823. In determining the sentence to be imposed with respect to each accused, the Trial Chamber must consider the relevant provisions of the Statute and Rules,¹⁴⁰⁶ the general sentencing practice in the former Yugoslavia and the sentencing practice of the Tribunal.

824. The Prosecutor made sentencing submissions in her briefs¹⁴⁰⁷ and during closing arguments.¹⁴⁰⁸ The Defence also made sentencing submissions in their respective briefs¹⁴⁰⁹ and during closing arguments.¹⁴¹⁰ Pursuant to Rule 94bis the Defence furthermore jointly submitted a written expert opinion of Prof Dr Stanko Bejatovic;¹⁴¹¹ he testified on 11 September 2000.¹⁴¹²
     A. Sentencing provisions of the Statute and the Rules

825. Article 23(1) of the Statute provides that “[t]he Trial Chambers shall pronounce judgements and impose sentences and penalties on persons convicted of serious violations of international humanitarian law.” Article 24(1) of the Statute provides that the

     penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.

     Article 24(2) states that the Trial Chamber in imposing the sentences “should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.”

826. Rule 101, dealing with penalties, provides in full:

     (A) A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life. (B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as: (i) any aggravating circumstances ; (ii) any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; (iii) the general practice regarding prison sentences in the courts of the former Yugoslavia; (iv ) the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10, paragraph 3, of the Statute. (C) Credit shall be given to the convicted person for the period , if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.

827. Read together, Article 24 and Rule 101 allow for factors other than those expressly mentioned to be considered when determining the proper sentences to be imposed.

828. Rule 87(C) deals with the manner in which sentences should be imposed:

     If the Trial Chamber finds the accused guilty on one or more charges contained in the indictment, it shall impose a sentence in respect of each finding of guilt and indicate whether such sentences shall be served consecutively or concurrently, unless it decides to exercise its power to impose a single sentence reflecting the totality of the criminal conduct of the accused.

     B. General sentencing practice in the former Yugoslavia

829. The wording of Article 24(1) of the Statute and Rule 101(B)(iii) - in particular the phrases “have recourse to” and “take into account” – suggests that the Trial Chamber is not bound to follow the sentencing practice of the former Yugoslavia . In this regard, the Appeals Chamber has stated:

     The jurisprudence of this Tribunal has consistently held that, while the law and practice of the former Yugoslavia shall be taken into account by the Trial Chambers for the purposes of sentencing, the wording of Sub-rule 101(A) of the Rules, which grants the power to imprison for the remainder of a convicted person’s life, itself shows that a Trial Chamber’s discretion in imposing sentence is not bound by any maximum term of imprisonment applied in a national system.¹⁴¹³

     Clearly, recourse must be had to the sentencing practice of the former Yugoslavia as an aid in determining the sentence to be imposed.¹⁴¹⁴ Although the Trial Chamber is not bound to apply the sentencing practice of the former Yugoslavia, what is required certainly goes beyond merely reciting the relevant criminal code provisions of the former Yugoslavia. Should they diverge, care should be taken to explain the sentence to be imposed with reference to the sentencing practice of the former Yugoslavia, especially where international law provides no guidance for a particular sentencing practice. The Trial Chamber notes that, because very important underlying differences often exist between national prosecutions and prosecutions in this jurisdiction, the nature, scope and the scale of the offences tried before the International Tribunal do not allow for an automatic application of the sentencing practices of the former Yugoslavia.

830. The relevant provisions of the Criminal Code of the Socialist Federal Republic of Yugoslavia (“SFRY Criminal Code”)¹⁴¹⁵ are the following. Article 41 (“General principles in fixing punishment”) of the SFRY Criminal Code sets out the various factors to be taken into account in the determination of sentences. In particular, Article 41(1) provides:

     The court shall fix the punishment for a criminal act within the limits provided by statute for such an act, taking into account all the circumstances bearing on the magnitude of punishment (extenuating and aggravating circumstances), and, in particular, the degree of criminal responsibility, the motives from which the act was committed, the degree of danger or injury to the protected object, the circumstances in which the act was committed, the past conduct of the offender, his personal situation and his conduct after the commission of the criminal act, as well as other circumstances relating to the personality of the offender.

     This Article is largely similar to the sentencing provisions of Article 24(2) of the Statute and Rule 101(B) of the Rules of the International Tribunal.

831. Articles 38, 48 and 142 of the SFRY Criminal Code must also be considered. Article 38 (“Imprisonment”) reads in part:

     (1) The punishment of imprisonment may not be shorter than 15 days nor longer than 15 years. (2) The court may impose a punishment of imprisonment for a term of 20 years for criminal acts eligible for the death penalty. (3) For criminal acts committed with intent for which the punishment of fifteen years imprisonment may be imposed under statute, and which were perpetrated under particularly aggravating circumstances or caused especially grave consequences, a punishment of imprisonment for a term of 20 years may be imposed when so provided by statute. [...] (6) A convicted person who has served half of his term of imprisonment, and exceptionally a convicted person who has served a third of his term, may be exempted from serving the rest of his term on the condition that he does not commit a new criminal act by the end of the period encompassed by his sentence (parole).

     Capital punishment was abolished by constitutional amendment in 1977 in some of the republics of the SFRY other than Bosnia and Herzegovina, the new maximum sentence being 20 years imprisonment¹⁴¹⁶ for the most serious offences.¹⁴¹⁷

832. Article 48 (“Combination of criminal acts”) of the SFRY Criminal Code deals with the question of punishment of offenders found guilty of several offences; it provides:

     (1) If an offender by one deed or several deeds has committed several criminal acts , and if he is tried for all of the acts at the same time (none of which has yet been adjudicated), the court shall first assess the punishment for each of the acts , and then proceed with the determination of the integrated punishment (compounded sentence) for all the acts taken together. (2) The court shall impose the integrated punishment by the following rules: (1) if capital punishment has been inflicted by the court for one of the combined criminal acts, it shall pronounce that punishment only; (2) if the court has decided upon a punishment of 20 years’ imprisonment for one of the combined criminal acts, it shall impose that punishment only; (3) if the court has decided upon punishments of imprisonment for the combined criminal acts, the integrated punishment shall consist of an aggravation of the most severe punishment assessed, but the aggravated punishment may not be as high as the total of all incurred punishments, and may not exceed a period of 15 years’ imprisonment ; (4) if for the combined criminal acts several punishments of imprisonment have been decided upon which taken together do not exceed three years, the integrated punishment may not exceed a period of eight years of imprisonment.

833. Chapter Sixteen of the SFRY Criminal Code is entitled “Criminal Acts Against Humanity and International Law”. Article 142(1) (“War crimes against the civilian population”) of the SFRY Criminal Code falls within the said Chapter, and it provides as follows:

     Whoever in violation of rules of international law effective at the time of war, armed conflict or occupation, orders that civilian population be subject to killings , torture; inhuman treatment [...], immense suffering or violation of bodily integrity or health [...]; forcible prostitution or rape; application of measures of intimidation and terror, [...] other illegal arrests and detention [...]; forcible labour [...] or who commits one of the foregoing acts, shall be punished by imprisonment for not less than five years or by the death penalty.

     As has been held by the Trial Chamber in the Tadic case, this Article gives effect to the provisions of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and its Protocols, which is incorporated into the jurisdiction of the International Tribunal by Article 2 of the Statute;¹⁴¹⁸ certain of the provisions of the Geneva Conventions are also incorporated through Article 3 of the Statute.¹⁴¹⁹ There appears to be no provision of the SFRY Criminal Code which gives specific effect to Article 5 of the Statute. However, genocide is itself a specific category of crimes against humanity, and it is dealt with in Article 141 of the SFRY Criminal Code.¹⁴²⁰ Article 141 also prescribes imprisonment for not less than five years or the death penalty.

834. Article 33 of the SFRY Criminal Code provides for three reasons for the imposition of sentences, namely,

     [...] (1) preventing the offender from committing criminal acts and his rehabilitation ; (2) deterrent effect upon others not to commit criminal acts; (3) strengthening the moral fibre of a socialist self-managing society and influence on the development of the citizens’ social responsibility and discipline.

835. Prof Dr Bejatovic intimated that there have been no cases relating to Article  142 of the SFRY Criminal Code in the former Yugoslavia.¹⁴²¹ The Trial Chamber has already, during the hearings, refused to consider a case because it had been tried by a post-1992 Bosnia and Herzegovinian court, and not a court of the former Yugoslavia, and was thus irrelevant.¹⁴²² Furthermore, Prof Dr Bejatovic’s testimony largely centred on rape committed during peacetime and is therefore of little relevance. However, his testimony relating to what was considered to be aggravating circumstances in the former Yugoslavia, unopposed by the Prosecutor,¹⁴²³ may be considered, where applicable. The following were considered as aggravating circumstances: the youthful age of victims of sexual crimes,¹⁴²⁴ rapes committed with ethnically based motives,¹⁴²⁵ rapes committed against detainees,¹⁴²⁶ rapes committed against physically weak persons who could not defend themselves,¹⁴²⁷ rapes entailing multiple victims¹⁴²⁸ and rapes at gunpoint.¹⁴²⁹
     C. Sentencing practice of the International Tribunal
     1. General sentencing factors

836. The Trial and Appeals Chambers of the International Tribunal generally consider what is variously and often interchangeably referred to, for example, as sentencing “objectives”, “purposes”, “principles”, “functions” or “policy” in the assessment of the term of actual imprisonment for convicted persons.¹⁴³⁰ These are considered in addition to the gravity of the offence and mitigating and aggravating circumstances. What appear to be justifications for imprisoning convicted persons, or theories of punishment, actually are treated as or resemble sentencing factors, in the sense that these considerations are consistently said to affect, usually in an unspecified manner, the length of imprisonment. In the present case , the Prosecutor submits that the Trial Chamber ought to consider the principles of retribution, incapacitation of the dangerous, deterrence, punishment and rehabilitation when determining the sentences to be imposed on each of the accused.¹⁴³¹ The Trial Chamber will deal only with the principles submitted by the Prosecutor .

837. By whatever name they go, these considerations are of real and considerable importance. Which of them may legitimately be considered as factors impacting on the assessment of the terms of imprisonment – referred to here as “general sentencing factors” - of the three convicted persons in this case, deserves careful consideration .

838. The jurisprudence of the International Tribunal seems to support deterrence and retribution as the main general sentencing factors.¹⁴³²

839. Generally, deterrence aims at deterring the specific accused from again committing similar crimes in future (special deterrence), and/or at deterring others from committing similar crimes (general deterrence).¹⁴³³ In the Tadic case, the Appeals Chamber was faced with a ground of appeal alleging that the Trial Chamber had erred in placing excessive weight on deterrence as a factor in the assessment of appropriate sentences for violations of humanitarian law.¹⁴³⁴ The Appeals Chamber, held , without further elaboration, that the “principle of deterrence [...] is a consideration that may legitimately be considered in sentencing”.¹⁴³⁵ It did say, however, that “this factor must not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal.”¹⁴³⁶ The Appeals Chamber did not indicate whether its remarks concerned special or general deterrence or both.¹⁴³⁷ The Appeals Chamber in the Aleksovski case considered a submission by the Prosecutor that a manifestly disproportionate sentence defeats one of the purposes of sentencing for international crimes, namely to deter others from committing similar crimes,¹⁴³⁸ and that the sentence imposed by the Trial Chamber was too lenient.¹⁴³⁹ That Appeals Chamber accepted the “general importance of deterrence as a consideration in sentencing for international crimes”.¹⁴⁴⁰ It also concurred with the Appeals Chamber in the Tadic case that this factor should not be accorded undue prominence in the overall assessment of sentences to be imposed by the International Tribunal.¹⁴⁴¹ The Appeals Chamber in the Aleksovski case appears to have been concerned with general deterrence only. The Appeals Chamber in the Delalic case similarly appears to have remarked – endorsing deterrence as an important sentencing factor , although not according it undue prominence - on general deterrence only.¹⁴⁴²

840. Whether the Appeals Chamber considers special or general deterrence or both to be a main general sentencing factor is therefore not entirely clear. Given that uncertainty, this Trial Chamber considers it appropriate to express its view that special deterrence, as a general sentencing factor, is generally of little significance before this jurisdiction. The main reason is that the likelihood of persons convicted here ever again being faced with an opportunity to commit war crimes, crimes against humanity, genocide or grave breaches is so remote as to render its consideration in this way unreasonable and unfair. As to general deterrence, in line with the view of the Appeals Chamber, it is not to be accorded undue prominence in the assessment of an overall sentence to be imposed. The reason is that a sentence should in principle be imposed on an offender for his culpable conduct - it may be unfair to impose a sentence on an offender greater than is appropriate to that conduct solely in the belief that it will deter others.

