"Judgement"

22 February 2001
Trial Chamber II (Judges Mumba [Presiding], Hunt and Pocar)

Procedural Background

The Prosecution charged the three co-accused, who are ethnic Serbs, with violations of the laws or customs of war and with crimes against humanity - rape, torture, enslavement and outrages upon personal dignity committed in the area of Foca. The charges were brought pursuant to Article 7(1) of the Statute1 and, with respect to Dragoljub Kunarac, Article 7(3) of the Statute2. As relates to the torture charges under Article 3 of the Statute3, the Prosecutor expressly charged outrages on personal dignity, rape and torture based in part on common Article 3 of the four Geneva Conventions of 1949.

The Trial Chamber noted that Foca was renamed "Srbinje", literally "the town of the Serbs"4, that it now lies in the territory of the Republika Srpska and that hardly any Muslims remain in Srbinje today5.

The Trial Chamber reviewed the evidence before examining the applicable law.

APPLICABLE LAW

Individual criminal responsibility and superior responsibility: Article 7(1) and 7(3) of the Statute

The Trial Chamber made findings on the parts of Article 7(1) of the Statute it considered relevant since it held that the Prosecution had failed to identify the precise basis on which it wanted it to convict the accused6. The Trial Chamber defined the commission of a crime as encompassing the case where an individual "physically perpetrates the relevant criminal act or engenders a culpable omission in violation of a rule of criminal law."7 The Trial Chamber's legal findings on command responsibility under Article 7(3) of the Statute are similar to those in the Judgement of Trial Chamber III in the case The Prosecutor v. Dario Kordic and Mario Cerkez8. It further stated that a commander with superior responsibility "may be a colonel commanding a brigade, a corporal commanding a platoon or even a rankless individual commanding a small group of men."9 The Trial Chamber pointed out that "[b]oth those permanently under an individual's command and those who are so only temporarily or on an ad hoc basis can be regarded as being under the effective control of that particular individual. The temporary nature of a military unit is not, in itself, sufficient to exclude a relationship of subordination between the members of a unit and its commander."10

Crimes under Article 3 of the Statute: common elements

The Trial Chamber considered "it sufficient to focus on the general requirements for the application of common Article 3" which has acquired the status of customary international law. It further considered "that it is unnecessary to discuss any additional requirements for the application of rape charges based on treaty law, since Article 3 alone is sufficient in principle to form the basis of these charges under Article 3"11 of the Statute. The Trial Chamber held that "the general requirements for both the application of common Article 3 and the specific offences charged under common Article 3 are as follows:

(i) The violation must constitute an infringement of a rule of international humanitarian law.
(ii) The rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met.
(iii) The violation must be 'serious', that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim.
(iv) The violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.
(v) There must be a close nexus between the violations and the armed conflict.
(vi) The violations must be committed against persons taking no active part in the hostilities."12

The Trial Chamber found that common Article 3 may also require a relationship between a perpetrator and a party to the conflict. In the present case, the Trial Chamber considered that it did "not need to determine whether such a relationship is required, and if so, what the required relationship should be"13 since the three co-accused "fought on behalf of one of the parties to the conflict"14.

Crimes under Article 5 of the Statute: common elements

The Trial Chamber considered that the following five elements constitute what is commonly regarded as "an attack directed against any civilian population":

(i) an attack was committed;
(ii) the acts of the perpetrator formed part of the attack;
(iii) the attack was "directed against a civilian population";
(iv) the attack was "widespread or systematic";
(v) the perpetrator knew of the wider context in which his acts occurred and knew that his acts formed part of the attack.15

It examined the common elements of crimes against humanity under Article 5 of the Statute16. It held that the term "attack" in the context of a crime against humanity carries a slightly different meaning than in the laws of war17. In the context of a crime against humanity, 'attack' is not limited to the conduct of hostilities but may also encompass situations of mistreatment of persons taking no active part in hostilities, such as someone in detention. However, both terms are based on a similar assumption, namely that war should be a matter between armed forces or armed groups and that the civilian population cannot be a legitimate target18.

The Trial Chamber ruled that there must exist a nexus between the acts of the accused and the attack which consists of:

"(i) the commission of an act which, by its nature or consequences, is objectively part of the attack; coupled with
(ii) knowledge on the part of the accused that there is an attack on the civilian population and that his act is part of the attack."19

The Trial Chamber added that "[i]t is sufficient to show that the act took place in the context of an accumulation of acts of violence which, individually, may vary greatly in nature and gravity."20 It interpreted the expression "directed against" as being one which "specifies that in the context of a crime against humanity the civilian population is the primary object of the attack"21 whereas the notion of "'civilian population' comprises [...] all persons who are civilians as opposed to members of the armed forces and other legitimate combatants."22 The Trial Chamber further held that "[p]atterns of crimes - that is the non-accidental repetition of similar criminal conduct on a regular basis - are a common expression of [the] systematic occurrence."23

