Tribunal Update 105: Last Week in The Hague (7-12 December, 1998)
Tribunal Update 105: Last Week in The Hague (7-12 December, 1998)
For those two acts, both of which qualify as a violation of the laws or customs of war, Anto Furundzija has been sentenced to 10 and 8 years' imprisonment, respectively. These sentences are to be served concurrently.
The reference to victim's credibility is a throw-back to the style in which Furundzija's defence had conducted its business, by almost turning the second part of the trial into a "Witness 'A' case". "Witness A" was a victim of extended torture and multiple rape for which Furundzija was one of those charged in the so-called sealed indictment.
His Defence threw the weight of its argument into trying to prove that "Witness A" could not be considered reliable given the combined impact of her trauma and the psychiatric assistance subsequently given to her. In response to an earlier Defence motion seeking an order to strike "Witness A's" testimony altogether, the Trial Chamber ordered the re-opening of the trial, which took place from November 9 -12.
The second part of the trial was a rather academic - albeit at times a rather painful - examination of "Witness A's" credibility, and by extension of all victims and witnesses of crime that find themselves in the witness box (see Update 101).
In the end, the Trial Chamber found that "Witness A's" memory regarding material aspects of the events "was not affected by any disorder which she may have had. The Trial Chamber accepts her evidence that she has sufficiently recollected these material aspects of the events.
There is no evidence of any form of brain damage or that her memory is in any way contaminated by any treatment which she may have had. Indeed the Trial Chamber accepts the evidence of Dr. Rath (the Prosecution's expert witness) that such treatment that she may have had was of a purely preliminary nature.
The Trial Chamber also considered that the aim in therapy is not fact-finding. The Trial Chamber bears in mind that even when a person is suffering from Post-Traumatic Stress Disorder (PTSD), this does not mean that he or she is necessarily inaccurate in the evidence given. There is no reason why a person with PTSD cannot be a perfectly reliable witness."
Once the judges decided to trust the victim and accept her version of events, the rest of the proceedings were straightforward. The Trial Chamber found beyond reasonable doubt that on or about May 18 or 19 1993, "Witness A" was arrested and taken from her apartment in Vitez by several members of a special unit of the military police of the Croatian Defence Council (HVO) known as the "Jokers". In his capacity as the local commander of that unit, the accused Furundzija and another soldier (co-accused "B"), interrogated "Witness A" in the Joker's headquarters known as the Bungalow.
During the interrogation, "Witness A" was forced by "Accused "B" to undress and remain naked before a substantial number of soldiers. She was subjected to cruel, inhuman and degrading treatment and to threats of serious physical assault by "Accused B". "Witness A" had a knife rubbed against her inner thigh and lower stomach by "B", who threatened to put his knife inside her vagina should she not tell the truth.
The purpose of this abuse was to extract information about her family, her connection with the BH Army, and her relationship with certain Croatian soldiers, and also to degrade and humiliate her. While she was interrogated by Furundzija, "B" twice raped her and forced her to perform oral sex.
In fact, the Trial Chamber concluded, "the acts by 'B' were performed in pursuance of the accused's (Furundzija) interrogation... there is no doubt that the accused (Furundzija) and 'B', as commanders, divided the process of interrogation by performing different functions. The role of the accused was to question, while 'B's' role was to assault and threaten in order to elicit the required information from "Witness A" and "Witness D".
This second witness, "D", was a Croat soldier accused of helping "A" and other Muslims. During the interrogation he was also heavily beaten, and forced to watch the rape of "Witness A".
Having agreed on the facts, the judges were left with the task of applying the existing international law on this concrete case. By providing definitions of torture and rape under international humanitarian law, the judges gave their creative contribution to the development of it.
Regarding torture, the Trial Chamber concluded that the prohibition against torture has attained the status of jus cogens, which can be defined as a peremptory norm of international law from which no derogation is permitted.
In its judgement, the Trial Chamber found a definition of torture to be as follows: "the intentional infliction, by act or omission, of severe pain or suffering, whether physical or mental, for the purpose of obtaining information or a confession or of punishing, intimidating, humiliating or coercing the victim or a third person, or of discriminating on any ground against the victim or a third person. For such an act to constitute torture, one of the parties thereto 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."
Additionally, having found that it is indisputable that rape and other serious sexual assaults in situations of armed conflict entail criminal liability of the perpetrators, the Trial Chamber upheld the finding in the Celebici case that, in certain circumstances, rape may amount to torture under international law.
However, the Trial Chamber has seen fit to expand the definition of rape first formulated by Trial Chamber I of the International Criminal Tribunal for Rwanda (ICTR) in the Akayesu case and followed in the ICTY Celebici judgement.
Under international criminal law, the Trial Chamber found, the offence of rape comprises the following elements: "the sexual penetration, however slight, either of the vagina or anus of the victim by the penis of the perpetrator, or any other object used by the perpetrator, or of the mouth of the victim by the penis of the perpetrator, where such penetration is effected by coercion or force or threat of force against the victim or a third person."
It is important to stress that Furundzija was not tried under the principle of "command responsibility", i.e. for acts perpetrated by his subordinate that he failed to prevent or punish. The Chamber found him individually responsible as a co-perpetrator of torture, and for aiding and abetting in outrages upon personal dignity, including rape.
As to individual criminal responsibility under Article 7(1) of the statute, the Trial Chamber found that aiding and abetting under international criminal law requires practical assistance, encouragement, or moral support having a substantial effect on the perpetration of the crime (actus reus), and knowledge that such acts assist the commission of the offence (mens rea ).
Furthermore, the Chamber determined that an accused who, under this standard would be liable for aiding and abetting torture, is responsible as a co-perpetrator of torture, if he or she participates in an integral part of the torture and partakes of the prohibited purpose behind the torture, i.e. the intent to obtain information or a confession, to punish or intimidate, humiliate, coerce or discriminate against the victim or a third person.
Finding it "fitting that the judgement... was delivered on the 50th anniversary of the Declaration of Human Rights", the Office of the Prosecutor commended of the judgment as an "important decision because it demonstrates that acts of rape will be dealt with seriously."
International humanitarian law - the Prosecution statement says - "is fully equipped to assert that persons have the right to respect their physical integrity, even in times of armed conflict. The sentence imposed sends a powerful message that war crimes of this nature will not be tolerated."
The Defence obviously does not share the Prosecutor's enthusiasm. Furundzija's Defence counsel Luka Misetic expressed his "shock and confusion" with the verdict passed on his client. The sentence of 10 years' imprisonment is, according to Misetic, particularly "shocking" in the light of some other sentences passed by the Tribunal. As an example he quoted the fac that Zdravko Mucic was sentenced to seven years' imprisonment for command responsibility for atrocities committed in the prison-camp Celebici, which, apart from a number of murders, included two rapes.
He also recalled the five-year sentence to Drazen Erdemovic for his participation in the shooting of more than a thousand Muslim men in the wake of the fall of Srebrenica. He also reminded the public that the indictment that brought Furundzija to trial covers several other men: the "Accused B" and two other anonymous perpetrators.
Sooner or later, Misetic believes, "B" will also appear before the Tribunal and Furundzija's case will be reopened again. The defence will, in any event, file an appeal against the Judgment and the sentence.
This, however, appears not to be the only worry of Furundzija and his Defence team: the judgment also establishes that Anto Furundzija and his "Jokers" had participated in the attack on, and the "ethnic cleansing" of, the village of Ahmici near Vitez, during which some 200 Muslim civilians were killed on April 16 1993.
It remains to be seen whether this fact will inspire Prosecutor to reopen Furundzija's case rather earlier than the Defence counsel hopes.