In its discussion of the charges under Article 3 of the Statute, the Trial
Chamber noted that the Prosecutor “submitted that the basis for the rape charges
under Article 3 lies in both treaty and customary international law, including
common Article 3”.259 Notwithstanding its exhaustive
analysis of Common article 3 in connection to the charged offences under Article
3 of the Statute, the Trial Chamber’s disposition makes no mention of Common
article 3.
- Article 3 of the Statute, as the Appeals Chamber has previously observed,
also prohibits other serious violations of customary international law. The
Appeals Chamber in the Tadic Jurisdiction Decision outlined four requirements
to trigger Article 3 of the Statute: 260
(i) the violation must constitute an infringement of a
rule of international humanitarian law; (ii) the rule must be customary
in nature…; (iii) the violation must be ‘serious’ , that is to say, it must
constitute a breach of a rule protecting important values …; (iv) the violation
of the rule must entail, under customary or conventional law , the individual
criminal responsibility of the person breaching the rule.
Therefore, so long as rape is a “serious” war crime under customary international
law entailing “individual criminal responsibility,” separate convictions
for rape under Article 3 of the Statute and torture under that Article,
by reference to Common article 3(1)(a), are not impermissibly cumulative.
- In keeping with the jurisprudence of the Tribunal, the Appeals Chamber
concludes that rape meets these requirements and, therefore, constitutes a
recognised war crime under customary international law, which is punishable
under Article 3 of the Statute.261 The universal
criminalisation of rape in domestic jurisdictions, the explicit prohibitions
contained in the fourth Geneva Convention and in the Additional Protocols
I and II, and the recognition of the seriousness of the offence in the jurisprudence
of international bodies, including the European Commission on Human Rights
and the Inter-American Commission on Human Rights, all lead inexorably to
this conclusion.262
- In summary, under Article 3 of the Statute, a conviction for rape can be
cumulated with a conviction for torture for the same conduct. A question of
cumulativeness assumes the validity of each conviction standing independently;
it asks only whether both convictions may be made where they relate to the
same conduct. The answer to that question will depend on whether each of the
two crimes has a materially distinct element not contained in the other. An
element is materially distinct from another if it requires proof of a fact
not required by the other. Without being exhaustive and as already noted,
an element of the crime of rape is penetration , whereas an element for the
crime of torture is a prohibited purpose, neither element being found in the
other crime. From this, it follows that cumulative convictions for rape and
torture under Article 3 of the Statute are permissible though based on the
same conduct. Furthermore, as already explained in paragraphs 180 to 185 of
this Judgement relating to the question of cumulation in respect of intra-Article
5 crimes, the rapes and sexual abuses amount to torture in the circumstances
of this case. The Appeals Chamber, therefore, dismisses the Appellants’ grounds
of appeal relating to cumulative convictions with regard to the intra-Article
3 convictions .
4. The Appellant Kovac’s Separate Ground of Appeal
- The Appellant Kovac argues that he was impermissibly convicted of both
rape and outrages upon personal dignity under Article 3 of the Statute. The
Appeals Chamber rejects the argument, considering that the Trial Chamber did
not base its convictions on the same conduct.263
- All other grounds of appeal relating to cumulative convictions are rejected
.
VIII. ALLEGED ERRORS OF FACT (DRAGOLJUB KUNARAC)
A. Alibi
1. Submissions of the Parties
(a) The Appellant (Kunarac)
- The Appellant argues that the Trial Chamber erred in not accepting his
alibi presented at trial in connection with the following periods: 7-21 July
1992 (“first period”); 23-26 July 1992 (“second period”); 27 July-1 August
1992 (“third period ”); and 3-8 August 1992 (“fourth period”).
- As to the first and second periods, the Appellant alleges that he was “on
war tasks” in the areas of Cerova Ravan264 and
Jabuka265 respectively. As to the third period,
the Appellant submits that he was first in the area of Dragocevo and Preljuca,
and then, on 31 July, moved to the zone of Rogoj where he stayed until the
evening of 2 August 1992 when, around 10 p.m., he arrived in Velecevo in Foca
.266 Lastly, the Appellant affirms that during
the fourth period he was “on the terrain in [the] zone [of the] Kalinovik-Rogoj
mountain pass”.267
- The Appellant asserts that these submissions are supported by a number
of Defence witnesses, including Vaso Blagojevic,268
Gordan Mastilo, D.J., Radoslav Djurovic and D.E., and that the Trial Chamber
erred in relying exclusively upon the Prosecutor’s witnesses.269
- Lastly, the Appellant adds that the Trial Chamber erred in finding that,
on 2 August 1992, he took several women from Kalinovik and other women, namely
FWS- 75, FWS-87, FWS-50 and D.B., from the Partizan Sports Hall to the house
at Ulica Osmana Djikica no 16.270 The Appellant
asserts that on this day he was at the Rogoj pass.271
(b) The Respondent
- The Respondent submits that the Trial Chamber correctly rejected Kunarac’s
alibi. The Respondent explains that the Trial Chamber carefully evaluated
the evidence , including the testimony of Kunarac’s witnesses and found several
deficiencies therein. She recalls, inter alia, that the Trial Chamber
stressed that Kunarac himself admitted to having had a role in the abduction
of women from the Partizan Sports Hall, although he stated that this happened
on 3 August and not on 2 August 1992. The Respondent concludes that Kunarac’s
submissions concerning the Trial Chamber’s assessment of his alibi are unfounded
and therefore should be rejected.
2. Discussion
- At the outset, the Appeals Chamber observes that the Trial Chamber thoroughly
and comprehensively dealt with the alibi put forward by Kunarac in connection
with the aforementioned periods. The Appeals Chamber considers that the Trial
Chamber conducted a careful analysis of the evidence before it and provided
clearly articulated reasons. The Trial Chamber observed that the alibi did
not cover all the periods alleged in Indictment IT-96-23.272
It further noted that the alibi provided by some Defence witnesses “covered
limited periods: hours, sometimes even a few minutes.”273
With regard to the third period, it found that the only witness providing
evidence for the Defence was the accused himself.274
The Trial Chamber stressed that Kunarac himself conceded that “he took FWS-87,
D .B., FWS-50 and another girl from Partizan Sports Hall”, although he claimed
that this happened on 3 August and not 2 August 1992 as alleged in Indictment
IT-96-23 .275 In light of the above
and even though there were Defence witnesses who claimed to have known Kunarac’s
whereabouts during longer periods of time, the Trial Chamber came to the conclusion
that “there is [not] any reasonable possibility that Dragoljub Kunarac was
away from the places where and when the rapes took place”.276
- The Appeals Chamber considers that by rejecting the alibi, the Trial Chamber
came to a possible conclusion in the sense of one that a reasonable trier
of fact could have come to. On appeal, the Appellant has simply attributed
more credibility and importance to his witnesses than to those of the Prosecutor
and this cannot form the basis of a successful objection.
- In these circumstances, the Appeals Chamber finds no reason to disturb
the findings of the Trial Chamber. Accordingly, this ground of appeal fails.
B. Convictions under Counts 1 to 4
1. Rapes of FWS-75 and D.B.
(a) Submissions of the Parties
(i) The Appellant (Kunarac)
- The Appellant challenges the Trial Chamber’s findings that, at the end
of July 1992, he took FWS-75 and D.B. to the house at Ulica Osmana Djikica
no 16, where he raped D.B. while a group of soldiers raped FWS-75.
- First, the Appellant submits that the conviction against him cannot stand
because of a material discrepancy between the date of the incident as found
by the Trial Chamber (“at the end of July 1992”)277
and the date set out in paragraph 5.3 of Indictment IT-96-23 (“on or around
16 July 1992”). In particular, the Appellant claims that the date set out
in Indictment IT-96-23 is so vague that it cannot be used to test the credibility
of witnesses testifying about this incident.278
He thus challenges the testimony of FWS-75 and D.B. on the basis of inconsistency
as to the dates on which the incidents occurred.279
- With regard to FWS-75, the Appellant argues that the witness contradicted
herself in her testimony at trial. He asserts that FWS-75 initially declared
that she was taken to the house at Ulica Osmana Djikica no 16 by the Appellant,
Gaga and Crnogorac some 5 or 6 days after her arrival at Partizan,280
but subsequently stated that she was not taken there by the Appellant and
raped by him until 15 days after her arrival at Partizan.281
- In relation to D.B., the Appellant recalls that the witness testified that
she was in the house in question on two occasions, the first of which was
several days before the second occasion on 2 August 1992. The Appellant contends
that if, as claimed by D.B., the first rape took place only several days before
2 August 1992, that rape could not have occurred on 16 July 1992 or “around
that date”, as claimed by the Prosecutor.282
Furthermore , based on D.B.’s statement to FWS-75 that she was at Ulica Osmana
Djikica no 16 on two occasions and was not raped on the first of those occasions
in July 1992, the Appellant argues that D.B. could only have been raped during
her second stay in the house in August 1992. However, if D.B. was raped in
August, the incident ascribed to the Appellant under paragraph 5.3 of Indictment
IT-96-23 must be the same as that described at paragraph 5.4 of that Indictment,
which did indeed occur in August 1992. In this regard, the Appellant recalls
that in his first interview he admitted to having had sexual intercourse with
D.B. on 3 August 1992.283
- Secondly, the Appellant argues that the Trial Chamber erred in finding
that he possessed the requisite mens rea in relation to the rape of
D.B.. The Appellant concedes that he had sexual intercourse with D.B. but
denies being aware that D.B.’s consent was vitiated because of Gaga’s threats,284
and stresses that D.B. initiated the sexual contact with him and not vice
versa , because, until that moment, he had no interest in having sexual
intercourse with her.285 Further, the Appellant
alleges that the Trial Chamber erred in reaching the conclusion that he had
committed the crimes with a discriminatory intent solely on the basis of the
testimony of a single witness stating that, when he raped women, the Appellant
told them that they would give birth to Serb babies or that they should “enjoy
being fucked by a Serb”.286
(ii)The Respondent
- The Respondent rejects the Appellant’s argument concerning the discrepancy
between the date of the rape of FWS-75 in Indictment IT-96-23 and the date
identified by the Trial Chamber. She contends that minor differences in time
are irrelevant because the specific incident referred to in the relevant Indictment
was proved and could not be mistaken for another incident on another date.
Indeed, the incident described in paragraph 5.3 of the said Indictment relates
to two victims and cannot be confused with that at paragraph 5.4 of the same
Indictment, which relates to four victims.287
- As to any inconsistencies between FWS-75’s statement and her testimony,
the Respondent submits that the Appellant has failed to establish that the
alleged inconsistencies were so grave that no reasonable Trial Chamber could
have relied on FWS-75’s evidence .288
In the Respondent’s view, the Trial Chamber correctly determined that any
discrepancies were explained by the fact that FWS-75 was referring to events
which had occurred 8 years before.289
Analogously, the Respondent contends that the Trial Chamber’s finding that
the Appellant was aware that D.B. did not freely consent to the sexual intercourse
was entirely reasonable due to the condition of captivity in which she was
held.290 The Respondent notes that the
Appellant himself admitted to having had intercourse with D.B. and recalls,
inter alia, the Appellant saying at trial: “I tried to pacify her,
to convince her [that there was] no reason to be frightened”.291
- Finally, the Respondent recalls FWS-183’s testimony that while a soldier
was raping her after she had just been raped by the Appellant, “…he - Zaga
(the Appellant ( was saying that I would have a son and that I would not know
whose it was, but the most important thing was it would be a Serb child”.292
The Respondent submits that the evidence provides a firm basis for the Trial
Chamber’s finding that the Appellant committed crimes for a discriminatory
purpose.
(b) Discussion
- At the outset, the Appeals Chamber identifies the two core components of
the Appellant’s argument as follows. First, that there was a failure on the
part of the Trial Chamber to indicate the precise dates of the rapes of FWS-75
and D.B., which impacts upon the credibility of those witnesses. Secondly,
that the Prosecutor did not prove beyond reasonable doubt that the Appellant
raped D.B., because the Appellant was not aware that D.B. had not consented
to the sexual intercourse. These contentions will be dealt with in turn.
- With respect to the dates of the rapes of FWS-75 and D.B., the Trial Chamber
found, on the basis of the consistent testimony provided by the victims, that
the rapes occurred at the end of July 1992 and not in mid-July 1992 as stated
in Indictment IT-96-23. The Trial Chamber was also satisfied that these events
were proved beyond reasonable doubt and that they were consistent with the
description provided at paragraph 5.3 of Indictment IT-96-23. It found some
support for this conclusion , inter alia, in the Appellant’s own admission
to having had sexual intercourse with D.B., made in his statement to the Prosecutor
of March 1998 and admitted into evidence as Ex P67.293
- The Appeals Chamber finds that the Trial Chamber’s evaluation of the evidence
and its findings on these points are reasonable. While the Trial Chamber did
not indicate the specific day on which the crimes occurred, it did mention
with sufficient precision the relevant period. Moreover, in the view of the
Appeals Chamber, minor discrepancies between the dates in the Trial Judgement
and those in the Indictment in this case go to prove the difficulty, in the
absence of documentary evidence, of reconstructing events several years after
they occurred and not, as implied by the Appellant, that the events charged
in Indictment IT-96-23 did not occur. This is all the more so in light of
the weight that must be attached to eyewitness testimony and to the partial
admissions of the Appellant.
- Turning now to the issue of D.B.’s consent, the Trial Chamber found that,
given the circumstances of D.B.’s captivity in Partizan, regardless of whether
he knew of the threats by Gaga, the Appellant could not have assumed that
D.B. was consenting to sexual intercourse. Analogously, the Trial Chamber
correctly inferred that the Appellant had a discriminatory intent on the basis,
inter alia, of the evidence of FWS-183 regarding comments made by the
Appellant during the rapes in which he was involved. Although caution must
be exercised when drawing inferences, after having carefully reflected and
balanced the details and arguments of the parties , the Appeals Chamber considers
these inferences reasonable. The special circumstances and the ethnic selection
of victims support the Trial Chamber’s conclusions. For these reasons, this
part of the grounds of appeal must fail.
2. Rape of FWS-95
(a) Submissions of the Parties
(i) The Appellant (Kunarac)
- The Appellant submits that the Trial Chamber erred in convicting him for
the rape of FWS-95 on the basis of the testimony provided by FWS-95 and FWS-105.
