Anto Furundzija was charged with two violations of Article 3 of the Statute (Violations of the laws or customs of war): torture, a violation of Article 3 common to the Geneva Conventions of 1949 (Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Geneva Convention III Relative to the Treatment of Prisoners of War; Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War), and outrages upon personal dignity including rape, a violation of Article 4(2)(e) of the 1977 Geneva Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Victims of Non-International Armed Conflicts (Protocol II) (hereinafter "Additional Protocol II").

The Trial Chamber found the accused guilty on both counts: for co-perpetration of torture it imposed 10 years’ imprisonment; for aiding and abetting in outrages upon personal dignity, including rape, the Chamber concurrently imposed 8 years’ imprisonment.

This summary cannot address all the legal issues or be a substitute for the subtly formulated legal considerations and findings in the Judgement. What follows below merely highlights the most important legal aspects of the Judgement.

The Trial Chamber first found that at the material time, mid-May 1993, an armed conflict existed between the Croatian Defence Council (hereinafter "the HVO") and the Army of Bosnia and Herzegovina (hereinafter "the ABiH"). Applying the test formulated by the Appeals Chamber in the Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995 in the Tadic case (IT-94-1-AR72) (hereinafter "the Tadic Jurisdiction Decision"), the Trial Chamber reached that conclusion. Furthermore, the Trial Chamber also found a sufficient link between this armed conflict and the offences allegedly committed by the accused.

The jurisdictional requirement of Article 3 thus having been satisfied, the Trial Chamber then considered the scope of the Article. Referring again to the Appeals Chamber’s Tadic Jurisdiction Decision, the Trial Chamber found that Article 3 constitutes an "umbrella rule": "[i]t covers any serious violation of a rule of customary international humanitarian law entailing, under international customary or conventional law, the individual criminal responsibility of the person breaching the rule." Further in the Judgement, the Trial Chamber accordingly confirmed its earlier decision that the offences of torture and outrages upon personal dignity, including rape, are covered by Article 3 of the Statute.

Torture is specifically prohibited by treaty law, particularly in Article 3 common to the Geneva Conventions and Article 4 of Additional Protocol II. The Geneva Conventions and the 1977 Geneva Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Victims of International Armed Conflicts (Protocol I) (hereinafter "Additional Protocol I"), and Protocol II were applicable to the parties at the time material to the indictment since these instruments had been ratified by Bosnia and Herzegovina on 31 December 1992. Furthermore, on 22 and 23 May 1992 the parties to the conflict had signed two agreements by which they undertook, inter alia, to apply Common Article 3. Thus, in Bosnia and Herzegovina, the provisions regarding torture (as well as rape, discussed below) applied qua treaty law between the parties. The Trial Chamber furthermore noted that, at the time of the alleged commission of the offences, torture was prohibited as a war crime under the national legislation of Bosnia and Herzegovina.

The Trial Chamber further reflected on the international law prohibition of torture in time of armed conflict. Indeed, it found that this prohibition has evolved from treaty law, from the Instructions for the Government of Armies of the United States (Francis Lieber, 1863) and the Hague Conventions (particularly the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land as well as the Regulations attached thereto), the Geneva Conventions and the Additional Protocols into customary international law. First, the Chamber noted that practically all States in the world have ratified these treaty law provisions and particularly the Geneva Conventions. Secondly, no State has ever publicly denounced the torture prohibition, or manifestly opposed the implementation of relevant treaty provisions. Finally, in the Nicaragua case (1986 ICJ Reports, 14) the International Court of Justice authoritatively confirmed the customary law status of Article 3 common to the Geneva Conventions which prohibits torture of persons not taking part in the hostilities.

The Trial Chamber further found that while States may be responsible for acts of torture for which their officials are liable, the torture prohibition in treaty and customary law applicable in armed conflicts is first addressed to individuals. The crime of torture attracts individual criminal responsibility, irrespective of the official position of the alleged perpetrator. Acts of torture may be prosecuted as serious violations of international humanitarian law, grave breaches of the Geneva Conventions, crimes against humanity or genocide.

International human rights law which, the Chamber explained, deals with State responsibility rather than individual criminal responsibility, bans torture both in armed conflict and in time of peace. The prohibition laid down in treaties, both general such as the International Covenant on Civil and Political Rights of 1966 (hereinafter "the ICCPR"), and specific such as the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (hereinafter "the Torture Convention"), is an absolute right which may never be derogated from. In this regard, the Trial Chamber referred to the fact that the prohibition of torture is a norm of jus cogens which is discussed below. By these human rights treaties, States have committed themselves to refrain from committing torture (through their agents), and to prohibit and punish this crime. With regard to the latter obligation, States have accepted the compulsory jurisdiction to investigate, prosecute and punish perpetrators.