It continued by holding that the "widespread or systematic nature of the attack is essentially a relative notion"24 and that "[t]he Trial Chamber must first identify the population which is the object of the attack and, in light of the means, methods, resources and result of the attack upon this population, ascertain whether the attack was indeed widespread or systematic."25 It added that "[o]nly the attack, not the individual acts of the accused, must be 'widespread or systematic'."26 The Trial Chamber considered the mental element and held that the perpetrator needs to know of the attack but that this "does not entail knowledge of the details of the attack."27 It also considered the burden of proof and found that "the Prosecution does not need to prove that the accused chose his victims for their civilian status"28 but that "as a minimum, the perpetrator must have known or considered the possibility that the victim of his crime was a civilian."29 The Trial Chamber stressed "that, in case of doubt as to whether a person is a civilian, that person shall be considered to be civilian. The Prosecution must show that the perpetrator could not reasonably have believed that the victim was a member of the armed forces."30

Rape

The Trial Chamber considered that the definition of rape in the Judgement of Trial Chamber II on 10 December 1998 in the case The Prosecutor v. Anto Furundiija31 was "appropriate to the circumstances of that case"32. However it found that the definition was more narrowly stated than is required by international law in one respect: the relevant act of sexual penetration constitutes rape "only if accompanied by coercion or force or threat of force against the victim or a third person"33. The Trial Chamber pointed out that the Furundzija definition "does not refer to other factors which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim"34. The Trial Chamber expressed the opinion that the absence of consensus or will precisely constitutes "the accurate scope of this aspect of the definition in international law."35

The Trial Chamber defined the actus reus of the crime of rape in international law as "the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding circumstances."36 It also defined the mens rea as the intention to effect this sexual penetration and the knowledge that this occurs without the consent of the victim37.

The Trial Chamber interpreted "the reference to consent as a 'defence' in Rule 9638 as an indication of the understanding of the judges who adopted the rule of those matters which would be considered to negate any apparent consent."39

Torture

The Trial Chamber stressed that in attempting to define an offence under international humanitarian law it "must be mindful of the specificity of this body of law" and in particular that when referring to definitions which have been given in the context of human rights law, a Trial Chamber "will have to consider two crucial structural differences between these two bodies of law"40:

First, the Trial Chamber found that the role and position of the State as an actor is completely different in both regimes and that human rights law is essentially born out of the abuses of the State over its citizens and out of the need to protect the latter from State-organised or State-sponsored violence. The Trial Chamber distinguished it from humanitarian law which "aims at placing restraints on the conduct of warfare so as to diminish its effects on the victims of the hostilities."41

In the human rights context, it found that the State is the ultimate guarantor of the rights protected and has both duties and a responsibility for the observance of those rights. In the event that the State violates those rights or fails in its responsibility to protect the rights, it can be called to account and asked to take appropriate measures to put an end to the infringements.

In the field of international humanitarian law, and in particular in the context of international prosecutions, the role of the State in respect to accountability is peripheral. Individual criminal responsibility for violation of international humanitarian law does not depend on the participation of the State and, conversely, its participation in the commission of the offence is no defence for the perpetrator. Moreover, international humanitarian law purports to apply equally to all parties and expressly bind them to the armed conflict whereas, in contrast, human rights law generally applies to only one party, namely the State and its agents.

Second, the Trial Chamber pointed out that the "part of international criminal law applied by the Tribunal is a penal law regime."42 It sets one party, the Prosecutor, against another, the defendant. In the field of international human rights, the respondent is the State. Structurally, this has been expressed by the fact that human rights law establishes lists of protected rights whereas international criminal law establishes lists of offences.

The Trial Chamber expressed "the view that notions developed in the field of human rights can be transposed in international humanitarian law only if they take into consideration the specificities of the latter body of law."43

The Trial Chamber departed from the findings in the Judgements of Trial Chamber II quater and Trial Chamber II of 16 November and 10 December 1998 in the cases The Prosecutor v. Zejnil Delalic et al. (hereinafter the "Celebici Trial Chamber Judgement")44 and Anto Furundzija (hereinafter the "Furundzija Trial Chamber Judgement")45. In those Judgements the Judges considered that the definition of torture in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (hereinafter the "Torture Convention") "reflects a consensus which the Trial Chamber considers to be representative of customary international law."46

In the instant case, Trial Chamber II however noted "that Article 1 of the Torture Convention makes it abundantly clear that its definition of torture is limited in scope and was meant to apply only 'for the purposes of this Convention'."47 It expressed the view that "the definition of torture contained in the Torture Convention cannot be regarded as the definition of torture under customary international law which is binding regardless of the context in which it is applied. The definition of the Torture Convention was meant to apply at an inter-state level and was, for that reason, directed at the States' obligations. The definition was also meant to apply only in the context of that Convention, and only to the extent that other international instruments or national laws did not give the individual a broader or better protection."48 The Trial Chamber therefore held "that the definition of torture contained in Article 1 of the Torture Convention can only serve, for present purposes, as an interpretational aid."49

After a review of the relevant authorities, the Trial Chamber concluded "that the definition of torture under international humanitarian law does not comprise the same elements as the definition of torture generally applied under human rights law."50 In particular, it expressed "the view that the presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law."51

The Trial Chamber held that in international humanitarian law the elements of the offence of torture under customary international law are:

(i) infliction, by act or omission, of severe pain or suffering, whether physical or mental;
(ii) intentional acts or omissions;
(iii) acts or omissions whose aim is to obtain information or a confession, or to punish, intimidate or coerce the victim or a third person, or to discriminate, on any ground, against the victim or third person52.