- First, the Appellant claims that the Trial Chamber erred in relying on
FWS- 95’s identification of him at trial. In this regard, the Appellant recalls
that , in a statement rendered on 9-12 February 1996, FWS-95 described him
as a man with a beard and moustache, as did FWS-105 in her statement of the
same period. However , according to the Appellant, he never had a beard or
moustache. The Appellant then submits that, in a statement given on 25-26
April 1998, FWS-95 was unable to describe him. Nor was she able to recognise
him from a photo-spread presented by the Prosecutor at trial. The Appellant
asserts that the in-court identification by FWS-95 is vitiated by the fact
that when both he and FWS-95 were in the courtroom , the Presiding Judge of
the Trial Chamber called the Appellant’s name to ascertain that he could follow
the proceedings, thereby de facto identifying him.
- Secondly, the Appellant contends that, since the Trial Chamber found that
FWS -95’s evidence with regard to the second of the two rapes lacked credibility,
it should likewise have rejected her evidence as to the first rape. In support
of this assertion, the Appellant claims that in her first statement to the
Prosecutor’s investigators in 1996, FWS-95 did not mention his name despite
stating that some soldiers had raped her. The Appellant also observes that
there is no evidence, other than her testimony, to prove that it was he who
raped FWS-95.
(ii) The Respondent
- The Respondent argues that the Appellant’s arguments do not meet the requisite
threshold for review. As stated in the Celebici Appeal Judgement, the
Appellant must prove that the “evidence could not reasonably have been accepted
by any reasonable person [and] that the Trial Chamber’s evaluation was wholly
erroneous”.294 The Prosecutor notes that the
Trial Chamber considered the discrepancies between FWS-95’s prior statement
and her testimony in court as minor and accepted that they could be explained
by the psychological trauma suffered by the witness.295
The Prosecutor recalls that the Trial Chamber did not give any positive probative
value to in-court identification and adds that FWS-95 clarified her evidence
during her testimony before the Trial Chamber.296
The Trial Chamber accepted the position that FWS-95 had not recognised the
Appellant in the photo-spreads because they were of poor quality, and that
inconsistencies in FWS-95’s description of the Appellant arose from the simple
fact that the soldiers were not shaved at the time the rapes took place.297
The Respondent contends that these findings by the Trial Chamber were reasonable
and should be confirmed by the Appeals Chamber.
(b) Discussion
- In view of the submissions tendered by the Appellant on this ground of
appeal , the issue before the Appeals Chamber is that of determining whether
or not the Trial Chamber erred in relying on the evidence provided by FWS-95.
- As to the inconsistencies in FWS-95’s testimony, the Trial Chamber held
that : 298
The Trial Chamber does not regard the various discrepancies
between the pre-trial statements dated 25-26 April 1998, Ex D40, of FWS-95
and her testimony in court, to which attention was drawn, as grave enough
to discredit the evidence that she was raped by Dragoljub Kunarac during
the incident in question.
Furthermore, the Trial Chamber stated that:299
In particular, the Trial Chamber is satisfied of the truthfulness
and completeness of the testimony of FWS-95 as to the rape by Kunarac because,
apart from all noted minor inconsistencies, FWS-95 always testified clearly
and without any hesitation that she had been raped by the accused Kunarac.
- The Trial Chamber was well aware of the inconsistencies in FWS-95’s various
declarations, but this did not prevent it from relying upon her testimony,
in light of the manner in which she gave it before the Trial Chamber. The
Appeals Chamber does not have the Trial Chamber’s advantage of observing FWS-95
when she testified . It was, however, within the discretion of the Trial Chamber
to rely upon the evidence provided at trial by FWS-95 and to reject the Defence’s
complaint about alleged inconsistencies. Further, in the circumstances of
this case, the Appeals Chamber does not see any reason for disturbing the
Trial Chamber’s findings as to the alleged inconsistencies. These were dealt
with at trial and, as correctly held by the Trial Chamber, do not appear so
grave as to undermine FWS-95’s testimony.
- With regard to the issue of identification, although the Trial Chamber
unnecessarily stated that: “FWS-95 was able to identify Kunarac in the courtroom….”300
in the Trial Judgement, it also asserted that: “StChe Trial Chamber has not
relied upon the identification made in court” of Kunarac by FWS-95.301
Moreover, the Trial Chamber explained that: 302
Because all of the circumstances of a trial necessarily
lead such a witness to identify the person on trial (or, where more than
one person is on trial, the particular person on trial who most closely
resembles the man who committed the offence charged ), no positive probative
weight has been given by the Trial Chamber to these “in court” identifications.
- Accordingly, the Trial Chamber accepted FWS-95’s identification on the
basis of a witness testimony and not on the basis of an in-court identification.
Indeed , the Trial Chamber held that: “The identification of Dragoljub Kunarac
by FWS-95 is supported by evidence provided by FWS-105”.303
For this reason, the Appellant’s allegation appears misplaced.
- The Appellant was charged only with taking FWS-95 to Ulica Osmana Dikica
no 16, where she was raped by other soldiers. The Appellant was acquitted
on the charge contained in Indictment IT-96-23, because FWS-95 “was not able
to say who took her out of Partizan on this occasion”. 304
Therefore, contrary to what was alleged by the Appellant, the Trial
Chamber did not call the credibility of FWS-95 into question. Additionally,
it has to be recalled that there is no general rule of evidence which precludes
acceptance in part of the statement of a witness if good cause exists for
this distinction, as was the case here. This being so, the Appellant’s contention
appears unfounded.
- For the foregoing reasons, after careful analysis of the development of
FWS -95’s testimony in exhibits and transcripts, the Appeals Chamber finds
no basis upon which to disturb the Trial Chamber’s findings. Accordingly,
this ground of appeal must fail.
C. Convictions under Counts 9 and 10 - Rape of FWS-87
1. Submissions of the Parties
(a) The Appellant (Kunarac)
- The Appellant submits that the Trial Chamber erred in finding that, sometime
in September or October 1992, he went to “Karaman’s house” and raped FWS-87
in a room on the upper floor of that house.
- While conceding that he visited Karaman’s house on either 21 or 22 September
1992, the Appellant claims that he merely spoke to FWS-87 on that occasion,
and that he did not have sexual intercourse with her. In this regard, the
Appellant refers to the testimony given at trial by D.B. who, following a
precise question by the Prosecutor, recalled having seen the Appellant only
once at Karaman’s house , on which occasion he was merely talking with D.B.’s
sister (FWS-87) in the living room.305 The
Appellant adds that it was unacceptable in criminal law for the Trial Chamber
to infer that he would not have been simply talking to FWS-87, but must have
raped her, based only on his alleged “total disregard of Muslim women”.306
- The Appellant notes, inter alia, that FWS-87 did not mention the
Appellant in her first statement given to the Prosecutor’s investigators on
19-20 January 1996, when naming many of those whom she claimed to have raped
her. This was despite the witness’s admission at trial that her memory in
1996 when she gave that first statement was much better than when she gave
her in-court testimony. Only in her second statement of 4-5 May 1998 did FWS-87
declare having been raped by the Appellant , and then only in response to
a leading question by the investigator. The Appellant contends that FWS-87’s
reliability is further called into question due to the fact that, despite
having allegedly been raped by him, she did not remember where he was wounded
or on which part of his body he was wearing a cast.307
(b) The Respondent
- The Respondent agrees with the Trial Chamber’s findings that the inconsistencies
described in the Appellant’s submissions were minor and did not invalidate
the whole of FWS-87’s testimony.308 Further
, the Prosecutor observes that the inconsistencies in FWS-87’s prior statements
relating to the Appellant’s presence at Karaman’s house were resolved by the
Appellant’s own admission that he was at that house on 21 or 22 September
1992.309 The Prosecutor suggests that it was
entirely reasonable for the Trial Chamber to dismiss the Appellant’s claim
that he only talked to FWS-87 as improbable, in light of the Appellant’s total
disregard for Muslim women. The Prosecutor submits that FWS-87’s failure to
recall on which body part the Appellant was wearing a cast can be explained
by both the passage of time and the trauma suffered by the witness.310
2. Discussion
- The Appeals Chamber finds that the discrepancies identified by the Appellant
in the witnesses’ testimony are minor when compared with the consistent statements
made regarding the presence of the Appellant in Karaman’s house, including
the admission of the Appellant himself.311
In the circumstances of this case and in light of FWS-87’s testimony, the
Appeals Chamber considers the Trial Chamber’s inference, that the Appellant
would not have simply talked to FWS-87 at Karaman’s house because of his lack
of respect for Muslims and the fact that he had previously raped FWS-87, as
reasonable.
- With regard to the discrepancy between FWS-87’s statements in 1996 and
1998 , identified by the Appellant, the Appeals Chamber notes that each testimony
complements the other, and that the fact that FWS-87 identified the Appellant
later rather than sooner does not render that identification incredible.
- Finally, as to the uncertainty of FWS-87 regarding whether the Appellant
was wounded and on which part of his body he was wearing a cast, the Appeals
Chamber observes that FWS-87 did declare in her testimony that the Appellant
was wounded , that he was wearing a cast and that “ShCe had something bandaged
up somewhere.”312 While FWS-87 did not remember
the exact position of the cast, this fact cannot be considered sufficient
to place in reasonable doubt the recognition of the Appellant by this witness.
- In view of the foregoing factors, the Appeals Chamber finds no reason to
disturb the Trial Chamber’s findings. Accordingly, this ground of appeal is
rejected.
D. Convictions under Counts 11 and 12 - Rape and Torture of FWS-183
1. Submissions of the Parties
(a) The Appellant (Kunarac)
- The Appellant submits that the Trial Chamber erred in establishing the
facts leading to his conviction for the crimes of torture and rape of FWS-183
in mid-July 1992.
- The Appellant contends that these facts were established on the basis of
testimony given by FWS-183 and FWS-61, which was inconsistent and contradictory
regarding the specific time when the incident occurred.313
The Appellant claims, in particular, that there is a discrepancy
in that FWS-183 stated that the incident charged in Indictment IT-96-23 occurred
in the middle of July 1992, while FWS-61 declared that it occurred “5 or 6
days” before her departure from Foca on 13 August 1992. The Appellant asserts
that the Trial Chamber incorrectly took the view that it was not necessary
to prove the exact date on which the crimes occurred given that there was
evidence to establish the essence of the incident pleaded,314
and that this approach prejudiced the Appellant’s defence of alibi.315
- Furthermore, the Appellant submits that FWS-61’s contradictory statements
discredit her identification of him. FWS-61 stated in her testimony at trial
that she had never known the Appellant (referred to in the Kunarac Appeal
Brief as Zaga ) prior to his arrival at the house where she was staying with
FWS-183.316 In addition, FWS-61 declared to
the Prosecutor’s investigators that she had identified the Appellant upon
his arrival because a soldier called Tadic had told her that a group of soldiers
would come to FWS-61’s house led by the Appellant. However, at trial FWS-61
admitted that Tadic did not indicate to her which one of the three soldiers
was the Appellant, and that she identified him only because of the respect
shown towards him by the other soldiers.317
- Lastly, the Appellant recalls that, although FWS-61 claimed that FWS-183
told her everything of what happened to her, FWS-61 only testified that soldiers
forced FWS-183 to touch them on certain parts of their bodies and not that
they raped FWS -183, as held by the Trial Chamber. In the view of the Appellant,
this fact goes to prove that FWS-183 was not raped.
(b) The Respondent
- The Respondent points out that the Trial Chamber addressed the alleged
inconsistencies as to the dates when events occurred, and established the
general proposition that minor inconsistencies do not invalidate a witness’s
testimony.318 The Prosecutor stresses that
FWS-183 identified the Appellant as the leader among the men at her apartment
on the basis of the respect shown towards him by the other soldiers and that,
subsequently, FWS-61 confirmed for FWS-183 the identity of the Appellant as
the person in command. Lastly, the Prosecutor considers that the argument
that FWS-183 would have told FWS-61 about everything that had happened to
her is wholly irrelevant, as FWS-183 identified the Appellant as the person
who raped her .319
2. Discussion
- Upon review of the supporting material, the Appeals Chamber finds that
the discrepancies as to the dates of the events do not suggest any specific
error in the evaluation of the evidence by the Trial Chamber. In particular,
the Appeals Chamber notes that FWS-61 testified that the torture and rape
of FWS-183 occurred at the end of July and not in August 1992, whereas FWS-183
declared that it was around 15 July. On this basis, the Trial Chamber reasonably
concluded that the relevant incident occurred in the second part of July.
As to the alibi of the Appellant , the Appeals Chamber has already stated
its grounds for rejecting this defence and will not reiterate those reasons
for each ground of appeal. For the reasons previously stated, the Appeals
Chamber therefore finds that the Trial Chamber did all that was possible and
necessary to establish the date of the crime, which was undoubtedly committed
as described in Indictment IT-96-23, as precisely as possible .
- As to the identification of the Appellant, the Appeals Chamber considers
that it was perfectly reasonable for the Trial Chamber to rely upon the testimony
of FWS-183 and FWS-61. Although the Trial Chamber did not dwell on this point,
the Appeals Chamber finds it reasonable that, as correctly suggested by the
Prosecutor , FWS-183 could have deduced the identity of the Appellant by talking
to FWS-61, and, contrary to what the Appellant seems to suggest, a “formal
indication” from the soldier Tadic was not needed.
- Finally, as to the Appellant’s contention that the evidence of FWS-61 establishes
that FWS-183 was merely forced to touch soldiers and not raped, the Appeals
Chamber concurs with the Prosecutor that this argument is irrelevant in light
of the convincing nature of the testimony of FWS-183.
- Overall, the Appeals Chamber finds that the Appellant has failed to identify
any specific error by the Trial Chamber and, for the foregoing reasons, this
ground of appeal must fail.
E. Convictions under Counts 18 to 20 - Rapes and Enslavement of
FWS-186 and FWS-191
1. Submissions of the Parties
(a) The Appellant (Kunarac)
- The Appellant submits that the Trial Chamber’s findings that, on 2 August
1992 , he took FWS-191, FWS-186 and J.G. from the house at Ulica Osmana Djikica
no.16 to an abandoned house in Trnovace and that, once there, he raped FWS-191
while the soldier DP 6 raped FWS-186, are “unacceptable”.320
To prove this point, the Appellant challenges the testimony rendered
by FWS-186 and FWS-191.
