V. FINDINGS OF THE TRIAL CHAMBER

A. General considerations regarding the evaluation of evidence

  1. The Trial Chamber has assessed the evidence in this case in accordance with the Tribunal’s Statute and its Rules of Procedure and Evidence and, where no guidance is given by those sources, in such a way as will best favour a fair determination of the case and which is consonant with the spirit of the Statute and the general principles of law.1361

  2. The Trial Chamber has applied to the accused the presumption of innocence stated in Article 21(3) of the Statute, which embodies a general principle of law, so that the Prosecution bears the onus of establishing the guilt of the accused, and – in accordance with Rule 87(A), which also embodies a general principle of law – the Prosecution must do so beyond reasonable doubt.

  3. As Article 21(4)(g) of the Statute provides that no accused may be compelled to testify against himself, no unfavourable inference has been drawn from the fact that the accused Radomir Kovac and Zoran Vukovic did not testify. The Trial Chamber has taken the evidence given by Dragoljub Kunarac into account in determining whether or not the Prosecution case should be accepted. His election to give evidence does not mean that Dragoljub Kunarac accepted any onus to prove his innocence. The approach taken by the Trial Chamber has been to determine whether the evidence of the Prosecution witnesses should be accepted as establishing beyond reasonable doubt the facts alleged , notwithstanding the evidence which Dragoljub Kunarac and the Defence witnesses gave.

  4. The Trial Chamber has made a careful evaluation of the evidence of identification adduced during the trial, exercising particular caution in relation to it. The Trial Chamber accepts that identification evidence involves inherent uncertainties . This is because of the many difficulties inherent in the identification process , resulting from the vagaries of human perception and recollection.1362 It is insufficient that the evidence of identification given by the witnesses has been honestly given; the true issue in relation to identification evidence is not whether it has been honestly given but rather whether it is reliable. In the turbulent and often traumatising circumstances in which these witnesses found themselves, the Trial Chamber is acutely aware of the possibility of error in making an identification later of a person previously unknown to the witness. The Trial Chamber also recognises the possibility that men other than the accused may falsely have used the name of the accused, or that what they said to the witnesses may have been misunderstood .

  5. The Trial Chamber has accordingly placed considerable weight upon the descriptions which the witnesses gave of the men who they said had raped them, and it has considered carefully whether the evidence from the other witnesses supports the descriptions given. Each of these witnesses was asked whether she could identify any of the persons in the courtroom as the man who raped her. 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.1363

  6. There are other considerations which the Trial Chamber has taken into account in relation to the evidence of these witnesses.

  7. By their very nature, the experiences which the witnesses underwent were traumatic for them at the time, and they cannot reasonably be expected to recall the minutiae of the particular incidents charged, such as the precise sequence, or the exact dates and times, of the events they have described.1364 The fact that these witnesses were detained over weeks and months without knowledge of dates or access to clocks, and without the opportunity to record their experiences , only exacerbated their difficulties in recalling the detail of those incidents later. In general, the Trial Chamber has not treated minor discrepancies between the evidence of various witnesses, or between the evidence of a particular witness and a statement previously made by that witness, as discrediting their evidence where that witness has nevertheless recounted the essence of the incident charged in acceptable detail. Such an approach varied according to the circumstances of each witness, and in particular according to the quality of that witness’s evidence in relation to the essence of the particular incident charged. The Trial Chamber has also taken into account the fact that these events took place some eight years before the witnesses gave evidence in determining whether any minor discrepancies should be treated as discrediting their evidence as a whole.

  8. Many of these witnesses were minors at the time of the events which they described , some of them as young as fifteen years. The level of detail which such witnesses could be expected to recall is different to that expected of witnesses who were more mature at the relevant time. That is not to suggest that the Trial Chamber has required any lower level of satisfaction before accepting the evidence of these young witnesses. At all times, the Trial Chamber has applied the test of proof beyond reasonable doubt. Although the absence of a detailed memory on the part of these witnesses did make the task of the Prosecution in providing proof to that degree of satisfaction more difficult, its absence in relation to peripheral details was in general not regarded as discrediting their evidence.

  9. In some cases, only one witness has given evidence of an incident with which one or other of the accused has been charged. Rule 96 specifically overrules the requirement which exists or which used to exist in some domestic systems of law that the evidence of a complainant who alleges rape must be corroborated – a requirement which has indeed been removed in most of those domestic systems.1365 Nevertheless, the fact remains that only one witness has given evidence of that incident, usually because she has been the only person present other than the particular accused when the incident charged is alleged to have taken place. In such a situation , the Trial Chamber has scrutinised the evidence of the Prosecution witness with great care before accepting it as sufficient to make a finding of guilt against any of the accused. The Trial Chamber has considerd the evidence upon the issue of rape given by the three professional witnesses called by the Defence, but has rejected their opinions upon the basis that they assumed either legal requirements which do not exist in international law or the need for factual consequences which the Trial Chamber does not accept.1366

    B. The existence of an armed conflict and related requirements

  10. On 8 April 1992, an armed conflict between the Serb and Muslim forces broke out in Foca. It took about a week for the Serb forces to secure Foca town and about ten more days for them to be in complete control of Foca municipality. The fighting went on around Foca. The Trial Chamber notes that the parties agreed that, from April 1992 until at least February 1993, there was an armed conflict in the area of Foca. The Trial Chamber is satisfied that the armed conflict has been established beyond reasonable doubt with respect to all three municipalities mentioned above .

  11. The Trial Chamber is also satisfied that the underlying crimes with which the Indictments were concerned were closely related to the armed conflict. Not only were the many underlying crimes made possible by the armed conflict, but they were very much a part of it. Muslim civilians were killed, raped or otherwise abused as a direct result of the armed conflict and because the armed conflict apparently offered blanket impunity to the perpetrators. It is irrelevant that the actual fighting had shifted from Foca town once it was safely in Serb hands to the surrounding areas by the time the events charged occurred, because the criterion of a nexus with the armed conflict under Article 3 of the Statute does not require that the offences be directly committed whilst fighting is actually taking place, or at the scene of combat. Humanitarian law continues to apply in the whole of the territory under the control of one of the parties, whether or not actual combat continues at the place where the events in question took place. It is therefore sufficient that the crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict. The requirement that the act be closely related to the armed conflict is satisfied if, as in the present case, the crimes are committed in the aftermath of the fighting, and until the cessation of combat activities in a certain region, and are committed in furtherance or take advantage of the situation created by the fighting. These requirements are squarely met by the offences under both Indictments, insofar as the Trial Chamber finds the evidence to be sufficient to establish those offences.

  12. The Trial Chamber also notes that the three accused, in their capacity as soldiers , took an active part in carrying out military tasks during the conflict, fighting on behalf of one of the parties to the armed conflict,1367 namely the Serb side and that they therefore knew that an armed conflict was taking place. The evidence also shows that none of their victims took any part in the hostilities.

    C. The attack against the civilian population and related requirements

  13. The Trial Chamber is satisfied beyond reasonable doubt that there was an extensive attack by the Serb forces targeting the Muslim civilian population in the area and for the period covered by Indictments IT-96-23 and IT-96-23/1. The attack encompassed the municipalities of Foca, Gacko and Kalinovik.

  14. Before the armed conflict had started, Muslim civilians were removed from their social and professional lives, their salaries remained unpaid or they were told that their services were no longer needed. Most Muslim men were disarmed. Complete ostracism soon followed with their freedom to move about and to gather critically curtailed.

  15. The SDS political propaganda grew more aggressive, and the outbursts of violence and house-burning more frequent. Many Muslim villagers from the area around Foca were so scared that they decided to sleep in the woods rather than risk being burned alive in their houses, or otherwise being caught in the attack on their towns.

  16. Once towns and villages were securely in their hands, the Serb forces - the military, the police, the paramilitaries and, sometimes, even Serb villagers – applied the same pattern: Muslim houses and apartments were systematically ransacked or burnt down, Muslim villagers were rounded up or captured, and sometimes beaten or killed in the process. Men and women were separated, with many of the men detained in the former KP Dom prison.

  17. The women were kept in various detention centres where they had to live in intolerably unhygienic conditions, where they were mistreated in many ways including , for many of them, being raped repeatedly. Serb soldiers or policemen would come to these detention centres, select one or more women, take them out and rape them . Many women and girls, including 16 of the Prosecution witnesses, were raped in that way. Some of these women were taken out of these detention centres to privately owned apartments and houses where they had to cook, clean and serve the residents , who were Serb soldiers. They were also subjected to sexual assaults.

  18. In particular, the Trial Chamber finds that the Muslim civilians held at Kalinovik School, Foca High School and Partizan Sports Hall were kept in unhygienic conditions and without hot water. They were provided with insufficient food. Their freedom of movement was curtailed; they were not allowed to go to any other territory or to go back to their houses. Most of their houses were burnt down or ransacked. They were guarded and lived in an atmosphere of intimidation. The Trial Chamber is satisfied that Kalinovik School, Foca High School and Partizan Sports Hall served as detention centres at the relevant time.

  19. All this was done in full view, in complete knowledge and sometimes with the direct involvement of the local authorities, particularly the police forces. The head of Foca police forces, Dragan Gagovic, was personally identified as one of the men who came to these detention centres to take women out and rape them.

  20. After months of captivity, many women were expelled or exchanged. Some men spent as much as two years and a half in detention for no reason other than their being Muslims. All traces of Muslim presence and culture were wiped out of the area. Almost no Muslims remained in Foca. All the mosques of Foca were destroyed . In January 1994, the Serb authorities crowned their complete victory - their “gaining supremacy” over the Muslims as was candidly stated by the Defence1368 - by renaming Foca “Srbinje”, literally “the town of the Serbs”.1369 Almost all the remaining Muslim men and women from all three municipalities were arrested, rounded up, separated and imprisoned or detained at several detention centres like Buk Bijela, Kalinovik High School, Partizan and Foca High School, as well as the KP Dom in Foca, in accordance with a recurring pattern. Some of them were killed, raped or severely beaten. The sole reason for this treatment of the civilians was their Muslim ethnicity.

  21. In view of these facts, the Trial Chamber is satisfied that there was a systematic attack by the Bosnian Serb Army and paramilitary groups on the Muslim civilian population of the municipalities of Foca, Gacko and Kalinovik.

  22. The Defence submitted that the aim of the Serb aggression was to gain supremacy over the Muslims in the region.1370 It is irrelevant that the Serb aggression also pursued military goals and the objective of territorial gain, because the criteria of “armed conflict” and “attack upon a civilian population” are not synonymous. If one is of the opinion that such an element does form part of the general requirements of crimes against humanity, the policy behind the Serb attack was to gain total supremacy over the Muslims in the area and finally a homogenous Serb region. To this end, that policy also encompassed expulsion through terror, ie inducing other Muslims to leave the area for fear of being mistreated, imprisoned or even killed by the Serbs, should they fall into the latter’s hands.

  23. As the Defence was reminded many times during the trial, the fact that the Muslim side may have committed similar atrocities against Serb civilians, an argument brought up mutatis mutandis by almost every Serb accused and Defence counsel before the Tribunal, is irrelevant in the context of this case.

  24. The Trial Chamber is also satisfied that it has been ptoved beyond reasonable doubt that the three accused knew that an attack against the Muslim civilian population was taking place and that they knew that their criminal acts fitted in with or were part of this attack.

  25. Dragoljub Kunarac was, in his own words, responsible for collecting information about the enemy. He was a well-informed soldier with access to the highest military command in the area. Considering his role and position, Dragoljub Kunarac obviously knew of the authorities’ intention to overcome the Muslims in any possible ways, including through criminal means. He himself volunteered and took important responsibilities in the carrying out of this plan, taking part in many military operations in the area of Foca. He was therefore aware of the way in which these villages were attacked and their Muslim inhabitants treated.

  26. Dragoljub Kunarac also knew that Muslim women were specifically targeted, as he himself took several of them to his men and raped some of them himself. In the course of one of these rapes, he expressed with verbal and physical aggression his view that the rapes against the Muslim women were one of the many ways in which the Serbs could assert their superiority and victory over the Muslims. While raping FWS-183, the accused Dragoljub Kunarac told her that she should enjoy being “fucked by a Serb”. After he and another soldier had finished, Dragoljub Kunarac laughed at her and added that she would now carry a Serb baby and would not know who the father would be. In addition, the accused Dragoljub Kunarac removed many Muslim girls from various detention centres and kept some of them for various periods of time for him or his soldiers to rape.

  27. The Trial Chamber also notes that the consistency of these occurrences and the predictability of the women’s fate were particularly evident with respect to the accused Dragoljub Kunarac and his group of soldiers. The girls and women, who were selected by Dragoljub Kunarac or by his men, were systematically taken to the soldiers’ base, a house located in Ulica Osmana Dikica no 16. There, the girls and women, whom he knew were civilians,1371 were raped by Dragoljub Kunarac’s men or by the accused himself.

  28. Through these acts, the accused Dragoljub Kunarac not only showed that he knew of the attack and knew that his crimes fitted in with or were part of the attack , but he also clearly showed that he intended them to be so. He demonstrated a total disregard for Muslims in general, and Muslim women in particular. The accused Dragoljub Kunarac used his bravery in combat to gain the respect of his men, and he maintained it by providing them with women.

  29. The accused Radomir Kovac, too, was fully aware of the attack against the Muslim villagers and aware of the fact that his acts were part of the attack. According to several Defence witnesses, Kovac himself said that Muslims, in particular Muslim women, were in danger or at risk in Foca. Kovac personally took part in the violent take-over of Trosanj on 3 July 1992, an undefended village whose inhabitants had taken to the woods in fear. During the attack, several villagers were killed or beaten up and the women were rounded up. The Trial Chamber notes that two of the women who were later kept in Kovac’s apartment, FWS-87 and FWS-75, had actually been captured in this village that very day. Kovac knew and conceded that the four women were civilians.1372

  30. While four girls, FWS-75, FWS-87, A.B. and A.S., were kept in his apartment , the accused Radomir Kovac abused them and raped three of them many times, thereby perpetuating the attack upon the Muslim civilian population. Kovac would also invite his friends to his apartment, and he sometimes allowed them to rape one of the girls . Kovac also sold three of the girls, A.S., A.B. and FWS-87. Prior to their being sold, Kovac had given two of these girls, FWS-75 and A.B., to other Serb soldiers who abused them for more than three weeks before taking them back to Kovac, who proceeded to sell one and give the other away to acquaintances of his.

