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Kunarac Case: Guilty Plea Reversed

Tribunal Update 67: Last Week in The Hague (March 9-14, 1998)
By IWPR ICTY

This, finally, ended a week long Initial Appearance of the accused, which unfolded in three sequences. Firstly, on Monday, 9 March - three days after having voluntarily surrendered to the Tribunal - Kunarac pleaded guilty to count 41 of the indictment - in which the multiple rapes of Muslim women in which he had taken part personally, or, of which he, as a paramilitary commander, had failed to prevent - are qualified as crime against humanity.

On that same occasion, Kunarac pleaded not guilty to the other three counts of the indictment, which qualify the same rapes as torture. He only raped, but did not torture.

The next day, on Tuesday, the Prosecution was to announce whether it was abandoning the charges of torture - in which case, there would be no need for a trial, but aggravating and mitigating circumstances for Kunarac would have been weighed and the sentence determined.

However, only the accused appeared at the hearing, whilst his defenders were said to have had to leave urgently for Belgrade, for "important consultations" with some clients.

Left to his own devices, Kunarac persistently requested from the Judges permission to ask something, but they advised him not to do that without his defenders, so that the hearing was postponed for Friday.

On Friday, before the hearing, the accused Kunarac and his Belgrade defender, Igor Pantelic, met with the prosecutors, Hildegarde Uertz Retzlatt and Patricia Sellers. As, in that conversation, they failed to agree on the facts described in the indictment, on Friday afternoon - in the third sequence of the Initial Appearance -the Prosecutors announced that they were not giving up the charges of torture, and that they were ready for the trial.

Presiding Judge Antonio Cassese then asked the accused several questions, in order to establish whether his guilty plea was voluntary and unequivocal, as requested by the Tribunal's Rule of Procedure and Evidence. Kunarac said that he only admitted guilt for one act from the indictment (the sexual assault on victim D.B., described in paragraph 9.10), and that he felt "guilty to a certain extent", but that one "ought to take into account the situation in which that had taken place", which, according to his opinion, "the Prosecutor does not understand."

On the basis of such explanations, the Trial Chamber concluded that the admission was truly equivocal and not informed, and that the accused did not intend to plead guilty to and all the same factual allegations set out by the Prosecutor in the Indictment.

Furthermore, the Trial Chamber found that the accused did not perceive his criminal conduct to be part of a widespread or systematic attack against the Muslim population of Foca on discriminatory grounds, which is a legal requirement of a crime against humanity. Because of all that, Judge Cassese announced to the accused, that "the Trial Chamber must enter a not-guilty plea."

The trial follows: both for rapes, and for torture.