Outrages upon personal dignity

The Trial Chamber also disagreed with the definition of the offence of outrages upon personal dignity provided by Trial Chamber I in its Judgement of 25 June 1999 in the case The Prosecutor v. Zlatko Aleksovski53. On the actus reus, Trial Chamber I had observed that the act must cause "real and lasting suffering to the individual arising from the humiliation or ridicule."54 In the instant case, Trial Chamber II commented that it could see no reason why it would also have to be "lasting", so long as the humiliation or degradation is real and serious. The Trial Chamber expressed the view that it was not open to regard the fact that a victim had recovered or was overcoming "the effects of such an offence as indicating of itself that the relevant acts did not constitute an outrage upon personal dignity."55 The Trial Chamber added that if the humiliation and suffering caused are only fleeting, it may be difficult to accept that they are real and serious. However this does not suggest that any sort of minimum temporal requirement of the effects of an outrage upon personal dignity is an element of the offence56.

The Trial Chamber pointed out that an objective assessment of the relevant act is necessary57.

It held that "the offence of outrages upon personal dignity requires:

(iii) that the accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, and
(iv) that he knew that the act or omission could have that effect."58

Enslavement

The Trial Chamber noted that the Statute does not define the term "enslavement"59 and considered that it needed to determine its definition as a crime against humanity and "in particular, the customary international law content of this offence at the time relevant to the Indictment."60 The Trial Chamber examined the "various sources that deal with the same or similar subject matter, including international humanitarian law and human rights law."61 It found on the basis of its examination that enslavement "consisted of the exercise of any or all of the powers attaching to the right of ownership over a person."62 The Trial Chamber thus held that the actus reus of the violation is the exercise of any or all of those powers. "The mens rea of the violation consists in the intentional exercise of such powers."63

It added that "indications of enslavement include elements of control and ownership; the restriction or control of an individual's autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator. The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power; the victim's position of vulnerability; detention or captivity, psychological oppression or socio-economic conditions. Further indications of enslavement include exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking. With respect to forced or compulsory labour or service, international law, including some of the provisions of Geneva Convention IV and the Additional Protocols, make clear that not all labour or service by protected persons, including civilians, in armed conflicts, is prohibited - strict conditions are, however, set for such labour or service. […] The duration of the suspected exercise of powers attaching to the right of ownership is another factor that may be considered when determining whether someone was enslaved; however, its importance in any given case will depend on the existence of other indications of enslavement. Detaining or keeping someone in captivity, without more, would, depending on the circumstances of a case, usually not constitute enslavement."64

The Trial Chamber held that the following factors can be "taken into consideration in determining whether enslavement was committed: control of someone's movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour."65 It considered that buying, selling, trading or inheriting a person or his or her labours or services could also be a relevant factor66.

Cumulative convictions

The Trial Chamber applied to the present case the approach to the issue of cumulative convictions taken by the Appeals Chamber majority in its Judgement of 20 February 2001 in The Prosecutor v. Zejnil Delalic et al.67 68 .

The Judges reiterated that "once all the evidence has been assessed, before deciding which convictions, if any, to enter against an accused, a Trial Chamber first has to determine whether an accused is charged with more than one statutory offence based upon the same conduct. Second, if there is evidence to establish both offences, but the underlying conduct is the same, the Trial Chamber has to determine whether each relevant statutory provision has a materially distinct element not contained in the other. This involves a comparison of the elements of the relevant statutory provisions - the facts of a specific case play no role in this determination. Thirdly, if the relevant provisions do not each have a materially distinct element, the Trial Chamber should select the more specific provision."69

In the context of Articles 270 and 3 of the Statute, the Appeals Chamber had held that cumulative convictions are permissible only in certain circumstances. The Trial Chamber expanded this finding to the instant case which deals with Articles 3 and 5 of the Statute71.

The Judges discussed the issue of whether convictions for an Article 3 offence and an Article 5 offence based on the same conduct would be permissible and whether convictions for rape and torture under one Article based on the same conduct would be permissible. The Trial Chamber then examined the two issues in turn.

The Trial Chamber considered that "each Article has at least one materially distinct element that does not appear in the other. A materially distinct element in Article 3 vis-à-vis Article 5 is the nexus requirement, which holds that there must be a close link between the acts of an accused and the armed conflict. A materially distinct element in Article 5 vis-à-vis Article 3 is the requirement of a widespread or systematic attack directed against a civilian population."72 The Trial Chamber therefore concluded that convictions under both Articles based on the same conduct would be permissible regardless of the enumerated or specific offences charged under Articles 3 and 5 of the Statute73.