  31. The accused Radomir Kovac knew of the attack against the Muslim civilian population , and he also perpetuated it by prolonging the ordeal of these girls by selling or giving them to men whom he knew would rape them and abuse them.

  32. The accused Zoran Vukovic also knew about the attack and willingly took part in it. Vukovic was present at Buk Bijela on 3 July 1992 when the villagers from the area, mainly women and children, were brought to this settlement. He knew of the beatings which took place there, as he was seen leading away FWS-75’s uncle who was covered in blood. Vukovic also knew of the rapes which were being perpetrated , as he himself raped FWS-50 that very day in Buk Bijela. Although this rape is not charged in Indictment IT-96-23/1 and will not be considered for conviction or sentencing purposes, it shows Vukovic’s knowledge of and willing participation in the attack upon the Muslim civilians.

  33. The accused Zoran Vukovic was aware of the dangers facing Muslims in Foca, because, during the armed conflict, he actually helped some Muslim citizens whom he knew to be in danger.

  34. Zoran Vukovic also perpetuated the attack by personally raping at least two Muslim girls, FWS-75 and FWS-50. While raping FWS-50, a girl whom he knew was of the same age as his own daughter, Zoran Vukovic boasted that he could have done much worse to her and that she was lucky about this coincidence. Although the rape of FWS-75 is not charged in Indictment IT-96-23/1, and will therefore not be taken into consideration with respect to Vukovic’s conviction and sentencing, it remains an important indicator of the accused’s state of mind and knowledge of the circumstances existing during this period of time.

  35. The Trial Chamber is satisfied that the crimes committed by all three accused were part of the attack against the Muslim civilian population and that all three accused had the mens rea required under Article 5 of the Statute. The Trial Chamber is satisfied that the three accused knew about the attack, and that they committed the offences charged by directly taking advantage of the situation created . It is inconceivable that the situation could have been otherwise. Likewise, judging by their individual conduct as charged and proved on the evidence before the Trial Chamber, they were aware that there was an attack on the Muslim civilian population going on, and they willingly took an active part in it. Dragoljub Kunarac , Radomir Kovac and Zoran Vukovic mistreated Muslim girls and women, and only Muslim girls and women, because they were Muslims. They therefore fully embraced the ethnicity-based aggression of the Serbs against the Muslim civilians, and all their criminal actions were clearly part of and had the effect of perpetuating the attack against the Muslim civilian population.

    D. Charges against the accused

    1. Dragoljub Kunarac (Indictment IT-96-23)

    (a) Dragoljub Kunarac’s alibi defence

  36. The accused Dragoljub Kunarac relied upon a “defence” of alibi for the following periods: from 7 July 1992 until 21 July 1992; from 23 July 1992 until 26 July 1992 ; for 2 August 1992; and from 3 August 1992 from 5 pm until 8 August 1992.

  37. When assessing the evidence, the Trial Chamber is aware of the difficulty for the Defence where an alibi is put forward for a period as long as one month. The Trial Chamber notes, however, the many gaps and contradictions which exist in the alibi presented by the accused.

  38. The Trial Chamber notes that the allegations against the accused Dragoljub Kunarac contained in the Indictment cover a period running from about 13 July 1992 until sometime in October 1992. The Prosecution must prove each element of the offence charged, but the date of the events is in general not a material element of the crime, and its proof is not material to the charge unless the discrepancies between indictment and evidence become too wide, or, in the particular case, it is an essential part of the offence.

  39. The Trial Chamber notes that the alibi advanced by the Defence only partly covers the time relevant to the Indictment. First, the alibi ends on 8 August 1992 and does therefore not cover some of the acts charged under Counts 18 to 21 of the Indictment.

  40. Secondly, the Trial Chamber notes that, with respect to 22 July, 27 to 31 July and 1 August, no witness other than the accused Dragoljub Kunarac gave evidence as to his whereabouts during those periods.

  41. Thirdly, even for the periods for which other witnesses have given evidence , the alibi provided by these other witnesses generally covered limited periods: hours, sometimes even a few minutes. In particular with respect to the evenings - apart from one Defence witness, witness Vaso Blagojevic, who claimed that he knew , at all times, where Dragoljub Kunarac was from 23 July to 26 July - no other witness claimed that he could ascertain where Dragoljub Kunarac was during the other nights covered by the alibi advanced.

  42. Fourthly, even with respect to daytime, Dragoljub Kunarac’s whereabouts and occupation remain unclear and the alibi sketchy. Although several witnesses testified that they saw the accused at some point during the relevant time in a given area , none - apart again from witness Blagojevic with respect to the period from 23 July until 27 July, and to a certain extent witness Gordan Mastilo for the same period - stated that they followed Kunarac all day or knew where he went from the place where they had seen him. The Trial Chamber notes, in that respect, the flexibility of Dragoljub Kunarac’s assignments, his ability to move about and change locations easily and the availability of a motor vehicle most of the time.

  43. According to the accused Dragoljub Kunarac, he spent the period from 7 July 1992 until 21 July 1992 in and around Cerova Ravan, which Serb forces were trying to control. According to the accused Kunarac and witness Osman Šubasic, nothing happened there until 21 July when the Serb attack was launched and Cerova Ravan was taken by the Serb forces. The Trial Chamber accepts that Kunarac and his men might have been involved in some aspects of the operations leading to the re-taking of Cerova Ravan. The Trial Chamber notes, however, the improbability that one of the most highly specialised units, unique in the area, stayed for two weeks in an area where there was almost no military activity taking place. Kunarac himself conceded that they were aware that they could not take the area without the backing of a self-propelled howitzer vehicle which only arrived on 21 July. The Trial Chamber also observes that Kunarac made no mention of the events in and around Cerova Ravan or of his participation therein in his first statement given to the investigators of the Prosecutor, dated 13 March 1998, Ex P67. Yet, the Indictment served on him already covered this period.

  44. The accused Dragoljub Kunarac also claimed that there was a landslide which cut off the road near Odrina towards Gabelic Cosa which allegedly made it impossible for him to go to Foca during that period.

  45. The Trial Chamber first notes that, from maps which have been entered into evidence,1373 there exist not one road, but three roads, going from Cerova Ravan to Foca, and that it would take at most two hours with a car to go from Cerova Ravan to Foca by any of these roads. Witness Osman Šubasic stated that none of them was blocked to traffic. At most, the traffic might have been slowed down on one of these roads by a bulldozer which was enlarging the road for the howitzer self-propelled vehicle to be able to pass and reach Cerova Ravan. The distance between Cerova Ravan and Foca is about 20 kilometres as the crow flies.

  46. Secondly, the Trial Chamber notes that it is highly improbable that a crucial assertion such as the alleged physical impossibility of going to Foca should, if true, have been omitted in his first statement dated 13 March 1998, Ex P67, given by the accused to the Prosecutor’s investigators, because it forms a large part of the accused’s alibi.

  47. Dragoljub Kunarac claimed that during this period he took care of the food supplies for his men. He claimed that he would drive down to the landslide and that a supply truck would come on the other side of this 7-metre landslide. They would carry the food over the landslide and he would then drive back towards Cerova Ravan. Even if the Trial Chamber accepted that there was a landslide on the road , nothing would have stopped Kunarac, if he so wished, from passing the landslide on foot, as he acknowledged he did to transport food and to go back to Foca with the supply truck.

  48. Witness Vaso Blagojevic testified that he saw the accused Dragoljub Kunarac in and around Cerova Ravan from 7 July to 21 July. He conceded, however, that he did not spend all his time with Kunarac, as the latter would sometimes go towards the Muslim position to reconnoitre. He conceded too that, once in his tent, he might not have noticed if Kunarac had left.

  49. Dragoljub Kunarac claimed that he went back to Foca on 21 July for the first time since the start of the Cerova Ravan operation on 7 July. He testified that , on that day, he took a soldier named Miletic who had been wounded during the fighting to the hospital in Foca. The Trial Chamber notes the discrepancies between the name of the wounded soldier given by the accused Dragoljub Kunarac (“Miletic”), the name of the wounded soldier given by witness Vaso Blagojevic (“Goran Ilincic ”) and the name appearing on Ex D781374 (“Goran Mirjacic”) which the Defence adduced as evidence of Kunarac’s claim that he indeed took this soldier to the hospital on 21 July. The Trial Chamber also notes that Ex D78 refers to the nature of the injury sustained by the soldier and the date at which he was hospitalised, but it does not mention the location where he had been injured, the circumstances in which the injury was incurred or the name of the person who took him to the hospital.

  50. Dragoljub Kunarac stated that he spent the nights between 21 July and 22 July and the night between 22 July and 23 July at his parents’ house in Foca. There is nothing in the Defence evidence to support that statement. The Trial Chamber notes that the house of Dragoljub Kunarac’s parents is located about one kilometre away from Ulica Osmana Dikica no 16.1375

  51. Dragoljub Kunarac claimed that, on 23 July, he went with some of his men to the region of Jabuka where he stayed until 26 July and searched for the dead bodies of Serb civilians. The Trial Chamber notes once again the improbability of a highly specialised group of soldiers spending four days searching for bodies while fighting was going on in other areas. The Trial Chamber also notes that the area of Jabuka is about 20 kilometres from Foca, and that Dragoljub Kunarac had a car at his disposal at all times so that he could easily reach Foca.

  52. Witness Gordan Mastilo said that he was in the field with Dragoljub Kunarac from 23 until 26 July and that, apart from the night from 24 July to 25 July, he slept on the same locations as Kunarac. Witness DJ stated that he spent every day and every night of those four same days with Dragoljub Kunarac.

  53. Witness DJ said that he was in a state of shock during that period to the point of sleeplessness. He was worried for his brother who had disappeared and, as such , was able to know of Dragoljub Kunarac’s presence during the night. Witness DJ claimed that, despite his distress, he was still able to see at all times and, eight years later, remember every act and whereabouts of a man he did not know before and whom he had never seen before. This claim is highly incredible.

  54. Witness DJ claimed that he and Dragoljub Kunarac were never more than 500 meters apart on the terrain, and that, when Kunarac went to check bodies for booby traps , he would accompany him - although he had no expertise in explosive devices and no reason to go with him. Witness DJ went as far as saying that he also knew of Kunarac’s movement at night, as he would be on the same location and, unable to sleep as he was, he would have seen him leave if he had done so. Gordan Mastilo added that Kunarac was in charge of the food supply, which implies that he had to leave the area to get some food and come back. This was not mentioned by witness DJ during his testimony, where he claimed to have remained with or in the vicinity of Kunarac at all times.

  55. The Trial Chamber finally notes that all the locations where Dragoljub Kunarac allegedly slept during that period were within a 20 kilometre radius of Foca.

  56. Dragoljub Kunarac claimed that the search for bodies ended in the evening hours of 26 July. He testified that he then went to Previla where he spent the night at the schoolhouse.1376 On 27 July , he was ordered to go towards Dragocevo, where he stayed from 27 July until 31 July, reconnoitring. These localities are all within 12-20 kilometres from Foca . The fighting in these localities was actually over on 29 July, but Kunarac claimed that he remained there searching for two missing soldiers. The Trial Chamber notes once again the improbability of a unit specialised in collecting intelligence spending two full days in search of two missing men. Kunarac testified that he then headed for the Rogoj pass where he reconnoitred until 2 August. No other witness supported Kunarac’s allegations with respect to this period of six and a half days from 27 July until 2 August late afternoon, in particular with respect to the evenings and nights of this period.

  57. The Indictment alleges that, on 2 August 1992, the accused Dragoljub Kunarac took FWS-75, FWS-87, FWS-50 and D.B. from Partizan Sports Hall to Ulica Osmana Dikica no 16. The Indictment also alleges that the accused Kunarac, together with his deputy “Gaga”, took three other women (namely, FWS-186, FWS-191 and J.G., who were already at Ulica Osmana Dikica no 16) to a house in Trnovace.

  58. The Trial Chamber accepts that, during the night between 1 and 2 August 1992 or early in the morning of 2 August, Serb forces started attacking the Rogoj pass . Sometime in early afternoon of 2 August 1992, the Rogoj pass was re-taken by the Serb forces and most fighting was over by then. The accused Dragoljub Kunarac probably took part in the preparation of the attack and, possibly, in the re-taking of the pass itself.

  59. Dragoljub Kunarac did not dispute that he went back to Foca later that day. Nor did he deny passing in the Aladža neighbourhood near the mosque and Ulica Osmana Dikica no 16. He actually conceded that he saw the damage done to the houses around the Aladža mosque following its destruction.1377 The Trial Chamber notes that the house located in Ulica Osmana Dikica no 16 is actually on the road allegedly taken by Dragoljub Kunarac towards Velecevo next to the mosque . Dragoljub Kunarac claimed, however, that he did not check whether his men whom he knew lived there, had been hurt by the explosion of the mosque.1378

  60. Instead, Dragoljub Kunarac stated that he went straight back to the Velecevo barracks in order to report and hand the car back to the commander, in case the latter needed it to go to the Aladža neighbourhood to investigate the blowing-up of the mosque. The Trial Chamber observes that at least three Defence witnesses stated that there were several cars at the disposal of the command. There was therefore no need at all for Dragoljub Kunarac to bring back this particular car.1379 In addition, Kunarac could have called his commander on the radio to tell him what had happened and could have asked him whether he needed the car.