The Trial Chamber noted that since the prohibition of torture even covers potential breaches, international law requires States to adopt national legislation and to annul conflicting legislation so as to live up to their obligations in this regard. Furthermore, the prohibition of torture imposes upon States obligations erga omnes, meaning towards all other members of the international community, all of which have the right to claim compliance by any other member.

Finally, the above mentioned jus cogens status of the torture prohibition under international law precludes derogation through international treaties or customary law. It also has a bearing on conflicting national legislation (e.g. amnesty laws), from which state responsibility could ensue under international law or which might be the basis for a civil suit for damage before a foreign court. Moreover, individual criminal responsibility for torture is not affected by any national law providing otherwise. In this regard, the jus cogens character of the prohibition of torture under international law confers universal criminal jurisdiction on all States.

While international humanitarian law does not provide a definition of torture, such a definition can instead be found in Article 1(1) of the Torture Convention. In its Judgement of 2 September 1998 in the Akayesu case (ICTR-96-4-T) (hereinafter "the Akayesu Judgement"), Trial Chamber I of the International Criminal Tribunal for Rwanda held this definition to apply to any rule of international law on torture. However, in the present case, the Trial Chamber noted that the Convention specifies the definition’s limited application for the purpose of the Convention only. In its Judgement of 16 November 1998 in the Delalic et al. case (IT-96-21-T) (hereinafter "the Celebici Judgement"), ICTY Trial Chamber II quater held the definition in the Torture Convention to reflect customary international law. In the present case, the Trial Chamber agreed with this finding but provided legal grounds.

The Trial Chamber first found that all elements implicit in international rules are included in the Torture Convention’s definition. Furthermore, the definition largely coincides with the Declaration on the Protection from Torture (hereinafter "the Torture Declaration"), adopted by consensus by the United Nations General Assembly in 1975, as well as with the Inter-American Convention to Prevent and Punish Torture of 1985 (hereinafter "the Inter-American Torture Convention"). Finally, the definition is relied upon by the United Nations Special Rapporteur on Torture, and international bodies like the European Court of Human Rights and the ICCPR Human Rights Committee.

Accordingly, the Trial Chamber found that, under international criminal law relating to armed conflict, torture:

(i) consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition
(ii) this act or omission must be intentional;
(iii) [it] must be aimed at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person;
(iv) [it] must be linked to an armed conflict;
(v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority-wielding entity.

The Trial Chamber noted that it had specifically added torture used for the purpose of "humiliation" to this enumeration. This, the Chamber explained, is merited by the general spirit of international humanitarian law which seeks to safeguard human dignity. Finally, the Trial Chamber made reference to the possible categorisation of rape as torture under international human rights law.

Like torture, rape in times of war is specifically prohibited by treaty law: Article 4 of Additional Protocol II includes an explicit prohibition, and Common Article 3 implicitly prohibits this crime. In the present case, the applicability of these prohibitive provisions qua treaty law and national legislation (rape and inhuman treatment classified as war crimes) is the same as in the case of torture.

The Trial Chamber noted that, similar to the development of the prohibition of torture, the prohibition of rape and sexual assault in armed conflict and the individual criminal responsibility for the commission of these crimes have acquired the status of customary international law. In this regard, the Trial Chamber specifically referred to the post-World War II jurisprudence of, in particular, the International Military Tribunal for the Far East and the United States Military Commission.

While there is no explicit prohibition of rape and other serious sexual assaults in international human rights law, the offences are prohibited by the provisions safeguarding the physical integrity of the person. Such provisions are enshrined in the major human rights instruments, such as the ICCPR, the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the Inter-American Convention on Human Rights of 1969, and the African Charter on Human and People’s Rights of 1981.

Provided that the requisite elements are satisfied, rape may be prosecuted under all of the offences within the subject matter jurisdiction of the Tribunal, that is, as a crime against humanity (rape is explicitly enumerated under Article 5 of the Statute), as a grave breach of the Geneva Conventions, as a violation of the laws or customs of war, or as an act of genocide.

While some general characteristics may be discerned in international treaties like Geneva Convention IV and the Additional Protocols and from the definition of crimes against humanity in Article 5 of the Statute, the Trial Chamber did not find a definition of rape already provided in international law.