- As to FWS-186, the Appellant appears to contend that this witness is not
credible because in her first statement, given to the Bosnian government authorities
in November 1993, she did not mention his name.321
The Appellant recalls that FWS-186 stated at trial that this failure to mention
his name was due to her embarrassment about speaking in front of three men,
and was not, as found by the Trial Chamber, an attempt to protect J.G..322
The Appellant further alleges, without providing details, that
pressure was put on FWS-186, because in her second statement to the Bosnian
government authorities she did not confirm that she had been raped.323
- With regard to FWS-191, the Appellant claims that her testimony contradicts
that of other witnesses. He notes that FWS-191 stated that, on the night of
2 August 1992, although she was taken from the Kalinovik School with other
girls, she was alone at Ulica Osmana Dickica no.16. However, FWS-87, FWS-75,
FWS-50 and D.B. testified that they were present at the house as well, and
FWS-87 and FWS-50 testified to having been raped by the Appellant.324
The Appellant also argues that he had no knowledge that FWS-186
and FWS-191 were likely to be raped in Trnovace.325
He merely recalls taking FWS-186 and FWS-191 up to Miljevina with the intention
of confronting a journalist on 3 August 1992. 326
- Furthermore, the Appellant argues that the conclusions of the Trial Chamber
regarding the rapes and enslavement of FWS-191 and FWS-186 during the six
month period at the house in Trnovace are untenable, because both witnesses
were staying there voluntarily.327 As proof
of this fact, the Appellant submits that he had obtained passes which enabled
both FWS-191 and FWS-186 to leave Trnovace to go to Tivat in Montenegro to
stay with his family,328 but that both witnesses
refused to do so.329 Furthermore , the Appellant
submits that both FWS-186 and FWS-191 confirmed that they were free to move
in and around the house and to visit neighbours.
- The Appellant denies that FWS-191 was his personal property. He stresses
that FWS-191 stated at trial that the Appellant protected her from being raped
by a drunken soldier who had offered money to be with her. 330
Furthermore, the Appellant contends that he did not have any role
in keeping FWS -191 at the house in Trnovace because that house was the property
of DP 6.331 He states that FWS-191 had asked
DP 6 if she could stay in the house and that DP 6 had offered her security,332
explaining that if they left the house she and FWS-186 “would be
raped by others”.333
(b) The Respondent
- With regard to the inconsistencies in FWS-186’s and FWS-191’s testimony,
the Prosecutor reiterates that this argument was put at trial and that the
Trial Chamber reasonably concluded that the identification evidence of FWS-186
was credible and that, in any case, the alleged inconsistencies were minor.
- As to the crime of enslavement, the Prosecutor argues that the Trial Chamber
identified a comprehensive range of acts and omissions demonstrating the Appellant’s
exercise of the rights of ownership over FWS-186, thus satisfying the criteria
of enslavement.334 The Prosecutor contends
that the Appellant’s submissions are mere reiterations of his defence arguments
which were rejected at trial, and that the Appellant has not demonstrated
how or why the Trial Chamber’s factual conclusions were erroneous.335
In the view of the Prosecutor, there is no contradiction in the
finding of the Trial Chamber that the Appellant forbade other men to rape
FWS-191. Rather, it submits , this fact indicates a level of control and ownership
consistent with the crime of enslavement.336
2. Discussion
- As regards the alleged inconsistencies, the Trial Chamber relied on the
testimony provided at trial by FWS-186, as confirmed by FWS-191, when coming
to the conclusion that the two witnesses were kept in the Trnovace house for
five to six months. Throughout this period, FWS-186 was raped repeatedly by
DP 6, while FWS-191 was raped by the Appellant during a period of about two
months. The Appellant pointed out some minor differences between the various
statements of FWS-186 but, inter alia, conceded that FWS-186’s failure
to mention the name of the Appellant in her first statement was justified.
These minor discrepancies do not cast any doubt on the testimony and thereby
on the findings of the Trial Chamber. On the contrary , given that discrepancies
may be expected to result from an inability to recall everything in the same
way at different times, such discrepancies could be taken as indicative of
the credibility of the substance of the statements containing them . In light
of these factors, the Appeals Chamber is unable to discern any error in the
assessment of the evidence by the Trial Chamber.
- Lastly, as to the crime of enslavement, the Trial Chamber found that the
women at Trnovace “were not free to go where they wanted to even if, as FWS-191
admitted , they were given the keys to the house at some point”. 337
In coming to this finding, the Trial Chamber accepted that “…the
girls, as described by FWS-191, had nowhere to go, and had no place to hide
from Dragoljub Kunarac and DP 6, even if they had attempted to leave the house….”338
The Appeals Chamber considers that, in light of the circumstances
of the case at bar in which Serb soldiers had exclusive control over the municipality
of Foca and its inhabitants, and of the consistent testimony of the victims,
the findings of the Trial Chamber are entirely reasonable. For the foregoing
reasons, this ground of appeal fails.
F. Conclusion
- For the foregoing reasons, the appeal of the Appellant Kunarac on factual
findings is dismissed.
IX. ALLEGED ERRORS OF FACT (RADOMIR KOVAC)
A. Identification
1. Submissions of the Parties
(a) The Appellant (Kovac)
- The Appellant submits that the Trial Chamber erred in relying on the testimony
of FWS-75 to establish his participation in the fighting that took place in
Mjesaja and Trosanj on 3 July 1992.339 He contends
that there are inconsistencies in the descriptions of him given by FWS- 75
in her statements.340 He adds that poor visibility
on 3 July 1992 and the fact that she did not know him before the conflict
made it difficult for FWS-75 to identify him at the scene, and he suggests
that the witness actually saw his brother.341
The Appellant stresses that he was not involved in the fighting of 3 July
1992, because he was on sick leave from 25 June to 5 July 1992, which was
confirmed by DV and recorded in a log book produced by the Defence.342
(b) The Respondent
- As regards the Appellant’s involvement in the armed conflict, the Respondent
contends that the Trial Chamber was correct in concluding that the Appellant
took an active part in the armed conflict in the municipality of Foca from
as early as 17 April 1992.343
- With respect to the credibility of FWS-75’s evidence identifying the Appellant
, the Respondent submits that the Trial Chamber did not err in accepting this
evidence , because it was unequivocal and based on FWS-75’s detailed description
of the Appellant’s appearance.344 The Respondent
further claims that there is evidence consistent with that of FWS-75345
which establishes that the Appellant was involved in combat activities
around Mjesaja and Trosanj,346 whereas there
is no evidence to support the Appellant’s claim that he was injured and on
military leave at the time in question, as DV’s evidence does not confirm
that claim.347
2. Discussion
- The Appellant’s convictions in this case are based on the acts he committed
on female civilians held in his apartment from about 31 October 1992. He contests
the credibility of FWS-75’s evidence as to his participation in the armed
conflict that broke out on 3 July 1992. The findings of the Trial Chamber
do not indicate that the Appellant was guilty of acts which took place in
the conflict of 3 July 1992. With regard to the Appellant’s convictions, this
ground of appeal has little relevance, except perhaps for the purpose of showing
that the Appellant knew of the context in which his acts against the victims
were committed. For this, however , there is ample other evidence.348
As regards the credibility of FWS-75’s evidence, the Appeals Chamber
concurs with the arguments of the Respondent and incorporates them in this
discussion. This ground of appeal is dismissed.
B. Conditions in Radomir Kovac’s Apartment
1. Submissions of the Parties
(a) The Appellant (Kovac)
- The Appellant contends that the Trial Chamber erred in not evaluating the
evidence as to the manner in which, whilst at his apartment, FWS-75,
FWS-87, A.S. and A.B. were allegedly subjected to rape and degrading and humiliating
treatment , and, at times, slapped and exposed to threats.349
The Appellant argues that FWS-75 was once slapped on her face,
but that this was because he found her drunk and not for other reasons.350
He submits that the girls were sent to his apartment because normal
conditions of life no longer existed in their previous place in Miljevina.351
He also contends that it was not, as the Trial Chamber has found,
proved beyond reasonable doubt that he completely ignored the girls’ diet
and hygiene and that they were sometimes left without food.352
He maintains that the girls had access to the whole apartment,353
that they could watch television and videos,354
that they could cook and eat together with him and Jagos Kostic,355
and that they went to cafés in town.356
(b) The Respondent
- The Respondent argues that it was open to the Trial Chamber, on the basis
of the evidence presented at trial, to conclude that FWS-75, FWS-87, A.S.
and A.B. were detained in the Appellant’s apartment and subjected to assault
and rape.357 The Respondent argues that the
Appellant has failed to specify any error on the part of the Trial Chamber,
but has merely reiterated his defence at trial.358
The Respondent argues that the fact that the Trial Chamber chose to believe
certain witnesses and not others does not in itself amount to an error of
fact.359 Further, the findings of the Trial
Chamber relating to the conditions in the Appellant’s apartment and the mistreatment
of the girls therein render the claim of the Appellant that he acted with
good intentions incredible.360 The Respondent
also points out that the Trial Chamber has found that FWS-75 was slapped on
occasion for refusing sexual intercourse and beaten up for having a drink
.361
2. Discussion
- The Appeals Chamber notes that the Trial Chamber discussed what the Appellant
stated in his defence at trial.362 Further,
the Trial Chamber discussed at length the conditions in the Appellant’s apartment,363
with reference to the specific abuses suffered by the victims.364
The proof accepted by the Trial Chamber describes in detail the
manner in which the lives of the victims unfolded in the Appellant’s apartment
and in which physically humiliating treatment was meted out to them. The Appeals
Chamber considers that the relevant findings of the Trial Chamber were carefully
considered and that the correct conclusions were drawn in the Trial Judgement.
The ground of appeal is obviously ill-founded and is therefore dismissed.
C. Offences Committed against FWS-75 and A.B.
1. Submissions of the Parties
(a) The Appellant (Kovac)
- The Appellant submits that it is necessary to determine with greater precision
the time and place of the offences in order to convict him.365
He questions the credibility of FWS-75’s testimony with regard
to the times when certain incidents occurred and the fact that no other witnesses
corroborated her testimony.366 Further, he
points to discrepancies in her testimony.367
(b) The Respondent
- As regards the alleged need for greater precision, the Respondent argues
that , in view of the traumatic experiences of FWS-75 and A.B.368
and their lack of any reason to notice specific days and the means
to measure the passing days,369 the Trial Chamber
was correct in accepting the range of the approximate dates which the
Prosecution mentioned in Indictment IT-96-23.370
The Respondent claims that it was never her contention that these dates constituted
the precise dates when the events took place.371
Finally, the Respondent contends that an inability to pinpoint
the exact date or dates of events was not detrimental to the credibility of
FWS-75 and A.B.,372 nor did it cause prejudice
to the Appellant.373
- With respect to the credibility of FWS-75, it is the view of the Respondent
that the Trial Chamber was entitled to come to its conclusions in light of
the overwhelming evidence presented by FWS-75, FWS-87 and A.S., which supported
each other in all material aspects.374 In this
regard , the Respondent recalls that A.B. confided in FWS-75 that the Appellant
had raped her,375 and that FWS-87 further testified
that A.B. was obviously affected by the abuse that was inflicted upon her.376
The Respondent adds that FWS-75 was a careful witness who did not
exaggerate.377
2. Discussion
- As to the alleged lack of precision, the Appeals Chamber considers that
the Trial Judgement is not vague as to the main place where the Appellant
committed his crimes against the victims, namely, his apartment. In respect
of the time of the crimes, the Trial Chamber found that FWS-75 and A.B. were
kept in the Appellant’s apartment “for about a week, starting sometime at
the end of October or early November 1992”,378
and FWS-87 and A.S., for about four months from “on or around 31 October 1992”.379
In connection with the abuses of FWS-75 and A.B., the Appellant
was found to have raped them, to have let other soldiers into his apartment
to rape them, and to have handed them over to other soldiers in the knowledge
that they would be raped.380 In relation to
the sufferings of FWS-87 and A.S., the Trial Chamber found that they had been
repeatedly raped during the four-month period.381
Given the continuous or repetitive nature of the offences committed by the
Appellant on the four women under his control, it is only human that the victims
cannot remember the exact time of each incident. In the case of FWS-87 and
A.S., for instance, the Trial Chamber was satisfied that the former was raped
“almost every night” by the Appellant when he spent the night at his apartment
and that the Appellant’s flatmate, Jagos Kostic, “constantly raped A.S.”.382
More reasoning cannot be expected. This first argument fails.
- On the issue of corroborating evidence, the Appeals Chamber reaffirms its
settled jurisprudence that corroboration is not legally required; corroborative
testimony only goes to weight. Subject to this, the Appeals Chamber notes
that the Appellant focused on two incidents in particular. First, FWS-75 and
A.B. were returned to the Appellant’s apartment at a particular time before
they were given away to other soldiers by the Appellant. Second, at that time,
the Appellant was at his apartment .
- The first incident, the Appellant argues, ended with the return of the
victims not earlier than 22 or 23 December 1992. This runs counter to the
finding of the Trial Chamber that the return took place between the first
and second weeks of December 1992. This submission of the Appellant contains
a miscalculation:383 from 16 November 1992,
as suggested by the Appellant, the victims stayed in the apartment near Pod
Masala for about 7 to 10 days, which would put the time in late November 1992,
rather than “at least until December 22, 1992”, as proposed by him .384
This miscalculation also renders pointless the alleged alibi that
he was present in his apartment only till 19 December 1992.
- In addition, the Appeals Chamber accepts and incorporates the Respondent’s
convincing argument in this discussion.
- For the foregoing reasons, the Appeals Chamber dismisses this ground of
appeal .
D. Offences Committed against FWS-87 and A.S.
1. Submissions of the Parties
(a) The Appellant (Kovac)
- The Appellant questions the credibility of FWS-95’s testimony. According
to him, the Trial Chamber ought not to have accepted her testimony because
she was unable to remember the place where the rapes were committed against
her or even some of the perpetrators.385 He
questions the credibility of other witnesses due to their young age and the
fact that they experienced traumatic events.386
He submits that the Trial Chamber erred in rejecting his claim that he was
engaged in a mutual, emotional relationship with FWS-87.387
He raises arguments, which are similar to those he advanced in
relation to the offences committed against FWS-75 and A.B., regarding the
conditions in his apartment , that the victims enjoyed freedom of movement,
that they had sufficient food, and that the hygiene conditions were normal.388
The Appellant argues that the Trial Chamber erred in not requiring
corroborative evidence to be adduced to prove the charges of rape.389
(b) The Respondent
- The Respondent asserts that it was open to the Trial Chamber to accept
the testimony of FWS-95 and other witnesses without admitting defence expert
evidence relating to rape.390 In the view of
the Respondent, the weight, if any, to be attached to the evidence of an expert
is a matter entirely for the trier of fact, and the Appellant has identified
no error on the part of the Trial Chamber.391
- As regards the alleged relationship between the Appellant and FWS-87, the
Respondent contends that it was open to the Trial Chamber to reject this unsubstantiated
claim 392 and to conclude on the basis of the
evidence presented at trial that the above relationship was, in reality, one
of cruel opportunism, abuse and domination.393
- According to the Respondent, the Trial Chamber correctly concluded that
FWS -87 and A.S. could not move about freely.394
In support of this contention, the Respondent highlights the evidence, presented
at trial, that the above witnesses could not leave the locked apartment unless
accompanied by the Appellant and/or his associate Kostic,395
and that on trips to cafés and pubs those witnesses were made to
wear hats and other items bearing the Serb army insignias.396
- With regard to the issue of corroborative evidence, the Respondent argues
that the Trial Chamber acted in accordance with Rule 96 of the Rules in accepting
without corroboration the evidence of FWS-87 and A.S. that sexual assaults
occurred.397
- The Respondent concludes by recalling that an appeal is not a trial de
novo , and that the Appellant has failed to demonstrate that the Trial
Chamber erred in the exercise of its discretion.398
The Respondent states that all the facts disputed by the Appellant were argued
and adjudicated at trial, that no good cause has been shown on appeal to justify
a re -examination of the Trial Chamber’s factual findings, and that the Trial
Chamber has not been shown to have been unreasonable in its evaluation of
the witnesses’ evidence and its factual conclusions.399
2. Discussion
- As to the Appellant’s claim that FWS-95’s testimony was not credible, the
Appeals Chamber states that the Appellant was not found guilty of any act
committed against FWS-95.