The Trial Chamber compared the elements of rape and torture under Articles 3 or 5 of the Statute and found that "a materially distinct element of rape vis-à-vis torture is the sexual penetration element. A materially distinct element of torture vis-à-vis rape is the severe infliction of pain or suffering aimed at obtaining information or a confession, punishing, intimidating, coercing or discriminating against the victim or a third person."74

FINDINGS

The existence of an armed conflict

The Trial Chamber was satisfied that the existence of an armed conflict in the area of Foca from April 1992 until at least February 1993 had been established beyond reasonable doubt75. It was also satisfied that the crimes underlying the Indictments were closely related to the armed conflict. The Trial Chamber added that "the criterion of a nexus with the armed conflict under Article 3 of the Statute does not require that the offences be directly committed whilst fighting is actually taking place, or at the scene of combat. Humanitarian law continues to apply in the whole of the territory under the control of one of the parties, whether or not actual combat continues at the place where the events in question took place. It is therefore sufficient that the crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict. The requirement that the act be closely related to the armed conflict is satisfied if, as in the present case, the crimes are committed in the aftermath of the fighting, and until the cessation of combat activities in a certain region, and are committed in furtherance or take advantage of the situation created by the fighting. These requirements are squarely met by the offences under both Indictments"76.

The Trial Chamber noted that, in their capacity as soldiers, the three co-accused had taken "an active part in carrying out military tasks during the conflict, fighting on behalf of one of the parties to the armed conflict, namely the Serb side and that they therefore knew that an armed conflict was taking place. The evidence also shows that none of their victims took any part in the hostilities."77

The attack against the civilian population

The Trial Chamber was satisfied beyond reasonable doubt that there had been a systematic attack by the Bosnian Serb Army and paramilitary groups targeting the Muslim civilian population in the area during the period covered by the two Indictments. The attack encompassed the municipalities of Foca, Gacko and Kalinovik78.

The Trial Chamber was also satisfied that it had been proved beyond reasonable doubt that the three co-accused knew that an attack against the Muslim civilian population was taking place and that their criminal acts fit into or were part of the attack79.

It then examined the individual criminal responsibility of each accused.

(1) The Trial Chamber reiterated that Dragoljub Kunarac, in his own words, was "responsible for collecting information about the enemy. He was a well-informed soldier with access to the highest military command in the area. Considering his role and position, Dragoljub Kunarac obviously knew of the authorities'intention to overcome the Muslims in any possible ways, including through criminal means."80 He volunteered and took important responsibilities in the carrying out of this plan, participating in many military operations in the area of Foca and was therefore aware of how these villages had been attacked and how their Muslim inhabitants had been treated81.

The Trial Chamber further found that Dragoljub Kunarac also knew that Muslim women had been specifically targeted, as he had himself taken several of them to his men and raped some of them himself. In the course of one of these rapes, he had "expressed with verbal and physical aggression his view that the rapes against the Muslim women were one of the many ways in which the Serbs could assert their superiority and victory over the Muslims."82 While raping FWS-183, the accused told her that she should enjoy being "fucked by a Serb". After he and another soldier had finished, Dragoljub Kunarac laughed at her and added that she would now carry a Serbian baby and would not know who the father would be. In addition, the accused removed many Muslim girls from various detention centres and kept some of them for various periods of time for him or his soldiers to rape83.

The Trial Chamber also noted that the consistency of these occurrences and the predictability of the women's fate was particularly evident with respect to Dragoljub Kunarac and his group of soldiers. The girls and women, selected by the accused or by his men, were systematically taken to the soldiers' base, a house located at Ulica Osmana Dikica no. 16. There, the girls and women, who he knew were civilians, were raped by Dragoljub Kunarac's men or by the accused himself84.

The Trial Chamber concluded that through these acts the accused not only showed that he had known of the attack and that his crimes fit into or were part of it, but also that he intended them to be so85.

(2) The Trial Chamber considered that Radomir Kovac was, also, fully aware of the attack against the Muslim villagers and that his acts were part of the attack86. It noted that two of the women subsequently kept in the accused's apartment, FWS-87 and FWS-75, were actually captured in the village that very day. Radomir Kovac "knew and conceded that the four women were civilians."87

The Trial Chamber found that while four girls, FWS-75, FWS-87, A.B. and A.S., were being kept in his apartment, the accused abused them all and "raped three of them many times, thereby perpetuating the attack upon the Muslim civilian population."88 Radomir Kovac also invited his friends to his apartment and sometimes allowed them to rape one of the girls89. It also found that Radomir Kovac had given two of these girls, FWS-75 and A.B., to other Serbian soldiers who abused them for more than three weeks before taking them back to Kovac who sold one and give the other away to acquaintances of his90. Lastly, the Trial Chamber found that Radomir Kovac "had sold three of the girls, A.S., A.B. and FWS-87."91

It further stressed that "Radomir Kovac knew of the attack against the Muslim civilian population, and he also perpetuated it by prolonging the ordeal of these girls by selling or giving them to men whom he knew would rape them and abuse them."92

(3) The Trial Chamber considered that Zoran Vukovic also knew about the attack and willingly took part in it93. It further found that "Zoran Vukovic also perpetuated the attack by personally raping at least two Muslim girls, FWS-75 and FWS-50."94 While raping FWS-50, a girl who he knew was of the same age as his own daughter, "Zoran Vukovic boasted that he could have done much worse to her and that she was lucky about this coincidence."95