841. As to retribution, the Appeals Chamber in the Aleksovski case, immediately after having expressed its view on deterrence as set out above, stated:

     An equally important factor is retribution. This is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes. This factor has been widely recognised by Trial Chambers of this International Tribunal as well as Trial Chambers of the International Criminal Tribunal for Rwanda. Accordingly, a sentence of the International Tribunal should make plain the condemnation of the international community of the behaviour in question and show that the international community was not ready to tolerate serious violations of international humanitarian law and human rights.¹⁴⁴³

     What the Appeals Chamber appears to have concluded is that retribution is as important a general sentencing factor as general deterrence. The provisions of the Statute and the Rules support retribution – interpreted by this Chamber as punishment of an offender for his specific criminal conduct - as a main general sentencing factor . Article 24 and Rule 101(B) largely focus on sentencing factors relating to the individual accused and his criminal conduct, including the gravity of the offence . In the Aleksovski case, the Appeals Chamber explicitly endorsed the statement of the Trial Chamber in the Delalic case, that “[the] most important consideration , which may be regarded as the litmus test for the appropriate sentence, is the gravity of the offence.”¹⁴⁴⁴ It also endorsed the following statement of the Trial Chamber in the Kupreskic case:

     The sentences to be imposed must reflect the inherent gravity of the criminal conduct of the accused. The determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime.¹⁴⁴⁵

     These provisions essentially require an enquiry into the conduct of the accused in order to determine the just punishment for his crime.

842. With respect to Security Council resolution 827 , the Trial Chamber is of the view that it is inappropriate to have recourse to that resolution for guidance on what the general sentencing factors of the International Tribunal should be, whether they be deterrence, retribution or another factor.¹⁴⁴⁶ The relevant part of that resolution reads:

     [...] Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina , including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of “ethnic cleansing”, including for the acquisition and the holding of territory, Determining that this situation continues to constitute a threat to international peace and security, Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them, Convinced that in the particular circumstances of the former Yugoslavia the establishment as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the restoration and maintenance of peace, Believing that the establishment of an international tribunal and the prosecution of persons responsible for the above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed [...].”¹⁴⁴⁷

     It cannot be said that the Security Council intended this passage to serve as a guide on general sentencing factors. The passage should rather be seen against the background of the Security Council’s need to justify the establishment of the International Tribunal and the prosecution of individuals as a measure under Chapter  VII - in accordance with Articles 39 and 41 in particular - of the UN Charter.¹⁴⁴⁸ Even ignoring that context, the passage clearly refers to the deterrence of such crimes during that particular armed conflict, which was still raging at that point . To use the passage to support deterrence as a general sentencing factor at this point, after the termination of that conflict, would be inappropriate.

843. With respect to the protection of society, or the incapacitation of the dangerous ,¹⁴⁴⁹ as the Prosecutor refers to it, the Trial Chamber considers that in this jurisdiction it would rarely play a role as a general sentencing factor. Protection from society or incapacitation as a general sentencing factor basically means that a convicted person receives a lengthier term of imprisonment to “remove” him from society because the crime for which he has been convicted is thought to show him to be dangerous to society . A convicted person, under this approach, is preventively detained, so to speak . In many, if not most cases before the International Tribunal, the convicted persons would have no record of previous criminal conduct relevant to those committed during the armed conflict. In practically all cases before the International Tribunal, the convicted persons would be first time offenders in relation to international crimes. Unless it can be shown that a particular convicted person has the propensity to commit violations of international humanitarian law, or, possibly , crimes relevant to such violations, such as “hate” crimes or discriminatory crimes , it may not be fair and reasonable to use protection of society, or preventive detention, as a general sentencing factor. Violations of international humanitarian law, by their very nature, can be committed only in certain contexts which may not arise again in the society where the convicted person, once released, may eventually settle.

844. The Trial Chamber fully supports rehabilitative programmes, if any, in which the accused may participate while serving their sentences.¹⁴⁵⁰ But that is an entirely different matter to saying that rehabilitation remains a significant sentencing objective. The scope of such national rehabilitative programmes , if any, depends on the states in which convicted persons will serve their sentences , not on the International Tribunal.¹⁴⁵¹ Experience the world over has shown that it is a controversial proposition that imprisonment alone – which is the only penalty that a Trial Chamber may impose – can have a rehabilitative effect on a convicted person. The Trial Chamber is therefore not convinced that rehabilitation is a significant relevant sentencing objective in this jurisdiction.¹⁴⁵²
     2. The consideration of particular submissions made by the Prosecutor

845. The Trial Chamber must consider certain submissions made by the Prosecutor.

     (a) Burden of proof with respect to mitigating and aggravating factors

846. During the Pre-trial Conference on 2 March 2000, the Prosecutor was given fair warning by the Trial Chamber that it was

     [...] a fundamental rule [...] of sentencing that matters of aggravation must be established beyond reasonable doubt. There is no other way in which [such matters] could be taken into account.¹⁴⁵³

     The Prosecutor intimated that national jurisdictions differ on the burden of proof with respect to aggravating factors.¹⁴⁵⁴ In her Final Trial Brief, the Prosecutor stated that the Statutes, Rules and jurisprudence on sentencing of the ICTY and ICTR do not discuss the burden of proof for aggravating or mitigating circumstances:¹⁴⁵⁵

     Some national jurisdictions require the Prosecutor to prove aggravating circumstances beyond a reasonable doubt and the defendant to prove any mitigating factors on the balance of probabilities.¹⁴⁵⁶

     It is not clear whether the Prosecutor, by these statements, submitted that these burdens should apply before the International Tribunal.

847. The Trial Chamber underlines its view that fairness requires the Prosecutor to prove aggravating circumstances beyond a reasonable doubt,¹⁴⁵⁷ and that the Defence needs to prove mitigating circumstances only on the balance of probabilities.

     (b) Consideration of conduct not described in the indictment

848. Related to the matter of the burden of proof for mitigating and aggravating circumstances are the following submissions made by the Prosecutor in her Final Trial Brief. The Prosecutor contends that “any evidence” presented to the Trial Chamber of the accused’s conduct can be used for sentencing purposes.¹⁴⁵⁸ The Trial Chamber should consider “all acts and omissions that were part of the same course of conduct or common scheme or plan as the offence of conviction to be relevant for purposes of sentencing.”¹⁴⁵⁹ Thus, even conduct not described in the indictment was a relevant sentencing factor .¹⁴⁶⁰ It was submitted that

     Unlike cases in domestic jurisdictions, the multiplicity of humanitarian law violations , committed during an armed conflict as part of a common criminal scheme, often cannot be succinctly captured in an Indictment.¹⁴⁶¹

     Accordingly, the Prosecutor submitted that, in order to expedite the proceedings , she decided not to amend the Indictment in mid-trial, “despite relevant and credible evidence which arose during trial” which shows beyond a reasonable doubt that Zoran Vukovic committed additional rapes against FWS-50 and FWS-75.¹⁴⁶² The Prosecutor asserts that this “evidence is credible, relevant and illustrates Vukovic’s hostile behaviour against Muslim girls and indicates his violence and criminal energy against defenceless and vulnerable victims”.¹⁴⁶³ This evidence, it was submitted, should therefore be considered in aggravation of Zoran Vukovic’s crimes.

849. Before addressing the Prosecutor’s argument with respect to these submissions , it is necessary to recall a related discussion during the Pre-trial Conference on 2 March 2000. At that Conference, a discussion took place as to whether an incident that the Prosecutor at that stage felt she could not prove beyond a reasonable doubt could be considered for the purposes of sentencing.¹⁴⁶⁴ The specific incident related to the alleged participation of Zoran Vukovic in the killing of one of the older men at Buk Bijela, an allegation made in the Prosecutor’s Pre-Trial Brief.¹⁴⁶⁵ This incident was not charged in the Indictment. The Trial Chamber ordered the sentence and the accompanying footnote in the Pre-Trial Brief referring to the Prosecutor’s view of using that incident as an aggravating circumstance to be deleted.¹⁴⁶⁶ The Trial Chamber made it clear that an accused “can only be sentenced for what [he has] been convicted for, and if [he has not] been convicted, [he] can’t be sentenced for it.”¹⁴⁶⁷ It was in the context of this discussion that the Trial Chamber also made clear its view that only circumstances that have been proved beyond reasonable doubt may be used in aggravation of a sentence .¹⁴⁶⁸

850. Turning to the Prosecutor’s closing arguments on 20 November 2000 with respect to her submissions on the alleged rapes of FWS-50 and FWS-75, the Prosecutor appears to have withdrawn her submission that the evidence relating to uncharged alleged rapes could be used in aggravation of Zoran Vukovic’s sentence.¹⁴⁶⁹ Had she not done so, however, the view of the Trial Chamber is as follows. The Prosecutor does not appear to have argued that any uncharged criminal conduct should be considered in aggravation. She appeared rather to have argued that only uncharged acts and omissions that were part of the same course of conduct or common scheme or plan as the offence of conviction would be relevant for sentencing purposes . Even assuming, however, that the Defence was put on notice to put its case with respect to such uncharged acts and omissions, that those uncharged offences were established beyond reasonable doubt and that they can be said to be part of the same plan as the offence of conviction, the Trial Chamber would not allow such an uncharged crime being used as an aggravating circumstance. The reason is this: an offender can only be sentenced for conduct for which he has been convicted.¹⁴⁷⁰ Mitigating and aggravating circumstances should of course also be considered when imposing sentence. Mitigating circumstances not directly related to the offence , such as co-operation with the Prosecutor, an honest showing of remorse and a guilty plea, may be considered. However, the position with respect to aggravating circumstances is quite different. Only those circumstances directly related to the commission of the offence charged and to the offender himself when he committed the offence , such as the manner in which the offence was committed, may be considered in aggravation . In other words, circumstances not directly related to an offence may not be used in aggravation of an offender’s sentence for that offence. To permit otherwise would be to whittle away the purpose and import of an indictment. Either the Prosecutor should charge such conduct as an offence, or, where it is not directly related to another charged offence, she should desist from citing such conduct as an aggravating factor. The Trial Chamber understands that the multiplicity of humanitarian law violations committed during an armed conflict as part of a common criminal scheme often cannot be succinctly captured in an indictment. Considerations of fairness to the accused and judicial economy, however, outweigh the wish to have each and every crime committed during a war brought to light and adjudged in whatever way – that is something which this International Tribunal simply cannot do.

     (c) Comparison of “per se gravity” of offences

851. The Trial Chamber considers it wrong to resort to some abstract comparison of the “per se gravity of the crimes”, comparing the severity of crimes against humanity and violations of the laws or customs of war as suggested by the Prosecutor .¹⁴⁷¹ The Prosecutor relies on a ruling in the Tadic case in support of such an exercise.¹⁴⁷² In that judgement, the Trial Chamber, solely on the basis that a crime against humanity , all else being equal, is a more serious offence than a war crime, considered that a heavier penalty should be imposed for the former crime.¹⁴⁷³ However, the Appeals Chamber in that case concluded that there is “in law no distinction between the seriousness of a crime against humanity and that of a war crime”, finding that the Trial Chamber committed an error in determining that crimes against humanity should attract a higher sentence than war crimes.¹⁴⁷⁴ The Appeals Chamber in the Aleksovski case also held that there is in law no distinction between the seriousness of a crime against humanity and that of a war crime.¹⁴⁷⁵ The authorised penalties for these crimes are also the same, “the level in any particular case being fixed by reference to the circumstances of the case”.¹⁴⁷⁶ The Appeals Chamber in the Furundzija case followed the pronouncements in the Tadic and Aleksovski cases on the same issue.¹⁴⁷⁷ This submission by the Prosecutor is therefore rejected.