- As to the effect of age and the degree of suffering upon the credibility
of the witnesses, the Appeals Chamber notes that the Trial Chamber has clearly
indicated that it was aware of this aspect of the case.400
The Trial Chamber did not lower the threshold of proof below the
standard of beyond reasonable doubt. The Appellant has failed to demonstrate
that the Trial Chamber committed an error of fact in admitting evidence from
traumatised young victims.
- As to the alleged relationship between the Appellant and FWS-87, the Appeals
Chamber refers to the convincing and exhaustive findings in the Trial Judgement
that it “was not one of love as the Defence suggested, but rather one of cruel
opportunism on Kovac’s part, of constant abuses and domination over a girl
who, at the relevant time, was only about 15 years old”.401
- With regard to corroborative evidence, the Appeals Chamber considers that
the Trial Chamber was, in accordance with Rule 96 of the Rules, entitled not
to require corroboration for the testimony of rape victims. The Trial Chamber,
therefore, committed no error in this regard and at the same time was aware
of the inherent problems of a decision based solely on the testimony of the
victims.
- For the foregoing reasons, this ground of appeal is dismissed.
E. Outrages upon Personal Dignity
1. Submissions of the Parties
(a) The Appellant (Kovac)
- The Appellant questions the Trial Chamber’s findings of fact with regard
to the incidents of naked dancing, by arguing that there were several such
incidents and that the witnesses confused them.402
He also points out alleged discrepancies in the evidence with regard to the
time , place (where exactly in the apartment the incidents occurred) and details
of the incidents (the type of table upon which the dances occurred) for which
he was found responsible.403
(b) The Respondent
- As a general proposition, the Respondent contends that it was open to the
Trial Chamber to reach the findings it did in relation to the naked dancing
incident.404 The Respondent specifically submits
that the inconsistencies and discrepancies in the witnesses’ testimony were
not material in the sense that they destroyed the credibility of the witnesses.405
Further, the Respondent claims that the Trial Chamber took those
inconsistencies and discrepancies into account in evaluating the evidence
and reaching its findings .406
2. Discussion
- Revisiting the arguments in detail, the Appeals Chamber accepts and incorporates
the Respondent’s arguments in its discussion of this ground of appeal. The
Appeals Chamber is persuaded that the Trial Chamber made no error in this
respect. This ground of appeal is dismissed.
F. Sale of FWS-87 and A.S.
1. Submissions of the Parties
(a) The Appellant (Kovac)
- The Appellant Kovac argues that the Trial Chamber erred in finding that
a sale occurred, because there were discrepancies in the testimony with regard
to the price of sale,407 and there were contradictions
between FWS-87’s and A.S.’s statements and their testimony at trial.408
He also submits that the sale as described by the Trial Chamber
was highly improbable because of some details of the sale.409
(b) The Respondent
- The Respondent asserts that the Trial Chamber did not err in finding that
the Appellant sold FWS-87 and A.S.. The Respondent submits that the alleged
differences in the testimonies of the above witnesses are insignificant and
have no effect on the credibility of those witnesses.410
The Respondent also argues that the Appellant’s complaints are
trivial and do not provide a sufficient basis for challenging the Trial Chamber’s
findings.411
2. Discussion
- The Appellant has not demonstrated a link between the alleged error and
his convictions. This ground of appeal is dismissed as evidently unfounded.
G. The Rape Convictions
- To the extent that the Appellant tries to demonstrate errors of fact as
regards force used in the commission of the crime of rape, his submissions
are disposed of by the definition of rape endorsed by the Appeals Chamber
in Chapter V, Section B, above.
H. Conclusion
- For the foregoing reasons, the appeal of the Appellant Kovac on factual
findings is dismissed.
X. ALLEGED ERRORS OF FACT (ZORAN VUKOVIC)
A. Alleged Omissions in Indictment IT-96-23/1
1. Submissions of the Parties
(a) The Appellant (Vukovic)
- In the Appellant’s view, the Trial Chamber could not draw any factual conclusions
from the following alleged incidents because none of them was charged in Indictment
IT-96-23/1 or followed by a conviction.412
The Appellant argues that the Trial Chamber erred in using the oral rape of
FWS- 50 in Buk Bijela on 3 July 1992 and FWS-75’s testimony indicating that
on the same day the Appellant led FWS-75’s uncle away covered in blood as
evidence of his involvement in the attack against the civilian population
of Foca.413 Further, the Appellant claims that
the Trial Chamber erred in using FWS-75’s testimony alleging her rape by the
Appellant for the purposes of identification, 414
notwithstanding that no conviction was entered in relation to this incident.415
- The Appellant adds that he learned about these additional alleged incidents
only at trial and therefore did not have an opportunity to prepare his case
to meet the charge.416
(b) The Respondent
- First, the Respondent submits that, once admitted into evidence, the Trial
Chamber was fully entitled to use the testimony of FWS-50 and FWS-75 to prove
the Appellant’s knowledge of the widespread or systematic attack against the
civilian population and for identification purposes. The Respondent claims
that, although she has an obligation to set out the material facts of the
case in sufficient detail , she is not required to plead all of her evidence
in an indictment.417
- Secondly, the Respondent observes that both FWS-50 and FWS-75’s evidence
was disclosed to the Appellant before those witnesses testified418
and that adequate notice was given to the Appellant in the form
of a memorandum prepared by the Prosecutor’s investigators. The Prosecutor
remarks that FWS-50 gave evidence in the examination-in-chief and was cross-examined
by the Appellant , who did not object to the admission of that evidence.419
2. Discussion
- The Trial Chamber found that the Appellant orally raped FWS-50 in Buk Bijela
on 3 July 1992420 and also accepted FWS-75’s
testimony stating that the Appellant on that occasion led her uncle away covered
in blood. These findings were used for the purpose of demonstrating that the
Appellant had knowledge of the attack against the civilian population, one
of the necessary elements for entering a conviction for crimes against humanity.
The Trial Chamber also accepted, for identification purposes, the testimony
of FWS-50 that the Appellant orally raped her in the Appellant Kovac’s apartment.421
- In the Kupreskic Appeal Judgement, the Appeals Chamber made the
following statement with regard to the Prosecutor’s obligation, under Article
18(4) of the Statute and Rule 47(C) of the Rules, to set out in that Indictment
a concise statement of the facts of the case and of the crimes with which
the accused is charged: 422
In the jurisprudence of the Tribunal, this translates
into an obligation on the part of the Prosecution to state the material
facts underpinning the charges in the indictment, but not the evidence by
which such material facts are to be proven . Hence, the question whether
an indictment is pleaded with sufficient particularity is dependent upon
whether it sets out the material facts of the Prosecution case with enough
detail to inform a defendant clearly of the charges against him so that
he may prepare his defence.
- The Appeals Chamber observes that, in the instant case, the testimony of
FWS -50 and FWS-75 did not relate to “material facts underpinning the charges
in the indictment” which must have been pleaded in Indictment IT-96-23/1.
Indeed, the facts established were not used as a basis for conviction but
constituted evidence used to prove material facts pleaded in the Indictment.
Therefore, on the basis of its case-law, the Appeals Chamber considers that
the Trial Chamber did not err in relying upon those facts as evidence.
- Moreover, as to the alleged inability to prepare his defence, the Appeals
Chamber notes that the Appellant has not put forward any discernible error
in the application of the Rules governing disclosure and the handling of evidence
at trial to justify reconsideration of the Trial Chamber’s conclusions.
- For the foregoing reasons, the Appeals Chamber sees no error in the Trial
Chamber’s evaluation of the evidence. This ground of appeal must accordingly
fail.
B. Rape of FWS-50
1. Submissions of the Parties
(a) The Appellant (Vukovic)
- The Appellant submits that the Trial Chamber erred in its evaluation of
FWS -50’s testimony and that, consequently, the charges relating to the rape
and torture of FWS-50 in an apartment in mid-July 1992, alleged in paragraph
7.11 of Indictment IT-96-23/1, were not proven beyond reasonable doubt.
- First, the Appellant notes that FWS-50 made no reference to him423
or to the alleged oral rape at Buk Bijela in her first statement
to the Prosecutor’s investigators,424 and claims
that discrepancies exist between that statement and her testimony at trial.425
In particular, the Appellant points out inconsistencies between
the testimony of FWS-50 and that of FWS-87.426
At trial, FWS-50 testified that, after threatening her mother (FWS-51), the
Appellant and another Serb soldier took her and FWS-87 from Partizan Sports
Hall to an abandoned apartment, where the Appellant raped her.427
For her part, FWS-87 denied being taken out of Partizan Sports
Hall with FWS-50. Further, FWS-87 testified to having seen the Appellant “only
twice: once when she was raped by him at Foca High School and later when he
came to Radomir Kovac’s apartment ”.428
- Secondly, the Appellant contends that FWS-50 did not provide any detail
as to the place where she was taken and raped.429
Given that the Trial Chamber accepted FWS-50’s evidence in spite of this omission
, the Appellant contends that the Trial Chamber used a different standard
when evaluating FWS-50’s evidence than when evaluating that of FWS-75 and
FWS-87.430
- Lastly, the Appellant claims that FWS-51 (FWS-50’s mother) did not confirm
that FWS-50 was taken by him from Partizan Sports Hall despite the fact that
she was allegedly present when he took her daughter.431
He alleges that FWS-51’s inability to properly identify him calls
into question FWS-50’s credibility.432
(b) The Respondent
- The Respondent contends that FWS-50’s failure to refer to the Appellant
and to the oral rape at Buk Bijela in her first statement to the Prosecutor’s
investigators does not diminish her reliability as a witness. Indeed, during
cross-examination , FWS-50 explained that she did not mention this rape because
she was ashamed of it.433 The Respondent adds
that FWS-50’s trial testimony is remarkably consistent with her prior statement
to the Prosecutor’s investigators, with only insignificant discrepancies due
to the passage of time.434
- The Respondent points out that the Appellant erroneously stated that FWS-87
denied that FWS-50 was taken from Partizan Sports Hall and raped by the Appellant
, as in fact FWS-87 merely stated that she did not remember this incident.
Therefore , the Trial Chamber’s decision not to convict the Appellant for
the rape of FWS- 87 stemmed from that witness’s failure to remember the incident
in question and not from any denial that it took place.435
The Respondent submits that, at any rate, the failure by FWS-87
to recall being taken from Partizan Sports Hall and raped is fully understandable,
given the frequency with which she was raped by a large number of men.436
The Respondent claims that the lack of evidence from FWS-87 does
not undermine the value of FWS-50’s testimony indicating that the Appellant
raped her.437
- The Respondent stresses that FWS-50 gave detailed evidence of being taken
to an abandoned apartment near Partizan and raped, and that she should not
be expected to identify an exact location for that apartment. Therefore, the
Appellant’s related contention that the Trial Chamber used different standards
when evaluating the evidence of FWS-75 and FWS-87 fails due to a lack of support.
438
- Finally, with regard to FWS-51, the Respondent recalls that this witness
recognised the Appellant in court as “being familiar” and asserts that, even
if FWS-51 could not identify the Appellant with certainty, this fact does
not affect FWS-50’s ability to identify the Appellant as the man who raped
her.439
2. Discussion
- The Appeals Chamber notes that the essential point of the Appellant’s submissions
is that, due to the unreliability of FWS-50’s evidence, the Trial Chamber
erred in relying upon that evidence to find him guilty of the charges of rape
and torture of FWS-50 in an apartment in mid-July 1992.
- At trial, FWS-50 explained her failure to mention the first rape at Buk
Bijela on earlier occasions. The Appeals Chamber takes the view that, based
upon her testimony , it was not unreasonable for the Trial Chamber to conclude
that this first rape was particularly painful and frightening for FWS-50,440
and that this omission in her first statement did not affect her
reliability. The alleged inconsistencies between FWS-50’s prior statement
and her testimony at trial have been reviewed by the Appeals Chamber and are
not sufficiently significant to cast any doubt upon the credibility of FWS-50.
On the contrary, the absence of such natural discrepancies could form the
basis for suspicion as to the credibility of a testimony.
- With regard to the alleged inconsistency between the evidence of FWS-87
and that of FWS-50, the Appeals Chamber observes that FWS-87 stated simply
that she did not recall the particular incident referred to by FWS-50 and
not that it did not occur. The mere fact that FWS-87 could not remember being
taken out of Partizan with FWS-50 does not cast any doubt upon FWS-50’s own
credibility.
- In reply to the Appellant’s submission that FWS-50 did not explain where
she was taken and where she was raped, the Appeals Chamber observes that the
witness testified at trial that she was taken to a room on the left side of
the corridor of an abandoned apartment.441
The Appeals Chamber considers that it would be unreasonable in the circumstances
to expect the witness to identify an exact location or a street address for
this apartment .
- Lastly, with regard to FWS-51, the Appeals Chamber observes that she did
testify that FWS-50 was taken from Partizan Sports Hall,442
even though she did not specify who took her. FWS-51 did not, as
the Appellant seems to imply, deny that the incident charged at paragraph
7.11 of Indictment IT -96-23/1 took place. There is no basis for upholding
the Appellant’s contention .
- For the foregoing reasons, the Trial Chamber’s finding that FWS-50’s evidence
was a reliable basis on which to convict the Appellant for the crimes alleged
in paragraph 7.11 of Indictment IT-96-23/1 remains undisturbed. This ground
of appeal accordingly fails.