The Trial Chamber was "satisfied that the crimes committed by all three accused were part of the attack against the Muslim civilian population and that all three accused had the mens rea required under Article 5 of the Statute."96 It was satisfied that "the three accused knew about the attack, and that they committed the offences charged by directly taking advantage of the situation"97. It added that "judging by their individual conduct as charged and proved on the evidence before the Trial Chamber"98, they were aware that there had been an attack on the Muslim civilian population and that "they willingly took an active part in it."99 Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic mistreated only Muslim girls and women because they were Muslims and in so doing "fully embraced the ethnicity-based aggression of the Serbs against the Muslim civilians"100 and showed that "all their criminal actions were clearly part of and had the effect of perpetuating the attack against the Muslim civilian population."101

Dragoljub Kunarac's position as a commander

The Trial Chamber was satisfied that the four or five soldiers who composed a unit - out of the group of 15 led by Dragoljub Kunarac - went "back to their respective brigades or detachments when the specific task for which they had been assigned to the accused had been carried out. During those periods where the operations continued overnight, the soldiers may have been under the effective control of the accused."102 The Trial Chamber however considered that the Prosecutor failed "to show that the soldiers who committed the offences charged in the Indictment were under the effective control of Kunarac at the time they committed the offences."103 It was therefore not satisfied that Dragoljub Kunarac was "responsible as a superior under Article 7(3) of the Statute."104

Dragoljub Kunarac

The Trial Chamber found that the allegations that Dragoljub Kunarac took FWS-87 to the house at Ulica Osmana Dikica no. 16 at least twice between 13 July and 1 August 1992, where the other soldiers allegedly raped her, was not established beyond reasonable doubt.

On the basis of the evidence before it, the Trial Chamber found that, on or around 16 July 1992, Dragoljub Kunarac raped D.B. and brought her and FWS-75 to Ulica Osmana Dikica no. 16, the latter at least twice, in order to be gang-raped by several soldiers. It thus found that the accused committed the crimes of torture and rape as a principal perpetrator and that "he aided and abetted the other soldiers in their role as principal perpetrators by bringing the two women to Ulica Osmana Dikica no. 16."105

The Trial Chamber also found that the allegations under paragraph 5.4 of Indictment IT-96-23 were proved beyond reasonable doubt. On 2 August 1992, Dragoljub Kunarac took four girls, FWS-87, FWS-75, FWS-50 and D.B., to Ulica Osmana Dikica no. 16. Several soldiers raped FWS-75 and FWS-50. Dragoljub Kunarac and three other soldiers raped FWS-87. It further considered that the allegations under paragraph 5.5 of Indictment IT-96-23 were partly proved.

The Trial Chamber held that it was established beyond reasonable doubt that Dragoljub Kunarac raped FWS-95 on one occasion, but that it was not established that any other men raped FWS-95 during the second incident as alleged in the Indictment106. The Trial Chamber considered that, as far as the girls had been raped and tortured by other men, Dragoljub Kunarac aided and abetted the latter "by taking the girls to them in the knowledge that they would rape them and by encouraging them to do so."107

The Trial Chamber therefore found Dragoljub Kunarac guilty of torture under Counts 1 and 3 and guilty of rape under Counts 2 and 4108.

On the basis of the evidence before it, the Trial Chamber found Dragoljub Kunarac not guilty under Counts 5, 6, 7 and 8109, but guilty of rape under Counts 9 and 10110.

The Trial Chamber noted that Dragoljub Kunarac's attempt to intimidate FWS-183 had showed his hatred for Muslims, his intention to intimidate her "and his intention to discriminate against Muslims in general, and FWS-183 in particular."111 It considered that Dragoljub Kunarac acted as one of the three principal co-perpetrators112. The Trial Chamber accordingly found the accused guilty of torture under Count 11 and rape under Count 12113.

It also found that FWS-191 and FWS-186 had been treated as the personal property of Dragoljub Kunarac114 and "that the girls at Trnovace did anything they had been "ordered to do by the soldiers while being kept there."115 The Trial Chamber considered that the girls were kept in the house and "used by Dragoljub Kunarac and DP 6 for sexual services whenever the soldiers returned" there116.

Furthermore, it was satisfied that from 2 August 1992 onwards, Dragoljub Kunarac raped FWS-191 and that the soldier with the pseudonym DP 6 raped FWS-186 continuously and constantly whilst they were kept in the house in Trnovace. Dragoljub Kunarac in fact asserted his exclusivity over FWS-191 by forbidding any other soldier to rape her. The Trial Chamber was satisfied that Dragoljub Kunarac was aware of the fact that DP 6 constantly and continuously raped FWS-186 during this period as he himself had raped to FWS-191.

However it was not established that during that period Dragoljub Kunarac provided DP 6 with any form of assistance, encouragement or moral support which had a substantial effect on the perpetration of the individual rapes. Although Dragoljub Kunarac continued to come to the house for about two months, it was not established beyond reasonable doubt that he was present while DP 6 raped FWS-186. Nor was it shown "how Dragoljub Kunarac's presence or actions would have assisted DP 6 in his raping FWS-186"117. The Trial Chamber considered that the connection between the events at the house and the accused's sporadic presence there was so loose that it would stretch the concept of aiding and abetting beyond its limits with respect to the actual rapes by DP 6.

