International Criminal Tribunal for the Former Yugoslavia

  1. 1 Thursday, 10th December, 1998

    2 (Open session)

    3 (Judgment)

    4 (The accused entered court)

    5 --- Upon commencing at 2.00 p.m.

    6 JUDGE MUMBA: Good afternoon. May the

    7 registrar please call the case?

    8 THE REGISTRAR: Good afternoon, Your

    9 Honours. Case number IT-95-17/1-T, the Prosecutor

    10 versus Anto Furundzija.

    11 JUDGE MUMBA: Thank you. Mr. Furundzija, are

    12 you able to hear me in a language you understand?

    13 THE ACCUSED: Yes, Your Honour.

    14 JUDGE MUMBA: Will you please be seated. May

    15 I have appearances, please?

    16 MS. HOLLIS: Good afternoon, Your Honours.

    17 Brenda Hollis and Patricia Sellers appear on behalf of

    18 the Prosecutor.

    19 JUDGE MUMBA: Thank you. The Defence?

    20 MR. MISETIC: Good afternoon, Your Honours.

    21 Luka Misetic and Sheldon Davidson on behalf of the

    22 Defendant, Anto Furundzija.

    23 JUDGE MUMBA: Thank you. This afternoon,

    24 Trial Chamber II delivers its Judgment in the case of

    25 the Prosecutor versus Anto Furundzija. The trial of

  2. 1Mr. Furundzija commenced on 8 June, 1998, and the

    2 proceedings continued until 22 June, 1998, at which

    3 time the hearing was closed with Judgment reserved to a

    4 later date.

    5 Subsequently, upon a motion filed by the

    6 Defence, the Trial Chamber ordered that the proceedings

    7 be re-opened. The re-opened proceedings covered a

    8 period of four days, and the hearing was finally closed

    9 on 12 November, 1998.

    10 The accused Anto Furundzija stands charged

    11 with serious violations of international humanitarian

    12 law, namely, torture as a Violation of the Laws or

    13 Customs of War and outrages upon personal dignity,

    14 including rape, as a Violation of the Laws or Customs

    15 of War.

    16 The amended indictment alleges that the

    17 accused was the local commander of a special unit of

    18 the military police of the HVO known as the "Jokers,"

    19 in which capacity he and another soldier, Accused B,

    20 interrogated Witness A. During the questioning,

    21 Witness A had a knife rubbed against her inner thigh

    22 and lower stomach, and the perpetrator threatened to

    23 put his knife inside her vagina should she not tell the

    24 truth. The amended indictment further alleges that the

    25 accused continued to interrogate Witness A and Victim B

  3. 1while they were beaten on the feet with a baton and,

    2 further, that the accused stood by, failing to

    3 intervene in any way while Witness A was forced to have

    4 oral and vaginal sexual intercourse with Accused B.

    5 The Judgment of the Trial Chamber in this

    6 case is some one hundred pages in length. Accordingly,

    7 instead of presenting the Judgment in its entirety, we

    8 will provide a brief summary of the Trial Chamber's

    9 findings as to the charges against the accused before

    10 delivering the disposition.

    11 The Judgment comprises nine sections,

    12 including the disposition. We shall briefly address

    13 each of these in turn, emphasising the main theme

    14 characterising each section, and the pertinent findings

    15 therein.

    16 Section I contains a detailed description of

    17 the procedural history of the case, including the

    18 nature of the accused's arrest, surrender to the

    19 International Tribunal, and initial appearance before

    20 the Trial Chamber, as well as a discussion of the more

    21 substantial procedural issues that arose over the

    22 course of these proceedings.

    23 Section II contains a summary of the

    24 submissions of the parties in relation to the charges

    25 against the accused in the amended indictment and the

  4. 1underlying facts.

    2 Section III addresses the jurisdictional

    3 prerequisites for the application of Article 3, namely,

    4 the existence of an armed conflict. In this context,

    5 the Trial Chamber finds that the test formulated by the

    6 Appeals Chamber of the International Tribunal in Tadic

    7 is the correct test to apply in determining the

    8 existence of an armed conflict. Based on the evidence

    9 submitted by both parties, the Trial Chamber finds

    10 that, at the material time, a state of armed conflict

    11 existed in Central Bosnia and Herzegovina between the

    12 Croatian Defence Council (the HVO) and the Army of the

    13 Bosnia and Herzegovina (the ABiH).

    14 In Section IV, the Trial Chamber finds a

    15 nexus between this armed conflict and the acts

    16 underlying the charges against the accused.