     (d) Effect of offence on third parties as a sentencing factor

852. The Trial Chamber is unable to accept that a so-called in personam evaluation of the gravity of the crime could or should also concern the effect of that crime on third persons, as submitted by the Prosecutor.¹⁴⁷⁸ Such effects are irrelevant to the culpability of the offender, and it would be unfair to consider such effects in determining the sentence to be imposed. Consideration of the consequences of a crime upon the victim who is directly injured by it is, however, always relevant to the sentencing of the offender. Where such consequences are part and parcel of the definition of the offence, though, care should be taken to avoid considering them separately in imposing sentence. For example, the fact that an offender took someone’s life cannot be considered as a separate sentencing circumstance when imposing a sentence for a murder conviction – it is part and parcel of the crime charged.

     (e) False defences, perjury and disrespectful courtroom behaviour

853. With respect to Dragoljub Kunarac, the Prosecutor contends that his false defences – his alibi and his assertion that he was seduced by a 19-year old girl – should be viewed as aggravating factors.¹⁴⁷⁹ With respect to Radomir Kovac, the Prosecutor submits that his false defence in relation to his alleged relationship with FWS-87 should be viewed as an aggravating factor.¹⁴⁸⁰ This Chamber finds that an alibi raised by an accused but rejected by the Trial Chamber, is part of the legitimate conduct of the accused’s defence, unless the Prosecutor can establish that it was not legitimately raised. With regard to D.B. and FWS-87, the Trial Chamber can make no such finding. In order to prove that Kovac raised a false defence by mocking a witness, saying that she was in love with the rapist and that she even sent a letter expressing her gratitude – especially if there is the suspicion that Defence counsel deliberately put forward false evidence – the Prosecutor would have to show that Defence counsel and the accused acted in collusion, for example, that the accused instructed or counselled that line of defence. To hold otherwise would mean the attribution of counsel’s conduct to the accused. The Trial Chamber makes no such finding.

854. With respect to Zoran Vukovic, the Prosecutor submits that his alleged disrespectful courtroom behaviour should be considered as an aggravating factor.¹⁴⁸¹ This behaviour, in the view of the Trial Chamber, actually shows a lack of remorse ; it will be treated as negating remorse as a possible mitigating factor rather than as an aggravating factor.
     D. Determination of sentences in respect of each convicted person
     1. General considerations

855. In determining the sentence to be imposed with respect to each accused, the Trial Chamber proposes to impose a single sentence reflecting the totality of the respective criminal conduct of each accused in accordance with Rule 87(C). The Trial Chamber will consider any cumulative convictions entered with respect to the three accused and ensure that they are not penalised more than once for the same conduct, in accordance with the ruling by the Appeals Chamber in the Delalic case:

     The fact that an accused’s conduct may legitimately be legally characterised as constituting different crimes would not overcome the fundamental principle that he should not be punished more than once in respect of the same conduct. In the case of two legally distinct crimes arising from the same incident, care would have to be taken that the sentence does not doubly punish in respect of the same act which is relied on as satisfying the elements common to the two crimes, but only that conduct which is relied on only to satisfy the distinct elements of the relevant crimes.¹⁴⁸²

856. Consideration of the gravity of the conduct of the accused is the starting point for reaching an appropriate sentence.¹⁴⁸³ The following statement of the Trial Chamber in the Kupreskic case, endorsed by the Appeals Chamber in the Delalic,¹⁴⁸⁴ Aleksovski,¹⁴⁸⁵ Furundzija ¹⁴⁸⁶ and Kambanda¹⁴⁸⁷ cases, sets out the approach to be adopted:

     The sentences to be imposed must reflect the inherent gravity of the criminal conduct of the accused. The determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime.¹⁴⁸⁸

     The guilty findings in relation to each of the accused have already been set out above. The Trial Chamber has considered the inherent gravity of the offences as well as the particular circumstances surrounding the commission of those offences , including the degree of participation with respect to each offence.

857. The Trial Chamber has considered retribution - interpreted by this Chamber as punishment of an offender for his specific criminal conduct – as an important general sentencing factor. In addition, general deterrence, another important general sentencing factor, has also been considered. However, in the circumstances of the present case, the Trial Chamber considers that increasing the terms of imprisonment because of general deterrence is unnecessary in light of the length of the sentences dictated by the inherent gravity of the offences.

858. The Appeals Chamber in the Tadic case held that a Trial Chamber also has to consider adequately the need for sentences to reflect the relative significance of the role of the accused in the broader context of the conflict in the former Yugoslavia.¹⁴⁸⁹ The Appeals Chamber in the Delalic case interpreted that consideration as follows:

     That judgement did not purport to require that, in every case before it, an accused’s level in the overall hierarchy in the conflict in the former Yugoslavia should be compared with those at the highest level, such that if the accused’s place was by comparison low, a low sentence should automatically be imposed. Establishing a gradation does not entail a low sentence for all those in a low level of the overall command structure. On the contrary, a sentence must always reflect the inherent level of gravity of a crime [...].¹⁴⁹⁰

     It cannot be said that any of the accused played relatively significant roles in the broader context of the conflict in the former Yugoslavia. None of them were commanders, their crimes were geographically relatively limited and there is no evidence that their specific offences affected other perpetrators of violations of international humanitarian law or other victims of such crimes within that broader context. That said, the three accused committed, by any measure, particularly serious offences against the most vulnerable of persons in any conflict, namely, women and girls, in the Foca region of Bosnia and Herzegovina. The Trial Chamber considered this fact in the context of the consideration of the gravity of the offences.

859. As explained above, although the Trial Chamber is not bound to follow the general sentencing practice in the former Yugoslavia when determining the sentence to be imposed, it must have recourse to that practice. At the time of the commissioning of the offences in the present case, the death penalty could have been imposed in Bosnia and Herzegovina for violations of Articles 141 and 142(1) of the SFRY Criminal Code. Those provisions respectively deal with war crimes and genocide, the latter being a specific category of crimes against humanity. A 20-year sentence could also be substituted for the death penalty. The Trial Chamber is mindful of the punishment that could have been imposed at the time, but considers that, in particular in relation to Dragoljub Kunarac and Radomir Kovac, the scale of their offences calls for a consideration of sentences of higher than 20 years to be imposed.

860. In line with recent Appeals Chamber determinations, the Trial Chamber does not consider that crimes against humanity should in principle attract a higher sentence than war crimes.¹⁴⁹¹

861. The Trial Chamber will lastly consider any aggravating and mitigating circumstances with respect to each accused.
     2. Dragoljub Kunarac

862. Dragoljub Kunarac has been found guilty on Counts 1 (torture), 2 (rape), 3  (torture), 4 (rape), 9 (rape), 10 (rape), 11 (torture), 12 (rape), 18 (enslavement ), 19 (rape) and 20 (rape).¹⁴⁹² The relevant aggravating and mitigating circumstances with respect to the offences committed by Dragoljub Kunarac are as follows.

     (a) Aggravating circumstances

863. The Trial Chamber found that Dragoljub Kunarac cannot be held responsible as a commander under Article 7(3) of the Statute. Nonetheless, the evidence clearly shows that this accused played a leading organisational role and that he had substantial influence over some of the other perpetrators.¹⁴⁹³ This fact is considered in aggravation - the criminal culpability of those leading others is higher than those who follow.

864. The youthful age of certain of the victims of the offences committed by Dragoljub Kunarac is considered as an aggravating factor. At the time of the commission of the offences against them, FWS-87 was about fifteen and a half years old, A.S. and D.B were about nineteen years old, FWS-50 was about sixteen years old, FWS-191 was about seventeen years old and FWS-186 was about sixteen and a half years old.

865. He committed these offences over an extended period of time in relation to certain of his victims, for example, two months in relation to the enslavement of FWS-191 and FWS-186. This fact is also considered in aggravation.¹⁴⁹⁴

866. The involvement of more than one victim in his offences is also considered in aggravation.¹⁴⁹⁵ The commission of some of the offences by more than one perpetrator at the same time is also considered in aggravation, like Dragoljub Kunarac’s co-perpetration of the rape of FWS-183,¹⁴⁹⁶ and his aiding and abetting of the rape of FWS-75 by about fifteen soldiers¹⁴⁹⁷ and the rape of FWS-87 by three soldiers.¹⁴⁹⁸

867. The Trial Chamber considers the discriminatory grounds – ethnic and gender discrimination - upon which Dragoljub Kunarac committed those offences other than torture, which was committed for discriminatory purposes, in aggravation.¹⁴⁹⁹ Lastly, that these offences were committed against particularly vulnerable and defenceless women and girls is also considered in aggravation.

     (b) Mitigating circumstances

868. The fact that Dragoljub Kunarac voluntarily surrendered to the International Tribunal is a factor in mitigation of his sentence. That an accused may be said to be under an obligation to surrender to the Tribunal does not mean that doing so should not be considered in mitigation. Treating such voluntary surrender as a mitigating factor may inspire other indictees to similarly surrender themselves , thus enhancing the effectiveness of the work of the Tribunal. Furthermore, his substantial co-operation with the Prosecutor in giving two statements is also considered in mitigation.

869. The Trial Chamber does not consider the statement by Dragoljub Kunarac that , in retrospect, he understands that D.B. was not acting of her own free will to indicate remorse. His subsequent testimony to the effect that she supposedly seduced him does not speak of remorse. However, his statement that he felt guilty about the fact that FWS-75 was gang-raped while he was raping D.B. in an adjoining room may be interpreted as a statement of remorse, and is considered in mitigation.

870. The Trial Chamber is satisfied that there are no other relevant mitigating circumstances to be considered with respect to Dragoljub Kunarac.

     (c) Sentence

871. The sentence to be imposed on Dragoljub Kunarac is 28 (twenty-eight) years.
     3. Radomir Kovac

872. Radomir Kovac has been found guilty on Counts 22 (enslavement), 23 (rape), 24 (rape) and 25 (outrages upon personal dignity).¹⁵⁰⁰ The relevant aggravating and mitigating circumstances with respect to the offences committed by Radomir Kovac are as follows.

     (a) A preliminary issue

873. Radomir Kovac appears to raise an issue as to the legality of his arrest, in the sentencing part of the Final Trial Brief Submissions by the Defence.¹⁵⁰¹ No evidence is adduced to support the claim. The Trial Chamber rejects this assertion . Throughout the proceedings, including the pre-trial proceedings, the Trial Chamber has not heard a single word about this claim. To casually raise it only in the final trial brief highlights the spurious nature of this claim.

     (b) Aggravating circumstances

874. The relatively youthful age of A.S. (about twenty years) and the very young age of A.B. (about twelve years) when the said offences were committed against them , are aggravating circumstances. That Radomir Kovac committed enslavement, rape and outrages upon personal dignity with respect to FWS-87 and A.S. for a period of about four months, and with respect to FWS-75 and A.B. for a period of about a month are also considered as aggravating circumstances. The sadistic manner in which the accused committed these offences has been considered as part of the determination whether these offences were in fact committed, and it is therefore not considered in aggravation. The fact that his offences were committed against particularly vulnerable and defenceless girls and a woman is a matter considered in aggravation .

875. The involvement of more than one victim in his offences is also considered in aggravation.¹⁵⁰²

     (c) Mitigating circumstances

876. The Trial Chamber is satisfied that there are no relevant mitigating circumstances to be considered with respect to Radomir Kovac.

     (d) Sentence

877. The sentence to be imposed on Radomir Kovac is 20 (twenty) years.
     4. Zoran Vukovic

878. Zoran Vukovic has been found guilty on Counts 33 (torture), 34 (rape), 35 (torture) and 36 (rape).¹⁵⁰³ The relevant aggravating and mitigating circumstances with respect to the offences committed by Zoran Vukovic are as follows.