The Trial Chamber was satisfied "that FWS-191 and FWS-186 were denied any control over their lives by Dragoljub Kunarac and DP 6 during their stay there."118 It added that "[t]he two women were treated as the personal property of Kunarac and DP 6."119 The Trial Chamber was also satisfied that Dragoljub "Kunarac established these living conditions for the victims in concert with DP 6."120 It considered that "[b]oth men personally committed the act of enslavement."121 The Trial Chamber found that Dragoljub "Kunarac also aided and abetted DP 6 with respect to his enslavement of FWS-186"122 by assisting in setting up the conditions at the house.

The Trial Chamber consequently found Dragoljub Kunarac guilty of rape under Counts 19 and 20, guilty of enslavement under Count 18 and not guilty of outrages upon personal dignity under Count 21123.

Radomir Kovac

On or about 31 October 1992, four girls, FWS-87, FWS-75, A.B. and A.S. were transferred to Radomir Kovac's apartment in the Lepa Brena Building in Foca. FWS-75 and A.B. were kept in the apartment for about a week during which time the accused treated them as his personal property and frequently sexually assaulted them.

They had to do household chores. The sanitary conditions for all the girls were appalling and they often went hungry because they did not receive sufficient food from Radomir Kovac.

During their time in his apartment, the accused and other soldiers raped FWS-75 and A.B. After about a week, Radomir Kovac handed the two girls over to other Serbian soldiers who continued to rape them. He then visited the house in which they were kept for about two weeks and pretended to feel sorry for them.

Subsequently they were handed to yet another group of soldiers who continued to rape them and eventually brought them back to him. The next day, the accused sold A.B. and handed FWS-75 over to the soldier with the pseudonym DP1.

He thus raped FWS-75 and A.B. and aided and abetted in their rape by other soldiers by allowing those soldiers to visit his apartment and to rape the girls, by encouraging them to do so and by handing over the girls to other men in the knowledge that they would rape them.

While they were being kept in his apartment, Radomir Kovac and Jagos Kostic repeatedly raped FWS-87 and A.S. He raped FWS-87 whereas Jagos Kostic raped A.S. and sometimes FWS-87 also whom he "reserved" for himself without the accused's knowledge.

The Trial Chamber noted that it was not established beyond reasonable doubt that he aided and abetted the rape of FWS-87 by Jagos Kostic as the evidence indicated that this fact had been hidden from him.

Finally, on or about 25 February 1993, the accused sold both FWS-87 and A.S. for 500 DM each to some Montenegrin soldiers.

The Trial Chamber found "that this sexual exploitation of A.B. and FWS-75, in particular their sale, constitutes a particularly degrading attack on their dignity."124

It considered that Jagos Kostic could rape A.S. because Radomir Kovac had held her in his apartment. Therefore, the accused "substantially assisted Jagos Kostic in raping A.S., by allowing Jagos Kostic to stay in his apartment and to rape A.S. there."125 The Trial Chamber noted that it was not established beyond reasonable doubt that Radomir Kovac aided and abetted in the rape of FWS-87 by Jagos Kostic126. It also noted that "[t]he Statute does not require that the perpetrator must intend to humiliate his victim"127, that is, that he perpetrated the act for that very reason. The Trial Chamber considered that it was "sufficient that he knew that his act or omission could have that effect"128 and that "[t]his was certainly the case here."129

The Trial Chamber stated that "Radomir Kovac detained FWS-75 and A.B. for about a week, and FWS-87 and A.S. for about four months in his apartment, by locking them up and by psychologically imprisoning them, and thereby depriving them of their freedom of movement."130 It considered that "he had complete control over their movements, privacy and labour"131 during that time. The Trial Chamber found that "[h]e made them cook for him, serve him and do the household chores for him"132 and "subjected them to degrading treatments, including beatings and other humiliating treatments."133

The Trial Chamber found that Radomir Kovac's conduct towards the women was wanton in abusing and humiliating them and in exercising his de facto power of ownership as it pleased him134. Radomir Kovac disposed of them in the same manner. For all practical purposes, he possessed them, owned them, had complete control over their fate and treated them as his property. The Trial Chamber was also satisfied that Radomir "Kovac exercised the above powers over the girls intentionally."135 The Trial Chamber was "satisfied that many of the acts caused serious humiliation of which the accused was aware."136

For these acts, the Trial Chamber found Radomir Kovac guilty of enslavement under Count 22, rape under Counts 23 and 24 and outrages upon personal dignity under Count 25137.

Zoran Vukovic

The Trial Chamber found that there remained reasonable doubt about the identification of Zoran Vukovic as the perpetrator of the rape of FWS-87 in Foca High School. The Trial Chamber further found that it was not proved beyond reasonable doubt that Zoran Vukovic participated in the specific incident charged under paragraph 6.6 at all or that he was present at Foca High School while it had occurred138.