  61. The Trial Chamber also notes that it would only have taken between half an hour to one hour to go from the Rogoj pass to Foca. The Trial Chamber observes that the roads between Rogoj and Foca, Trnovace and Kalinovik were securely in Serb hands. Kalinovik and Miljevina are both about half an hour to one hour away from Rogoj. Miljevina is about twenty minutes away from Foca. The accused Dragoljub Kunarac could thus have gone from the Rogoj Pass to Miljevina via Kalinovik in about an hour and a half at most. He could then have returned to Velecevo, which is about one and a half kilometres from Foca, in less than half an hour. The Trial Chamber takes note of the fact that the accused Dragoljub Kunarac conceded that he had “ free access to Kalinovik School”.1380

  62. The Trial Chamber also notes that Dragoljub Kunarac did not dispute that he took FWS-87, D.B., FWS-50 and another girl from Partizan Sports Hall, but that he stated that it happened on 3 August, not on 2 August as alleged in the Indictment

  63. During his testimony, the accused Dragoljub Kunarac conceded that, on 3 August 1992, he took two, possibly three, women, including D.B. and FWS-75, from Partizan Sports Hall to Miljevina and that he left them with DP 3’s soldiers. The Trial Chamber notes that, in his earlier statement, Ex P67, the accused Kunarac admitted that he took four women to Miljevina on that occasion,1381 not two or three.

  64. Dragoljub Kunarac testified that he wanted to confront the girls with a journalist , Gordana Draskovic, who had told Kunarac that these girls were spreading rumours to the effect that he and his men were taking women out and raping them. Kunarac testified that he was hurt and offended by such claims.

  65. The Trial Chamber notes that FWS-75 had already told Dragoljub Kunarac that she had talked to the journalist. There was therefore no need for Kunarac to confront her with the journalist.

  66. Dragoljub Kunarac conceded that he left the girls with DP 3 and his men. He also conceded that these men were dangerous people.1382 He claimed, however, that he heard on DP 3’s radio that Rogoj pass had been re-taken and that he had to report to the command in Kalinovik. Dragoljub Kunarac claimed that Commandant Marko Kovac and his driver, witness Radijove Pavlovic, came from Velecevo with a jeep-type vehicle, picked up three of Dragoljub Kunarac’s men on the way at Ulica Osmana Dikica no 16 and picked Kunarac up in Miljevina. According to the Defence evidence, they all got in the car and headed off towards Kalinovik .

  67. The Trial Chamber notes that Dragoljub Kunarac had his own car and that he therefore did not need to be picked up. Radijove Pavlovic, Marko Kovac’s driver , admitted that with three men already in the back, that is even prior to the alleged picking up of Kunarac, his car would have been crowded, “one too many”.1383 In addition, Radijove Pavlovic also stated that another man who was not picked up in Ulica Osmana Dikica no 16 got in the car together with Kunarac in Miljevina.1384

  68. The Prosecution bore the onus of establishing the facts alleged in the Indictment . Having raised the issue of alibi, the accused bore no onus of establishing that alibi. It was for the Prosecution to establish that, despite the evidence of the alibi, the facts alleged in the Indictment were nevertheless true. The Trial Chamber does not accept that there is any reasonable possibility that Dragoljub Kunarac was away from the places where and when the rapes took place. In particular, it does not accept Kunarac’s evidence with respect to 3 August. The Trial Chamber rejects the alibi raised by Kunarac, and it holds that, on 3 August, Kunarac went back from Trnovace to the house in Ulica Osmana Dikica no 16 where he took four women, FWS-87, FWS-75, FWS-190 and D.B. and that, possibly in the company of DP  3, he drove them to Miljevina. There, the women were handed over to DP 3’s men and brought to “Karaman’s house”. While kept in this house, the girls were constantly raped.

    (b) Dragoljub Kunarac’s position as a commander

  69. Concerning Dragoljub Kunarac’s alleged role as a commander, the Trial Chamber takes note of the accused’s admission that he was the leader of a group of soldiers .1385 Paragraph 5 of the Matters agreed to by the accused Kunarac states that: “This was a permanent group consisting of approximately 15 soldiers, but the actual members were subject to change. For each specific task, the accused Kunarac would take four or five soldiers.”

  70. The evidence has shown that the composition of the unit would indeed change , depending on the mission to which Dragoljub Kunarac was assigned. Kunarac would request the men he would need on an ad hoc basis and, once the mission was completed, they would return to their respective units.

  71. Some soldiers operated with Dragoljub Kunarac on several occasions and sometimes over a prolonged period of time including overnight. The Trial Chamber is satisfied that these soldiers went back to their respective brigades or detachments when the specific task for which they had been assigned to the accused had been carried out . During those periods where the operations continued overnight, these soldiers may have been under the effective control of the accused. The Prosecutor has failed however to show that the soldiers who committed the offences charged in the Indictment were under the effective control of Kunarac at the time they committed the offences .

  72. The Trial Chamber is therefore not satisfied that Dragoljub Kunarac is responsible as a superior under Article 7(3) of the Statute.

    (c) Counts 1 to 4

    (i) The rapes of FWS-871386

  73. Paragraph 5.2 of the Indictment charges the accused Dragoljub Kunarac with having taken FWS-87 to the house at Ulica Osmana Dikica no 16 on at least two occasions between 13 July and 1 August 1992. On both occasions, FWS-87 was allegedly raped by two Montenegrin soldiers who were commanded by the accused.

  74. The Trial Chamber finds that the incidents described under paragraph 5.2 of the Indictment have not been proved beyond reasonable doubt.

  75. The Trial Chamber accepts the testimony of FWS-87 when she recounted having been taken out of Partizan Sports Hall by Dragoljub Kunarac several times. The Trial Chamber further accepts the testimony of FWS-87 that she was taken by Dragoljub Kunarac to the place which she described as “having something do to with sewing”, ie the former tailor’s house in Ulica Osmana Dikica no 16. FWS-87 said that there were always Montenegrin soldiers in the house, most of them from Niksic, and that she herself and other girls brought to this house would subsequently be raped by these soldiers.

  76. The Trial Chamber notes, however, that FWS-87 was able to testify with clarity in relation to only one occasion on which she was taken out to the house in Alad ‘a. This incident took place around 2 August 1992, and it is described in paragraph 5.4 of the Indictment. She was, however, able to testify in relation to another incident there which took place prior to this incident on 2 August 1992. The Trial Chamber therefore is satisfied that this other incident which the witness was able to recall falls within the temporal limits of the charges under paragraph 5.2 of the Indictment. The Trial Chamber notes, however, that FWS-87 was incapable of recounting any details as to what had happened to her during this other incident . In particular, FWS-87 was not able to recount if and by whom she was raped during this incident. Nor is there any supporting evidence that could fill in the gaps of FWS-87’s testimony with regard to this event.

  77. The Trial Chamber therefore finds that the two incidents mentioned in paragraph  5.2 of the Indictment have not been proved. The other incident mentioned by FWS -87 during her testimony is the one charged under paragraph 5.4 of the Indictment , and it will be dealt with later. As to the second incident, FWS-87 could not even say whether she had been raped on this occasion at all.

  78. On the evidence before it, the Trial Chamber is not satisfied that the acts as described in paragraph 5.2 of the Indictment have been established beyond reasonable doubt.

    (ii) The rapes of FWS-75 and D.B.1387

  79. Paragraph 5.3 of the Indictment alleges that Dragoljub Kunarac took FWS-75 and D.B. to Ulica Osmana Dikica no 16 together with “Gaga”, and raped D.B. there , while FWS-75 was gang-raped by at least 15 soldiers. Paragraph 5.3 further alleges that FWS-75 was raped on the other occasions in Ulica Osmana Dikica no 16 by up to three soldiers.

  80. The Trial Chamber is satisfied that the rapes of FWS-75 and D.B. as described in paragraph 5.3 have been proved beyond reasonable doubt. The testimonies of both FWS-75 and D.B. place the incident at the end of July rather than on or around 16 July 1992. FWS-75 said that it took place “a few days before 2 August 1992”, and D.B. placed it about 10 days after her arrival in Partizan, which, according to her memories of the sequence of events, was around the 13th to 15th July. The Trial Chamber is satisfied that this incident is the one charged under paragraph 5.3 of the Indictment.

  81. The Trial Chamber accepts the testimonies of both FWS-75 and D.B. as to being taken out of Partizan by Dragoljub Kunarac and “Gaga”, and to being brought to Ulica Osmana Dikica no 16 where a group of soldiers was already waiting. The Trial Chamber notes that both D.B. and FWS-75 clearly recognised and identified the house from the Prosecution photographs.

  82. Both witnesses further identified the accused Dragoljub Kunarac to the Trial Chamber’s satisfaction as being the man who took them out of Partizan, drove them to Ulica Osmana Dikica no 16 and who later took D.B. to a room.

  83. D.B. heard him being addressed by other soldiers by his accepted nickname “ Zaga”, and she later learnt his real name when he introduced himself to her. He was wearing a camouflage uniform, and he was armed the first time she saw him. D.B. saw Dragoljub Kunarac again at the house in Miljevina at a later stage when he came to visit the girls. She saw him there with his arm bandaged, and a soldier told her that Kunarac had been involved in a car accident. This re-identification of Kunarac by D.B. at the house in Miljevina is particularly reliable, since she recounted having seen him sit in the living room of the house with her own sister , FWS-87.

  84. Dragoljub Kunarac entered the room while FWS-75 was being raped by “Bane”, a soldier who sometimes went on mission with him, and Kunarac told her to get dressed and he took her back to Partizan. She learnt his name upon their return to Partizan after that night. FWS-75 heard his soldiers refer to Kunarac as “Zaga”. She described him as being “tall, quite slim, ugly with a sort of curly hair, looking frightening ”.

  85. The accused Dragoljub Kunarac himself had admitted in his interview with the Prosecution, conducted in March 1998, Ex P67, that he took FWS-75 and D.B. out of Partizan to Ulica Osmana Dikica no 16, and that he spent two and half to three hours with D.B. behind closed doors there.

  86. The Trial Chamber is satisfied that, upon D.B.’s arrival at Ulica Osmana Dikica no 16, she was separated from FWS-75, taken to a room and raped first by Jure, then by “Gaga” and next by a young boy of 15 or 16 years of age.

  87. The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that D.B. subsequently also had sexual intercourse with Dragoljub Kunarac in which she took an active part by taking of the trousers of the accused and kissing him all over the body before having vaginal intercourse with him. The accused Kunarac admitted having had intercourse with D.B. in Ulica Osmana Dikica no 16 on this occasion , during his interview with the Prosecution in March 1998, Ex P67. In this same interview, Kunarac had put forward that he was not aware of the fact that D.B. did not have sex with him on her own free will but that she had only complied out of fear.

  88. The Trial Chamber, however, accepts the testimony of D.B. who testified that , prior to the intercourse, she had been threatened by “Gaga” that he would kill her if she did not satisfy the desires of his commander, the accused Dragoljub Kunarac . The Trial Chamber accepts D.B.’s evidence that she only initiated sexual intercourse with Kunarac because she was afraid of being killed by “Gaga” if she did not do so.

  89. The Trial Chamber rejects the evidence of the accused Dragoljub Kunarac that he was not aware of the fact that D.B. only initiated sexual intercourse with him for reasons of fear for her life. The Trial Chamber regards it as highly improbable that the accused Kunarac could realistically have been “confused” by the behaviour of D.B., given the general context of the existing war-time situation and the specifically delicate situation of the Muslim girls detained in Partizan or elsewhere in the Foca region during that time. As to whether or not he was aware of the threat by “Gaga” against D.B., the Trial Chambers finds it irrelevant as to whether or not Kunarac heard “Gaga” repeat this threat against D.B. when he walked into the room , as D.B. testified. The Trial Chamber is satisfied that D.B. did not freely consent to any sexual intercourse with Kunarac. She was in captivity and in fear for her life after the threats uttered by “Gaga”.

  90. On the evidence accepted, the Trial Chamber finds that the Prosecution has proved beyond reasonable doubt that the accused Dragoljub Kunarac took D.B. out of Partizan and drove her to Ulica Osmana Dikica no 16 together with “Gaga”. The Trial Chamber accepts that D.B. was raped there first by “Gaga” and two other men and then forced to have sexual intercourse with Dragoljub Kunarac because she had been threatened with death by “Gaga”. The Trial Chamber is satisfied beyond reasonable doubt that Dragoljub Kunarac had sexual intercourse with D.B. in the full knowledge that she did not freely consent. The Trial Chamber also accepts that the accused Kunarac was fully aware of the rapes inflicted upon D.B. by the other soldiers.

  91. The Trial Chamber further accepts the testimony of FWS-75 as to having been gang-raped in the same house, while D.B. was being raped by the three soldiers and Dragoljub Kunarac. FWS-75 was taken to a separate room by “Gaga” who ordered her to have sex with a 16-year-old boy nicknamed “Zuca”.

  92. The Trial Chamber is satisfied beyond reasonable doubt that FWS-75 was subsequently gang-raped by a group of soldiers, vaginally and orally. She identified most of the rapists as Montenegrins, and she also identified several individuals amongst them, eg Jure Radovic, DP 7 and DP 8.

  93. Whereas the Trial Chamber finds that the testimony of FWS-75 already proves the gang-rape of herself charged under paragraph 5.3 to their satisfaction, D.B. stated that, upon their return to Partizan, FWS-75 appeared to be terrified and that she was barely able to walk.

  94. The Trial Chamber is also satisfied that Dragoljub Kunarac was aware of the gang-rape of FWS-75 during her stay in the house. Firstly, the Trial Chamber accepts the evidence provided by FWS-75 as to Kunarac entering the room while she was still being raped by “Bane” and telling her to get dressed because they had to go. Secondly , the witnesses as well as Kunarac in his statement of March 1998, Ex P67, said that the sexual intercourse of D.B. and Kunarac and the gang-rape of FWS-75 by a group of soldiers took place in adjacent rooms. The Trial Chamber is satisfied that Kunarac must have heard sounds caused by this incident. Thirdly, the fact that the accused Kunarac and “Gaga” took the girls to Ulica Osmana Dikica no 16 in concert makes it highly unlikely, and therefore incredible, that Dragoljub Kunarac would not have known that FWS-75 was brought to the house for the purposes of rape , as was D.B.

  95. Finally, the Trial Chamber further accepts as proved that FWS-75 was taken to the house in Ulica Osmana Dikica by Dragoljub Kunarac and raped there by soldiers at least one other time, as was testified by FWS-75. The Trial Chamber is satisfied beyond reasonable doubt that Dragoljub Kunarac was aware that FWS-75 would be subject to rapes and sexual assaults by soldiers at the house in Ulica Osmana Dikica when he took her there.