     (a) Aggravating circumstances

879. The youthful age of FWS-50 – about fifteen and a half years - when she was raped and tortured by Zoran Vukovic, is an aggravating circumstance. The serious nature of the rape is not considered in aggravation because it is considered with respect to the torture convictions. The discriminatory purpose of the torture committed is also not considered in aggravation as this is already encompassed in that conviction . That his offences were committed against a particularly vulnerable and defenceless girl is considered in aggravation.

     (b) Mitigating circumstances

880. The fact that the accused apparently relented from carrying out worse crimes against FWS-50 because she was about the same age as his daughter,¹⁵⁰⁴ cannot be considered in mitigation, for the same reason that the possibility that any accused might have committed more or worse offences should not be so considered .

881. The Trial Chamber is satisfied that there are no relevant mitigating circumstances to be considered with respect to Zoran Vukovic.

     (c) Sentence

882. The sentence to be imposed on Zoran Vukovic is 12 (twelve) years.

      

     VII. DISPOSITION
     A. Sentences

     FOR THE FOREGOING REASONS, having considered all of the evidence and the arguments of the parties, the Statute and the Rules, the Trial Chamber finds, and imposes sentence, as follows.

     1. Dragoljub Kunarac

883. Dragoljub Kunarac has been found guilty on the following counts:¹⁵⁰⁵

     Count 1 (crime against humanity (torture)).

     Count 2 (crime against humanity (rape)).

     Count 3 (violation of the laws or customs of war (torture)).

     Count 4 (violation of the laws or customs of war (rape)).

     Count 9 (crime against humanity (rape)).

     Count 10 (violation of the laws or customs of war (rape)).

     Count 11 (violation of the laws or customs of war (torture)).

     Count 12 (violation of the laws or customs of war (rape)).

     Count 18 (crime against humanity (enslavement)).

     Count 19 (crime against humanity (rape)).

     Count 20 (violation of the laws or customs of war (rape)).

884. Dragoljub Kunarac has been acquitted on the following counts:

     Count 5 (crime against humanity (torture)).

     Count 6 (crime against humanity (rape)).

     Count 7 (violation of the laws or customs of war (torture)).

     Count 8 (violation of the laws or customs of war (rape)).

     Count 13 (violation of the laws or customs of war (plunder)).¹⁵⁰⁶

     Count 21 (violation of the laws or customs of war (outrages upon personal dignity )).

885. The Trial Chamber hereby sentences Dragoljub Kunarac to a single sentence of  28 (twenty-eight) years imprisonment.
     2. Radomir Kovac

886. Radomir Kovac has been found guilty on the following counts:¹⁵⁰⁷

     Count 22 (crime against humanity (enslavement)).

     Count 23 (crime against humanity (rape)).

     Count 24 (violation of the laws or customs of war (rape)).

     Count 25 (violation of the laws or customs of war (outrages upon personal dignity )).

887. The Trial Chamber hereby sentences Radomir Kovac to a single sentence of 20 (twenty) years imprisonment.
     3. Zoran Vukovic

888. Zoran Vukovic has been found guilty on the following counts:¹⁵⁰⁸

     Count 33 (crime against humanity (torture)).

     Count 34 (crime against humanity (rape)).

     Count 35 (violation of the laws or customs of war (torture)).

     Count 36 (violation of the laws or customs of war (rape)).

889. Zoran Vukovic has been acquitted on the following counts:

     Count 21 (crime against humanity (torture)).

     Count 22 (crime against humanity (rape)).

     Count 23 (violation of the laws or customs of war (torture)).

     Count 24 (violation of the laws or customs of war (rape)).

890. The Trial Chamber hereby sentences Zoran Vukovic to a single sentence of 12 (twelve) years imprisonment.

Dragoljub Kunarac surrendered to the International Tribunal on 4 March 1998; Radomir Kovac was arrested on 2 August 1999; and Zoran Vukovic was arrested on 23 December 1999. Pursuant to Rules 101(C) and 102, the sentences of the three accused shall begin to run from today.

Done in English and French, the English text being authoritative.

_______________________________
Florence Ndepele Mwachande Mumba
Presiding

________________________________
David Hunt

_______________________________
Fausto Pocar

Dated this the twenty-second day of February 2001,
At The Hague,
The Netherlands.

[Seal of the Tribunal]

891. The International Tribunal confirmed an Indictment against Dragoljub Kunarac , Radomir Kovac and Zoran Vukovic, (“co-accused”) as well as five other accused on 26 June 1996 (“original Indictment”).¹⁵⁰⁹ In relation to the co-accused, the Indictment charged rape and torture as crimes against humanity, torture as a grave breach and as a violation of the laws and customs of war and enslavement as a crime against humanity.

892. Dragoljub Kunarac surrendered to the Tribunal on 4 March 1998. On 5 March 1998 President Gabrielle Kirk McDonald assigned the case to Trial Chamber II, then composed of Judge Antonio Cassese (Presiding), Judge Richard George May, and Judge Florence Ndepele Mwachande Mumba.¹⁵¹⁰ Dragoljub Kunarac made his initial appearance before the Tribunal on 9, 10 and 13 March 1998. On 9 March 1998 he pleaded guilty to Count 41 of the original Indictment – rape as a crime against humanity – and not guilty to all other Counts. On 13 March 1998 he withdrew this guilty plea.¹⁵¹¹

893. At the request of the Prosecutor, on 29 April 1998, the Trial Chamber ordered protective measures for certain victims and witnesses.¹⁵¹²

894. On 18 June 1998 Judge Florence Ndepele Mwachande Mumba was appointed Pre-Trial Judge¹⁵¹³ and on 15 July 1998 Presiding Judge for this case.¹⁵¹⁴

895. A Status Conference was held on 16 July 1998 at which potential amendments to the Indictment against Dragoljub Kunarac were considered.¹⁵¹⁵ The original Indictment was subsequently amended on 19 August 1998, consolidating the charges against Dragoljub Kunarac, and leaving out references to the seven other accused (“first amended Indictment”).¹⁵¹⁶ The Prosecutor also withdrew the charges under Article 2 of the Statute and added charges under Article 3. On 28 August 1998, Dragoljub Kunarac made a further appearance before the Tribunal, pleading not guilty to the new charges of the first amended Indictment.¹⁵¹⁷

896. On 6 October 1998 Dragoljub Kunarac’s Defence filed a Preliminary Motion on the Form of the Indictment.¹⁵¹⁸ The Trial Chamber dismissed the motion on 21 October 1998, upholding the Indictment .¹⁵¹⁹

897. On 16 November 1998, Judge David Anthony Hunt replaced Judge Richard George May in the Trial Chamber.¹⁵²⁰

898. On 8 February 1999, the Prosecutor filed a Pre-Trial Brief, a Submission Related to Admissions Made by the Defence, a Submission Related to Rule 73bis (B)(IV) and (V) and a confidential and ex parte Addendum to Prosecutor’s Submission Related to Rule 73bis (B)(IV) and (V).¹⁵²¹ On 28 February 1999, the Defence filed a Pre-Trial Brief Addressing the Factual and Legal Issues.¹⁵²²

899. A Status Conference was held on 5 March 1999 at which issues of disclosure, trial dates, and protective measures were discussed.¹⁵²³ Thereafter on 26 March 1999 the Trial Chamber ordered that unredacted statements of witnesses FWS-191 and FWS-192 be disclosed to the Defence at least 30 days before trial.

900. On 30 July 1999, the Prosecutor withdrew the Indictment against one of the co-accused, Dragan Gagovic, who had died in the meantime.¹⁵²⁴

901. On 2 August 1999 Radomir Kovac was arrested and transferred to the Tribunal . At his initial appearance of 4 August 1999, he pleaded not guilty to the counts of the original Indictment, including both rape and enslavement as crimes against humanity.¹⁵²⁵

902. A second amended Indictment against Dragoljub Kunarac and Radomir Kovac was confirmed on 3 September 1999.¹⁵²⁶ It added two new Counts under Article 3 (violations of the laws or customs of war ), namely Count 24 (rape) and Count 25 (outrages upon personal dignity), against Radomir Kovac. Both Radomir Kovac and Dragoljub Kunarac pleaded not guilty to the second amended Indictment on 24 September 1999.¹⁵²⁷ The Prosecutor redacted the charges against the five other accused, including Zoran Vukovic, and merged them into a separate Indictment of 5 October 1999.¹⁵²⁸

903. On 10 October 1999 the Defence filed a Request for Provisional Release of the accused Dragoljub Kunarac, which the Trial Chamber denied on 11 November 1999, noting that Dragoljub Kunarac had not shown “exceptional circumstances justifying his provisional release” and that his voluntary surrender to the Tribunal did not justify release .¹⁵²⁹ Despite a letter from the Government of the Republika Srpska, indicating its willingness to comply with the orders of the Tribunal should Dragoljub Kunarac be released, the Trial Chamber denied Dragoljub Kunarac’s fresh application for provisional release on 17 November 1999 .¹⁵³⁰ Dragoljub Kunarac then filed an Application for Leave to Appeal against both decisions. A bench of the Appeals Chamber rejected the application on 25 November 1999.¹⁵³¹

904. On 4 November 1999, the Trial Chamber granted in part Defence motions on the form of the Indictment.¹⁵³² The confirmation of the third amended Indictment followed on 1 December 1999.¹⁵³³

905. After a Status Conference on 15 November 1999, the Trial Chamber set the date for the start of trial as 1 February 2000.¹⁵³⁴

906. On 30 November 1999, the accused Radomir Kovac, with the agreement of Dragoljub Kunarac, sought to postpone the trial.¹⁵³⁵ At a Status Conference on 14 December 1999, the start of the trial was postponed until 20 March 2000 to give Radomir Kovac time to prepare his case.¹⁵³⁶

907. The accused Zoran Vukovic was arrested on 23 December 1999 and transferred to the Tribunal the following day. He made his initial appearance on 29 December 1999, pleading not guilty to charges of rape and torture as crimes against humanity and violations of the laws and customs of war.¹⁵³⁷ On 31 January 2000, he sought a joint trial with Dragoljub Kunarac and Radomir Kovac , which he requested to commence on 2 May 2000.¹⁵³⁸ On 9 February 2000 the Trial Chamber denied the request, but noted Zoran Vukovic could approach the Trial Chamber for joinder again if he could be ready for trial by 20 March 2000.¹⁵³⁹

908. On 1 February 2000 Judge Fausto Pocar was assigned to the Trial Chamber, replacing Judge Antonio Cassese who had resigned as of 31 January 2000.¹⁵⁴⁰ Also on 1 February 2000, the Prosecutor filed a Submission Regarding Admissions and Contested Matters with regard to Dragoljub Kunarac and Radomir Kovac, followed on 8 March 2000 by a similar submission relating to Zoran Vukovic.

909. On 10 February 2000, counsel for Zoran Vukovic again requested a joint trial with Dragoljub Kunarac and Radomir Kovac and indicated readiness for a 20 March 2000 start date.¹⁵⁴¹ The Trial Chamber granted the request and ordered compliance with the protective orders in place with respect to the other two accused.¹⁵⁴² Consequently on 16 February 2000, the Trial Chamber ordered the severance of the case against Zoran Vukovic from a separate Indictment against DP 6, DP 1, Dragan Zelenovic, and Radovan Stankovic.¹⁵⁴³ A redacted indictment pertaining only to Zoran Vukovic was confirmed on 16 February 2000.¹⁵⁴⁴

910. The pre-trial conference was held on 2 March 2000.¹⁵⁴⁵ In this conference the counsel for the accused Vukovic and the accused himself confirmed that they were prepared to start the trial on the 20th of March 2000, regardless of the short time left for preparation.¹⁵⁴⁶

911. On 11 March 2000 counsel for Radomir Kovac requested permission for Mr Milan Vujin, former Defence counsel to Dusko Tadic, who had been found guilty of contempt of the Tribunal by the Appeals Chamber on 31 January 2000,¹⁵⁴⁷ to act as pro bono counsel for Radomir Kovac.¹⁵⁴⁸ In its decision of 14 March 2000, the Trial Chamber denied Milan Vujin the right of audience in the present case, citing his interference “with the orderly and lawful conduct of the proceedings before the Tribunal” in the Tadic case.¹⁵⁴⁹

912. On 14 March 2000, the Defence requested the exclusion of the press and public from the Trial Chamber’s proceedings during the testimony of protected Prosecution witnesses.¹⁵⁵⁰ The Trial Chamber denied the request on 22 March 2000, noting sufficient protective measures were already in place and the Tribunal’s proceedings should remain public as far as possible .¹⁵⁵¹
     Trial phase

913. The trial commenced on 20 March 2000. The Prosecution case lasted until Tuesday , 13 June 2000; the Defence case commenced on 4 July 2000 and closed on 10 November 2000. The Prosecution led evidence in rebuttal on 23 October 2000.