    17 Section V addresses the evidence relating to

    18 the charges in the amended indictment. This section

    19 begins with an overview of the relevant evidence and

    20 the arguments of the parties relating thereto, then

    21 proceeds to examine the background and circumstances

    22 leading up to the critical events alleged to have

    23 occurred at the Bungalow and the holiday cottage in

    24 Nadioci. The evidence relating to those acts giving

    25 rise to individual criminal liability of the accused,

  5. 1including the evidence identifying Anto Furundzija as

    2 one of the persons involved in those criminal acts, is

    3 then discussed.

    4 The following subsection places the re-opened

    5 proceedings in procedural context and examines the

    6 evidence relating to the central issue of those

    7 proceedings; namely, the extent to which the

    8 reliability of Witness A's evidence may have been

    9 affected by any psychological disorder arising out of

    10 her traumatic ordeal. In this respect, the Trial

    11 Chamber examines the evidence presented throughout by

    12 expert witnesses for both the Prosecution and the

    13 Defence on the issue of Post Traumatic Stress Disorder

    14 (PTSD) and its potential effect on memory. It is found

    15 that Witness A's memory regarding material aspects of

    16 the events through which she suffered has not been

    17 affected by any disorder she may have had. The Trial

    18 Chamber notes that the expert evidence demonstrates

    19 that even when a person is suffering from PTSD, she or

    20 he may still be a reliable witness, and accepts Witness

    21 A's testimony that she has sufficiently recollected the

    22 material aspects of the relevant events.

    23 The Trial Chamber then examined the

    24 inconsistencies in Witness A's testimony and makes a

    25 finding as to its general reliability.

  6. 1Section V concludes with the Trial Chamber's

    2 factual findings in relation to the events alleged in

    3 the amended indictment.

    4 In Section VI, the Trial Chamber commences a

    5 discussion of the elements of each of the offences

    6 charged in the amended indictment. This section

    7 contains a comprehensive analysis of the nature and

    8 status of the prohibition against torture under

    9 conventional and customary international law, as well

    10 as providing a definition of torture under

    11 international humanitarian law.

    12 In this regard, the Trial Chamber finds that

    13 the prohibition against torture has attained the status

    14 of jus cogens. Further, the requisite elements of the

    15 offence of torture are found to be as follows: The

    16 intentional infliction, by act or omission, of severe

    17 pain or suffering, whether physical or mental, for the

    18 purpose of obtaining information, or a confession, or

    19 of punishing, intimidating, humiliating, or coercing

    20 the victim or a third person, or of discriminating on

    21 any ground against the victim or a third person. For

    22 such an act to constitute torture, one of the parties

    23 thereto must be a public official or must, at any rate,

    24 act in a non-private capacity, i.e. as a de facto organ

    25 of a State or any other authority-wielding entity.

  7. 1This section continues with a discussion of

    2 the prohibition against rape and other serious sexual

    3 assaults under international law.

    4 The Trial Chamber finds it is indisputable

    5 that rape and other serious sexual assaults in

    6 situations of armed conflict entail criminal liability

    7 of the perpetrators. In this context, the Trial

    8 Chamber upholds the recent finding by Trial Chamber II

    9 of the ICTY in Prosecutor versus Delalic et al, that in

    10 certain circumstances, rape may amount to torture under

    11 international law. However, this Trial Chamber has

    12 seen fit to expand the definition of rape first

    13 formulated by Trial Chamber I of the International

    14 Criminal Tribunal for Rwanda in Akayesu and followed in

    15 the Delalic Judgment. Therefore, the Trial Chamber

    16 finds that the following comprise what may be accepted

    17 as the requisite elements of the offence of rape under

    18 international criminal law: The sexual penetration,

    19 however slight, either of the vagina or anus of the

    20 victim by the penis of the perpetrator or any other

    21 object used by the perpetrator, or of the mouth of the

    22 victim by the penis of the perpetrator, where such

    23 penetration is affected by coercion or force or threat

    24 of force against the victim or a third person.

    25 In Section VI(B), the Trial Chamber turns its

  8. 1attention to analysing the content of the various heads

    2 under which individual criminal liability may be

    3 incurred pursuant to Article 7(1) of the Statute of the

    4 International Tribunal. In this regard, the Trial

    5 Chamber finds the necessary elements of aiding and

    6 abetting under international criminal law to comprise:

    7 an actus reus requiring practical assistance,

    8 encouragement, or moral support which has a substantial

    9 effect on the perpetration of the crime and a

    10 complementary mens rea requiring knowledge that such

    11 acts assist the commission of the offence.