  96. The Trial Chamber is therefore satisfied that the allegations made in paragraph  5.3 of the Indictment have been proved beyond reasonable doubt, namely that Dragoljub Kunarac took FWS-75 and D.B. to Ulica Osmana Dikica no 16 for them to be raped. On this occasion, Kunarac personally had sexual intercourse with D.B. in the knowledge that she did not consent and aided and abetted the gang-rape of FWS-75 at the hands of several of his soldiers by taking her to the house in the knowledge that she would be raped there and that she did not consent to the sexual intercourse.

  97. The accused acted intentionally and with the aim of discriminating between the members of his ethnic group and the Muslims, in particular its women and girls . The treatment reserved by Dragoljub Kunarac for his victims was motivated by their being Muslims, as is evidenced by the occasions when the accused told women , that they would give birth to Serb babies, or that they should “enjoy being fucked by a Serb”. The law does not require that the purpose of discrimination be the only purpose pursued by the offender; it is enough that it forms a substantial part of his mens rea. Such was the case with the accused Kunarac.

  98. The acts of the accused caused his victims severe mental and physical pain and suffering. Rape is one of the worst sufferings a human being can inflict upon another. This was abundantly clear to the accused Dragoljub Kunarac, as he stated during his testimony concerning the rape of D.B., when he admitted the fact that he had done something terrible, even though he maintained that it had happened with the consent of D.B.

  99. By raping D.B. himself and bringing her and FWS-75 to Ulica Osmana Dikica no  16, the latter at least twice, to be raped by other men, the accused Dragoljub Kunarac thus committed the crimes of torture and rape as a principal perpetrator, and he aided and abetted the other soldiers in their role as principal perpetrators by bringing the two women to Ulica Osmana Dikica no 16.

    (iii) The rapes of FWS-87, FWS-75 and FWS-501388

  100. Paragraph 5.4 alleges that on 2 August 1992, Dragoljub Kunarac took FWS-75, FWS-87, FWS-50 and D.B. to Ulica Osmana Dikica no 16 where he and three other soldiers raped FWS-87, while FWS-75 and FWS-50 were raped by other soldiers.

  101. For the reasons set out in detail above, the Trial Chamber does not accept that Dragoljub Kunarac’s evidence of his whereabouts and timing of the events on 2 August could reasonably have been true.

  102. As to the identification of the accused by the witnesses, reference is made to the findings under paragraph 5.3 above as far as witnesses FWS-75 and D.B. are concerned. There, the Trial Chamber found that both witnesses sufficiently identified Dragoljub Kunarac.

  103. FWS-50’s first encounter with the accused took place at Ulica Osmana Dikica no 16 on the very day the events occurred. At that time, she did not know his name . FWS-50 saw him again at Partizan when he went there to pick up girls.

  104. The Trial Chamber finds that the accused Dragoljub Kunarac has been identified beyond reasonable doubt with regard to the incidents charged under paragraph 5.4 .

  105. The Trial Chamber notes that at least two witnesses, FWS-186 and FWS-191, testified that they saw Dragoljub Kunarac at the Kalinovik School that day when he came to take women out. The accused Kunarac, together with his deputy “Gaga”, drove these women whom he had taken out of Kalinovik School and stopped after 10-15 minutes, transferring them in a refrigerator truck driven by other men.

  106. The Trial Chamber is satisfied that Dragoljub Kunarac then went to Partizan Sports Hall where he took four women out, FWS-87, FWS-75, FWS-50 and D.B. FWS-75 and FWS-87 were taken out by Kunarac that day and driven to Ulica Osmana Dikica no 16, together with FWS-50 and D.B. FWS-50 and D.B. could not recall whether Kunarac personally took them to Ulica Osmana Dikica no 16, but FWS-50 as well as D.B. saw him at the house that day. FWS-96 and FWS-48 saw Kunarac take these four women out on that day. FWS-190, who in the meantime had been brought to the house with the other women from the Kalinovik School, saw the arrival of the girls at Ulica Osmana Dikica no 16.

  107. The Trial Chamber accepts the evidence of FWS-87, that she was raped by Dragoljub Kunarac that night in a room next to the kitchen of the house. She was also raped during the night by an older man, whose name she could not recall, and by a certain Toljic. FWS-87 described the accused Kunarac as “not very tall, not too skinny or too fat and having dark brown hair”. She saw him come to Partizan every third night with other soldiers. She also noticed that he had a cast on his body when he came to “Karaman’s house” and raped her. Apart from the credible identification by FWS-87, the Trial Chamber further notes that the accused admitted having met FWS-87 at Partizan on 3 August and having seen her again at “Karaman’s house”.

  108. The Trial Chamber further accepts the evidence of FWS-50, FWS-75 and D.B. who testified that, in the meantime and during the rest of the night, they were raped by Dragoljub Kunarac’s men.

  109. Upon their arrival at Ulica Osmana Dikica no 16, Dragoljub Kunarac and “Gaga ” abandoned FWS-75 and the other women to the soldiers present there. FWS-75 was first raped by three Montenegrin soldiers, whom she was able to identify as Kontic (nicknamed “Konta”), DP 7 and DP 8, and she was then locked in a room by DP 8 where he continued to rape her for the rest of the night vaginally, anally and orally. “Gaga” raped her the next morning. The Trial Chamber does not, however, make a finding with regard to FWS-75’s testimony that she was also raped by Kunarac himself the next morning, since that specific rape has not been charged under paragraph 5.4, nor is it the subject of any other charge in the Indictment.

  110. The Trial Chamber further accepts FWS-50’s testimony about her being raped “in a beast-like manner” by an old Montenegrin soldier that night who wielded a knife and threatened to draw a cross on her back and to baptise her. However, the Trial Chamber does not make a finding which could be the subject of a conviction with regard to FWS-50’s testimony that she was also raped by Dragoljub Kunarac personally on a sofa in the house. Again, this particular incident has neither been charged under paragraph 5.4 or elsewhere in the Indictment.

  111. Whereas D.B. recounted to the Trial Chamber’s persuasion that she was raped during this incident by a certain “Jure” with whom she had to stay for the rest of the night, the Trial Chamber notes that paragraph 5.4 does not allege any rapes against D.B. The Trial Chamber therefore does not find it appropriate to make any finding on this event which could lead to a conviction.

  112. The rapes resulted in severe mental and physical pain and suffering for the victims. The Trial Chamber is satisfied that the victims were taken to Ulica Osmana Dikica no 16 by Dragoljub Kunarac for the very purpose of rape and that they were chosen for this purpose on the basis only of their Muslim ethnicity.

  113. The Trial Chamber is satisfied that, on 2 August 1992, Dragoljub Kunarac went to Partizan Sports Hall where he took out FWS-75, FWS-87, FWS-50 and D.B. and drove them to the house in Ulica Osmana Dikica no 16, where some women who had been taken out of the Kalinovik school had already arrived. The Trial Chamber is also satisfied that Kunarac took these women to this house in the knowledge that they would be raped by soldiers during the night. The Trial Chamber finds that Kunarac took FWS -87 to one of the rooms of the house and forced her to have sexual intercourse in the knowledge that she did not consent. The Trial Chamber also finds that, on that occasion, FWS-75 and FWS-50 were repeatedly raped by other soldiers while Kunarac raped FWS-87. The Trial Chamber further finds that FWS-87 was also raped by other soldiers that same night. The fact that Kunarac took the girls to the house and left them to his men in the knowledge that they would rape them constituted an act of assistance which had a substantial effect on the acts of torture and rape later committed by his men. He therefore aided and abetted in that torture and rape.

    (iv) The rapes of FWS-951389

  114. Paragraph 5.5 of the Indictment charges the accused Dragoljub Kunarac with having taken FWS-95 out of Partizan to Ulica Osmana Dikica no 16 on at least two occasions and that, on the first occasion, she was personally raped by Kunarac and three other soldiers. During the second incident, she was allegedly raped by two or three soldiers but not by the accused himself.

  115. The Trial Chamber finds that it has been proved beyond reasonable doubt that , during the first incident described under paragraph 5.5, the accused Dragoljub Kunarac raped FWS-95 at Ulica Osmana Dikica no 16. The second incident has not been proved.

  116. FWS-95 was taken from Partizan to the house in the Alad‘a area on two occasions . She did not remember who took her there. She was taken out together with FWS -105 and FWS-90 on the first occasion. Whereas neither FWS-95 nor FWS-105 were able to put a certain date to the incident in question, FWS-95 in her previous statement dated 9-11 February 1996, Ex P75, had stated that she was taken there before the mosque was blown up, ie before 2 August 1992. FWS-95 further testified in court that she was taken from Foca High School to Partizan 15 to 20 days after her arrival in Foca High School to which she had been transferred from Buk Bijela on 5 July 1992.

  117. The Trial Chamber is therefore satisfied that the event in question took place between 20 July and 2 August 1992, and it regards this time frame as falling within the temporal limits established by the charges related to paragraph 5.5 of the Indictment .

  118. The Trial Chamber is satisfied that Dragoljub Kunarac has been positively identified as the perpetrator of this specific rape by FWS-95 herself, as well as by the supporting testimony of FWS-105.

  119. FWS-95 did not know Dragoljub Kunarac before the war, but FWS-90, who had relatives who knew Dragoljub Kunarac and who was taken out together with her to Ulica Osmana Dikica no 16, told her who he was. FWS-95 recounted the first name of the accused as being “Dragan” and that he had the nickname “Zaga”. Confronted with her inability to identify the accused on a photograph shown to her by the Prosecution prior to the trial, the witness plausibly explained that this was the result of the poor quality of the photos shown to her. The Trial Chamber accepts the explanation of FWS-95 that “it’s easier to recognise someone when you see them live than on a photograph .” FWS-95 was able to identify Kunarac in the courtroom, and she stated that Kunarac is the same as he was then.1390 In her first statement to the Prosecution of 9-11 February 1996, Ex P75, FWS-95 had described Kunarac as tall, with brown hair, thin, with long hair and a beard and moustache. In court, FWS-95 explained that, at the time the incident occurred , the soldiers were not shaven. Kunarac himself had stated in his interview that he would not shave for days when he was out on missions. The Trial Chamber therefore does not regard the previous description of FWS-95 in her first statement as having had a beard and moustache as contradicting her identification of Kunarac.

  120. The identification of Dragoljub Kunarac by FWS-95 is supported by evidence provided by FWS-105. Whereas this witness could not remember having been taken out by him, she recounted having seen Kunarac at the house in the Alad‘a neighbourhood and that there she heard the other men addressing him as “Zaga”. She had already heard his nickname while she was at Foca High School from the other girls. FWS- 105 never saw Dragoljub Kunarac at Foca High School, but she heard from FWS-75, FWS-50, FWS-87 and D.B. that “Zaga” came to Foca High School. FWS-105 said that Kunarac had no Montenegrin accent, but that it had been said that he was from Montenegro .

  121. Upon their arrival at Ulica Osmana Dikica no 16, FWS-95 was separated from FWS-105 and FWS-90, taken to a room and raped there by the accused Dragoljub Kunarac . FWS-105 testified that she and FWS-95 were taken to different rooms during the incident.

  122. 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. The Trial Chamber notes that FWS-95 could not remember in court having been subsequently raped by three other soldiers as is indicted under paragraph 5.5. However, in the light of the afore-mentioned principles with regard to the reliability of testimony, the Trial Chamber regards this lapse of memory as being an insignificant inconsistency as far as the act of rape committed by the accused Kunarac is concerned. 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 during the first incident described under paragraph 5.5. As already elaborated above, the Trial Chamber recognises the difficulties which survivors of such traumatic events have in remembering every particular detail and precise minutiae of these events and does not regard their existence as necessarily destroying the credibility of other evidence as to the essence of the events themselves .

  123. The testimony of FWS-95 as to the specific role of Dragoljub Kunarac in the first incident in Ulika Osmana Dikica no 16, charged in paragraph 5.5 of the Indictment , is sufficient to enable the Trial Chamber to reach a conviction on this particular rape.

  124. The Trial Chamber is not satisfied, however, that the second incident described in paragraph 5.5 of the Indictment has been proved beyond reasonable doubt. With regard to this incident, Dragoljub Kunarac has been charged only with taking FWS -95 to Ulica Osmana Dikica no 16 where she was allegedly raped by two or three soldiers .

  125. FWS-95, however, gave evidence that she was raped by Dragoljub Kunarac himself during this second event, an incident which has not been pleaded in the Indictment . She testified that she was taken to the house with other women, but she could not recall with whom. She was not able to say who took her out of Partizan on this occasion. Neither did she mention any other assailants apart from Dragoljub Kunarac with regard to this event, notwithstanding that, in her second statement to the Prosecution dated 25-26 April 1998, Ex D40, she had mentioned that she was raped by two or three soldiers both times she was taken to Ulica Osmana Dikica, ie, also during the second event.

  126. The Trial Chamber is not satisfied on the evidence adduced that FWS-95 was taken out by Dragoljub Kunarac and then raped by three soldiers as alleged in the Indictment. The second rape by Dragoljub Kunarac of which FWS-95 gave evidence has not been charged by the Prosecution. On the contrary, the Indictment explicitly alleges under paragraph 5.5 with regard to the second incident that FWS-95 was not raped by the accused himself. The Trial Chamber cannot therefore find the accused guilty of that second rape under this paragraph of the Indictment.

  127. The allegations made under paragraph 5.5 of the Indictment have therefore only been partially proved. The Trial Chamber is satisfied that Dragoljub Kunarac himself had sexual intercourse with FWS-95 without her consent on the first incident described under paragraph 5.5 of the Indictment while he knew that FWS-95 did not consent. However, the Trial Chamber is not satisfied that she was also raped by three other men, as pleaded in the Indictment.

  128. In conclusion, the Trial Chamber finds as follows:

    (i) The allegations made under paragraph 5.2 of Indictment IT-96-23 have not been proved beyond reasonable doubt.