914. On 20 March 2000, the Defence filed a joint request for the presence of medical experts at trial.¹⁵⁵² After oral arguments, the request was substantially amended, seeking to permit three medical experts access to statements by five protected witnesses and to permit expert examination of those witnesses. On 29 March 2000 the Trial Chamber ruled the statements of the five protected witnesses may be disclosed to the Defence’s three medical experts who may be called to testify under Rule 94bis.¹⁵⁵³ In the same decision of 29 March 2000, the Trial Chamber held that applications for physical examination of witnesses had to be made individually and, if such examinations were granted, protective orders in force would bind medical experts and their assistants .

915. On 3 April 2000 the Trial Chamber granted the Prosecutor’s oral application to withdraw Counts 14-17 of the third amended Indictment (enslavement and rape of witness FWS-101 as crimes against humanity and violations of the laws and customs of war) pertaining to Dragoljub Kunarac and Radomir Kovac.¹⁵⁵⁴ On 6 April the Trial Chamber also granted leave to call witness D.B.¹⁵⁵⁵

916. On 20 June 2000, the Defence submitted a motion for acquittal pursuant to Rule  98bis.¹⁵⁵⁶ In its decision of 2 July 2000, the Trial Chamber acquitted Dragoljub Kunarac on Count 13 (plunder), noting that there was no evidence to suggest that the ordinary meaning of plunder in Article 3(e) of the Statute - “unjustified appropriations of property either from more than a small group of persons or from persons over an identifiable area ” - had been satisfied.¹⁵⁵⁷ The Trial Chamber further decided Zoran Vukovic had no case to answer in relation to the rape of witness FWS-48 in support of Counts 33-36 as the totality of the evidence did not provide a “sufficient basis upon which a reasonable tribunal of fact could be satisfied beyond a reasonable doubt that it was the accused Zoran Vukovic who raped witness FWS 148”.¹⁵⁵⁸ The Trial Chamber dismissed all other complaints in the Defence motion.

917. On 11 July 2000, the Trial Chamber denied in a confidential decision¹⁵⁵⁹ the request of the Defence to order the medical and psychological examination of certain witnesses.¹⁵⁶⁰ It stated that the Defence had failed to satisfy the Trial Chamber that these examinations would be reasonably likely to assist the accused and that the likelihood that they could verify that the alleged crimes were committed was too remote to justify those highly intrusive examinations.

918. On 21 September 2000, the Trial Chamber ordered the medical examination of the accused Zoran Vukovic,¹⁵⁶¹ thereby granting a confidential Defence Motion.¹⁵⁶² In that motion the Defence had requested that the accused Zoran Vukovic should be medically examined in order to establish that he suffered an injury to his testicles on 15 June 1992. The Trial Chamber ordered that the confidentiality of the Motion was lifted and that in addition to the Defence expert the Prosecutor was to nominate an expert of her own.

919. On the same day, Defence counsel for the accused Vukovic withdrew the witnesses who were designated for testifying by video link, because it was impossible for the defence to organise their witnesses’ appearance in a location suitable for the testimony.¹⁵⁶³

920. On 28 September 2000, the Trial Chamber issued a Decision on the Rebuttal Case ,¹⁵⁶⁴ permitting the Prosecutor to call FWS-87 and FWS-191 in rebuttal.

921. On 16 October 2000, an agreement was reached during trial that the rebuttal case of the prosecution would start in the next session, regardless of the fact that the final results of the medical examination of the accused Zoran Vukovic had not yet been filed. The rule that the rebuttal may not begin before the Defence case has been closed completely was waived by consent of the parties.¹⁵⁶⁵

922. The Chamber’s scheduling order of 17 October 2000¹⁵⁶⁶ set the dates for closing briefs and arguments, thereby revising all previous scheduling orders in that matter due to the fact that the final results of the examination of Zoran Vukovic had not been filed yet.

923. On 23 October 2000, the rebuttal case for the Prosecution was heard.

924. On 31 October the Trial Chamber rejected the motion by the accused Radomir Kovac for rejoinder. ¹⁵⁶⁷

925. The next scheduling order of 31 October 2000¹⁵⁶⁸ revised all previous scheduling orders for closing briefs and arguments. The additional change became necessary because the Trial Chamber granted the request by the Defence to hear the medical expert witnesses in court. The hearing was held on 10 November 2000.

926. The Prosecutor filed her closing brief on 8 November 2000, the Defence filed theirs on 13 November 2000.

927. Closing arguments were held on 20, 21 and 22 November 2000. In their closing arguments the parties were given the opportunity to make oral submissions on the evidence presented by the medical experts on 10 November 2000, which they could not have addressed in the final briefs.

928. The Trial Chamber sat for a total of 58 days, heard 63 witnesses (1 court witness , 33 Prosecution witnesses and 29 Defence witnesses) and admitted 132 Prosecution and 130 Defence exhibits.

Indictment IT-96-23

The Prosecution formally withdrew Counts 14 to 17, which charged the accused Dragoljub Kunarac with enslavement and rape of FWS-101.¹⁵⁶⁹ Paragraph 9.2 and the last sentence of paragraph 9.1 which relate to these counts were also removed.¹⁵⁷⁰ In its Decision on Motion for Acquittal, the Trial Chamber acquitted the accused Dragoljub Kunarac under Count 13, which had charged him with plunder of the property of FWS-183.¹⁵⁷¹ These Counts (13-17) have been marked as struck out for the reasons given.

CASE NO.: IT-96-23-PT

THE PROSECUTOR
OF THE TRIBUNAL

AGAINST

DRAGOLJUB KUNARAC
RADOMIR KOVAC

AMENDED INDICTMENT

The Prosecutor of the International Criminal Tribunal for the former Yugoslavia, pursuant to her authority under article 18 of the Statute of the Tribunal charges :

DRAGOLJUB KUNARAC
RADOMIR KOVAC

with CRIMES AGAINST HUMANITY and VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR, as set forth below:

BACKGROUND

1.1 The city and municipality of Foca are located south-east of Sarajevo, in the Republic of Bosnia-Herzegovina and borders Serbia and Montenegro. According to the 1991 census, the population of Foca consisting of 40,513 persons was 51.6 % Muslim, 45.3 % Serbian and 3.1% others. The political and military take-over of the municipality of Foca started with the first military actions in the town of Foca on 7 April 1992. The Serb forces, supported by artillery and heavy weapons , proceeded to take over Foca, section by section. The take-over of Foca town was complete by 16 or 17 April 1992. The surrounding villages continued to be under siege until mid- July 1992.

1.2 As soon as the Serb forces had taken over parts of Foca town, military police accompanied by local and non-local soldiers started arresting Muslim and Croat inhabitants . Until mid-July 1992 they continued to round up and arrest Muslim villagers from the surrounding villages in the municipality. The Serb forces separated men and women and unlawfully confined thousands of Muslims and Croats in various short and long-term detention facilities or kept them essentially under house arrest. During the arrests many civilians were killed, beaten or subjected to sexual assault.

1.3 The Foca Kazneno-popravni Dom ( “KP Dom” ), one of the largest prison facilities in the former Republic of Yugoslavia, was the primary detention facility for men . Muslim women, children and the elderly were detained in houses, apartments and motels in the town of Foca or in surrounding villages, or at short and long-term detention centres such as Buk Bijela, Foca High School and Partizan Sports Hall, respectively. Many of the detained women were subjected to humiliating and degrading conditions of life, to brutal beatings and to sexual assaults, including rapes.

1.4 Partizan Sports Hall ( “Partizan”) functioned as a detention centre for women , children and the elderly from at least on or about 13 July 1992 until at least 13 August 1992. The detainees held at Partizan, during this time period, numbered at least 72. The detainees were all civilian Muslim women, children and a few elderly persons from villages in the municipality of Foca.

1.5 Living conditions in Partizan were brutal. The detention was characterised by inhumane treatment, unhygienic facilities, overcrowding, starvation, physical and psychological torture, including sexual assaults.

1.6 Immediately after the transfer of women to Partizan, a pattern of sexual assaults commenced. Armed soldiers, mostly in groups of three to five, entered Partizan, usually in the evenings, and removed women. When the women resisted or hid, the soldiers beat or threatened the women to force them to obey. The soldiers took the women from Partizan to houses, apartments or hotels for the purpose of sexual assault and rape.

1.7 Three witnesses, identified by the pseudonyms FWS-48, FWS-95 and FWS-50, a 16 year old girl, were detained at Partizan from about 13 July until 13 August 1992 . Two others, identified by the pseudonyms FWS-75 and FWS-87, a 15 year old girl , were detained in Partizan from about 13 July until 2 August 1992. Almost every night during their detention, Serb soldiers took FWS-48, FWS-95, FWS-50, FWS-75 and FWS-87 out of Partizan and sexually abused them (vaginal and anal penetration and fellatio).

1.8 On or around 13 August 1992, most detainees were released from Partizan and deported to Montenegro. The women who left on the 13 August convoy received medical care for the first time in Montenegro. Many women suffered permanent gynaecological harm due to the sexual assaults. At least one woman can no longer have children . All the women who were sexually assaulted suffered psychological and emotional harm; some remain traumatised.

1.9 The Kalinovik municipality is located some 20 km to the south of Sarajevo and borders the Foca municipality. From mid-May onwards, the Serb forces were in control of Kalinovik municipality. The take-over was followed by measures against the non -Serb population including arrest. While the male non-Serb population was detained in the military warehouse called Barotni, the women and children were detained in the Kalinovik Primary School, which is located in the centre of Kalinovik near the police station. At the end of June/beginning of July, citizens from the municipality of Gacko, captured while crossing the Kalinovik municipality on their flight to Central Bosnia, were also detained in the Kalinovik Primary School.

1.10 DRAGOLJUB KUNARAC and soldiers under his command had unfettered access to the detention facilities Partizan Sports Hall and Kalinovik Primary School.

1.11 Besides the above mentioned detention places, several women were detained in houses and apartments used as brothels, operated by groups of soldiers, mostly paramilitary . The ICRC and other organisations, unaware of these detention facilities, did not intervene. Therefore those detainees had no possibility of release or exchange.

THE ACCUSED

2.1 DRAGOLJUB KUNARAC also known as “Žaga” and “Dragan”, son of Aleksa and Stojka, was born on 15 May 1960 in Foca. He lives at Unjaza Nikole 2-5 in Foca, now renamed Srbinje. For several years before the war he lived in Tivat, Montenegro.

2.2 RADOMIR KOVAC, also known as “Klanfa,” son of Milenko, born on 31 March 1961 in Foca, was a permanent resident of Foca at Samoborska Street. RADOMIR KOVAC was one of the sub-commanders of the military police and a paramilitary leader in Foca. He was involved in the attack on Foca and its surrounding villages and the arrest of civilians.

SUPERIOR AUTHORITY

3.1 From at least June 1992 until February 1993, DRAGOLJUB KUNARAC was the commander of a special unit for reconnaissance of the Bosnian Serb Army. During the time relevant to this indictment, this special unit consisted of volunteers, mainly from Montenegro, some of them recruited by the accused himself. DRAGOLJUB KUNARAC had his headquarters in a house in the Aladza neighbourhood in Foca at Ulica Osmana Dikica no. 16. He stayed in the house with about 10 to 15 soldiers after the take-over of Foca. In his capacity as commander of these soldiers, DRAGOLJUB KUNARAC was responsible for the acts of the soldiers subordinate to him and knew or had reason to know that his subordinates sexually assaulted Muslim women. He was personally involved in sexual assaults and rape of women.