The Trial Chamber considered that none of the acts alleged to have been committed by the accused Zoran Vukovic in paragraphs 6.6 and 6.7 was proved beyond reasonable doubt. It therefore found the accused Zoran Vukovic not guilty under Counts 21, 22, 23 and 24139.

The Trial Chamber also found that it was not proved beyond reasonable doubt that the accused committed the acts described in paragraph 7 .10 of the Indictment with respect to FWS-87 and Z.G.140

The Trial Chamber held that only one of the incidents underlying those charges was proved beyond reasonable doubt, namely, that on or around 14 July 1992, Zoran Vukovic raped FWS-50; that the accused and another soldier took her out of Partizan after he had threatened her mother; by saying that he would kill her if she did not tell him where her daughter was hiding; that her mother then went to find her and that Zoran Vukovic took her to another house where he raped her.

The Trial Chamber emphasised that all that mattered in the context was the accused's awareness of an attack against the Muslim civilian population of which his victim was a member and, for the purpose of torture, that he had "intended to discriminate between the group of which he is a member and the group of his victim. There is no requirement under international customary law that the conduct must be solely perpetrated for one of the prohibited purposes of torture, such as discrimination. The prohibited purpose need only be part of the motivation behind the conduct and need not be the predominant or sole purpose."141 The Trial Chamber had no doubt that the purpose was at least predominant since the accused had "obviously intended to discriminate against the group of which his victim was a member, i.e. the Muslims, and against his victim in particular."142

On the evidence adduced, the Trial Chamber found Zoran Vukovic guilty of torture under Counts 33 and 35 and rape under Counts 34 and 36143.

SENTENCING

General sentencing practice in the former Yugoslavia

The Trial Chamber held that the following aggravating circumstances set down in the Criminal Code of the former Yugoslavia may be considered, where applicable: the young age of victims of sexual crimes, rapes committed with ethnically based motives, rapes committed against detainees, rapes committed against physically weak persons who could not defend themselves, rapes entailing multiple victims and rapes at gunpoint144.

It however underscored "its view that fairness requires the Prosecutor to prove aggravating circumstances beyond a reasonable doubt, and that the Defence needs to prove mitigating circumstances only on the balance of probabilities."145

The Trial Chamber reiterated that it had made clear during the pre-trial conference on 2 March 2000 that an accused "can only be sentenced for what [he had] been convicted for, and if [he had not] been convicted, [he] can't be sentenced for it."146 In the context of this discussion, the Trial Chamber also expressed the view that only circumstances that had "been proved beyond reasonable doubt may be used in aggravation of a sentence."147

It pointed out that it would not allow an uncharged crime to be used as an aggravating circumstance because "an offender can only be sentenced for conduct for which he has been convicted."148

The Trial Chamber added that "[o]nly the aggravating 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."149

Dragoljub Kunarac

The Trial Chamber considered in aggravation the fact that Dragoljub Kunarac played a leading organisational role and substantially influenced some of the other perpetrators. The Trial Chamber stressed that "the criminal culpability of those leading others is higher than those who follow."150 It also considered the young age of some of the victims of the offences committed by Dragoljub Kunarac as an aggravating factor151. The Trial Chamber noted that the accused "committed these offences over an extended period of time in relation to certain of his victims"152 and considered in aggravation the involvement of more than one victim in his offences153.

The Trial Chamber also considered in aggravation the discriminatory grounds - ethnic and gender - underlying the offences other than torture which Dragoljub Kunarac committed for discriminatory purposes. Lastly, it considered in aggravation the fact that the offences had been committed against particularly vulnerable and defenceless women and girls154.

The Trial Chamber took account of the fact that Dragoljub Kunarac voluntarily surrendered to the Tribunal as a mitigating factor. It emphasised that "[t]reating 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."155 The Trial Chamber furthermore considered in mitigation the accused's remorse and "substantial co-operation with the Prosecutor in giving two statements"156.

Radomir Kovac

The Trial Chamber considered as aggravating circumstances the age of the victims when the offences were committed and the period of time over which Radomir Kovac perpetrated them. It took into account the sadistic manner in which the accused committed the offences when determining whether they had in fact been committed. Unlike his sadism, the fact that Radomir Kovac's offences were committed against several particularly vulnerable and defenceless girls and a woman was considered in aggravation157.

Zoran Vukovic

The Trial Chamber held that the young age of the victim when Zoran Vukovic raped and tortured her was an aggravating circumstance. It did not consider the serious nature of the rape in aggravation because it had already been taken into account for the torture convictions. Nor did the Trial Chamber consider the discriminatory purpose of the torture in aggravation since it was already encompassed in that conviction. However, it did consider in aggravation the fact that the accused committed the offences against a particularly vulnerable and defenceless girl158.

The Judgement

The Trial Chamber convicted Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic to single sentences of 28 years'159, 20 years'160 and 12 years'161 imprisonment respectively.