The Trial Chamber did note the formulation of rape in the Akayesu Judgement, which was followed in the Celebici Judgement. In these Judgements, rape was defined as "... a physical invasion of a sexual nature, committed on a person under circumstances which are coercive." Neither international treaty and customary law nor general principles of international (criminal) law provided the Trial Chamber with further guidance in its attempt to arrive at an accurate definition of rape based on the criminal law principle of specificity. The Trial Chamber made a broad analysis of many national laws on rape so as, albeit cautiously, to derive principles of criminal law common to the major legal systems of the world.

Accordingly, the Chamber found that a universal consensus seems to exist according to which rape constitutes "... the forcible sexual penetration of the human body by the penis or the forcible insertion of any other object into either the vagina or the anus." However, it noted a major discrepancy in the criminalisation of forced oral penetration, a fact which underlies the charges in the present case.

Guided by the general principles of international (criminal) law, the Trial Chamber found that the protection of human dignity, the principle underlying human rights and international humanitarian law, provides grounds for classifying forced oral penetration as rape. Moreover, despite the fact that some national jurisdictions, including those of the former Yugoslavia, did not classify this particular act as rape but as sexual assault, the Trial Chamber stressed that the principle of nullum crimem sine lege would not be violated because forcible oral sex is, in any event, an extremely serious crime and must be considered an aggravated sexual assault when committed on defenceless civilians in times of armed conflict. Nevertheless, in determining the sentence imposed, the Trial Chamber relied on the sentencing practice for sexual assault in the courts of the former Yugoslavia.

The Trial Chamber thus found the objective elements of rape to be:

(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.

In the absence of a clear specification by the Prosecution, the Trial Chamber itself, in accordance with the (amended) Indictment, determined the appropriate head of the alleged criminal responsibility. To this end it defined aiding and abetting under Article 7(1) of the Statute. In the absence of treaty law, the Trial Chamber reviewed international case law and also turned to the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind of 1996 (hereinafter "the ILC Draft Code"), and the Statute of the International Criminal Court of 1998 (hereinafter "the ICC Statute") in order to make a cautious determination of the status of customary international law.

First, as regards the actus reus, the Trial Chamber found that post-World War II jurisprudence of British military tribunals and German courts (under the terms of Control Council No. 10) as well as the Akayesu Judgement suggest that the assistance by the aider and abettor need not necessarily be practical. Indeed, in certain circumstances the assistance may also consist of moral support or encouragement. The Trial Chamber found that this is also supported by the ILC Draft Code. However, the Trial Chamber noted that, according to the Code, the assistance must be given "directly". This more restrictive and, in the Trial Chamber’s view, "misleading" wording has not been adopted in the ICC Statute.

As regards the required effect of the assistance given to the principal perpetrator in the commission of the act, the Trial Chamber turned to post-World War II case-law of courts in occupied Germany as well as to the Opinion and Judgement of 7 May 1997 in the Tadic case (IT-94-1-T). Accordingly, the Trial Chamber took the position that the accomplice’s act must have a substantial effect on the principal’s. Causation, however, is not a requirement for criminal responsibility for aiding and abetting because the Trial Chamber did not find support for such a requirement in the case-law analysed.

Second, must the aider and abettor share the mens rea of the principal perpetrator, i.e. the positive intention to commit the crime? The Trial Chamber did not find this to be so and determined that the vast majority of post-World War II cases analysed, as well as the ILC Draft Code and the ICC Statute, suggest that mere knowledge that the assistance will assist in the commission of the crime is required.

In post-World War II case-law and the ICC Statute, the Trial Chamber noted a distinction that has crystallised between aiding and abetting, and co-perpetration. It was determined that this latter head of criminal responsibility requires participation in a joint criminal enterprise (actus reus) with the intent to do so (mens rea).

Applying this finding to the offence of torture, the Trial Chamber first noted the modern trend in many states practising torture to divide the physical commission of the act of torture among different individuals, which is a fact underlying the present case. In this light, and on the basis of the strong international condemnation of torture, the Trial Chamber adopted the approach that all individuals participating in the commission of torture are equally liable. More precisely, the Chamber held that "... to be guilty of torture as a perpetrator (or co-perpetrator), the accused must participate in an integral part of the torture and partake of the purpose behind the torture, that is the intent to obtain information or a confession, to punish or intimidate, humiliate, coerce or discriminate against the victim or a third person."

Finally, the Trial Chamber noted that the specific extent of each individual’s participation in the torture may be reflected in the sentencing. It also noted that this broad application of criminal responsibility for co-perpetration also limits liability for aiding and abetting in the commission of the crime of torture.