GENERAL ALLEGATIONS

4.1 At all times relevant to this indictment, an armed conflict existed in the Republic of Bosnia-Herzegovina in the territory of the former Yugoslavia.

4.2 At all times relevant to this indictment, the accused were required to abide by the laws or customs governing the conduct of war.

4.3 Unless otherwise set forth below, all acts and omissions set forth in this indictment took place between July 1992 and February 1993.

4.4 In each count charging crimes against humanity, a crime recognised by Article 5 of the Statute of the Tribunal, the acts or omissions were part of a widespread , large-scale or systematic attack against a civilian population, specifically the Muslim population of the municipality of Foca and Kalinovik.

4.5 Witnesses and victims are identified in this indictment using code names or pseudonyms, such as FWS-95 or initials, for example, D.B.

4.6 The accused DRAGOLJUB KUNARAC and RADOMIR KOVAC are individually responsible for the crimes charged against them in this indictment, pursuant to Article 7 (1) of the Statute of the Tribunal. Individual criminal responsibility includes committing, planning, initiating, ordering or aiding and abetting in the planning, preparation or execution of any acts or omissions set forth below.

4.7 DRAGOLJUB KUNARAC in respect of counts 1 to 4 and counts 14 to 17 is also, or alternatively, criminally responsible as a superior for his subordinates pursuant to Article 7 (3) of the Statute of the Tribunal. Superior criminal responsibility is the responsibility of a superior officer for the acts of his subordinate if the superior knew or had reason to know that his subordinate was about to commit such acts or had done so and the superior failed to take necessary and reasonable measures to prevent such further acts or to punish the subordinate thereof. By failing to take the actions required of a person in superior authority, DRAGOLJUB KUNARAC is responsible for all the crimes set out in the respective counts pursuant to Article 7(3) of the Statute of the Tribunal.

4.8 In all counts charging sexual assault, the victim was subjected to or threatened with or had reason to fear violence, duress, detention or psychological oppression , or reasonably believed that if she did not submit, another might be so subjected , threatened or put in fear.

THE CHARGES

COUNTS 1 to 4
Rape of FWS-48, FWS-50, FWS-75, FWS-87, FWS-95 and other women at the house Ulica Osmana Dikica no. 16

5.1 Several groups of perpetrators assaulted women detained at Partizan. One group , under the command of DRAGOLJUB KUNARAC, was a special unit for reconnaissance detail comprising mostly Serb soldiers from Montenegro. This group maintained their headquarters in a house in the Aladza neighbourhood in Foca at Ulica Osmana Dikica no. 16. Usually at nights, DRAGOLJUB KUNARAC, accompanied by some of his soldiers, removed women from Partizan and took them to the house Ulica Osmana Dikica no. 16, knowing that they would be sexually assaulted there by soldiers under his command. After taking the women to his headquarters, DRAGOLJUB KUNARAC would sometimes stay and take one of the women to a room and rape her personally. Even when DRAGOLJUB KUNARAC did not personally rape one of the women, he often remained at the headquarters or visited it periodically while other soldiers raped and sexually assaulted the women in the house.

5.2 On at least two occasions between 13 July and 1 August 1992, DRAGOLJUB KUNARAC took FWS-87 to his headquarters at Ulica Osmana Dikica no. 16. On both occasions , two Montenegrin soldiers commanded by the accused were present and raped FWS-87 .

5.3 DRAGOLJUB KUNARAC took FWS-75 and D. B. several times to his headquarters at Ulica Osmana Dikica no. 16, where his soldiers were housed. On or around 16 July 1992, DRAGOLJUB KUNARAC, together with his deputy “GAGA”, took FWS-75 and D. B. to this house for the first time. When they arrived at the headquarters , a group of soldiers were waiting. DRAGOLJUB KUNARAC took D. B. to a separate room and raped her, while FWS-75 was left behind together with the other soldiers . For about 3 hours, FWS-75 was gang-raped by at least 15 soldiers (vaginal and anal penetration and fellatio). They sexually abused her in all possible ways. On other occasions in the headquarters, one to three soldiers, in turn, raped her .

5.4 On 2 August 1992, DRAGOLJUB KUNARAC took FWS-75, FWS-87, FWS-50 and D. B. to the headquarters at Ulica Osmana Dikica no. 16. Some women from the Kalinovik women’s detention camp were also present. On this occasion, DRAGOLJUB KUNARAC and three other soldiers raped FWS-87. Several soldiers raped FWS-75 during the entire night. A Montenegrin soldier raped FWS-50 (vaginal penetration ) and threatened to cut her arms and legs and to take her to church to baptise her .

5.5 On at least two occasions between 13 July and 2 August 1992, DRAGOLJUB KUNARAC took FWS-95 out of Partizan to the headquarters at Ulica Osmana Dikica no. 16 for the purpose of rape. The first time, DRAGOLJUB KUNARAC took FWS-95 to his headquarters together with two other women. He took her in a room and raped her personally. Then FWS-95 was raped by three more soldiers in this same room. The second time, after DRAGOLJUB KUNARAC had taken her to Ulica Osmana Dikica no. 16, FWS-95 was raped by two or three soldiers, but not by the accused himself .

5.6 By the foregoing acts and omissions in relation to the witnesses FWS-50, FWS -75, FWS-87, FWS-95, and the other women specified above, described in paragraphs 5.1 to 5.5, DRAGOLJUB KUNARAC committed:

COUNT 1
(Torture)

Count 1: Torture, a CRIME AGAINST HUMANITY punishable under Article 5 (f) of the Statute of the Tribunal.

COUNT 2
(Rape)

Count 2: Rape, a CRIME AGAINST HUMANITY punishable under Article 5 (g) of the Statute of the Tribunal.

COUNT 3
(Torture)

Count 3: Torture, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal and recognised by Common Article 3 (1) (a) (torture) of the Geneva Conventions.

COUNT 4
(Rape)

Count 4: Rape, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal.

COUNTS 5 to 8
Rape of FWS-48

6.1 On or around 13 July 1992, DRAGOLJUB KUNARAC took FWS-48 and two other women to the Hotel Zelengora. FWS-48 refused to go with him and DRAGOLJUB KUNARAC kicked her and dragged her out. At Hotel Zelengora, FWS-48 was placed in a separate room and DRAGOLJUB KUNARAC and ZORAN VUKOVIC, a local military commander , raped her (vaginal penetration and fellatio). Both perpetrators told her that she would now give birth to Serb babies.

6.2 On or around 18 July 1992, GOJKO JANKOVIC, the military commander of another local unit, took FWS-48, FWS-95 and another woman to a house near the bus station . From there, DRAGOLJUB KUNARAC took FWS-48 to another house in the Donje Polje neighbourhood where he raped her (vaginal penetration and fellatio).

6.3 By the foregoing acts and omissions in relation to the witness FWS-48, described in paragraphs 6.1 and 6.2, DRAGOLJUB KUNARAC committed:

COUNT 5
(Torture)

Count 5: Torture, a CRIME AGAINST HUMANITY punishable under Article 5 (f) of the Statute of the Tribunal.

COUNT 6
(Rape)

Count 6: Rape, a CRIME AGAINST HUMANITY punishable under Article 5 (g) of the Statute of the Tribunal.

COUNT 7
(Torture)

Count 7: Torture, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal and recognised by Common Article 3 (1) (a) (torture) of the Geneva Conventions.

COUNT 8
(Rape)

Count 8: Rape, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal.

COUNTS 9 and 10
Rape of FWS-87 in Karaman’s House in Miljevina

7.1 On or about 2 August 1992, DRAGOLJUB KUNARAC, together with Pero Elez , the military commander of a Serb unit based in Miljevina, municipality of Foca , transferred FWS-75, FWS-87 and two other women from Partizan to Miljevina, where they were detained in an abandoned Muslim house called Karaman’s house, a place maintained by PERO ELEZ and his soldiers.

7.2 Sometime in either September or October 1992, DRAGOLJUB KUNARAC visited Karaman’s house and raped FWS-87 (vaginal penetration ).

7.3 By the foregoing acts in relation to the witness FWS-87, described in paragraphs 7.1 and 7.2, DRAGOLJUB KUNARAC committed:

COUNT 9
(Rape)

Count 9: Rape, a CRIME AGAINST HUMANITY punishable under Article 5 (g) of the Statute of the Tribunal.

COUNT 10
(Rape)

Count 10: Rape, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal.

COUNTS 11 to 13
Rape of FWS-183 and Plunder of Property

8.1. One night in mid-July 1992, DRAGOLJUB KUNARAC, together with two of his soldiers, accused the witness FWS-183 of sending messages out over radio. They looted the witness’ apartment and took her to the banks of the Cehotina river in Foca near Velecevo. There, the accused questioned the witness about the money and gold she and other Muslims in her apartment were keeping. During the questioning , the witness was threatened with death and that her son would be slaughtered. After the threats, the witness was raped vaginally by all three soldiers. During the rapes, DRAGOLJUB KUNARAC humiliated the witness by saying that they (the soldiers) would never know whose son this was. After returning the witness to her apartment, the accused robbed her of all the gold and money she had hidden .

8.2 By the foregoing acts in relation to the witness FWS-183, described in paragraph 8.1, DRAGOLJUB KUNARAC committed:

COUNT 11
(Torture)

Count 11: Torture, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal and recognised by Common Article 3 (1) (a) (torture) of the Geneva Conventions.

COUNT 12
(Rape)

Count 12: Rape, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal.

COUNT 13
(Plunder)

Count 13: Plunder of private property, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 (e) of the Statute of the Tribunal.

COUNTS 14 to 17
Enslavement and Rape of FWS-101

9.1 On 2 August 1992, in the presence of officials of the Kalinovik municipality , DRAGOLJUB KUNARAC, together with Pero Elez and some of their soldiers, took FWS-101, FWS-186, FWS-191 and 5 other young girls and women from the Primary School in Kalinovik and drove them to DRAGOLJUB KUNARAC’s headquarters at Ulica Osmana Dikica no. 16 in Foca. There the girls and young women, four of them from Gacko and 4 of them from Kalinovik, some of them as young as twelve and fifteen years of age, were divided among the soldiers present for the purpose of sexual assault. While the other girls and women were taken away to different places the same night, FWS-101 remained in the house Ulica Osmana Dikica no. 16.

9.2 Between 2 August 1992 and at least 9 August 1992, FWS-101, who at that time was 7 months pregnant, was detained in DRAGOLJUB KUNARAC’s headquarters at Ulica Osmana Dikica no. 16. During the entire period of her detention at this house, FWS-101 was subjected to repeated rapes. In addition to being repeatedly raped, the witness was beaten. She also had to clean the house and obey each order given to her by the accused and his subordinates. FWS-101 was treated as the personal property of DRAGOLJUB KUNARAC and his unit. Finally, a soldier who took pity on her, took FWS-101 to the Partizan Sports Hall, from where on 13 August 1992 , she was transported to Montenegro.

9.3 By the foregoing acts and omissions in relation to the witness FWS-101, described in paragraphs 9.1 and 9.2, DRAGOLJUB KUNARAC committed:

COUNT 14
(Enslavement)

Count 14: Enslavement, a CRIME AGAINST HUMANITY punishable under Article 5 (c) of the Statute of the Tribunal.

COUNT 15
(Rape)

Count 15: Rape, a CRIME AGAINST HUMANITY punishable under Article 5 (g) of the Statute of the Tribunal.

COUNT 16
(Rape)

Count 16: Rape, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal.

COUNT 17
(Outrages Upon Personal Dignity)

Count 17: Outrages upon personal dignity, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal.

COUNTS 18 to 21
Enslavement and Rape of FWS-186, FWS-191 and J. G.

10.1 On 2 August 1992, the accused DRAGOLJUB KUNARAC, together with his deputy “GAGA” and GOJKO JANKOVIC, the commander of another Foca unit, took FWS-186 , FWS-191 and J. G. from the house Ulica Osmana Dikica no. 16 to the abandoned house of Halid Cedic in Trnovace. There the men divided the girls among themselves and raped them the same night. On that occasion, DRAGOLJUB KUNARAC raped FWS -191.