    12 The Trial Chamber further elaborates the

    13 principles of individual criminal responsibility in the

    14 context of torture by finding that an accused, who

    15 would otherwise be liable as an aider and abettor to

    16 torture under the foregoing standard, will be held

    17 responsible as a co-perpetrator of torture, where the

    18 accused participates in an integral part of the torture

    19 and partakes of the prohibited purpose behind the

    20 torture, that is, the intent to obtain information or a

    21 confession, to punish or intimidate, humiliate, coerce

    22 or discriminate against the victim or a third person.

    23 Section VII of the Judgment sets forth the

    24 legal findings of the Trial Chamber with respect to

    25 each of the charges against the accused in the amended

  9. 1indictment.

    2 Mr. Furundzija, will you please stand up and

    3 remain standing so that you can receive the Judgment of

    4 the Trial Chamber?

    5 For the foregoing reasons, having considered

    6 all of the evidence, the submissions of the parties,

    7 and the Statute and Rules by which it is bound, the

    8 Trial Chamber finds as follows with respect to the

    9 accused, Anto Furundzija:

    10 Count 13: As a co-perpetrator, guilty of a

    11 Violation of the Laws or Customs of War (torture).

    12 Count 14: For aiding and abetting, guilty of

    13 a Violation of the Laws or Customs of War (outrages

    14 upon personal dignity, including rape).

    15 Pursuant to sub-Rule 85(A)(vi) of the Rules

    16 of Procedure and Evidence, the Trial Chamber heard the

    17 oral submissions of the Prosecution and the Defence on

    18 sentencing in this case on 22nd June, 1998. It sets

    19 out its discussion and findings in this regard in

    20 Section VIII of the Judgment. The Trial Chamber

    21 considers that the imposition of sentence must take

    22 account of various mitigating and aggravating factors

    23 as well as the sentencing practices of the courts of

    24 the former Yugoslavia.

    25 The Trial Chamber imposes sentence as

  10. 1follows:

    2 Count 13: For torture as a Violation of the

    3 Laws or Customs of War, the Trial Chamber sentences

    4 you, Anto Furundzija, to 10 years' imprisonment.

    5 For Count 14: For outrages upon personal

    6 dignity, including rape, as a Violation of the Laws or

    7 Customs of War, the Trial Chamber sentences you, Anto

    8 Furundzija, to eight years' imprisonment.

    9 You may be seated.

    10 The Trial Chamber has determined that the

    11 foregoing sentences are going to be served

    12 concurrently, inter se. In addition, pursuant to

    13 sub-Rule 101(D) of the Rules of Procedure and Evidence,

    14 persons convicted by the International Tribunal are

    15 entitled to credit for time spent in custody pending

    16 surrender to the Tribunal and time spent in detention

    17 pending trial or appeal. Accordingly, eleven months

    18 and twenty-two days shall be deducted from the sentence

    19 today imposed on Anto Furundzija, together with such

    20 additional time as he may serve pending the

    21 determination of any appeal.

    22 In accordance with Rule 102 of the Rules of

    23 Procedure and Evidence, Anto Furundzija's sentence,

    24 subject to the above-mentioned deduction, shall begin

    25 to run from today.

  11. < P>1Pursuant to Article 27 of the Statute and

    2 Rule 103 of the Rules, Anto Furundzija shall serve his

    3 sentence in a State designated by the President of the

    4 International Tribunal. The transfer of Anto

    5 Furundzija to the designated State shall be effected as

    6 soon as possible after the time limit for appeal has

    7 elapsed. In the event that notice of appeal is given,

    8 the transfer of the accused, Anto Furundzija, if

    9 compelled by the outcome of such an appeal, shall be

    10 effected as soon as possible after the determination of

    11 the appeal by the Appeals Chamber. Until such time as

    12 his transfer is effected, Anto Furundzija shall remain

    13 in the custody of the International Tribunal, in

    14 accordance with Rule 102.

    15 This concludes the Judgment of this Trial

    16 Chamber.

    17 The Trial Chamber now stands adjourned.

    18 --- Whereupon proceedings adjourned at

    19 2.15 p.m.