"Decision on Motion for Acquittal"

3 July 2000
Trial Chamber II (Judges Mumba [Presiding], Hunt and Pocar)

Procedural Background

Pursuant to Rule 98 bis of the Rules of Procedure and Evidence1, the three co-accused, Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, filed on 20 June 2000 a Motion for Judgement of Acquittal in relation to:

(a) Counts 1, 3, 5 and 7 in the third amended indictment against Dragoljub Kunarac and Radomir Kovac confirmed on 1 December 1999 and counts 21, 23, 33 and 35 in the redacted indictment against Zoran Vukovic filed on 21 February 2000 charging them with torture as a crime against humanity and as a violation of the laws or customs of war;
(b) Counts 21 and 25 in the indictment against Dragoljub Kunarac and Radomir Kovac charging them with outrages upon personal dignity as a violation of the laws or customs of war;
(c) Count 13 in the indictment against Dragoljub Kunarac charging him with plunder of private property as a violation of the laws or customs of war and counts 1 to 4 charging him with responsibility as a superior;
(d) The parts of counts 33, 34, 35 and 36 in the indictment against Zoran Vukovic in which he is charged with the rape of Witness FWS-48 as a crime against humanity and as a violation of the laws or customs of war and "all criminal acts which [he] is charged for in connection with the Witness FWS-48"; in addition
(e) All three accused moved for acquittal upon the basis that they had been charged cumulatively with different offences arising out of the same alleged facts.

The Decision

Trial Chamber II dismissed most of the motion but did acquit Dragoljub Kunarac on a single count of plunder of private property as a violation of the laws or customs of war and also held that Zoran Vukovic had "no case to answer in relation to the allegations made by Witness FWS-48 in support of Counts 33 to 36".

The Reasoning

• The test to be applied under Rule 98 bis

In a Motion for Acquittal pursuant to Rule 98 bis of the Rules of Procedure and Evidence, the test applied by the Trial Chamber was "whether there is evidence (if accepted) upon which a reasonable tribunal of fact could convict - that is to say, evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question. If the evidence does not reach that standard, then the evidence is, to use the words of Rule 98 bis (B), ‘insufficient to sustain a conviction’."

"It is important to emphasise that, for the purposes of that determination, the Trial Chamber does not generally reach any conclusion as to the credit of the witnesses called by the prosecution. [...] It should, however, be added that, in limited circumstances, there is a distinction which has to be drawn between the credibility of a witness and the reliability of that witness’s evidence. Credibility depends upon whether the witness should be believed. Reliability assumes that the witness is speaking the truth, but depends upon whether the evidence, if accepted, proves the fact to which it is directed. [...] A situation where the reliability of the evidence given by such a witness becomes of substantial importance is well illustrated in relation to the issue of identification", because "special caution has been found to be necessary before accepting identification evidence because of the possibility that even completely honest witnesses may have been mistaken in their identification."

It is not correct to say "that questions as to the applicable law cannot be argued in an application under Rule 98 bis. [...] A Trial Chamber can only determine whether there is sufficient evidence to sustain a conviction on the relevant charge if the elements of that charge are known. If there is a dispute between the parties as to whether the relevant charge includes a particular element, and if there is no evidence to prove that particular element in dispute, the existence or otherwise of that particular element becomes vital to the determination to be made under Rule 98 bis."

• Plunder

The accused Kunarac was charged with plunder as a violation of the laws or customs of war. "The word ‘plunder’ in its ordinary meaning suggests that more than the theft of property from one person or even from a few persons in the one building is required. Plunder is synonymous with ‘pillage’, which more clearly emphasises that there must be theft involving a more extensive group of persons or a pattern of thefts over some identifiable area such as, for example, the Muslim section of a village or town or even a detention centre."

In the view of the Trial Chamber, "the use of the word ‘plunder’ in Article 3(e) of the Statute2refers to its ordinary meaning of involving unjustified appropriations of property either from more than a small group of persons or from persons over an identifiable area such as already described. This interpretation is more consistent with plunder being a violation of the laws or customs of war." As there was no evidence in the case which satisfied the interpretation adopted, a judgment in acquittal was entered in favour of the accused.

In relation to charges of rape and torture (based in part upon the rapes) against the accused Vukovic, the rape complainant was unable to recognise Vukovic in court as the man who had raped her. The complainant gave evidence that she knew a man called Zoran Vukovic before the war, and that this was the man who raped her. There was no direct evidence that the Zoran Vukovic she knew before the war and the accused Zoran Vukovic were one and the same person. The complainant described the man who raped her "as having blue eyes and brown hair, being not very fat, and short in build, sort of medium build." The description was capable of fitting the accused Vukovic, but also any number of men. There was evidence that "ten or eleven men" by the name of Zoran Vukovic lived in the area. The descriptions of three of them did "not fit the accused Vukovic." The prosecution did not eliminate "by way of description or location elsewhere at the time all of the other men with the same name as being the man the complainant had known before the war." None of the other women detained with the complainant "were in a position to support the fact that she had been raped by the accused Vukovic." There was a slight amount of circumstantial evidence supporting the prosecution case, but even when taken in combination it was insufficient "to establish that it was the accused Vukovic who raped" the complainant. It was therefore held that he had "no case to answer in relation to" her evidence.

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1. "(A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor’s case and, in any event, prior to the presentation of evidence by the defence pursuant to Rule 85 (A)(ii).
(B) The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges."
2."The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to [...] plunder of public or private property."