10.2 FWS-186 and FWS-191 were kept in this house for approximately 6 months, while J. G. was transferred to Karaman’s house in Miljevina for the purpose of rape . During the entire time of her detention in Trnovace, GOJKO JANKOVIC constantly raped FWS-186, while for at least two months, the accused DRAGOLJUB KUNARAC constantly raped FWS-191. Eventually, another soldier protected FWS-191 against further rapes. After 6 months this soldier took both witnesses away from the house .

10.3 FWS-186 and FWS-191 were treated as the personal property of DRAGOLJUB KUNARAC and GOJKO JANKOVIC. In addition to the rapes and other sexual assaults, FWS -186 and FWS-191 had to do all household chores and obey all demands.

10.4 By the foregoing acts and omissions in relation to the witnesses FWS-186, FWS -191 and J.G. described in paragraphs 10.1 to 10.3, DRAGOLJUB KUNARAC committed :

COUNT 18
(Enslavement)

Count 18: Enslavement, a CRIME AGAINST HUMANITY punishable under Article 5 (c) of the Statute of the Tribunal.

COUNT 19
(Rape)

Count 19: Rape, a CRIME AGAINST HUMANITY punishable under Article 5 (g) of the Statute of the Tribunal.

COUNT 20
(Rape)

Count 20: Rape, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal.

COUNT 21
(Outrages Upon Personal Dignity)

Count 21: Outrages upon personal dignity, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal.

COUNTS 22-25
Enslavement and Rape of FWS-75 and FWS-87 in the Brena Apartment

11.1 After the accused DRAGOLJUB KUNARAC had transferred the witnesses FWS -75 and FWS-87 to Karaman’s house on 2 August 1992, as described in paragraph 7. 1, the witnesses together with seven other women were detained there until about 30 October where they had to perform household chores and were frequently sexually assaulted. On or about 30 October 1992, the witnesses FWS-75 and FWS-87 together with two other women, 20-year-old A.S., and 12-year-old A.B., were taken from Karaman’s house to Foca by DRAGAN ZELENOVIC, GOJKO JANKOVIC and JANKO JANJIC and were subsequently handed over to the accused RADOMIR KOVAC near the centre of Foca close to the Ribarski fish restaurant.

11.2 RADOMIR KOVAC detained, between or about 31 October 1992 until December 1992 witness FWS-75 and A.B., and until February 1993 witness FWS-87 and A.S. RADOMIR KOVAC was in charge of an apartment in the Brena block and had taken over the two witnesses together with two other women, A.S., and A.B., whom he had received from DRAGAN ZELENOVIC, GOJKO JANKOVIC and JANKO JANJIC. Their situation was similar to what they had experienced in Karaman’s house. They had to perform household chores and were frequently sexually assaulted, as described in paragraphs 11.3, 11.4, and 11.5. During their detention, FWS-75, FWS-87, A.S. and A.B. were also beaten, threatened, psychologically oppressed, and kept in constant fear.

11.3 FWS-75 and A.B. were detained in this apartment from about 31 October until about 20 November 1992. During that time they had to do household chores and sexually please soldiers. RADOMIR KOVAC and another soldier, Jagos Kostic, frequently raped them. In addition, on an unknown date during this time, RADOMIR KOVAC brought Slavo Ivanovic to the apartment and ordered FWS-75 to have sexual intercourse with him; when she refused, RADOMIR KOVAC beat FWS-75. Around 20 November 1992, RADOMIR KOVAC took FWS-75 and victim A. B. from the apartment to a house near the Hotel Zelengora. They were kept there for about twenty days, during which time they were frequently sexually assaulted by a group of unidentified Serbian soldiers who belonged to the Brane Cosovic group, the same group to which RADOMIR KOVAC belonged. Although the two women were no longer in the Brena apartment , RADOMIR KOVAC still was in charge of them. Around 10 December 1992, FWS -75 and victim A.B. were moved from the house near Hotel Zelengora to a apartment in the Pod Masala neighbourhood of Foca. There, they stayed for about fifteen days , together with the same soldiers. FWS-75 and A.B. were frequently raped by these soldiers during those fifteen days. On about 25 December 1992, when FWS-75 and the other women were brought back to the apartment, RADOMIR KOVAC sold A. B. to an unidentified soldier for 200 DM. On about 26 December 1992, FWS-75 was handed over to JANKO JANJIC.

11.4 FWS-87 and A.S. were detained in RADOMIR KOVAC’s apartment from on or about 31 October until about 25 February, 1993. During this entire time, she and A.S. were raped by RADOMIR KOVAC and Jagos Kostic.

11.5 On an unknown date between about 31 October 1992 and about 7 November 1992 during their detention in RADOMIR KOVAC’s place, FWS-75, FWS-87, A.S. and A.B. were forced to take all their clothes off and dance naked on a table, while RADOMIR KOVAC watched.

11.6 On or about 25 February, 1993, FWS-87 and A.S. were sold by RADOMIR KOVAC for 500 DM each to two unidentified Montenegrin soldiers, who took them to Montenegro .

11.7 By the foregoing acts and omissions, RADOMIR KOVAC committed:

COUNT 22
(Enslavement)

Count 22: Enslavement, a CRIME AGAINST HUMANITY punishable under Article 5 (c) of the Statute of the Tribunal.

COUNT 23
(Rape)

Count 23: Rape, a CRIME AGAINST HUMANITY punishable under Article 5 (g) of the Statute of the Tribunal.

COUNT 24
(Rape)

Count 24: Rape, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal.

COUNT 25
(Outrages Upon Personal Dignity)

Count 25: Outrages upon personal dignity, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal.

_________________________
Gavin Ruxton
Senior Legal Adviser
for the Prosecutor

8 November 1999
The Hague, The Netherlands

Indictment IT-96-23/1

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 through 36.¹⁵⁷² The parts of this Indictment relevant to that Decision have been struck through.

CASE NO.: IT-96-23/1-PT

THE PROSECUTOR
OF THE TRIBUNAL

AGAINST

[redacted]
ZORAN VUKOVIC
[redacted]

AMENDED INDICTMENT

The Prosecutor of the International Criminal Tribunal for the former Yugoslavia, pursuant to her authority under article 18 of the Statute of the Tribunal charges :

[redacted]
ZORAN VUKOVIC

with CRIMES AGAINST HUMANITY and VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR, as set forth below:

BACKGROUND

1.1 The city and municipality of Foca are located south-east of Sarajevo, in the Republic of Bosnia-Herzegovina and borders Serbia and Montenegro. According to the 1991 census, the population of Foca consisting of 40,513 persons was 51.6 % Muslim, 45.3 % Serbian and 3.1% others. The political and military take-over of the municipality of Foca started with the first military actions in the town of Foca on 7 April 1992. The Serb forces, supported by artillery and heavy weapons , proceeded to take over Foca, section by section. The take-over of Foca town was complete by 16 or 17 April 1992. The surrounding villages continued to be under siege until mid-July 1992.

1.2 As soon as the Serb forces had taken over parts of Foca town, military police accompanied by local and non-local soldiers started arresting Muslim and Croat inhabitants . Until mid-July 1992 they continued to round up and arrest Muslim villagers from the surrounding villages in the municipality. The Serb forces separated men and women and unlawfully confined thousands of Muslims and Croats in various short and long-term detention facilities or kept them essentially under house arrest. During the arrests many civilians were killed, beaten or subjected to sexual assault.

1.3 The Foca Kazneno-popravni Dom (hereinafter KP Dom), one of the largest prison facilities in the former Republic of Yugoslavia, was the primary detention facility for men. Muslim women, children and the elderly were detained in houses, apartments and motels in the town of Foca or in surrounding villages, or at short and long- term detention centres such as Buk Bijela, Foca High School and Partizan Sports Hall, respectively. Many of the detained women were subjected to humiliating and degrading conditions of life, to brutal beatings and to sexual assaults, including rapes.

1.4 Besides the above mentioned detention places, several women were detained in houses and apartments used as brothels, operated by groups of soldiers, mostly paramilitary . The ICRC and other organisations, unaware of these detention facilities, did not intervene. Therefore those detainees had no possibility of release or exchange.

THE ACCUSED

2.1 [redacted]

[redacted]

2.3 ZORAN VUKOVIC, son of Milojica, born on 6 September 1955 in the village of Brusna , municipality of Foca, was a permanent resident of Foca. He worked as a waiter and driver before the war. ZORAN VUKOVIC was involved in the attack on Foca and its surrounding villages and the arrest of civilians. He was one of the sub-commanders of the military police and a paramilitary leader in Foca.

2.4 [redacted]

2.5 [redacted]

SUPERIOR AUTHORITY

3.1 [redacted]

GENERAL ALLEGATIONS

4.1 At all times relevant to this indictment, an armed conflict existed in the Republic of Bosnia-Herzegovina in the territory of the former Yugoslavia.

4.2 At all times relevant to this indictment, the accused [was] required to abide by the laws or customs governing the conduct of war.

4.3 Unless otherwise set forth below, all acts and omissions set forth in this indictment took place between April 1992 and February 1993.

4.4 In each count charging crimes against humanity, a crime recognised by Article 5 of the Statute of the Tribunal, the acts or omissions were part of a widespread or large-scale or systematic attack against a civilian population, specifically the Muslim population of the municipality of Foca.

4.5 Witnesses and victims are identified in this indictment using code names or pseudonyms such as FWS-95 or initials, for example, D.B.

4.6 The accused is individually responsible for the crimes charged against [him] in this indictment, pursuant to Article 7 (1) of the Statute of the Tribunal. Individual criminal responsibility includes committing, planning, initiating, ordering or aiding and abetting in the planning, preparation or execution of any acts or omissions set forth below.

4.7 [redacted]

THE CHARGES

COUNTS 1-12
Torture and Rape at Buk Bijela

5.1 Buk Bijela refers to a settlement on a hydro-electric dam construction site on the road from Brod to Miljevina by the river Drina which was turned into a local military headquarters and barracks for Bosnian Serb forces and paramilitary soldiers after the April 1992 take-over of Foca and the surrounding villages. The Buk Bijela complex consisted of workers’ barracks, where about 200 to 300 soldiers were barracked , and an adjoining motel. Buk Bijela was used as a temporary detention and interrogation facility for civilian women, children and the elderly who were captured in various villages in the municipality of Foca in July 1992.

5.2 On 3 July 1992, soldiers commanded by the accused GOJKO JANKOVIC, and among them JANKO JANJIC, DRAGAN ZELENOVIC and ZORAN VUKOVIC, arrested a group of at least 60 Muslim women, children and a few elderly men from Trosanj and Mjesaja, and took them to Buk Bijela. After the attack on Foca, the villages of Trosanj and Mjesaja had offered armed resistance.

5.3 While detained at Buk Bijela for several hours, all the Muslim civilians were lined up along the river Drina and guarded by armed soldiers. They were threatened with being either killed or raped and were otherwise humiliated. The soldiers approached each detained civilian, and took him or her to the above-mentioned accused for questioning . The soldiers separated the women from their children. GOJKO JANKOVIC, JANKO JANJIC, DRAGAN ZELENOVIC and ZORAN VUKOVIC interrogated the women. The interrogations focused on the hiding-places of the male villagers and weapons. The accused threatened the women with murder and sexual assault if they lied. [redacted]

5.4 [redacted]

5.5 [redacted]

5.6 [redacted]

5.7 [redacted]

5.8 [redacted]

COUNT 1
[redacted]

COUNT 2
[redacted]

COUNT 3
[redacted]

COUNT 4
[redacted]

5.9 [redacted]

COUNT 5
[redacted]

COUNT 6
[redacted]

COUNT 7
[redacted]

COUNT 8
[redacted]

5.10 [redacted]

COUNT 9
[redacted]

COUNT 10
[redacted]

COUNT 11
[redacted]

COUNT 12
[redacted]

COUNTS 13-28
Torture and Rape
at Foca High School

6.1 During the occupation that followed the take-over of the town of Foca, the Foca High School, situated in the Aladza area, functioned as a barracks for Serb soldiers , and as a short term detention facility for Muslim women, children and the elderly .