C. Issue of Identification
1. Submissions of the Parties
(a) The Appellant (Vukovic)
- The Appellant contends that the Trial Chamber erred in accepting the identification
of him provided by FWS-50 and FWS-75.443 To
prove this point, he makes the following submissions.
- Firstly, the Appellant claims that FWS-50 identified him only at trial
and that her courtroom identification was incorrectly performed in violation
of criminal law principles.444
- Further, the Appellant submits that, although FWS-62 testified that she
saw her husband (FWS-75’s uncle) being led away by the Appellant, she was
not able to identify him when called to testify at trial.445
The Appellant claims that the Trial Chamber could not rely on the
identification provided by FWS-75, as this witness’s unreliability is demonstrated
by the fact that the Trial Chamber did not believe her evidence regarding
the acts of the alleged rape in the Appellant Kovac’s apartment.446
- The Appellant contends that the Trial Chamber’s decision to accept FWS-75’s
identification of him contradicts the position held by the Trial Chamber in
the Kupreskic case that caution must be exercised when evaluating the
evidence of a witness who has suffered intense trauma.447
(b) The Respondent
- The Respondent argues that the Trial Chamber was entitled to place some
weight on FWS-50’s in-court identification of the Appellant, even though conceding
that the Trial Chamber did not attach positive probative weight to that evidence.
The Respondent stresses, however, that FWS-50 saw the Appellant in Buk Bijela
in early July 1992 when she was orally raped and in mid-July when he took
her out of Partizan Sports Hall and raped her. In this regard, the Respondent
points out that the Appellant has not indicated any discernible error on the
part of the Trial Chamber in relying upon such evidence. Moreover, FWS-50
recognised the Appellant in photos shown to her by the Prosecutor’s investigators
in September 1999.448 The Respondent claims
that FWS-62’s inability to recognise the Appellant at trial does not undermine
the credibility of the evidence provided by FWS-50 or FWS-75.449
- Lastly, the Respondent submits that the Trial Chamber examined the evidence
concerning identification in a very careful manner and that it was acutely
aware of the traumatic circumstances these witnesses faced.450
2. Discussion
- With regard to the probative value of courtroom identifications, the Appeals
Chamber reiterates its previous finding that the Trial Chamber was correct
in giving no probative weight to in-court identification. 451
- As to the alleged inability of FWS-62 to identify the Appellant, the Appeals
Chamber observes that the Trial Chamber relied mainly upon the testimony of
FWS- 50, who indicated with certainty that, inter alia, the Appellant
was the person who raped her orally at Buk Bijela in an abandoned apartment.452
Although caution is necessary when relying primarily upon the testimony
of a single witness, in the circumstances of this case it was wholly understandable
that the Trial Chamber attributed more weight to the evidence provided by
FWS-50 than to that of FWS-62.
- The Appellant’s argument that the Trial Chamber erred in accepting FWS-75’s
identification of the Appellant because it did not accept her evidence that
the Appellant raped her453 misstates the Trial
Chamber’s position. The Trial Chamber did accept FWS-75’s evidence that the
Appellant raped her in Kovac’s apartment. Its failure to use that evidence
for conviction or sentencing purposes stemmed from the fact that this act
was not charged in Indictment IT-96-23/1 and not, as the Appellant suggests,
from a belief that FWS-75 was unreliable.454
The Trial Chamber, however, did use this particular evidence provided by FWS-75
for the purposes of identification, as it was entitled to do.455
In view of this, the Appeals Chamber cannot find a discernible
error on the part of the Trial Chamber.
- Finally, with regard to the Appellant’s contention that the Trial Chamber
did not exercise sufficient caution in its use of FWS-75’s, the Appeals Chamber
takes note of the following finding of the Trial Chamber: 456
The Trial Chamber attaches much weight to the identification of Vukovic
by FWS-75 because of the traumatic context during which the witness was
confronted with Vukovic in Buk Bijela as well as in Radomir Kovac’s apartment.
The Trial Chamber is therefore satisfied that the identification of Vukovic
by FWS-75 was a reliable one.
- The Appeals Chamber agrees that, in principle, there could be cases in
which the trauma experienced by a witness may make her unreliable as a witness
and emphasises that a Trial Chamber must be especially rigorous in assessing
identification evidence . However, there is no recognised rule of evidence
that traumatic circumstances necessarily render a witness’s evidence unreliable.
It must be demonstrated in concreto why “the traumatic context” renders
a given witness unreliable. It is the duty of the Trial Chamber to provide
a reasoned opinion adequately balancing all the relevant factors. The Appeals
Chamber notes that, in the present case, the Trial Chamber has provided relatively
short but convincing reasoning.
- In view of the foregoing reasons, this ground of appeal fails.
D. Discussion of Exculpatory Evidence
1. Submissions of the Parties
(a) The Appellant (Vukovic)
- The Appellant submits that the Trial Chamber erred in convicting him of
the rape of FWS-50 because, as shown by the evidence at trial regarding an
“injury” to his testicle, he was impotent at the relevant time and thus could
not have committed the crime.457
- The Appellant contends that the Trial Chamber should have concluded from
the evidence given by Defence witnesses DP and DV that he had suffered an
injury to his testicle at the relevant time. He argues that the Trial Chamber
erred in ruling that a logbook of DV was inadmissible because it failed to
mention the nature of Vukovic’s injury.458
- The Appellant furthermore claims that the Trial Chamber erred in preferring
the evidence given by the Prosecution’s expert Dr. de Grave to that of the
Defence witness Professor Dunjic.459 Vukovic
submits that both expert witnesses left open the possibility of impotence
arising from his injury.460 The Appellant asserts
that Dr. de Grave’s expert experience is limited in comparison to that of
Professor Dunjic.461
- In the Vukovic Reply Brief, the Appellant reiterates that the Trial
Chamber erroneously rejected the evidence of Professor Dunjic in favour of
that of Dr. de Grave, who concluded that the impotence resulting from this
injury would only last for three days.462 The
Appellant re-emphasises that the Trial Chamber did not determine with certainty
the date when the rape alleged in paragraph 7.11 of Indictment IT-96-23/1
occurred , and hence it is not possible to exclude the existence of the Appellant’s
impotence at the relevant time.463
(b) The Respondent
- The Respondent rejects Vukovic’s “submissions regarding the Trial Chamber’s
findings as to Vukovic’s injury and its impact on his ability to have sexual
intercourse at the relevant time”.464 The Respondent
notes that the Trial Chamber gave considerable attention to the evidence raised
by the Defence.465 It recalls that the Trial
Chamber found that “the Defence adduced no credible evidence concerning the
seriousness or even the exact nature of the injury sustained by the accused
on that occasion”.466 Finally, the Respondent
stresses that Dr. de Grave’s testimony revealed that Vukovic’s alleged impotence
would not have lasted longer than 3 days and that the Trial Chamber rightfully
rejected Professor Dunjic’s medical opinion on the ground that “he was unable
to conclude that such impotence actually occurred”.467
2. Discussion
- At the outset, the Appeals Chamber notes that the bulk of the submissions
tendered by Vukovic in this ground of appeal has already been raised during
trial and satisfactorily dealt with in the Trial Judgement.
- The Trial Chamber rejected the defence of impotence put forward by Vukovic
on the following grounds. First, it established that the injury to Vukovic’s
testicle occurred on 15 June 1992 and that the first rape ascribed to him
occurred on 6 or 7 July 1992. On this basis, it held that, without excluding
the possibility that Vukovic could have been impotent for a certain period
of time, by the date the crime occurred “the accused would have recovered
from his injury.”468 As to the seriousness
of Vukovic’s injury, the Trial Chamber referred to the testimony of DV suggesting
that the accused might have exaggerated the gravity of his injury in order
to avoid being sent back to the frontline.469
In this regard, it stressed that although indicating that Vukovic was injured
on 15 June 1992, the logbook referred to by DV said nothing about the seriousness
of this injury.470 In addition, the Trial Chamber
relied on the testimony of DP, a confidant of the accused, who, although testifying
that he had taken the accused to hospital for treatment 4 or 5 times, said
nothing about the nature of the consequences of the injury. Finally, the Trial
Chamber noted that Professor Dusan Dunjic, the medical expert called by Vukovic,
indicated that an unspecified temporary impotence could result as a consequence
of an accident of the sort described by the accused, but that Professor Dunjic
was unable to conclude that such impotence actually occurred. On these grounds,
the Trial Chamber concluded that: 471
…there is no reasonable possibility that any damage to
the accused’s testis or scrotum led to the consequence that he was rendered
impotent during the time material to the charges against him.
- The Appeals Chamber finds that, on the basis of the evidence presented
before it at trial, the conclusion of the Trial Chamber is reasonable. All
arguments presented by the Appellant were analysed by the Trial Chamber. The
mere assertion that one expert witness is more experienced than another has
no value. The Appellant failed to demonstrate in detail and on the basis of
a qualified expertise the scientific superiority of Professor Dunjic. Additionally,
it must be taken into account that the underlying facts of the expert’s opinion
are extremely vague and allow for the conclusions which were drawn.
- In these circumstances, the Appeals Chamber finds no reason to disturb
the Trial Chamber’s finding and thus this ground of appeal must fail.
E. Conclusion
- For the foregoing reasons, the appeal of the Appellant Vukovic on factual
findings is dismissed.
XI. GROUNDS OF APPEAL RELATING TO SENTENCING
A. The Appellant Dragoljub Kunarac’s Appeal against Sentence
- The Appellant Kunarac has received a single sentence of 28 years’ imprisonment
for convictions on five counts of crimes against humanity and six counts of
violations of the laws or customs of war. His appeal against the sentence
consists of the following grounds: 1) a single sentence is not allowed under
the Rules and each convicted crime should receive an individual sentence;
2) the Trial Chamber should follow the sentencing practice in the former Yugoslavia
in the sense that the sentence under appeal cannot exceed the maximum sentence
prescribed for the courts of the former Yugoslavia; 3) his crimes do not deserve
the maximum penalty because certain aggravating factors in relation to his
crimes were not properly assessed; 4) two mitigating factors should have been
taken into account in the assessment of the sentence; and 5) the Trial Chamber
was ambiguous as to which version of the Rule regarding credit for time served
was applied.
1. Whether the Single Sentence is in Conformity with the Rules
(a) Submissions of the Parties
(i) The Appellant (Kunarac)
- The Appellant submits, in effect, that the Trial Chamber should have pronounced
an individual sentence for each criminal offence for which he was convicted
at the conclusion of the trial, in accordance with the provision of Rule 101(C)
of the Rules then in force.472 He argues that
that version of Rule 101(C) “in no case allowed for the single sentence to
be pronounced”, for if this were not the case, there would have been no need
to amend the Rule shortly after the conclusion of the trial.473
He further contends that the Trial Chamber did not respect the
principles that each crime receives one sentence and that a composite sentence
for all crimes cannot be equal to the sum of the individual sentences nor
be in excess of the highest determined sentence for an individual crime.474
(ii) The Respondent
- The Respondent submits that the Appellant has not shown, in terms of Rule
6 (D) of the Rules, how the application of the Rules in this connection has
prejudiced his rights as an accused.475
She argues that the amendment in question codified the practice of the Tribunal
of allowing a global sentence to be imposed for crimes “committed in a geographically
limited area over a limited period of time” since “the imposition of a single
sentence is therefore more appropriate to reflect the totality of…[the Appellants’]
respective conduct.”476 Although citing
another relevant rule, Rule 87 of the Rules, the Respondent fails to address
the Appellant’s arguments concerning Rule 101(C).
(b) Discussion
- The Trial Chamber merely states that it “is satisfied that the rights of
the three accused are not prejudiced by the application of the latest amended
version ” of the Rules, in accordance with Rule 6 of the Rules,477
and that it will follow the provision of Rule 87(C) of the Rules
in imposing a single sentence.478
- Rule 101(C) of the Rules (18th edition, 2 August 2000) provides:
The Trial Chamber shall indicate whether multiple sentences
shall be served consecutively or concurrently.
This provision was deleted at the Plenary Meetings of the Tribunal held
in December 2000. Rule 87(C) of the 18th edition of the Rules provides:
If the Trial Chamber finds the accused guilty on one or
more of the charges contained in the indictment, it shall at the same time
determine the penalty to be imposed in respect of each finding of guilt.
The version of Rule 87(C) contained in the 19th edition of the Rules (19
January 2001) provides thus:
If the Trial Chamber finds the accused guilty on one or
more of the charges contained in the indictment, it shall impose a sentence
in respect of each finding of guilt and indicate whether such sentences
shall be served consecutively or concurrently , unless it decides to exercise
its power to impose a single sentence reflecting the totality of the criminal
conduct of the accused.
This newer version of Rule 87(C) of the Rules combined the provisions
of Rule 87 (C) and Rule 101 (C) of the 18th edition of the Rules, in addition
to its recognising the power of a Trial Chamber to impose a single sentence.
Rule 6(D) of the Rules , the text of which remained unchanged between these
two editions, states:
An amendment shall enter into force seven days after the
date of issue of the official Tribunal document containing the amendment,
but shall not operate to prejudice the rights of the accused in any pending
case.
- The Appeals Chamber interprets this ground of appeal as alleging a legal
error . The consequence of applying the newer Rule 87(C) of the Rules by the
Trial Chamber was clear: the imposition of a single sentence was within the
power of the Chamber . The question to be answered by the Appeals Chamber
is whether the imposition of a single sentence in accordance with the newer
Rule 87(C) of the Rules prejudiced the rights of the accused at the conclusion
of his trial.
- The Appeals Chamber considers that the version of Rule 101(C) contained
in the 18th edition of the Rules did not expressly require a Trial Chamber
to impose multiple sentences for multiple convictions. It merely required
the Trial Chamber to indicate whether multiple sentences, if imposed at all,
would be served consecutively or concurrently. This was a rule intended to
provide clarity for the enforcement of sentences. This interpretation is also
that implicitly adopted in the Blaskic Trial Judgement.479
In that Judgement, the Trial Chamber further reasoned that: 480
Here, the crimes ascribed to the accused have been characterised
in several distinct ways but form part of a single set of crimes committed
in a given geographic region during a relatively extended time-span, the
very length of which served to ground their characterisation as a crime
against humanity, without its being possible to distinguish criminal intent
from motive. The Trial Chamber further observes that crimes other than [sic]
the crime of persecution brought against the accused rest fully on the same
facts as those specified under the other crimes for which the accused is
being prosecuted… In light of this overall consistency, the Trial Chamber
finds that there is reason to impose a single sentence for all the crimes
of which the accused has been found guilty.