    (ii) The allegations made under paragraph 5.3 of Indictment IT-96-23 have been proved beyond reasonable doubt. Dragoljub Kunarac took FWS-75 and D.B. to Ulica Osmana Dikica no 16 where they were raped by several soldiers. Dragoljub Kunarac personally raped D.B. on that occasion.

    (iii) The allegations made under paragraph 5.4 of Indictment IT-96-23 have been proved beyond reasonable doubt. On 2 August 1992, Dragoljub Kunarac took four girls , FWS-87, FWS-75, FWS-50 and D.B., to Ulica Osmana Dikica no 16. FWS-75 and FWS -50 were raped by several soldiers. Dragoljub Kunarac and three other soldiers raped FWS-87.

    (iv) The allegations made under paragraph 5.5 of Indictment IT-96-23 have been partly proved. It has been established beyond reasonable doubt that Dragoljub Kunarac personally raped FWS-95 on one occasion, but it was not established that FWS-95 was raped by any other men during the second incident as was alleged in the Indictment .

  129. As far as the girls were raped and tortured by other men, Dragoljub Kunarac was aiding and abetting the latter by taking the girls to them in the knowledge that they would rape them and by encouraging them to do so.

  130. The Trial Chamber therefore finds the accused Dragoljub Kunarac GUILTY of torture under Counts 1 and 3 and GUILTY of rape under Counts 2 and 4.

    (d) Counts 5 to 8

  131. Counts 5 to 8 charge Dragoljub Kunarac with two rapes inflicted upon witness FWS-48 in the middle of July 1992.

  132. Concerning the rape charged under paragraph 6.1 of Indictment IT-96-23, which Dragoljub Kunarac is alleged to have committed together with the co-accused Zoran Vukovic, the Trial Chamber held earlier that the accused Zoran Vukovic had no case to answer with regard to the allegations made by FWS-48, since the totality of the evidence could not, as a matter of law, prove beyond reasonable doubt his identification concerning those allegations.

  133. As to the rape of FWS-48 by Dragoljub Kunarac and Zoran Vukovic in Hotel Zelengora , the Trial Chamber finds that the testimony of FWS-48 was not sufficiently credible to establish what is alleged. Not only could FWS-48 no longer remember the subsequent rape allegedly committed by Zoran Vukovic in court, but her testimony as to her identification of Kunarac and her description of the particular event also shows substantial discrepancies.

  134. FWS-48 identified Dragoljub Kunarac in the courtroom. She confirmed, however , that prior to her testimony she had seen his picture on TV when he was arrested , and that she had been shown his picture by investigators of the Prosecution. Under cross-examination, she described the man she believed being “Zaga” as being 45-46 years old at the time the event occurred. She also thought that he was about 1.77 meters tall but could not say whether he was taller or shorter than herself . FWS-48 could not remember clearly in court whether she was taken to a house in Donje Polje or to the Zelengora Hotel. In a previous interview, FWS-48 had stated that Kunarac spoke with a Montenegrin accent, but she did not remember in court having said so. Furthermore, during the examination-in-chief, FWS-48 testified that at Hotel Zelengora Kunarac had told her that she looked like a Montenegrin woman and that she would give birth to Serb babies. Under cross-examination, however , FWS-48 testified that she did not speak with Kunarac at all. She further denied in court having heard about him being “Zaga” at Zelengora, but in the primary school , which appears to be in conflict with the interview she gave on 24 September 1998 , Ex D47,1391 to the investigators of the Prosecution. There is no supporting evidence which could remove the effect of these substantial inconsistencies. Whereas FWS-48 testified that FWS-95 and FWS-75 were also present in Hotel Zelengora with her during the incident, neither of these witnesses could recall this specific incident. FWS-95 testified that she was never taken to Hotel Zelengora at any time.

  135. In evaluating the credibility of the witness’s testimony, the Trial Chamber also has to take into account the substantial inconsistencies in FWS-48’s testimony with regard to the allegations against the accused Zoran Vukovic, which raised general concerns with regard to the credibility of the testimony of the witness generally . There was no supporting evidence to dispel the Trial Chamber’s doubts.

  136. The Trial Chamber further holds that the rapes described in paragraphs 6.1 and 6.2 of the Indictment, which charged Dragoljub Kunarac with having committed them against FWS-48, have not been proved during trial beyond reasonable doubt.

  137. In a statement dated September 1995, Ex P78, prior to the trial, FWS-48 had stated that she was taken by DP 6 together with FWS-95 and FWS-105 to a house near the station, from where she then was taken by Dragoljub Kunarac to another house in the Donje Polje neighbourhood, where he raped her.

  138. During her testimony in court, however, the witness was unable to recount the incident with any precision. In contrast to her earlier allegations, she testified that Dragoljub Kunarac did not take her away to rape her, on the night when she and the other girls were taken out of Partizan by DP 6. FWS-48 said that Kunarac had once taken her to a burnt-out house in Donje Polje for the purpose of rape, but this incident does not constitute the rape which is charged under paragraph 6.2. FWS-48 testified that, on that occasion, it was the accused Kunarac himself who took her out of Partizan, not DP 6.

  139. FWS-95 testified that she was once taken to a burnt-out house together with FWS-48 for the purpose of rape. This specific incident, where the women were taken by Dragoljub Kunarac himself directly to the burnt-out house has, however, not been charged in the Indictment, and the Trial Chamber therefore does not need to make any findings with regard to it. As to the incident charged under 6.2, FWS-48 clearly stated in court that, on the night she was taken away from Partizan by DP 6, the accused Kunarac did not rape her.

  140. On the basis of the evidence before it, the Trial Chamber is not satisfied beyond reasonable doubt that the events as charged under Counts 5 to 8, based upon paragraphs 6.1 and 6.2 of Indictment IT-96-23, have been proved. The Trial Chamber also notes that the Prosecutor conceded in her Final Trial Brief that these incidents described in paragraphs 6.1 and 6.2 of the Indictment had not been proved beyond reasonable doubt.

  141. The Trial Chamber therefore finds the accused Dragoljub Kunarac NOT GUILTY under Counts 5, 6, 7 and 8.

    (e) Counts 9 and 10

  142. Paragraph 7.1 of Indictment IT-96-23 alleges that, on or about 2 August 1992 , Dragoljub Kunarac transferred four women, including FWS-75 and FWS-87, from Partizan Sports Hall to “Karaman’s house” in Miljevina. Counts 9 and 10 charge the accused Dragoljub Kunarac with raping FWS-87 on one occasion while she was kept at “Karaman’s house”, as described in paragraph 7.2 of the Indictment.

  143. The Trial Chamber is satisfied that the allegations contained in paragraph 7.1 of the Indictment have been proved beyond reasonable doubt. The Trial Chamber finds that, on or about 2 August 1992, FWS-87, together with FWS-75, D.B. and FWS -50 were taken by the accused Dragoljub Kunarac from the house in Ulica Osmana Dikica no 16 in Foca to Miljevina, where they were handed over to DP 3 and his men who, in turn, transferred them to “Karaman’s house”.1392

  144. The Trial Chamber is also satisfied beyond reasonable doubt that, sometime in either September or October 1992, Dragoljub Kunarac went to “Karaman’s house” and took FWS-87 to a room on the upper floor of the house where he forced her to have sexual intercourse in the knowledge that she did not consent. The accused Kunarac did not dispute that he went to this house at the end of September, nor that he took FWS-87 to a room upstairs.1393 Kunarac claimed, however, that he did not have sexual intercouse with her.

  145. The Trial Chamber is of the view that Dragoljub Kunarac’s assertion that he simply talked to her is highly improbable, in the light of his total disregard for Muslim women in general, those he raped in particular, and FWS-87 most specifically , whom he had raped on at least one occasion prior to those events while in Ulica Osmana Dikica no 16.

  146. The Trial Chamber accepts the evidence of FWS-87. It does not accept that Dragoljub Kunarac’s version of events could reasonably have been true, and it holds that the allegations made in paragraph 7.2 of the Indictment have been proved beyond reasonable doubt.

  147. The Trial Chamber therefore finds Dragoljub Kunarac GUILTY of rape under Counts 9 and 10.

    (f) Counts 11 and 12

  148. Counts 11 and 12 charge Dragoljub Kunarac with the rape of FWS-183 as described in paragraph 8.1 of Indictment IT-96-23.

  149. The Trial Chamber is satisfied beyond reasonable doubt that the accused Dragoljub Kunarac raped FWS-183 as described under paragraph 8.1 of the Indictment.

  150. As already explained above, the Trial Chamber rejects the alibi of Dragoljub Kunarac for the time period related to this charge.

  151. The Trial Chamber is satisfied that the accused Dragoljub Kunarac has been positively identified by FWS-183 and FWS-61 beyond reasonable doubt in relation to this incident. The soldier who put FWS-183 in the car introduced himself as the son of Lekso Kunarac. FWS-183 knew Kunarac’s father because he had done some woodwork in her cottage. She had once gone to his house in Cohodor Mahala.

  152. FWS-61 testified that, upon return to her apartment after FWS-183 had been taken away by the soldiers, a Serb soldier named Tadic told her that the man who had taken away FWS-183 was called “Zaga”.

  153. The Trial Chamber accepts the testimony of FWS-183 that, in the second half of July 1992, while she was in FWS-61’s apartment, three Serb soldiers came and accused her of transmitting radio messages. The Trial Chamber accepts that a soldier she later realised to be “Zaga” put her in a red Lada, where she had to wait with him for the two other soldiers to return, and who had in the meantime looted her apartment.

  154. The three soldiers then took her to the banks of the Cehotina river in Foca near Velecevo, where the accused 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 while he threatened to kill her and her son . By his attempt to intimidate her, Dragoljub Kunarac also showed his hatred for Muslims, his intention to intimidate her, and his intention to discriminate against Muslims in general, and FWS-183 in particular. All three soldiers raped FWS-183 . In the course of the rapes, Kunarac forced her to touch his penis and to look at him. He cursed her. The other two soldiers watched from the car, laughing. While she was raped by Dragoljub Kunarac, FWS-183 heard him tell the other soldiers to wait for their turn. Subsequently, she was raped vaginally and orally by the other soldiers. The rapes resulted in severe mental and physical pain for FWS-183 .

  155. The description of the events by FWS-183 is supported by the testimony of FWS -61, who was present when the soldiers stormed into her apartment. This is so despite the fact that FWS-61 recounted the incident as having taken place towards the end of July instead of around 15 July. As set out above, the Trial Chamber does not require proof of the exact time of the incident as long as there is evidence to establish the essence of the incident pleaded.

  156. FWS-61 testified that FWS-183 was taken out from the apartment and that both her apartment and FWS-183’s apartment were looted by the soldiers. She saw FWS- 183 returned by the same three soldiers who had taken her away. She said that FWS -183 looked confused upon her arrival, as if she had been crying. She further testified that FWS-183 told her that she had to give all her valuables to the soldiers, and that she had been forced to touch them at their “shameful places” and do “impossible things”.

  157. The Trial Chamber is satisfied that the incident described in paragraph 8.1 of the Indictment has been proved beyond reasonable doubt. The accused Dragoljub Kunarac and the other two soldiers acted as principal co-perpetrators.

  158. For these acts, the Trial Chamber finds the accused Dragoljub Kunarac GUILTY of torture under Count 11. Likewise, the Trial Chamber finds the accused Dragoljub Kunarac GUILTY of rape under Count 12.

    (g) Counts 18 to 21

  159. Counts 18 to 21 charge the accused Dragoljub Kunarac with the rape, enslavement and outrages upon personal dignity of FWS-186, FWS-191 and J.G.

    (i) The rape of FWS-191, FWS-186 and J.G.1394

  160. Paragraph 10.2 of Indictment IT-96-23 charges the accused Dragoljub Kunarac with having taken FWS-186, FWS-191 and J.G. out of Ulica Osmana Dikica no 16, and that, together with “Gaga” and DP6, of having taken them to an abandoned house in Trnovace, where Dragoljub Kunarac raped FWS-191 while the other girls were raped by the other two men.

  161. The Trial Chamber is satisfied, on the evidence of FWS-191 and FWS-186, that Dragoljub Kunarac, together with “Gaga” and DP 6, took FWS-186, FWS-191 and J.G. from the house Ulica Osmana Dikica no 16 on 2 August 1992 to an abandoned house in Trnovace, where FWS-186 was raped by DP 6 and FWS-191 was raped by Dragoljub Kunarac. As to the alleged rape of J.G., the Trial Chamber finds that it has not been proved beyond reasonable doubt that she was raped by “Gaga” during this incident .

  162. As already stated, the Trial Chamber does not accept the alibi of the accused Dragoljub Kunarac with regard to all incidents on 2 August 1992.

  163. The Trial Chamber finds that Dragoljub Kunarac has been reliably identified by both FWS-191 and FWS-186. FWS-191 testified that Kunarac introduced himself to her before he raped her in the room in the Trnovace house. Not only did he tell her his name but he also showed her his tag with the name on it. Furthermore, he boasted to the witness about his eventful past in France and elsewhere.

  164. FWS-186 testified that she did not know Dragoljub Kunarac before the war but that she saw him for the first time when he came to take the girls away from Kalinovik Primary School. She had learnt his name at the house in Trnovace. She saw his photo in the press when he surrendered to the Tribunal and she recognised him immediately . In court, FWS-186 plausibly explained why she had not mentioned Kunarac in her first statement (dated 9 May 1998, Ex P90, given to the Prosecution in November 1993) as an attempt to protect J.G. who, according to FWS-186’s testimony, had also been raped by him.

  165. Both FWS-191 and FWS-186 described obvious characteristic features of Dragoljub Kunarac’s appearance. FWS-191 described “Zaga” as being tall, thin, brown hair, with a rough face and big eyes. FWS-186 recounted “Zaga” being tall, dark, skinny , with big eyes.

  166. The Trial Chamber notes that there is additional supporting evidence for the identification. FWS-192, the mother of FWS-191, testified that, on 2 August 1992 , her daughter was taken away from Kalinovik school by a soldier whose nickname she later came to learn was “Zaga”.