________________________________________
1. "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime."
2. "The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."
3. "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:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property."
4. Para. 577.
5. Para. 47.
6. Para. 388.
7. Para. 390.
8. The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-T, Trial Chamber III, Judgement, 26 February 2001 (summarised and analysed in this issue of the Judicial Supplement).
9. Para. 398.
10. Para. 399.
11. Para. 406.
12. Para. 407.
13. Idem.
14. Idem.
15. Para. 410.
16. "The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts."
17. Article 49(1) of Additional Protocol I to the Geneva Conventions of 12 August 1949 defines "attacks" as "acts of violence against the adversary, whether in offence or in defence".
18. Para. 416.
19. Para. 418.
20. Para. 419.
21. Para. 421.
22. Para. 425.
23. Para. 429.
24. Para. 430.
25. Idem.
26. Para. 431.
27. Para. 434.
28. Para. 435.
29. Idem.
30. Idem.
31. The Prosecutor v. Anto Furundzija ("Lasva River Valley"), Case No. IT-95-17/1-T, Trial Chamber II, Judgement, 10 December 1998 (summarised in Judicial Supplement No. 1).
32. Para. 438.
33. Idem.
34. Idem.
35. Idem.
36. Para. 460. See also The Prosecutor v. Anto Furundzija ("Lasva River Valley"), Case No. IT-95-17/1-T, Trial Chamber II, Judgement, 10 December 1998 (summarised in Judicial Supplement No. 1), in which the Judges defined the crime of rape in international law as
"(i) the sexual penetration, however slight:
(a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or
(b) of the mouth of the victim by the penis of the perpetrator;
(ii) by coercion or force or threat of force against the victim or a third person." (para. 185)
37. Idem.
38. "In cases of sexual assault:
(i) no corroboration of the victim's testimony shall be required;
(ii) consent shall not be allowed as a defence if the victim
(a) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or
(b) reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear;
(iii) before evidence of the victim's consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible;
(iv) prior sexual conduct of the victim shall not be admitted in evidence."
39. Para. 464.
40. Para. 470.
41. Idem.
42. Idem.
43. Para. 471.
44. The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-T, Trial Chamber II quater, Judgement, 16 November 1998 (summarised in Judicial Supplement No. 1).
45. The Prosecutor v. Anto Furundzija ("Lasva River Valley"), Case No. IT-95-17/1-T, Trial Chamber II, Judgement, 10 December 1998 (summarised in Judicial Supplement No. 1).
46. Celebici Trial Chamber Judgement, para. 459. See also Furundzija Trial Chamber Judgement, para. 160 and Appeals Chamber Judgement (summarised and analysed in Judicial Supplement No. 18), in which the Judges took the view that this definition "reflects customary international law". (Para. 111)
47. Para. 473.
48. Para. 482.
49. Idem.
50. Para. 496.
51. Idem.
52. Para. 497.
53. The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-T, Trial Chamber I, Judgement, 25 June 1999 (summarised in Judicial Supplement No. 6).
54. Ibidem, para. 56.
55. Para. 501.
56. Idem.
57. Para. 506.
58. Para. 514.
59. Para. 518.
60. Para. 515.
61. Para. 518.
62. Para. 539.
63. Para. 540.
64. Para. 542.
65. Para. 543.
66. Idem.
67. The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised and analysed in this issue of the Judicial Supplement).
68. Para. 547.
69. Para. 550.
70. "The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian; (h) taking civilians as hostages."
71. Para. 552.
72. Para. 556.
73. Idem.
74. Para. 557.
75. Para. 567.
76. Para. 568.
77. Para. 569.
78. Paras. 570 and 578.
79. Para. 581.
80. Para. 582.
81. Idem.
82. Para. 583.
83. Idem.
84. Para. 584.
85. Para. 585.
86. Para. 586.
87. Idem.
88. Para. 587.
89. Idem.
90. Idem.
91. Idem.
92. Para. 588.
93. Para. 589.
94. Para. 591.
95. Idem.
96. Para. 592.
97. Idem.
98. Idem.
99. Idem.
100. Idem.
101. Idem.
102. Para. 628.
103. Idem.
104. Para. 629.
105. Para. 656.
106. Para. 685.
107. Para. 686.
108. Para. 687.
109. Para. 698.
110. Para. 704.
111. Para. 711.
112. Para. 714.
113. Para. 715.
114. Para. 738.
115. Para. 739.
116. Idem.
117. Para. 741.
118. Para. 742.
119. Idem.
120. Idem.
121. Idem.
122. Idem.
123. Para. 745.
124. Para. 756.
125. Para. 761.
126. Idem.
127. Para. 774.
128. Idem.
129. Idem.
130. Para. 780.
131. Idem.
132. Idem.
133. Idem.
134. Para. 781.
135. Idem.
136. Idem.
137. Para. 782.
138. Para. 792.
139. Para. 798.
140. Para. 810.
141. Para. 816.
142. Idem.
143. Para. 822.
144. Para. 835.
145. Para. 847.
146. Transcripts, page 273.
147. Para. 849.
148. Para. 850.
149. Idem.
150. Para. 863.
151. Para. 864.
152. Para. 865.
153. Para. 866.
154. Para. 867.
155. Para. 868.
156. Idem.
157. Paras. 874 and 875.
158. Para. 879.
159. Paras. 871 and 885.
160. Paras. 877 and 890.
161. Paras. 882 and 890.