- In the disposition of the Blaskic Trial Judgement, it is clear that
the accused was convicted on different counts for the same underlying acts
for which he was held responsible. It is clear from this Judgement that, in
certain cases , a single, composite sentence may be more appropriate than
a set of individual sentences for individual convictions. The fundamental
consideration in this regard is, according to the Celebici Appeal Judgement,
that “the sentence to be served by an accused must reflect the totality of
the accused’s criminal conduct”.481
- The Appeals Chamber holds that neither Rule 87(C) nor Rule 101(C) of the
18th edition of the Rules prohibited a Trial Chamber from imposing a single
sentence, and the precedent of a single sentence was not unknown in the practice
of the Tribunal or of the ICTR.482 The newer
version of Rule 87(C) of the Rules, on which the Trial Chamber relied for
sentencing purposes in the present matter, simply confirmed the power of a
Trial Chamber to impose a single sentence. If the Appellant had no doubt as
to the fairness of Rule 101(C) of the 18th edition of the Rules, as is the
case here, he could not fault the fairness of Rule 87(C) of the 19th edition
of the Rules, which did no more than absorb Rule 101(C) of the earlier edition
and codify a precedent in the practice of the Tribunal. This ground of appeal
thus fails.
2. The Recourse to the Sentencing Practice in the Courts of the Former
Yugoslavia
(a) Submissions of the Parties
(i) The Appellant (Kunarac)
- The Appellant argues that a Trial Chamber must comply with Article 24(1)
of the Statute and Rule 101(B)(iii) of the Rules, which means that “the pronounced
sentence or sentences can not exceed the general maximum prescribed by the
sentencing practice in the former Yugoslavia, as the courts of the former
Yugoslavia can not pronounce sentences in excess to the maximum prescribed
sentence”.483 He submits that “the Trial Chamber
erred and venture (sic( outside its discretionary framework given in
Article 24 of the Statute, since the par 1 of the Article 24 of the Statute
is limiting the authority of the Trial Chambers in the Tribunal to pronounce
sentences over 20 years of imprisonment, except in cases where they pronounce
explicitly regulated sentence of life imprisonment”.484
The maximum sentence the Appellant could foresee was a 20-year
imprisonment for war crimes.485
(ii) The Respondent
- The Respondent submits that the fact that the Trial Chamber is not bound
by the practice of the courts of the former Yugoslavia is “beyond any serious
dispute ”.486
(b) Discussion
- The Trial Chamber states that the wording of Article 24(1) of the Statute
and Rule 101(B)(iii) of the Rules “suggests that the Trial Chamber is not
bound to follow the sentencing practice of the former Yugoslavia.”487
In this context, references are made to the existing case-law,
which shows a uniform approach of the Chambers in this connection.488
There is not “an automatic application of the sentencing practices
of the former Yugoslavia”.489
- Article 24(1) of the Statute requires that:
The penalty imposed by the Trial Chamber shall be limited
to imprisonment. In determining the terms of imprisonment, the Trial Chambers
shall have recourse to the general practice regarding prison sentences in
the court of the former Yugoslavia.
Rule 101(B)(iii) of the Rules (19th edition) requires a Trial Chamber
to “take into account” the general practice regarding prison sentences in
the courts of the former Yugoslavia.
- The case-law of the Tribunal, as noted in the Trial Judgement, has consistently
held that this practice is not binding upon the Trial Chambers in determining
sentences .490 Further, in the instant case
the Trial Chamber did consider the sentencing practice of the courts of the
former Yugoslavia by way of hearing a defence expert witness in this respect,
and it thus complied with the provisions of Article 24(1) of the Statute and
Rule 101(B)(iii ) of the Rules. The question here is whether the Trial Chamber,
while considering the practice of the courts of the former Yugoslavia in relation
to the sentencing aspect of the present case, ventured outside its discretion
by ignoring the sentencing limits set in that practice. Article 24(1) of the
Statute prescribes imprisonment , but no gradation of sentence has been laid
down. The Chambers have to weigh a variety of factors to decide on the scale
of a sentence. In the present case, the Trial Chamber followed all the necessary
steps. The Appeals Chamber considers, therefore, that the Trial Chamber did
not abuse its power or make an error in this regard. The ground of appeal
is rejected.
3. Aggravating Factors
(a) Submissions of the Parties
(i) The Appellant (Kunarac)
- The Appellant asserts that the Trial Chamber should have satisfied itself
first that he deserved the maximum penalty under the 1977 Penal Code of the
Socialist Federal Republic of Yugoslavia (“the 1977 Penal Code”), which was
one of 20 years’ imprisonment (in lieu of the death penalty).491
His reasoning is that, if various aggravating factors had been
assessed properly , he would not have received the maximum term of imprisonment.
The Appellant claims that the aggravating factors found by the Trial Chamber
are erroneous because: 1 ) the vulnerability of victims is an element of the
crime of rape, not an aggravating factor; 2) there is a contradiction between
the findings in paragraphs 858 and 863 of the Trial Judgement; 3) the age
of certain victims, all but one younger than 19 years, cannot be an aggravating
factor; 4) prolonged detention is an element of the crime of enslavement,
not an aggravating factor; and 5) discriminatory grounds are an element of
Article 5 offences, not an aggravating factor.
(ii) The Respondent
- The Respondent submits that vulnerability is not an element of the crime
of rape, according to the definition given by the Appellant at the trial,
and moreover that considering elements of crimes as aggravating factors is
anyway not unknown in the practice of the ICTR.492
She also opines that the Trial Chamber “was probably referring to the status
of women and children who are specifically accorded protection under the Geneva
Conventions and other international humanitarian law instruments in times
of armed conflicts ”.493 In that light, “it
was reasonable to conclude that the callous attacks on defenseless women merited
specific assessment ”.494 The Respondent argues
that the Appellant has not shown any discernible errors on the part of the
Trial Chamber .495 She does not comment on
the issue of the young age of the victims, but states that the Trial Chamber
was correct in its approach.496 Similarly,
she merely states that the prolonged period of detention being used to aggravate
the sentence was not unreasonable.497 Further,
she argues that discriminatory motives can constitute an aggravating factor
.498 In her view, there are many aggravating
factors in Kunarac’s case.499
(b) Discussion
- The Appeals Chamber notes that point 1) of this ground of appeal, regarding
the factor of vulnerability of the victims, is raised in reference to the
consideration of that factor given by the Trial Chamber. In particular, the
Trial Chamber stated “(l(astly, that these offences were committed against
particularly vulnerable and defenceless women and girls is also considered
in aggravation.”500 The Trial Chamber considered
the factor of the vulnerability of the victims in terms of the gravity of
the offences.501 Article 24(2) of the Statute
requires that Trial Chambers consider the gravity of the offence in imposing
sentences. Whether or not the vulnerability of the victim is an element of
the crime of rape does not affect its being evidence of the gravity of the
crime, which can duly be considered in the course of sentencing as a matter
of statutory law. The Trial Chamber committed no error in this regard, and
this point of the ground of appeal is thus rejected.
- As to point 2) of this ground of appeal, the Appellant argues that the
Trial Chamber reached contradictory findings with regard to his role in the
armed conflict in the former Yugoslavia. In paragraph 858 it makes statements
to the effect that none of the accused played relatively significant roles
“in the broader context of the conflict in the former Yugoslavia”; whereas
it states in paragraph 863 that “the evidence clearly shows that this accused
(i.e. Kunarac( played a leading organisational role and that he had substantial
influence over some of the other perpetrators”. The Appeals Chamber considers
that the Appellant has overlooked the different contexts of these two findings.
The Trial Chamber found the Appellant not to be in any position of command
in the conflict in the former Yugoslavia, thus being low down the hierarchy
of power in the territory. This does not, however, contradict the finding
of his role in the crimes for which he was held responsible, those crimes
being confined to a particular area of the former Yugoslavia. Both paragraphs
state clearly that he was not regarded as a commander in relation to the crimes.
This particular part of the ground of appeal is thus without merit and is
dismissed.
- As to point 3), the Appellant has not elaborated on his argument that girls
of 16-17 years of age might be allowed to marry in the former Yugoslavia.
A person may still be regarded as young even if he or she is eligible for
marriage according to law. In Article 73 of the 1977 Penal Code, a person
between 16-18 years old was considered a “senior juvenile”, thus to be treated
differently from adults in terms of criminal sanction. Article 1 of the 1989
Convention on the Rights of the Child,502 effective
for the former Yugoslavia since 2 February 1991, defines a child to be a human
being under the age of 18 years unless national law provides the child with
a younger age of majority . Young as they were (the victims concerned in this
part of the appeal were aged between 15 and a half and 19 years), there was
no provision in the 1977 Penal Code , or more specifically the 1977 Penal
Code of the Socialist Republic of Bosnia and Herzegovina, that would aggravate
the sentence for a convicted rapist due to the age of a victim who might be
under 16 years but older than 14 years. Article 91 of the latter code imposed
a heavier sentence for the rape of a juvenile under 14 years of age.
- The Trial Chamber has considered the defence expert witness’s evidence
with regard to the sentencing practice of the former Yugoslavia for the offence
of rape , which shows that the youth of victims of sexual crimes constituted
an aggravating circumstance in that practice.503
The witness confirmed in court that the rape of young girls under 18 years
of age led to aggravated sentences in the former Yugoslavia.504
In the view of the Appeals Chamber, the expert evidence did not
contradict the prevailing practice in the former Yugoslav Republic of Bosnia
and Herzegovina and was rightly considered by the Trial Chamber in this regard.
There still was an inherent discretion of the Trial Chamber to consider a
victim’s age of 19 years as an aggravating factor by reason of its closeness
to the protected age of special vulnerability. No doubt it was for this reason
that the Trial Chamber spoke of these different ages as “ relatively youthful”.505
Also, the Trial Chamber was right to distinguish between crimes
committed in peacetime and in wartime. Young and elderly women need special
protection in order to prevent them from becoming easy targets. The Appeals
Chamber finds that the Trial Chamber was not in error by taking into account
the young age of victims specified in the Trial Judgement. This part of the
ground of appeal therefore fails.
- Point 4) of this ground of appeal concerns the aggravating factor of enslavement
over a prolonged period. The Trial Chamber found, in relation to the count
of enslavement , that two victims were subject to abuses over a period of
two months.506 The Appellant contends that
duration is an element of the crime of enslavement, and therefore cannot be
an aggravating factor. However, as previously stated, the Appeals Chamber
agrees with the Trial Chamber that duration may be a factor “when considering
whether someone was enslaved”.507 This means
that duration is not an element of the crime, but a factor in the proof of
the elements of the crime. The longer the period of enslavement, the more
serious the offence. The Trial Chamber properly exercised its discretion in
considering a period of two months to be long enough to aggravate the sentence
for the offence . This part of the ground of appeal therefore fails.
- In point 5) of this ground of appeal it is alleged that the Trial Chamber
erred in regarding the discriminatory objective as an aggravating factor,
as this constitutes an element of Article 5 crimes. In this context, the Appeals
Chamber recalls the Tadic Appeal Judgement, which states that a discriminatory
intent “is an indispensable legal ingredient of the offence only with regards
to those crimes for which this is expressly required, that is, for Article
5(h) of the Statute, concerning various types of persecution”.508
It is not an element for other offences enumerated in Article 5
of the Statute. This part of the ground of appeal thus fails.
4. Mitigating Factors
(a) Submissions of the Parties
(i) The Appellant (Kunarac)
- The Appellant claims that the fact that none of the witnesses has suffered
any severe consequences at his hands should be considered as a mitigating
factor . In his view, the fact that he is a father of three young children
should likewise be a mitigating factor, as it would in the practice of the
courts of the former Yugoslavia.509
(ii) The Respondent
- The Respondent makes no submission in this respect, except for a remark
that “the Trial Chamber is not bound to accept the testimony of experts and
more so in the case where the suffering and harmful consequences are so apparent”.510
(b) Discussion
- The part on the sentencing of the Appellant in the Trial Judgement contains
no mention of either ground being raised by the Appellant, as the Trial Chamber
simply states that “there are no other relevant mitigating circumstances to
be considered with respect to” the Appellant.511
The Appeals Chamber takes this ground of appeal to be based on the complaint
that the Trial Chamber did not give consideration to the factors in question.
- The argument regarding an alleged lack of grave consequences was not included
in the sentencing section of the Defence Final Trial Brief. Nor was it asserted
during the closing arguments. The Trial Chamber, therefore, committed no error
in not mentioning this fact. Under Article 47(2) of the 1977 Penal Code, the
grave consequences of an offence such as rape would aggravate the sentence.
However, that Code contains no provision entitling perpetrators of crimes
without grave consequences to mitigation of their punishment. The Trial Chamber,
on the other hand, has found that the offences of which the Appellant is convicted
are “particularly serious offences.” The inherent gravity of those offences,
as the starting point for the sentencing procedure, demands severe punishment,
which will not be diminished because the offences are claimed to have produced
no serious consequences for the victims . This ground of appeal is therefore
dismissed.
- As to the factor that the Appellant is the father of three young children,
the Appeals Chamber notes that the Defence raised this point during trial
as a matter “significant for sentencing of the Accused Dragoljub Kunarac”,
and that the Defence actually submitted the point as a significant mitigating
circumstance.512 This point was raised again
at the hearing of closing arguments.513 It
is not clear why the Trial Chamber decided not to consider this issue. The
Appeals Chamber considers this factor to be a mitigating factor, following
the existing case-law of the Tribunal and having recourse to the practice
of the courts of the former Yugoslavia. In the Erdemovic Sentencing
Judgement, the fact that the accused had a young child was considered as a
personal circumstance under the heading of “Mitigating factors”.514
In the Tadic Sentencing Judgement, the personal circumstances
of the accused , including his marriage, were considered separately from mitigating
factors.515 Article 24(2) of the Statute requires
the Trial Chambers to take into account “the individual circumstances of the
convicted person” in the course of determining the sentence. Such circumstances
can be either mitigating or aggravating. Family concerns should in principle
be a mitigating factor. Article 41(1) of the 1977 Penal Code required the
courts of the former Yugoslavia to consider circumstances including the “personal
situation” of the convicted person. The Appeals Chamber holds that this should
have been considered as a mitigating factor. This ground of appeal is thus
partly successful. However, in view of the number and severity of the offences
committed, the Appeals Chamber finds that the sentence imposed by the Trial
Chamber is the appropriate one and thus upholds the Trial Chamber’s decision
in this respect .
5. Credit for Time Served
(a) Submissions of the Parties
(i) The Appellant (Kunarac)
- The Appellant submits that, in this regard, the Trial Chamber “gave an
ambiguous formulation” in the last paragraph of the Trial Judgement by recalling
Rule 101 of the Rules without explaining which version of the Rule was applied.