  167. FWS-191 and FWS-186 were taken out of Kalinovik School together by Dragoljub Kunarac and “Gaga” on 2 August 1992, driven by them to a house in the Alad‘a area and, from there, to the house in Trnovace. Upon arrival, the girls were told where to sleep. FWS-191 was assigned to Kunarac, he ordered her to undress and he tried to rape her while his bayonet was placed on the table. Kunarac did not entirely succeed penetrating FWS-191 because, as FWS-191 was still a virgin, she was rigid with fear. He succeeded in taking away her virginity the next day. Kunarac knew that she did not consent, and he rejoiced at the idea of being her “first”, thereby degrading her more. The Trial Chamber notes that the testimony of FWS-191 was also supported by the testimony of FWS-186, who said that FWS-191 had told her that she was raped by Kunarac during that night.

  168. FWS-186 was raped during this night by DP 6 on the second floor of the Trnovace house. FWS-186 identified the house in Trnovace and recounted her impression that it was owned by DP 6. FWS-186 was sent to a room on the second floor. DP 6 then came, locked the door from the inside and raped her. The evidence provided by FWS -186 is supported by FWS-191, who testified that, while she was assigned to Dragoljub Kunarac, FWS-186 had to go to the second floor of the house with DP 6.

  169. Whereas both FWS-191 and FWS-186 testified that J.G. was assigned to “Gaga” and taken by him to the first floor of the Trnovace house, their memories differ as to whether “Gaga” actually raped J.G. during the night of 2 August 1992. While FWS-191 said that fourteen-year old J.G. told her that she had not been raped by “Gaga” because she had her period, FWS-186 testified that J.G. later told her that she had been raped by “Gaga”. Since J.G. herself has not testified in court, the Trial Chamber finds that there remain reasonable doubts as to the alleged rape of J.G. by “Gaga” during the incident described under paragraph 10.1. The Trial Chamber therefore finds that this specific rape has not been proved beyond reasonable doubt .

  170. The Trial Chamber finds that the incident described under paragraph 10.1 of the Indictment, apart from the alleged rape of J.G., has been proved beyond reasonable doubt. The Trial Chamber is satisfied that Dragoljub Kunarac was fully aware that the other girls, whom he took out of Ulica Osmana Dikica together with “Gaga” and DP 6, ie FWS-191, FWS-186 and J.G., were taken to the abandoned house also for the purpose of rape.

    (ii) The rape, enslavement and outrages upon personal dignity of FWS-191 and FWS-186 1395

  171. Paragraph 10.2 of Indictment IT-96-23 alleges that FWS-186 and FWS-191 were kept in the abandoned house in Trnovace for approximately 6 months starting on 2 August 1992. It further alleges that, during the time of their detention, FWS-191 was constantly raped by the accused Dragoljub Kunarac while FWS-186 was constantly raped by DP 6. Dragoljub Kunarac reserved FWS-191 for himself. According to paragraph 10.3, the girls were treated as personal property of the accused Kunarac and DP  6, they had to do household chores and they had to obey all demands.

  172. The Trial Chamber is satisfied that the incidents charged under paragraphs 10.2 and 10.3 have been proved beyond reasonable doubt.

  173. As to the alibi of Dragoljub Kunarac, the Trial Chamber refers to its findings above on the grounds of which it rejects the Defence arguments also with regard to the incidents described in paragraphs 10.2 and 10.3. The Trial Chamber notes that, in any case, Kunarac did not provide any alibi for the period after 8 August 1992.

  174. As set out above with regard to the incident charged under paragraph 10.1, both FWS-191 and FWS-186 reliably identified the accused Dragoljub Kunarac.

  175. The Trial Chamber is satisfied that FWS-191 and FWS-186 were kept in the Trnovace house for five to six months, a period that the Trial Chamber accepts as falling under the time frame set out in the Indictment as “approximately 6 months”.

  176. The Trial Chamber accepts the testimony of FWS-191 that she was kept in the Trnovace house for about five to six months. As already discussed, the Trial Chamber reiterates that specific dates and exact time periods do not require to be proved beyond reasonable doubt due to the specific war context wherein the crimes concerned occurred. The Trial Chamber therefore accepts the testimony of FWS-186 that she stayed in the house in Trnovace for about five months as supporting evidence of FWS-191. The Trial Chamber further finds that J.G. stayed only for a few days in the house in Trnovace, as alleged in the Indictment and as was stated by FWS-186 .

  177. The Trial Chamber is satisfied that Dragoljub Kunarac constantly raped FWS- 191 for about two months while she was kept in the house. Kunarac came to the Trnovace house until the end of September, and that each time he came he would rape FWS-191 . Although Kunarac broke his arm in an accident sometime in September 1992, he nevertheless continued to rape her. The testimony of FWS-191 is supported by that of FWS-186, who said that FWS-191 was raped by Kunarac for about one and a half to two months while the girls stayed at the house. She further remembered having seen Dragoljub Kunarac at some point with a plaster cast on his arm.

  178. FWS-186 was raped by DP 6 continuously during her five-month stay at the Trnovace house. She was obliged to have sexual intercourse with DP 6 whenever he returned to the house from Montenegro or from the frontlines. The Trial Chamber regards the testimony of FWS-186 as sufficient to prove the rapes by DP 6 in the Trnovace house beyond reasonable doubt. Her testimony is supported by the testimony of FWS -191, who testified that FWS-186 was forced to have intercourse with DP 6 at the Trnovace house whenever he was at the house until the summer of 1993.

  179. The evidence provided by both witnesses is reliable and supported by the testimonies of other witnesses. FWS-175 who, as FWS-191 confirmed in her testimony, was also brought to the Trnovace house, testified that FWS-186 was already there when she arrived and that she, FWS-175, noticed that FWS-186 was with DP 6.

  180. FWS-192, the mother of FWS-191, testified that “Zaga” told her that her daughter was with him and that he would not bring her back. In addition to the testimony of FWS-191, who recounted having been allowed to write a letter to her mother at some point, FWS-192 testified that she received this letter from “Zaga” and DP 6 . With regard to FWS-186, FWS-192 further recounted that she was present when DP  6 admitted to FWS-185, the mother of FWS-186, that her daughter was with him. She recounted DP 6 having ordered FWS-185 to give him clothes for her daughter.

  181. The Trial Chamber accepts the evidence of FWS-191 and FWS-186, and finds that both witnesses were treated as the personal property of Dragoljub Kunarac and DP  6 during their stay in the Trnovace house as described in paragraph 10.3 of the Indictment.

  182. The Trial Chamber accepts from FWS-191 that the girls at Trnovace did anything they were ordered to do by the soldiers while being kept there. The testimonies of both FWS-191 and FWS-186 substantiated convincingly that the girls were kept in the house to be used by Dragoljub Kunarac and DP 6 for sexual services whenever the soldiers returned to the house.

  183. The Trial Chamber further accepts that the witnesses 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. Referring to the factual findings with regard to the general background , the Trial Chamber accepts 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. The Trial Chamber is satisfied that Kunarac and DP  6, both being Serb soldiers in the Foca area, were fully aware of this fact. The Trial Chamber accepts the evidence of FWS-191 and FWS-186 that the girls performed household chores for the soldiers whilst under captivity.

  184. The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that FWS-191 was raped by Dragoljub Kunarac and that FWS-186 was raped by DP 6, continuously and constantly whilst they were kept in the house in Trnovace. Kunarac in fact asserted his exclusivity over FWS-191 by forbidding any other soldier to rape her. The Trial Chamber is satisfied that Kunarac was aware of the fact that DP 6 constantly and continuously raped FWS-186 during this period, as he himself did to FWS-191. It has not been established however that Kunarac provided DP 6 with any form of assistance, encouragement or moral support which had a substantial effect on the perpetration of the individual rapes. Kunarac continued to come to the house for about two months, but it has not been established, apart from the incident charged and described in paragraph 10.1, that he was present while DP 6 raped FWS-186. It has not been shown either how Kunarac’s presence or actions would have assisted DP 6 in his raping FWS-186; so loose is the connection between the events at the house and his sporadic presence there, it would stretch the concept of aiding and abetting beyond its limits with respect to the actual rapes by DP  6.

  185. The Trial Chamber is satisfied that FWS-191 and FWS-186 were denied any control over their lives by Dragoljub Kunarac and DP 6 during their stay there. They had to obey all orders, they had to do household chores and they had no realistic option whatsoever to flee the house in Trnovace or to escape their assailants. They were subjected to other mistreatments, such as Kunarac inviting a soldier into the house so that he could rape FWS-191 for 100 Deutschmark if he so wished. On another occasion , Kunarac tried to rape FWS-191 while in his hospital bed, in front of other soldiers . The two women were treated as the personal property of Kunarac and DP 6. The Trial Chamber is satisfied that Kunarac established these living conditions for the victims in concert with DP 6. Both men 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.

  186. There is no evidence upon which it would be appropriate to convict the accused for outrages upon personal dignity that is not already covered by other convictions .

  187. In summary, the Trial Chamber finds that:

    (i) The allegations made in paragraph 10.1 of Indictment IT-96-23 have partly been proved beyond reasonable doubt. On 2 August, Dragoljub Kunarac personally raped FWS-191 and aided and abetted the rape of FWS-186 by DP 6.

    (ii) The allegations made in paragraph 10.2 of Indictment IT-96-23 have been proved beyond reasonable doubt. For a period of about 6 months, FWS-186 and FWS-191 were kept in the house in Trnovace. For a period of about 2 months, Dragoljub Kunarac sporadically visited the house and raped FWS-191 on those occasions.

    (iii) The allegations made in paragraph 10.3 of Indictment IT-96-23 have been proved beyond reasonable doubt. While they were kept in the house in Trnovace, FWS-191 and FWS-186 were treated as the property of Dragoljub Kunarac and DP 6.

  188. The Trial Chamber consequently finds the accused Dragoljub Kunarac GUILTY of rape under Counts 19 and 20, GUILTY of enslavement under Count 18 and NOT GUILTY of outrages upon personal dignity under Count 21.

    2. Radomir Kovac (Indictment IT-96-23)

  189. Counts 22 to 25 of Indictment IT-96-23 charge the accused Radomir Kovac with the rape, enslavement and outrages upon personal dignity of FWS-75, FWS-87, A.B. and A.S., as described in paragraphs 11.1 to 11.6 of the Indictment.

    (a) The arrival of the girls at Radomir Kovac’s apartment

  190. Paragraph 11.1 of the Indictment alleges that, on or about 30 October 1992, FWS-75, FWS-87, A.S. and A.B. were taken from “Karaman’s house” in Miljevina to Foca by Dragan Zelenovic, DP 1 and DP 6, and that they were subsequently handed over to the accused Radomir Kovac. Paragraph 11.2 alleges that Radomir Kovac detained FWS-75 and A.B. - between about 31 October 1992 until December 1992 - and FWS-87 and A.S. - from the same date until February 1993 - in a apartment over which he had control. The Indictment alleges that, while being so kept, the girls had to perform household chores, that they were frequently sexually assaulted and that they were beaten, threatened, psychologically oppressed and kept in constant fear .

  191. The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that, on or about 30 October 1992, FWS-75, FWS-87, A.S. and A.B. were taken from “Karaman’s house” and brought by Dragan Zelenovic, DP 6 and DP 1 to the Lepa Brena building block in Foca. There, they were handed over to the accused Radomir Kovac . Another man named Jagos Kostic lived in Radomir Kovac’s apartment.

  192. The Trial Chamber is also satisfied that, while kept in Radomir Kovac’s apartment , these girls were constantly raped, humiliated and degraded. They were sometimes beaten, slapped or threatened by one of the occupants of the apartment. The accused Kovac once slapped FWS-75 because she refused to sleep with a soldier whom he had brought in. Twelve-year old A.B. was sent in her place. Kovac also beat FWS-75 up on other occasions.

  193. The Trial Chamber is satisfied that the girls could not and did not leave the apartment without one of the men accompanying them. When the men were away, they would be locked inside the apartment with no way to get out. Only when the men were there would the door of the apartment be left open. Notwithstanding the fact that the door may have been open while the men were there, the Trial Chamber is satisfied that the girls were also psychologically unable to leave, as they would have had nowhere to go had they attempted to flee. They were also aware of the risks involved if they were re-captured.

  194. While they were detained in Radomir Kovac’s apartment, the girls were required to take care of the household chores, the cooking and the cleaning.

  195. The Trial Chamber is satisfied that the girls’ diet and hygiene was completely neglected by Radomir Kovac. When the men were in the apartment, the girls would get their left-over food. But Kovac sometimes left the girls behind without making sure that they would have sufficient food while he was away. On some occasions, witness DK, a cousin of the accused Radomir Kovac who lived on the floor below the accused’s apartment, passed some food to the girls through the window. Considering that people were organising parties where food and drinks were served, that cafés and shops were open, that supply would be available from Montenegro, and that Kovac received food from the army, the Trial Chamber does not accept that the hunger of the girls while detained in Kovac’s apartment was due to general shortage of food in Foca.

    (b) FWS-75 and A.B.

  196. Paragraph 11.3 of the Indictment alleges that FWS-75 and A.B. were detained in Radomir Kovac’s apartment from about 31 October 1992 until about 20 November 1992, during which time they had to do household chores and sexually please soldiers , including Radomir Kovac. The Indictment alleges that Radomir Kovac and Jagos Kostic frequently raped them. In addition, on an unknown date during this period , Kovac is alleged to have brought a soldier named Slavo Ivanovic to the apartment and ordered FWS-75 to have sexual intercourse with him; when she refused, Kovac beat her. Paragraph 11.3 further alleges that, around 20 November 1992, Kovac took FWS-75 and A.B. from his apartment to a house near Hotel Zelengora where he handed them to other Serb soldiers. The two girls were kept in this house, which Kovac visited for about two weeks. Thereafter, they were taken to an apartment in Pod Masala, where they remained for about fifteen days before being eventually taken back to Kovac’s apartment on or about 25 December 1992. The Indictment states that , during the whole period, the two girls were raped. Finally, paragraph 11.3 alleges that, on or about 25 December, when FWS-75 and A.B. were brought back to Kovac’s apartment, Kovac sold A.B. to an unidentified soldier for 200 Deutschmark and that , on about 26 December, FWS-75 was handed over to DP 1.