6.2 Between 3 July and about 13 July 1992, at least 72 Muslim inhabitants of the municipality of Foca were detained in two classrooms in the Foca High School, including the women, children and the elderly who had earlier been held at Buk Bijela, mentioned above. On or about 13 July 1992, all detainees were transferred from Foca High School to the Partizan Sports Hall in Foca.

6.3 At the Foca High School, the detainees were surrounded by armed Serb soldiers , who patrolled outside the Foca High School and constantly entered and left the building. There were also two armed police guards from the Foca SUP patrolling the corridor outside of the detention rooms.

6.4 Many of the female detainees were subjected to sexual abuse during their detention at the Foca High School. From the second day of their detention, every evening, groups of Serb soldiers sexually assaulted, including gang-rape, some of the younger women and girls in class-rooms or apartments in neighbouring buildings. Among them were witnesses FWS-50, FWS-75, FWS-87, FWS-95, FWS-74 and FWS-88, as set forth below . The soldiers threatened to kill the women or the women’s children if they refused to submit to sexual assaults. Women who dared to resist the sexual assaults were beaten. The above mentioned groups of soldiers consisted of members of the military police. They referred to themselves “Cosa’s Guards”, named for the local commander of the military police Cosovic. The accused GOJKO JANKOVIC, DRAGAN ZELENOVIC, JANKO JANJIC and ZORAN VUKOVIC were among these groups of soldiers.

6.5 The physical and psychological health of many female detainees seriously deteriorated as a result of these sexual assaults. Some of the women endured complete exhaustion , vaginal discharges, bladder problems and irregular menstrual bleedings. The detainees lived in constant fear. Some of the sexually abused women became suicidal. Others became indifferent as to what would happen to them and suffered from depression.

6.6 On or about 6 or 7 July 1992, DRAGAN ZELENOVIC in concert with JANKO JANJIC and ZORAN VUKOVIC, selected FWS-50, FWS-75, FWS-87, FWS-95 out of the group of detainees . The accused led them to another classroom where unidentified soldiers stood waiting . Then DRAGAN ZELENOVIC decided which woman should go to which man. The women were ordered to remove their clothes. FWS-95 refused to do so and JANKO JANJIC slapped her and held her at gun point. Then DRAGAN ZELENOVIC raped FWS-75 (vaginal penetration). ZORAN VUKOVIC raped FWS-87 (vaginal penetration) and JANKO JANJIC raped FWS-95 (vaginal penetration) within the same room. One of the other soldiers took FWS-50 to another classroom and raped her (vaginal penetration).

6.7 Between or about 8 July and about 13 July 1992, in addition to the sexual assaults described under paragraph 6.6, on at least five other occasions DRAGAN ZELENOVIC led a group of soldiers that sexually abused FWS-75 and FWS-87. First the women were taken into another classroom in the Foca High School. There ZORAN VUKOVIC and DRAGAN ZELENOVIC raped FWS-75 and FWS-87 (vaginal penetration).

6.8 [redacted]

6.9 [redacted]

6.10 [redacted]

6.11 [redacted]

6.12 [redacted]

6.13 [redacted]

6.14 [redacted]

COUNT 13
[redacted]

COUNT 14
[redacted]

COUNT 15
[redacted]

COUNT 16
[redacted]

6.15 [redacted]

COUNT 17
[redacted]

COUNT 18
[redacted]

COUNT 19
[redacted]

COUNT 20
[redacted]

6.16 By the foregoing acts and omissions in relation to the victims FWS-50, FWS- 95, FWS-75 and FWS-87, ZORAN VUKOVIC committed:

COUNT 21
(Torture)

Count 21: Torture, a CRIME AGAINST HUMANITY punishable under Article 5 (f) of the Statute of the Tribunal.

COUNT 22
(Rape)

Count 22: Rape, a CRIME AGAINST HUMANITY punishable under Article 5 (g) of the Statute of the Tribunal.

COUNT 23
(Torture)

Count 23: Torture, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal and recognised by Common Article 3 (1) (a) (torture ) of the Geneva Conventions.

COUNT 24
(Rape)

Count 24: Rape, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal.

6.17 [redacted]

COUNT 25
[redacted]

COUNT 26
[redacted]

COUNT 27
[redacted]

COUNT 28
[redacted]

COUNTS 29-44
Torture and Rape of FWS-48, FWS-50, FWS-75, FWS-87, FWS-95 and other women at Partizan Sports Hall

7.1 Partizan Sports Hall (“Partizan”) functioned as a detention centre for women , children and the elderly from at least on or about 13 July 1992 until at least 13 August 1992. The detainees held at Partizan, during this time period, numbered at least 72. The detainees were all civilian Muslim women, children and a few elderly persons from villages in the municipality of Foca.

7.2 Partizan was a medium-sized building situated in the centre of Foca town close to the Foca police (“SUP”) building. Partizan was separated from the SUP building by about seventy metres. Partizan was on slightly higher ground than the other buildings in the neighbourhood and could therefore be seen clearly from the surrounding areas, including the SUP building. Partizan was also close to the main municipal building, where the Serb authorities had their principle offices. Partizan consisted of two large halls. All detainees were held in one of the halls only. This hall measured roughly 12 metres by 7 metres.

7.3 Two policemen were stationed as guards outside the main door of Partizan. The guards, who were subordinate to the chief of the SUP were armed at all times with automatic weapons. People who entered Partizan had to pass the guards on their way into the halls. Detainees could not leave Partizan because of the armed guards .

7.4 Living conditions in Partizan were brutal. The detention was characterised by inhumane treatment, unhygienic facilities, overcrowding, starvation, physical and psychological torture, including sexual assaults.

7.5 Immediately after the transfer of women to Partizan, a pattern of sexual assaults commenced. Armed soldiers, mostly in groups of three to five, entered Partizan, usually in the evenings, and removed women. When the women resisted or hid, the soldiers beat or threatened the women to force them to obey. The soldiers took the women from Partizan to houses, apartments or hotels for the purpose of sexual assault and rape.

7.6 Three witnesses, identified by the pseudonyms FWS-48, FWS-95 and FWS-50, a 16 year old girl, were detained at Partizan from about 13 July until 13 August 1992 . Two others, identified by the pseudonyms FWS-75 and FWS-87, a 15 year old girl , were detained in Partizan from about 13 July until 2 August 1992. Almost every night during their detention, Serb soldiers took FWS-48, FWS-95, FWS-50, FWS-75 and FWS-87 out of Partizan and sexually abused them (vaginal and anal penetration and fellatio).

7.7 On or around 13 August 1992, most detainees were released from Partizan and deported to Montenegro. The women who left on the 13 August convoy received medical care for the first time in Montenegro. Many women suffered permanent gynaecological harm due to the sexual assaults. At least one woman can no longer have children . All the women who were sexually assaulted suffered psychological and emotional harm; some remain traumatised.

7.8 [redacted]

7.9 The same night [on or around 13 July 1992], after JANKO JANJIC returned the women to Partizan, Dragoljub Kunarac took the same three women to the Hotel Zelengora . FWS-48 refused to go with him and Dragoljub Kunarac kicked her and dragged her out. At Hotel Zelengora, FWS-48 was placed in a separate room and both Dragoljub Kunarac and ZORAN VUKOVIC raped her (vaginal penetration and fellatio). Both perpetrators told her that she would now give birth to Serb babies.

7.10 On or around 14 July 1992, JANKO JANJIC again took FWS-48 together with FWS -87 and Z. G. to the Brena apartment block near Hotel Zelengora. When they arrived , ZORAN VUKOVIC and an unidentified soldier were waiting. Then, ZORAN VUKOVIC, raped FWS-48 (vaginal penetration) while the unidentified soldier raped FWS-87 (vaginal penetration) and JANKO JANJIC raped Z. G.

7.11 On or around 14 July 1992, ZORAN VUKOVIC came to Partizan to remove FWS-50 and FWS-87. As FWS-50 hid, ZORAN VUKOVIC threatened to kill the other detainees if she did not come out of hiding. FWS-50 then did so. The two girls were taken to an apartment close to Partizan, where an unidentified soldier stood waiting. There ZORAN VUKOVIC raped FWS-50 (vaginal penetration), while the unidentified soldier raped FWS-87.

7.12 [redacted]

7.13 In July 1992, witness FWS-87 was frequently taken out, and raped (vaginal and anal penetration and fellatio). On one occasion witness FWS-87 was gang-raped by 4 men including DRAGAN ZELENOVIC and ZORAN VUKOVIC.

7.14 [redacted]

7.15 On or around 15 July 1992, GOJKO JANKOVIC led FWS-48 to an empty Muslim house in the Aladza neighbourhood. When FWS-48 arrived, about 14 Montenegrin soldiers were already present. DRAGAN ZELENOVIC then arrived with about 8 more soldiers, among them ZORAN VUKOVIC. DRAGAN ZELENOVIC took FWS-48 to a room and threatened to slash her throat if she resisted. Then, DRAGAN ZELENOVIC raped FWS-48 (vaginal penetration and fellatio) together with at least other 7 soldiers. ZORAN VUKOVIC was the 6th man who raped her. During the sexual assault, ZORAN VUKOVIC bit her nipples a number of times. Although the witness was bleeding from these bites, the 7th man squeezed and pinched her breasts as he raped her. FWS-48 fainted as a result of the pain.

7.16 [redacted]

7.17 [redacted]

7.18 The same night [on or around 23 July 1992], after being taken back to Partizan , JANKO JANJIC took FWS-48, together with two other women, to the Brena apartment block, where ZORAN VUKOVIC and a certain Panto were already waiting. Panto raped FWS-48 (vaginal penetration). She heard ZORAN VUKOVIC and JANKO JANJIC, at the same time, sexually assaulting the other women in the next room.

7.19 [redacted]

7.20 [redacted]

7.21 After midnight, on the same night [12 August 1992], JANKO JANJIC took FWS-48 together with other women to the Brena apartments. While leaving Partizan, a group of soldiers approached the women and tried to pull them away. JANKO JANJIC told these soldiers that he needed these women for his own people and that they should go into Partizan and find other women. ZORAN VUKOVIC and Panto joined them at the Brena apartments. That night, JANKO JANJIC raped FWS-48. During the sexual assault , he mentioned that it would be the last time.

7.22 [redacted]

7.23 [redacted]

COUNT 29
[redacted]

COUNT 30
[redacted]

COUNT 31
[redacted]

COUNT 32
[redacted]

7.24 By the foregoing acts and omissions in relation to the victims FWS-48, FWS- 50 and FWS-87, ZORAN VUKOVIC committed:

COUNT 33
(Torture)

Count 33: Torture, a CRIME AGAINST HUMANITY punishable under Article 5 (f) of the Statute of the Tribunal.

COUNT 34
(Rape)

Count 34: Rape, a CRIME AGAINST HUMANITY punishable under Article 5 (g) of the Statute of the Tribunal.

COUNT 35
(Torture)

Count 35: Torture, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal and recognised by Common Article 3 (1) (a) (torture ) of the Geneva Conventions.

COUNT 36
(Rape)

Count 36: Rape, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal.

7.25 [redacted]

COUNT 37
[redacted]

COUNT 38
[redacted]

COUNT 39
[redacted]

COUNT 40

[redacted]

7.26 [redacted]

COUNT 41
[redacted]

COUNT 42
[redacted]

COUNT 43
[redacted]

COUNT 44
[redacted]

COUNTS 45-48
[redacted]

8.1 [redacted]

8.2 [redacted]

8.3 [redacted]

8.4 [redacted]

8.5 [redacted]

8.6 [redacted]

8.7 [redacted]

8.8 [redacted]

COUNT 45
[redacted]

COUNT 46
[redacted]

COUNT 47
[redacted]

COUNT 48
[redacted]

COUNT 49 - 50
[redacted]

9.1 [redacted]

9.2 [redacted]

9.3 [redacted]

COUNT 49
[redacted]

COUNT 50
[redacted]

______________________
Carla Del Ponte
Prosecutor

Dated this 5th day of October 1999
At The Hague
The Netherlands