He further asserts that if credit for time served is to be calculated from
the date of 4 March 1998, “there is no error of the Trial Chamber regarding
the application of law.”516
(ii) The Respondent
- The Respondent agrees with the Appellant that “no order has been made”
in the last paragraph of the Trial Judgement as to the credit for time served,
and invites the Appeals Chamber to clarify this point.517
However, she points out that the Trial Chamber orally stated on
22 February 2001 that the time spent in custody should be credited towards
all three convicted persons .518
(b) Discussion
- The Trial Chamber notes that the Appellant “surrendered to the International
Tribunal on 4 March 1998”.519 The Appeals Chamber
considers that the issue of credit for time could only be regarded as a ground
of appeal if an erroneous reading was made by the Appellant of the Trial Chamber
Judgement in this respect. However, the heading of the paragraph of the Trial
Judgement in question, “Credit for Time Served”, read in conjunction with
Rule 101(C) and Rule 102 of the 19th edition of the Rules, referred to in
the paragraph in question, is clear enough as to the thrust of the paragraph.
The Trial Chamber has already stated clearly in footnote 1406 that it would
apply the 19th edition of the Rules in this part of the Judgement. The older
version of Rule 101(C) of the Rules would be unrelated to the issue of credit
for time served. As the Prosecutor correctly submits, the Trial Chamber did
make an oral statement, on 22 February 2001, stating that the time spent in
custody should be credited to the sentences of the three convicted persons.
If the Appellant had had any doubt, he could have , through his counsel, raised
this matter immediately before the Trial Chamber for clarification. That would
have been the proper forum. The ground of appeal is thus dismissed, provided
that the last paragraph of the Trial Judgement be read together with the oral
statement of the Trial Chamber of 22 February 2001. In effect , the Appellant
will receive credit for his time served in detention as calculated from his
surrender into the custody of the Tribunal.
6. Conclusion
- For the reasons indicated above, the Appeals Chamber dismisses grounds
1 through 5, except for one part of ground 4. Considering, however, the relative
weight of the Appellant’s family situation as a mitigating factor, the Appeals
Chamber decides not to revise the sentence under appeal.
B. The Appellant Radomir Kovac’s Appeal against Sentence
- The Trial Chamber has sentenced the Appellant Kovac to a single sentence
of imprisonment of 20 years for his convictions on two counts of crimes against
humanity and two counts of violations of the laws or customs of war. His appeal
against the sentence relies on the following grounds: 1) the retrospective
application of the amended Rule 101 of the Rules by the Trial Chamber has
prejudiced the Appellant’s rights before the Tribunal; 2) the Trial Chamber
erroneously applied Article 24( 1) of the Statute by disregarding the sentencing
practice of the former Yugoslavia ; 3) there is a misunderstanding of aggravating
factors by the Trial Chamber; 4) the Trial Chamber erred in considering that
there was no mitigating factor in relation to the Appellant’s case; and 5)
the Trial Judgement is not clear as to the credit given for time served by
the Appellant. The Appellant states clearly that he will not ask for a clarification
of the finding of the Trial Chamber with regard to the issue of the legality
of his arrest.520
1. The Issue of a Single Sentence and the Severity of the Sentence
(a) Submissions of the Parties
(i) The Appellant (Kovac)
- The Appellant submits that the retroactive application by the Trial Chamber
of the amended Rule 101 of the Rules “prejudiced” his rights. He argues that
“it is unacceptable” and “directly opposed to the principle of legality” for
crimes to be punished without “prescribed sentences” being designated for
those crimes.521 He explains that, in allowing
the imposition of a single sentence for multiple convictions , the amended
Rule 101 of the Rules, “seriously breaches the principle that each criminal
offence must have a prescribed penalty (nullum crimen nulla poena sine
lege)”522 and has prejudiced his rights.523
Along the same line of reasoning, he also questions the application
of Rule 87(C) of the 19th edition of the Rules.524
The Appellant further contends that “in view of the sentencing practice of
the former Yugoslavia and the past practices” of the Tribunal, the Trial Chamber
should not have imposed “such a high and severe sentence” on him.525
(ii) The Respondent
- The Respondent argues that Rule 87(C) of the Rules (19th edition) codified
the pre-existing practice of the Tribunal of allowing single sentences to
be imposed for several crimes in situations when to do so would better reflect
the totality of the convicted person’s conduct.526
(b) Discussion
- As to the propriety of applying Rule 101 and in particular Rule 87(C) of
the 19th edition of the Rules, the Appeals Chamber refers to its discussion
in paragraphs 339-344, above.
- As to the argument that Rule 87(C) of the 19th edition of the Rules, in
allowing a single sentence to be imposed for multiple convictions, breaches
the principle of legality, the Appeals Chamber considers that this argument
is premised on a misconception that the Statute should function as a penal
code, with prescribed minimum and maximum sentences for specific offences.
- Ultimately, the Appellant is not challenging the Trial Judgement on the
ground of the maxim nullum crimen sine lege but that of nulla poena
sine lege . The former is not in dispute, following the Tadic Jurisdiction
Decision and the Aleksovski Appeal Judgement. However, the latter principle,
as far as penalty is concerned, requires that a person shall not be punished
if the law does not prescribe punishment.527
It does not require that the law prescribes a precise penalty for each offence
depending on the degree of gravity. Be it a common law system or a civil law
system, it is not the case that national legislation anticipates every possible
offence with a prescribed sentence. On the contrary, it is a fact that a penal
code frequently prescribes a range for sentencing with regard to an offence;
that is, it often sets out both the maximum and minimum sentences. Within
the range, judges have the discretion to determine the exact terms of a sentence,
subject, of course, to prescribed factors which they have to consider in the
exercise of that discretion.
- The Statute does not set forth a precise tariff of sentences. It does,
however , provide for imprisonment and lays down a variety of factors to consider
for sentencing purposes. The maximum sentence of life imprisonment is set
forth in Rule 101(A) of the Rules (correctly interpreting the Statute) for
crimes that are regarded by States as falling within international jurisdiction
because of their gravity and international consequences. Thus, the maxim nulla
poena sine lege is complied with for crimes subject to the jurisdiction
of the Tribunal. As the Permanent Court of International Justice once stated
in relation to the principles of nullem crimen sine lege and nulla
poena sine lege: 528
The law alone determines and defines an offence. The law
alone decrees the penalty . A penalty cannot be inflicted in a given case
if it is not decreed by the law in respect of that case.
- Moreover, the Statute requires the Trial Chambers to have recourse to the
sentencing practice of the former Yugoslavia. In each sentencing matter, parties
are given sufficient time to make their submissions. A sentence is reached
only after all relevant factors are considered by the Trial Chamber. Such
a procedure leaves little risk of the rights of the accused being disrespected.
In practice, the Trial Chamber does not, therefore, wield arbitrary powers
in the sentencing process, and there is always the safeguard of appeal. This
ground of appeal therefore fails.
2. The Recourse to the Sentencing Practice in the Courts of the Former
Yugoslavia
(a) Submissions of the Parties
(i) The Appellant (Kovac)
- The Appellant submits that the Trial Chamber cannot disregard the sentencing
practice of the former Yugoslavia, and that “the maximum sentence to be pronounced
, notwithstanding the life sentence, is 20 years of imprisonment”.529
(ii) The Respondent
- The Respondent asserts that the Tadic Appeal Judgement has settled
the question as to whether “the sentence of 20 years is within the discretionary
framework provided to the Trial Chambers by the Statute”.530
In the instant case, the Respondent notes, the Trial Chamber took
into account the practice of the former Yugoslavia, but it selected a higher
sentence because of the gravity of the Appellant’s offences.531
(b) Discussion
- As previously stated,532 a Trial Chamber
must consider, but is not bound by, the sentencing practice in the former
Yugoslavia. It is only where that sentencing practice is silent or inadequate
in light of international law that a Trial Chamber may consider an approach
of its own. In the Tadic Sentencing Appeal Judgement, it is stated
that “the wording of Sub-rule 101(A) of the Rules, which grants the power
to imprison for the remainder of a convicted person’s life, itself shows that
a Trial Chamber’s discretion in imposing sentence is not bound by any maximum
term of imprisonment applied in a national system”.533
This statement is even more persuasive given that it was made in
considering the appeal of Tadic in that case against his 20-year jail term,
which is equivalent to what the Appellant has received as punishment. Furthermore,
the Trial Chamber in the instant case did take into account the sentencing
practice of the former Yugoslavia.534 This
ground of appeal is thus dismissed.
3. Aggravating Factors
(a) Submissions of the Parties
(i) The Appellant (Kovac)
- The Appellant argues that “the absence of all elements of grave physical
or mental torture which would be the substance of the criminal offence, indicate
that not one single aggravating circumstance could be found in the case of
the accused Radomir Kovac which would be of significance in the sentencing
decision justifying the pronounced sentence in the duration of 20 years of
incarceration of the accused ”.535 This ground
of appeal consists of the following points: 1) the relatively young age of
certain victims; 2) the duration of mistreatment of certain victims; 3) the
vulnerability of victims; 4) the fact of multiple victims; and 5) that retribution
as a sentencing purpose is outdated.
- As to point 1), the Appellant argues that the age of one of the victims,
A. S., 20 years, should not have been considered as an aggravating factor.536
As to point 2), the Appellant submits that, during the period of
about four months , FWS-87 and A.S. “practically had the (sic( protection”,
and that during about one month, FWS-75 and A.B. were not in contact with
the Appellant.537 The Appellant argues in relation
to point 3) that vulnerability or defencelessness is an element of the criminal
offences of enslavement, rape and outrages upon personal dignity, and is therefore
not an aggravating factor.538 As to point 4),
the Appellant contends that “(t(he involvement of more than one victim in
the offences of the accused is also considered in aggravation”.539
He submits under point 5) that the Trial Chamber accepted retribution
as one of the purposes of sentencing, whereas the international trend is “to
consider punishment as general prevention, which ultimately must lead to global
prevention”.540
(ii) The Respondent
- The Respondent submits in respect of point 1) that even if this argument
had some truth in it, the fact would remain that several other victims were
younger than 18 years and one, A.B., was only 12 years old.541
With regard to point 3), the Respondent submits that vulnerability
is not an element of the crime of enslavement, rape or outrages on personal
dignity. In relation to point 5), she submits that this is a “main, general
sentencing factor” in the practice of the Tribunal,542
and that the Trial Chamber did not place undue weight on this factor.543
(b) Discussion
- Concerning point 1), the Appeals Chamber recalls what it stated in paragraphs
354-355, above. The Trial Chamber was not in error in considering the age
of the victim, 20 years, as an aggravating factor. This aspect of the ground
of appeal thus fails.
- As regards point 2), the Appeals Chamber agrees with the Trial Chamber
in considering as aggravating factors the duration of the crimes of enslavement,
rape and outrages upon personal dignity entered, namely, from about one to
four months. The Appeals Chamber finds it absurd to argue that FWS-87 and
A.S., both having been subjected to rape, enslavement and outrages upon personal
dignity for a long period of time , were in fact being protected. Further,
the Appeals Chamber finds that it is not clear why the Appellant claims that
he had no contact with the victims over the period in which they were detained
at his apartment,544 or when he visited them
from time to time at the other places to which they were moved temporarily.545
This part of the ground of appeal thus fails.
- As regards point 3), the Appeals Chamber repeats what it stated in paragraph
352, above. This ground of appeal is therefore dismissed.
- The Appellant offers no arguments to substantiate point 4). The Appeals
Chamber considers that there is no need to pass on this point and rejects
this part of the ground of appeal.
- In respect of point 5), the Trial Chamber relies on the Aleksovski Appeal
Judgement in considering retribution as a general sentencing factor.546
The case-law of both this Tribunal and the ICTR is consistent in
taking into account the factor of retribution,547
retribution being “interpreted by [the Trial] Chamber as punishment of an
offender for his specific criminal conduct”.548
The Appellant has failed to substantiate his claim of an alleged trend in
international law which speaks differently from the one followed by this Tribunal
and the ICTR. This ground of appeal is therefore rejected.
4. Mitigating Factors
(a) Submissions of the Parties
(i) The Appellant (Kovac)
- The Appellant argues that the Trial Chamber should have taken the following
mitigating factors into account: 1) the Appellant had no prior intention to
harm Muslims nor the knowledge that his actions formed part of a widespread
and systematic attack; 2) the presence of the Appellant “when any harm could
be done to any Muslims ”;549 and 3) the Appellant’s
relationship with FWS-87 and the protection he extended to her and to A.S..
(ii) The Respondent
- The Respondent dismisses the above arguments, stating that either they
are “encompassing litigated facts and rejected by the Trial Chamber or they
do not constitute mitigating factors”.550
(b) Discussion
- The Trial Chamber has found that all three accused, “in their capacity
as soldiers , took an active part” in the conflict that broke out between
the Serb and Muslim forces in Foca.551 It states
that the Appellant “was fully aware of the attack against the Muslim villages
and aware of the fact that his acts were part of the attack”,552
that he knew that the four women in his control were civilians,553
and that he “abused them and raped three of them many times, thereby
perpetuating the attack upon the Muslim civilian population”.554
The Appeals Chamber finds that these factors should have been argued
in relation to the elements of the offences. Before the sentencing proceedings,
the Trial Chamber had already accepted these factors as being proved beyond
reasonable doubt, resulting in a conviction. The Appellant thus cannot re-litigate
this issue in the course of the sentencing appeal. This part of the grounds
of appeal is thus dismissed.
- The second factor is unclearly pleaded and without reasoning. The Appeals
Chamber merely notes that the four women the Appellant kept in his apartment
and abused were Muslims.555 This part of the
grounds of appeal therefore fails.
- In relation to the third factor, the Trial Chamber has found that the relationship
between the Appellant and FWS-87 was not one of love, “but rather one of cruel
opportunism on Kovac’s part, of constant abuses and domination over a girl
who, at the relevant time, was only about 15 years old”.556
The Trial Chamber also finds that the Appellant “substantially
assisted Jagos Kostic in raping A.S.”.557 The
Appeals Chamber concurs with the findings of the Trial Chamber in this respect,
and therefore dismisses this part of the grounds of appeal.
5. Credit for Time Served
(a) Submissions of the Parties
(i) The Appellant (Kovac)
- The Appellant submits that if credit were not to be given for his time
in detention as from 2 August 1999, his rights would be infringed.558
(ii) The Respondent
- The Respondent, while agreeing that no order was made in the last paragraph
of the Trial Judgement with regard to credit for time served, submits that
the Trial Chamber did state orally on 22 February 2001 that the time spent
in custody be credited .559
(b) Discussion
- The Appeals Chamber recalls its reasoning in paragraph 365, above, and
dismisses this ground of appeal, provided that the last paragraph of the Trial
Judgement be read together with the oral statement of the Trial Chamber of
22 February 2001. In effect, the Appellant will receive credit for his time
served in detention as calculated from the moment of his being taken into
the custody of the Tribunal.