  197. The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that FWS-75 and A.B. stayed for a few days in Radomir Kovac’s apartment before being taken away by a Serb soldier named Vojkan Jadzic to another apartment in the vicinity of Hotel Zelengora. The two girls stayed at that apartment for about 15 days, during which they were constantly raped by at least ten or fifteen Serb soldiers. Kovac would come to this apartment from time to time, asking the girls how they were doing and if they had been abused, despite being was aware that they were being raped. The two girls were then taken to another apartment near Pod Masala by Serb soldiers , including Vojkan Jadzic. They stayed in that other apartment for about 7-10 days , during which time they continued to be raped.

  198. One evening, Vojkan Jadzic took the girls back to Radomir Kovac’s apartment where FWS-87 and A.S. were still being kept. The exact date of their being brought back to Kovac’s apartment has not been established with precision. On the basis of the evidence, the Trial Chamber finds that FWS-75 and A.B. were taken back sometime between the first and the second week of December 1992. The Trial Chamber notes once again, for the reasons given above, that a discrepancy in the evidence given as to the exact date would not in itself be sufficient to discredit the evidence . The Trial Chamber also notes that as there has been no attempt to provide an alibi for this period, the precise date is of no importance.

  199. The day after they had returned, A.B. and FWS-75 were taken from Radomir Kovac’s apartment. A.B. was taken by a man called “Dragec”, who gave Kovac 200 Deutschmarks in the process, while FWS-75 was handed over to DP 1 and Dragan “Zelja” Zelenovic . The Trial Chamber finds that this sexual exploitation of A.B. and FWS-75, in particular their sale, constitutes a particularly degrading attack on their dignity .

  200. The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that, while she was in Radomir Kovac’s apartment, FWS-75 was raped by both Kovac and Jagos Kostic. She was once raped together with FWS-87 by Kovac while “Swan Lake” was playing in the background. In addition, she was raped by several other soldiers who would come to Kovac’s apartment, including Vojkan Jadzic and the accused Zoran Vukovic. It should be noted, however, that this latter rape was not charged against the accused Zoran Vukovic, and that the Trial Chamber will therefore not take it into consideration with respect to the accused Zoran Vukovic’s conviction and sentencing, but will do so for purposes of identification and as circumstantial evidence for the required mens rea necessary to commit the other crimes against humanity with which he is charged.

  201. While in Radomir Kovac’s apartment, twelve-year old A.B. was raped by, among others, the accused Kovac, Slavo Ivanovic and “Zeljko”.

  202. The Trial Chamber is satisfied that the allegations made in paragraphs 11.3 of the Indictment have all been proved beyond reasonable doubt. The Trial Chamber finds that FWS-75 and A.B. were detained in Radomir Kovac’s apartment for about a week, starting sometime at the end of October or early November 1992. The Trial Chamber finds that the accused Radomir Kovac had sexual intercourse with the two women in the knowledge that they did not consent, and that he substantially assisted other soldiers in raping the two women. He did this by allowing other soldiers to visit his apartment and to rape the women 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 and that the girls did not consent to the sexual intercourse. Finally , the Trial Chamber is satisfied that it has been proven beyond reasonable doubt that, after about a week, Kovac handed the two women over to other soldiers whom he knew would most likely continue to rape and abuse them. Kovac eventually sold A.B. to an unidentified soldier, and handed over FWS-75 to DP 1, in the almost certain knowledge that they would be raped again.

    (c) FWS-87 and A.S.

  203. Paragraph 11.4 of the Indictment alleges that FWS-87 and A.S. were taken to Radomir Kovac’s apartment together with FWS-75 and A.B., on or around 31 October 1992, and that they were kept in this apartment for a period of approximately four months. Paragraph 11.4 of the Indictment alleges that, during the entire period , both girls were raped by Radomir Kovac and Jagos Kostic.

  204. The Trial Chamber is satisfied that it has been proven beyond reasonable doubt that, while in Radomir Kovac’s apartment, FWS-87 was raped by both Kovac and Jagos Kostic. Kovac reserved FWS-87 for himself and raped her almost every night he spent in the apartment. Jagos Kostic constantly raped A.S., and he took advantage of Kovac’s absence to rape FWS-87 too. He threatened her that if she reported this to Radomir Kovac he would kill her. Kovac knew at all times that the girls did not consent to the sexual intercourse. Jagos Kostic could rape A.S. because she was held by Kovac in his apartment. Kovac therefore also substantially assisted Jagos Kostic in raping A.S., by allowing Jagos Kostic to stay in his apartment and to rape A.S. there. The Trial Chamber notes that it has not been established beyond reasonable doubt that the accused Kovac aided and abetted the rape of FWS-87 by Jagos Kostic. The evidence indicates that the fact that Jagos Kostic raped FWS- 87 was hidden from Kovac. Considering the two men’s relationship and Jagos Kostic’s threats to FWS-87, it seems very unlikely that Kovac could have envisaged the possibility that Jagos Kostic would rape FWS-87.

  205. FWS-87 consistently denied any emotional relationship with the accused Radomir Kovac. The Trial Chamber notes that several Defence witnesses mentioned a letter with a heart drawn on the envelope which was allegedly sent by FWS-87 to Kovac. The Trial Chamber accepts, however, that FWS-87 did not send such a letter, and it notes the fact that, even by their own account, none of the Defence witnesses actually read the content of the letter, but only heard about it from Kovac. The relationship between FWS-87 and Kovac 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.

  206. Radomir Kovac forced FWS-87 to go to cafés with him, at least once forcing her to wear an insignia of the VRS.

  207. The Trial Chamber is also satisfied beyond reasonable doubt that, while in Radomir Kovac’s apartment, A.S. was constantly raped by Jagos Kostic.

  208. The Trial Chamber is satisfied that FWS-87 and A.S. were held in Radomir Kovac’s apartment for a period of about 4 months. Apart from the exact date of their departure , the allegations in paragraph 11.4 of the Indictment have been proved beyond reasonable doubt.

    (d) The naked dancing

  209. Paragraph 11.5 of the Indictment alleges that, on an unknown date between about 31 October 1992 and about 7 November 1992, while they were kept in Radomir Kovac’s apartment, FWS-75, FWS-87, A.S. and A.B. were forced to take off their clothes and to dance naked on a table while Kovac watched them.

  210. The witnesses have described three instances when they, together or individually , were forced to dance or to stand naked on a table while Radomir Kovac would watch them. Only one of them was expressly charged in the indictment. The Trial Chamber is satisfied that this one instance has been proved beyond reasonable doubt.

  211. FWS-87 testified, and the Trial Chamber accepts, that, on one of these occasions , the four girls, FWS-75, A.S., A.B. and herself, were there and that they were made to dance on a table while Radomir Kovac and Jagos Kostic were watching and pointing weapons at them.

  212. A.S. testified, and the Trial Chamber accepts, that she, together with A.B. and FWS-87, were once made to strip and dance. Radomir Kovac, Jagos Kostic and possibly a third soldier watched them. Although she did not recall FWS-75 being present, A.S.’s testimony fully supports FWS-87’s evidence of these events.

  213. FWS-87 mentioned that the four girls, FWS-75, A.S., A.B. and herself were present on that occasion. The Trial Chamber notes that FWS-75 did not seem to recall this event, testifying instead about another incident when she, together with FWS-87 and A.B. were forced to stand naked on a table and then marched naked by Radomir Kovac in the streets of Foca.

  214. Although FWS-75 may have been present on the first occasion too, as FWS-87’s testimony suggests, the Trial Chamber is not satisfied beyond reasonable doubt that this was the case.

  215. The Trial Chamber therefore holds that the events described in paragraph 11 .5 of the Indictment have been proved beyond reasonable doubt with respect to FWS -87, A.S. and A.B., but not with respect to FWS-75. The Trial Chamber therefore finds that, sometime between about 31 October 1992 and about 7 November 1992, while in Radomir Kovac’s apartment, FWS-87, A.S. and A.B. were forced to strip and dance naked on a table while Kovac watched them from the sofa, pointing weapons at them .

  216. The accused Radomir Kovac certainly knew that, having to stand naked on a table , while the accused watched them, was a painful and humiliating experience for the three women involved, even more so because of their young age. The Trial Chamber is satisfied that Kovac must have been aware of that fact, but he nevertheless ordered them to gratify him by dancing naked for him.

  217. The Statute does not require that the perpetrator must intend to humiliate his victim, that is that he perpetrated the act for that very reason. It is sufficient that he knew that his act or omission could have that effect. This was certainly the case here.

    (e) The selling of FWS-87 and A.S.

  218. Paragraph 11. 6 of the Indictment alleges that, on or about 25 February 1993 , FWS-87 and A.S. were sold by Radomir Kovac for 500 Deutschmarks each to two unidentified Montenegrin soldiers.

  219. The Trial Chamber first notes that the Defence did not deny that a financial transaction took place between the accused Radomir Kovac and two Montenegrins shortly before the girls were taken away by these two Montenegrins. They submitted that the transaction was of a different sort, and claimed that it was Kovac who actually paid for the girls to be taken away to Montenegro.

  220. In view of the treatment reserved by the accused Radomir Kovac for FWS-87 and A.S., which included an almost daily regime of rapes and other abuses, it is not credible to suggest that, after four months of constant intimidation and mistreatment , the accused suddenly decided to shield these two girls from the risks involved for a Muslim girl to live in Foca at the time and so to pay for them to be taken away. The Trial Chamber does not accept the accused’s account.

  221. The Trial Chamber is aware of one specific discrepancy in the accounts of the witnesses. FWS-87 said that 500 Deutschmarks was paid for each girl, whereas A. S. referred to 500 Deutschmarks for each girl plus a truckload of washing powder . But both agreed that they had been sold to two Montenegrins by Radomir Kovac. The Trial Chamber does not regard this discrepancy as destroying the credibility of the two witnesses.

  222. The Trial Chamber finds that, sometime in February 1993, two Montenegrins came to Radomir Kovac’s apartment. They went together with the accused to the living room while FWS-87 and A.S. were told to go to the kitchen. The two girls crept out of the kitchen into the corridor from where they listened to the conversation before rushing back to the kitchen when they heard the men moving. FWS-87 heard that the two girls were being sold for 500 Deutschmarks each, but A.S. did not hear the exact words of the conversation. Not long after the transaction, possibly the next day, the two Montenegrins came back to take the girls away. While they were in the car with the two Montenegrins, these two men laughed at their being sold for such a small amount of money and, as A.S. recounted, also for a truck-load of washing powder.

  223. Apart from this minor discrepancy concerning the precise amount for which the girls were sold, the Trial Chamber is satisfied that the events described in paragraph 11.6 of the Indictment have been proved beyond reasonable doubt. Radomir Kovac detained FWS-75 and A.B. for about a week, and FWS-87 and A.S. for about four months in his apartment, by locking them up and by psychologically imprisoning them, and thereby depriving them of their freedom of movement. During that time, he had complete control over their movements, privacy and labour. He made them cook for him, serve him and do the household chores for him. He subjected them to degrading treatments , including beatings and other humiliating treatments.

  224. The Trial Chamber finds that Radomir Kovac’s conduct towards the two women was wanton in abusing and humiliating the four women and in exercising his de facto power of ownership as it pleased him. Kovac disposed of them in the same manner. For all practical purposes, he possessed them, owned them and had complete control over their fate, and he treated them as his property. The Trial Chamber is also satisfied that Kovac exercised the above powers over the girls intentionally . The Trial Chamber is satisfied that many of the acts caused serious humiliation , of which the accused was aware.

  225. For these acts, the Trial Chamber finds the accused Radomir Kovac GUILTY of enslavement under Count 22; GUILTY of rape under Counts 23 and 24; and, finally, GUILTY of outrages upon personal dignity under Count 25.

    3. Zoran Vukovic (Indictment IT-96-23/1)

  226. The Trial Chamber first notes that the Defence of the accused Zoran Vukovic seemed to suggest that he had not pleaded to the amended Indictment.1396 Vukovic had already pleaded to the original Indictment in which he was joined with other defendants not currently before the Tribunal. The amended Indictment was no more than an extract from that Indictment, done in order that Vukovic could be tried, at his own request, with Dragoljub Kunarac and Radomir Kovac. The Trial Chamber notes that, during its closing argument, the Defence clearly stated that it did not intend to raise this issue of pleading as an objection to the procedure in relation to the accused Vukovic and his entering of a plea.1397

    (a) Counts 21 to 24

  227. Counts 21 to 24 charge the accused Zoran Vukovic with the rape of FWS-87 and of FWS-75 in Foca High School.

    (i) The rape of FWS-871398

  228. Paragraph 6.6 of the Indictment charges the accused Zoran Vukovic with having selected FWS-50, FWS-75, FWS-87 and FWS-95 out of a group of detainees at Foca High School, in concert with DP 1 and Dragan Zelenovic, and with having personally raped FWS-87 while the other women were raped by the other men.

  229. Several witnesses have testified with regard to the incident described in paragraph 6.6 of the Indictment. Taking into consideration the reliable testimonies of FWS -87 herself, FWS-75, FWS-50 and FWS-95, the Trial Chamber is satisfied that a group of women, including the afore-mentioned and FWS-88, were called out to be subsequently raped in another classroom during one of their first nights in Foca High School. With respect to the exact date of this incident, the Trial Chamber underlines that the exact time and day during which an incident occurred is immaterial, unless it is an element of the crime.

  230. The Trial Chamber is satisfied that FWS-87 was raped in the course of this particular incident. The Trial Chamber, however, is not convinced that this rape was committed by the accused Zoran Vukovic as alleged in paragraph 6.6 of the Indictment . FWS-87 herself testified that she was assigned to Vukovic after being called out , that he ordered her to lie down, took off her clothes and raped her. The Trial Chamber has no doubt with regard to the credibility of the witness, but it has doubts as to the reliability of the identification of the accused Vukovic as the perpetrator of this particular rape.

  231. In court, FWS-87 identified Zoran Vukovic, but with hesitation. In her testimony , she stated that she did not know Vukovic from before the war, and that she got to know his name from some other women in Foca High School who knew him. Similarly , she had stated in her statement to the Prosecution dated 4-5 May 1998, Ex P62, that she did not know Vukovic personally prior to the war. This contradicts, however , her statement to the Prosecution, dated 19-20 January 1996, Ex D32, when she recounted having known him and his wife by sight. When asked in court about the discrepancies , FWS-87 explained that she might have seen Vukovic prior to the war.

  232. These doubts as to the identification of Zoran Vukovic by FWS-87 are considerably aggravated when the testimonies of other witnesses are taken into account. In particular , the testimony of FWS-75 contradicts the assumption that FWS-87 was indeed raped by the accused Vukovic. FWS-75 recounted having seen Vukovic for the first time at Buk Bijela when he led away her uncle, who apparently had just been beaten up . FWS-75 further testified that she saw Vukovic again in Radomir Kovac’s apartment , where Zoran Vukovic admitted having killed her uncle and where he subsequently raped her. Although this rape has not been charged in the Indictment, and will therefore not be the subject of a conviction, the Trial Chamber accepts the testimony of FWS-75 that this rape was committed by Vukovic as being credible and reliable . The Trial Chamber has taken this incident into account as far as it supports the identification of Vukovic by FWS-75. FWS-75 further described Vukovic as “short , a small man, blond, [...] fair-haired”. 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.

  233. FWS-75 testified that FWS-87 was raped at Foca High School that night by a man whom FWS-75 did not know. The Trial Chamber notes that FWS-75 did know Zoran Vukovic at that time as being the soldier who, very few days before the rape in Foca High School occurred, had led her uncle away at Buk Bijela, but she did not mention him with respect to the incident at the school. At a later time, she got to know Zoran Vukovic as being the murderer of her uncle, since he expressly admitted the killing to her in Radomir Kovac’s apartment.

  234. In the context of all the evidence of the other witnesses who would have recognised him had he been there, FWS-87’s evidence of the accused Zoran Vukovic as raping her on that occasion is not reliable. The Trial Chamber finds that these uncertainties as to the proper identification of Vukovic caused by the inconsistency of FWS-87’s testimony and, in particular, the contradicting testimony of FWS-75, are not removed by the testimony of other witnesses who were present when the rape of FWS-87 occurred . FWS-50 was not raped in the same room as FWS-87, nor did she testify about any names of the men who called the women out and raped them. FWS-95 testified that she herself was raped by DP 1, but she did not mention Vukovic. FWS-51 testified that she probably had seen Vukovic at Foca High School, but she could not identify him as perpetrator of any specific crime committed there.

  235. The Trial Chamber finds that there remains reasonable doubt as to the identification of Zoran Vukovic as the perpetrator of the rape of FWS-87 in Foca High School as charged in paragraph 6.6. The Trial Chamber further finds that it has not been proved beyond reasonable doubt that Zoran Vukovic participated in the specific incident charged under paragraph 6.6 at all or that he was present at Foca High School while it occurred.

    (ii) The rape of FWS-75 and FWS-871399

  236. Paragraph 6.7 of the Indictment alleges the rape of FWS-75 and FWS-87 committed by Zoran Vukovic and Dragan Zelenovic in a classroom of Foca High School between or about 8 July and about 13 July 1992.

  237. The Trial Chamber finds that there was no evidence adduced during trial that would establish the incident. Neither of the alleged victims could remember the particular event.

  238. FWS-87 recounted having seen Zoran Vukovic only twice. The first time, she recounted having seen him during the incident charged under paragraph 6.6 of the Indictment where Vukovic, according to her, had raped her. The second time, she recounted having seen Vukovic at Radomir Kovac’s apartment. FWS-87 testified that she did not remember Vukovic being involved in any other rapes apart from the one charged under paragraph 6.6 of the Indictment. The testimony of FWS-87 therefore does not establish the alleged rape of her by Vukovic as charged in paragraph 6. 7.

  239. Moreover, FWS-75 did not mention Zoran Vukovic in connection with the incidents at Foca High School at all. According to her testimony, the only incident during which she recounted being raped by the accused Vukovic appeared to have been behind the locked kitchen door in Radomir Kovac’s apartment, where FWS-75 said that she had to sexually arouse Vukovic and that she subsequently was raped orally by him . This rape, however, is not charged in the Indictment. Since this particular rape of FWS-75 in Radomir Kovac’s kitchen was not charged by the Prosecution, it cannot be the subject of a conviction by the Trial Chamber. In conclusion, the testimony of FWS-75 does not provide any evidence upon which the Trial Chamber could find that the incident charged under paragraph 6.7 of the Indictment took place.

  240. The Trial Chamber notes that the Prosecutor conceded that the incident described in paragraph 6.7 of the Indictment had not been proved beyond reasonable doubt.

  241. The Trial Chamber concludes that none of the acts alleged to have been committed by the accused Zoran Vukovic in paragraphs 6.6 and 6.7 have been proved beyond reasonable doubt. It therefore finds the accused Zoran Vukovic NOT GUILTY under Counts 21, 22, 23 and 24.

    (b) Counts 33 to 36

  242. Counts 33 to 36 charge Zoran Vukovic with several incidents of rape of FWS- 48 (as described in paragraphs 7.9, 7.10, 7.15, 7.18 and 7.21 of the Indictment),1400 of FWS-50 (as described in paragraph 7.11) and of FWS-87 (as described in paragraph 7.13).

    (i) The defence of the accused

  243. The Defence suggested that an injury which Zoran Vukovic allegedly sustained on 15 June 1992 led to temporary impotence which made it impossible for him to have sexual intercourse.

  244. The Defence added in its Final Trial Brief that such an accident could have led to a temporary impotence of up to three weeks.1401 Even if such a proposition were to be accepted by the Trial Chamber, this would mean that the accused Zoran Vukovic was temporarily impotent from 15 June 1992 onwards until 5 or 6 July 1992 at the latest. The Trial Chamber notes that the first allegation of rape raised against the accused mentions the 6 or 7 July 1992 as the date of the event, a time at which, even if the proposition of the Defence were to be accepted , the accused would have recovered from his injury.

  245. However, the Trial Chamber finds 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. Witness DV said that Zoran Vukovic injured his testicle in June 1992, and that she had to bandage him as a result. The same witness added that Vukovic might have exaggerated the gravity of the injury in order not to be sent back to the frontline. The witness referred to a logbook which contained the list of medical injuries sustained by soldiers of the unit of which Vukovic was a member. It said that Vukovic was injured on 15 June 1992 in Okoliste, but it did not refer to the nature or the gravity of the injury, or to the part of the body which was injured. Witness DP, who was a confidant of Vukovic and had known him for more than 20 years, said that Vukovic was injured on 15 or 16 June 1992 and that Vukovic showed him his injury. The witness said that he took Vukovic to the hospital for treatment on 4 or 5 occasions, but he said nothing about the nature , the gravity or the consequences of the injury.

  246. Professor Dusan Dunjic testified that a temporary impotence could result as a consequence of an accident of the type described by the accused and that such an injury would make it very painful for a man to have sexual intercourse. He was unable, however, to conclude that such impotence actually occurred. He also noted a cyst on Zoran Vukovic’s scrotum and the increased sensitivity of his right testicle . Professor Dunjic concluded that the trauma described by Vukovic during his examination of the accused could not be ruled out as the cause of the cyst.

  247. Doctor Ivan de Grave testified that a cyst could be caused by a traumatic accident . He said that temporary impotence could occur as a result, but that it would not last longer than 3 days. He noted that Zoran Vukovic’s cyst was a fairly common feature found in about a third of the male population. He added that he did not find the signs or marks on Vukovic’s body which he should have found if the kind of accident described by the accused had indeed happened. He said that the case history and the conclusions he drew from the examination of Vukovic did not match , and he concluded that nothing had been shown to support Vukovic’s description of the accident and its consequences.

  248. The Trial Chamber does not accept that there is any 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 Trial Chamber rejects any suggestion that Vukovic was unable to have sexual intercourse at the relevant time.

    (ii) Rape of FWS-48, FWS-87 and Z.G.

  249. Paragraph 7.9 of the Indictment alleges that, on or around 13 July 1992, Dragoljub Kunarac took three women including FWS-48 to the Hotel Zelengora. At Hotel Zelengora , the Indictment alleges, FWS-48 was raped by both Dragoljub Kunarac and the accused Zoran Vukovic. Paragraph 7.10 alleges that, on or around 14 July 1992, DP 1 took FWS-87, Z.G. and FWS-48 to the Brena apartment block where Zoran Vukovic and another soldier were waiting. According to paragraph 7.10 of the Indictment, Zoran Vukovic took FWS-48 and raped her while the unidentified soldier raped FWS-87 and DP 1 raped Z.G.

  250. The Trial Chamber held, in its Decision on Motion for Acquittal, that the accused Zoran Vukovic had no case to answer in relation to the allegations made by witness FWS-48 in support of Counts 33 to 36.1402 This referred to the allegations made in paragraphs 7.9, 7.10, 7.15, 7.18 and 7. 21 of the Indictment in respect of FWS-48.

  251. That decision therefore also covers the allegations contained in paragraphs 7.9 and 7.10 of the Indictment with respect to FWS-48.

  252. In respect of paragraph 7.10 of the Indictment, the Trial Chamber notes that FWS-87, who is mentioned as one of the victims, did not recall these events. The third woman mentioned in paragraph 7.10, namely, Z.G., did not testify at all.

  253. The Trial Chamber therefore finds that it has not been proved beyond reasonable doubt that the accused Zoran Vukovic committed the acts described in paragraph 7 .10 of the Indictment also with respect to FWS-87 and Z.G.

    (iii) Rape of FWS-50

  254. Paragraph 7.11 of the Indictment alleges that, on or around 14 July 1992, Zoran Vukovic came to Partizan Sports Hall to remove FWS-50 and FWS-87, and that he took them to an apartment near Partizan. There, it is alleged, Zoran Vukovic raped FWS -50 while an unidentified soldier raped FWS-87.

  255. FWS-50 testified, and the Trial Chamber accepts, that a day or two after she arrived at Partizan Sports Hall she was taken out of Partizan Sports Hall together with FWS-87 by the accused Zoran Vukovic and another soldier, and that they were taken to an abandoned apartment. Her mother came to look for her in the toilet of Partizan where she was hiding. FWS-50 testified that the accused Vukovic took her to one room of the apartment and raped her.

  256. The Trial Chamber notes that FWS-87 said that she was taken out of Partizan on many occasions but she did not say that she was taken out of Partizan by Zoran Vukovic.

  257. FWS-50 gave evidence that she saw the accused Zoran Vukovic at Buk Bijela where he had raped her for the first time. This event in Buk Bijela was not charged in the Indictment, and the Trial Chamber will therefore not take it into account for convicting and sentencing, but it does take that event into account for matters of identification. FWS-50 also stated that, when he raped her, Vukovic told her that she was lucky in that she was the same age as his daughter, otherwise he would have done much worse things to her. The Trial Chamber notes that Vukovic’s daughter was approximately of the same age as FWS-50 at the relevant time.1403

  258. The Trial Chamber notes that this incident was the second time that Zoran Vukovic raped FWS-50 within a fortnight. He knew of her situation as a Muslim refugee since he had seen her at Buk Bijela, and he knew that she was about 16 years old at the time, as he told her that she was about the same age as his daughter. The rape led to serious mental and physical pain for the victim.

  259. In the Final Trial Brief of the Defence, the accused Zoran Vukovic argued that , even if it were proved that he had raped a woman, the accused would have done so out of a sexual urge, not out of hatred. However, all that matters in this context is his awareness of an attack against the Muslim civilian population of which his victim was a member and, for the purpose of torture, that he intended to discriminate between the group of which he is a member and the group of his victim. There is no requirement under international customary law that the conduct must be solely perpetrated for one of the prohibited purposes of torture, such as discrimination . The prohibited purpose need only be part of the motivation behind the conduct and need not be the predominant or sole purpose. The Trial Chamber has no doubt that it was at least a predominant purpose, as the accused obviously intended to discriminate against the group of which his victim was a member, ie the Muslims, and against his victim in particular.

  260. The Trial Chamber is therefore satisfied on the basis of the testimony of FWS -50 that the allegations contained in paragraph 7.11 of the Indictment have been proved beyond reasonable doubt as far as FWS-50 is concerned. The Trial Chamber finds that, sometime in mid-July 1992, the accused Zoran Vukovic and another soldier came to Partizan Sports Hall looking for FWS-50. She 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. The Trial Chamber is not satisfied, however, that FWS-87 was taken out by Vukovic and was also raped by an unknown soldiers during this same incident.

    (iv) Rape of FWS-87

  261. Paragraph 7.13 of the Indictment alleges that, in July 1992, FWS-87 was frequently taken out of Partizan and that, on one of these occasions, she was gang-raped by 4 men including the accused Zoran Vukovic.

  262. The Trial Chamber notes that the Prosecution conceded that the allegations made in paragraph 7.13 of the Indictment had not been proved beyond reasonable doubt .1404 The Trial Chamber concurs in this conclusion. Although FWS-87 could recall being taken out of Partizan Sports Hall and being raped on many occasions, she did not recall being taken out of Partizan Sports Hall by Zoran Vukovic or being raped by him other than on the occasion referred to in paragraph 6.6 of the Indictment.

  263. The Trial Chamber finds that the allegations made in paragraph 7.13 have not been proved beyond reasonable doubt.

    (v) Rapes of FWS-48

  264. Paragraphs 7.15, 7.18 and 7.21 allege that Zoran Vukovic raped or aided and abetted in raping FWS-48. As stated above, the Trial Chamber held in the earlier Decision on Motion for Acquittal that the accused Zoran Vukovic had no case to answer in relation to the allegations made by witness FWS-48 in support of Counts 33 to 36.1405

  265. On the evidence adduced, the Trial Chamber therefore finds the accused Zoran Vukovic GUILTY of torture under Counts 33 and 35 and GUILTY of rape under Counts 34 and 36.