6. Conclusion
- For the foregoing reasons, the Appeals Chamber dismisses the Appellant
Kovac’s appeal on sentencing in total.
C. The Appellant Zoran Vukovic’s Appeal against Sentence
- The Appellant Vukovic has been sentenced to a single term of imprisonment
of 12 years for convictions on two counts of crimes against humanity and two
counts of violations of the laws or customs of war. His appeal is based on
the following grounds: 1) each conviction should receive a sentence and to
impose a single sentence for all convictions is against the Rules; 2) the
Tribunal is obligated to have recourse to the sentencing practice of the courts
of the former Yugoslavia, under which rape as a war crime does not incur a
heavier sentence than rape committed in peacetime ; 3) the Trial Chamber has
misapplied aggravating factors in relation to FWS-50; 4) the Appellant’s help
to Muslim families and his family situation should be considered as mitigating
factors; and 5) the Trial Chamber has miscalculated the credit for time served.
1. Retroactive Application of the Rules that Resulted in a Single Sentence
(a) Submissions of the Parties
(i) The Appellant (Vukovic)
- The Appellant submits that the Trial Chamber erred in imposing a single
sentence for multiple convictions.560 He submits
that both the 1977 Penal Code and the penal codes of the new countries in
the territory of the former Yugoslavia allow for a single sentence for multiple
convictions, subject to the condition that this sentence cannot exceed the
severity of the heaviest sentence established by law. Nor can it represent
the total of all sentences for the convictions.561
Further, he argues that by not applying Rule 101(C) of the 18th edition of
the Rules , the Trial Chamber acted in contravention of the principle against
retroactive application of the Rules.562 The
Appellant adds that if it were possible for the Trial Chamber to impose a
single sentence in accordance with “the earlier provisions of ICTY then there
would not (be a( need to codify Rule 87(C) of the Rules.”563
(ii) The Respondent
- The Respondent submits that “the Appellant’s reliance on Rule 101(C) is
misplaced ”, because that Rule referred to the duty of a Trial Chamber to
determine “how multiple sentences should be served.”564
She further asserts that the provision did not require the Chamber
to impose multiple sentences.565 The Respondent
refers to the Kambanda Appeal Judgement, asserting that it expressly
endorses the practice of imposing a single sentence for multiple convictions.566
She also submits that the Appellant has failed to explain “why
the Trial Chamber abused its discretion in imposing a single sentence”, and
“how the imposition of a global sentence prejudices his rights”.567
(b) Discussion
- The Appeals Chamber discerns two parts in this ground of appeal: 1) the
allegedly retroactive application of the Rules allowing the imposition of
a single sentence ; and 2) whether the imposition of a single sentence is
subject to similar requirements to those of the 1977 Penal Code. Part 2) will
be dealt with in the discussion on the sentencing practice of the former Yugoslavia.
- As for part 1), the Appeals Chamber refers to the discussion in paragraphs
339-344, above, and repeats that Rule 87(C) of the 19th edition of the Rules
simply confirmed the power of a Trial Chamber to impose a single sentence.
This ground of appeal therefore fails.
2. The Recourse to the Sentencing Practice in the Courts of the Former
Yugoslavia
(a) Submissions of the Parties
(i) The Appellant (Vukovic)
- The Appellant submits, in effect, that the Trial Chamber was obligated
to comply with the requirement in Article 24(1) of the Statute to have recourse
to the sentencing practice in the courts of the former Yugoslavia, and that
this would mean that the heaviest penalty for criminal offences was 20 years’
imprisonment.568 He argues that the appropriate
comparison is not between life imprisonment, allowed under the Statute, and
the capital sentence, permitted in the penal codes of the republics of the
former Yugoslavia, but between life imprisonment and the sentence of 20 years’
imprisonment known at the relevant time.569
He further argues that the Trial Chamber should have considered the sentencing
practice with regard to rape convictions in the former Yugoslavia as presented
by the defence expert witness. In relation to that testimony, the Appellant
submits that it is not relevant that the witness focused on the peacetime
practice, as sexual freedom is protected in peacetime and in armed conflict.570
He suggests that a sentence of imprisonment of up to three years
might be imposed .571 The Appellant further
points out that the practice in the former Yugoslavia, referred to in the
Statute, was that of peacetime.572 He tentatively
argues that rape would be a more severe offence than torture, if both offences
contained the same elements.573 He also argues
against retribution as a sentencing purpose.574
(ii) The Respondent
- The Respondent submits that “the Trial Chamber is not bound to apply the
law of the former Yugoslavia in matters of sentencing but only to take it
into account ”.575
(b) Discussion
- This ground of appeal essentially repeats Kunarac’s and Kovac’s arguments.
The Appeals Chamber refers to its reasoning in paragraphs 347 to 349 and 377.
The Appeals Chamber adds that the Trial Chamber has taken into account the
evidence given by the defence expert witness regarding the sentencing practice
in the former Yugoslavia, with an emphasis on the crime of rape.576
However, as the Trial Chamber noted, the expert witness’s testimony
is “of little relevance” because it centred upon rape during peacetime. 577
Rape as a crime against humanity or a violation of the laws or
customs of war requires proof of elements that are not included in national
penal codes, such as attack upon any civilian population (in the case of the
former) or the existence of an armed conflict (in the case of both). The severity
of rape as a crime falling under the jurisdiction of the Tribunal is decidedly
greater than that of its national counterpart. This is shown by the difference
between the maximum sentences imposed respectively by the Statute and, for
instance, the 1977 Penal Code of the Socialist Republic of Bosnia and Herzegovina,
upon the offence of rape. This ground of appeal therefore fails.
3. Aggravating Factor
(a) Submissions of the Parties
(i) The Appellant (Vukovic)
- The Appellant submits that the Trial Chamber erred in finding that FWS-50’s
age at the time of the offences in question was 15 and a half years, when
in fact her age was 17 years. He further asserts that she would have been
allowed to enter into marriage, and that her age should not be considered
as an aggravating factor .578 He also contends
that it was not an aggravating circumstance that FWS-50 was especially vulnerable
and helpless .579
(ii) The Respondent
- The Respondent contends that the Trial Chamber “did not err in concluding
that the victim was youthful and that this was an aggravating factor”, even
though her age might not have been 15 and a half years.580
Further, she argues that the vulnerability and defencelessness
of the victim are not elements of the crimes,581
and that there is no error on the part of the Trial Chamber in considering
these factors in aggravation.582
(b) Discussion
- As to the question of the age of the victim as an aggravating factor, the
Appeals Chamber refers to its reasoning in paragraphs 354-355, above. The
Appeals Chamber considers that the slight difference between the age of the
victim as found in one part of the Trial Judgement, about 16 years,583
and that referred to in another part, 15 and a half years,584
does not negate the fact that the victim was at a young age when
the offences in question were committed against her. The Appeals Chamber concurs
with the findings of the Trial Chamber that this fact can aggravate the sentence
against the Appellant . As to the argument relating to the factor of vulnerability
and helplessness, the Appeals Chamber refers to its reasoning in paragraph
352, above. This ground of appeal thus fails.
4. Mitigating Factors
(a) Submissions of the Parties
(i) The Appellant (Vukovic)
- The Appellant argues that he helped “numerous of [sic] Muslim families
”, and that this should be considered as a mitigating factor, not, as the
Trial Chamber found, as proof that he had knowledge about the attack upon
the Muslim population.585 In addition, the
Appellant argues that the lack of serious consequences arising from his acts
and the fact that no force or compulsion was used should be a mitigating factor.586
Further, he submits that the fact that he is married and has two children
should be considered in mitigation.587
(ii) The Respondent
- The Respondent submits that the Trial Chamber did not err in not considering
as a mitigating factor that the Appellant provided some help to Muslims, as
it was concerned with “what sentence to impose for the rape of this victim,
not his acts to persons who he was friendly with previously”.588
However, the Respondent agrees that the Trial Chamber erred in
not considering the Appellant’s family situation as a mitigating factor, although
this factor would not affect the sentence.589
(b) Discussion
- The Appeals Chamber holds that the Appellant’s help to other Muslims in
the conflict does not change the fact that he committed serious crimes against
FWS-50 . If he is to be punished for his acts against FWS-50, it is to these
acts that any possible mitigating factors should be linked. However, the Appeals
Chamber also agrees that the Appellant’s family situation should have been
considered as a mitigating factor. This particular part of the ground of appeal,
therefore, succeeds . However, the Appeals Chamber concurs with the length
of the imprisonment decided by the Trial Chamber.
- As to the Appellant’s argument that the lack of consequences arising from
his acts should be considered as a mitigating factor, the Appeals Chamber
recalls the finding in the Trial Judgement that the rape of FWS-50 “led to
serious mental and physical pain for the victim”.590
The Appeals Chamber concurs with the Trial Chamber’s findings that the Appellant’s
acts had serious consequences. In respect of the rape of the same witness,
the Trial Judgement states that “[s]he was taken out of Partizan Sports Hall
to an apartment and taken to a room by Vukovic where he forced her to have
sexual intercourse with full knowledge that she did not consent”.591 This finding shows that force or compulsion was used prior to rape.
In this context , the Appeals Chamber further refers back to its finding that
the coercive circumstances of this case made consent to the sexual acts by
the Appellants impossible.592 This argument
is, therefore, without merit and is rejected.
5. Credit for Time Served
(a) Submissions of the Parties
(i) The Appellant (Vukovic)
- The Appellant submits that the Trial Judgement is not clear in this respect
and that it would be erroneous not to take his period of detention since 23
December 1999 into account when imposing the sentence.593
(ii) The Respondent
- The Respondent notes that, although the last paragraph of the Trial Judgement
contains no order with regard to credit for time served, the Trial Chamber
did state orally on 22 February 2001 that the time spent in custody by each
of the three convicted persons be credited.594
(b) Discussion
- The Appeals Chamber refers to its reasoning in paragraph 365, above. This
ground of appeal is dismissed, provided that the last paragraph of the Trial
Judgement be read together with the oral statement of the Trial Chamber of
22 February 2001 . In effect, the Appellant will receive credit for his time
served in detention as calculated from the moment of his being taken into
custody of the Tribunal.
6. Conclusion
- For the foregoing reasons, the Appeals Chamber dismisses the appeal of
the Appellant Vukovic, except the submission that his family concerns should
be considered as a mitigating factor. However, in the circumstances of this
case, which involves a serious offence, this factor does not change the scale
of the sentence imposed in the Trial Judgement.
D. Conclusion
- For the foregoing reasons, the Appeals Chamber dismisses the appeals of
the Appellants Kunarac, Kovac and Vukovic. For the reasons previously stated,
the Appeals Chamber confirms the sentences imposed on the Appellants by the
Trial Chamber with appropriate credit for time served.
XII. DISPOSITION
For the foregoing reasons:
A. The Appeals of Dragoljub Kunarac against Convictions and Sentence
1. Convictions
The Appeals Chamber:
DISMISSES the appeal brought by Dragoljub Kunarac against his convictions.
Accordingly, the Appeals Chamber AFFIRMS the convictions entered by the
Trial Chamber for Dragoljub Kunarac on Counts 1-4, 9-12 and 18-20 of Indictment
IT-96-23.
2. Sentence
The Appeals Chamber:
DISMISSES the appeal brought by Dragoljub Kunarac against his sentence;
CORRECTS the formal disposition of the Trial Judgement to reflect the
Oral Statement made by the Trial Chamber that credit should be given for
time served and, accordingly , Dragoljub Kunarac is entitled to credit for
the time he has spent in custody since his surrender on 4 March 1998;
AND
CONSIDERING the number and severity of the offences committed, FINDS that
the sentence imposed by the Trial Chamber is appropriate.
Accordingly, the Appeals Chamber AFFIRMS the sentence of 28 years’ imprisonment
as imposed by the Trial Chamber.
B. The Appeals of Radomir Kovac against Convictions and Sentence
1. Convictions
The Appeals Chamber:
DISMISSES the appeal brought by Radomir Kovac against his convictions.
Accordingly, the Appeals Chamber AFFIRMS the convictions entered by the
Trial Chamber for Radomir Kovac on Counts 22-25 of Indictment IT-96-23.
2. Sentence
The Appeals Chamber:
DISMISSES the appeal brought by Radomir Kovac against his sentence;
CORRECTS the formal disposition of the Trial Judgement to reflect the
Oral Statement made by the Trial Chamber that credit should be given for
time served and, accordingly , Radomir Kovac is entitled to credit for the
time he has spent in custody since his arrest on 2 August 1999;
AND
CONSIDERING the number and severity of the offences committed, FINDS that
the sentence imposed by the Trial Chamber is appropriate.
Accordingly, the Appeals Chamber AFFIRMS the sentence of 20 years’ imprisonment
as imposed by the Trial Chamber.
C. The Appeals of Zoran Vukovic against Convictions and Sentence
1. Convictions
The Appeals Chamber:
DISMISSES the appeal brought by Zoran Vukovic against his convictions.
Accordingly, the Appeals Chamber AFFIRMS the convictions entered by the
Trial Chamber for Zoran Vukovic on Counts 33-36 of Indictment IT-96-23/1.
2. Sentence
The Appeals Chamber:
DISMISSES the appeal brought by Zoran Vukovic against his sentence;
CORRECTS the formal disposition of the Trial Judgement to reflect the
Oral Statement made by the Trial Chamber that credit should be given for
time served and, accordingly , Zoran Vukovic is entitled to credit for the
time he has spent in custody since his arrest on 23 December 1999;
AND
CONSIDERING the number and severity of the offences committed, FINDS that
the sentence imposed by the Trial Chamber is appropriate.
Accordingly, the Appeals Chamber AFFIRMS the sentence of 12 years’ imprisonment
as imposed by the Trial Chamber.
D. Enforcement of Sentences
In accordance with Rules 103(C) and 107 of the Rules, the Appeals Chamber
orders that Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic are to remain
in the custody of the International Tribunal pending the finalisation of
arrangements for their transfers to the State or States where their respective
sentences will be served .
Done in both English and French, the French text being authoritative.
_______________
Claude Jorda
Presiding
_______________
Mohamed Shahabuddeen
_______________
Wolfgang Schomburg
_______________
Mehmet Güney
_______________
Theodor Meron
Dated this 12th day of June 2002
At The Hague
The Netherlands
[Seal of the Tribunal]