Furundzija Case: The Judgement of the Trial Chamber Anto Furundzija found guilty on both charges and

sentenced to 10 years in prison .

Furundzija Case: The Judgement of the Trial Chamber

Anto Furundzija found guilty on both charges and sentenced to 10 years in prison
Today, Thursday 10 December 1998, Trial Chamber II, consisting of Judge Florence Mumba (presiding), Judge Antonio
Cassese and Judge Richard May, pronounced their judgement in the case The Prosecutor v. Anto Furundzija. This
judgement is the third to be rendered after trial by the International Criminal Tribunal for the former Yugoslavia (ICTY),
and marks the sixth time that sentences have been handed down.

THE SENTENCES IMPOSED

The Trial Chamber found Anto Furundzija GUILTY, as a co-perpetrator of torture, a Violation of the laws or customs of
war, for which he has been sentenced to 10 years’ imprisonment.
The Trial Chamber also found Anto Furundzija GUILTY, of aiding and abetting in outrages upon personal dignity,
including rape, which constitutes a Violation of the laws or customs of war, for which he has been sentenced to 8 years’
imprisonment.
These multiple sentences are to be served concurrently.
Background:
Further to a sealed indictment, Furundzija was detained by SFOR on 18 December 1997. An amended indictment, issued
on 2 June 1998, alleged that the accused was the local commander of a special unit of the military police of the Croatian
Defence Council (HVO) known as the "Jokers". In this capacity he and another soldier interrogated Witness A. During the
questioning, Witness A had a knife rubbed against her inner thigh and lower stomach by the other soldier, who threatened
to put his knife inside her vagina should she not tell the truth. The amended indictment further alleged that Furundzija
continued to interrogate Witness A and Victim B while they were beaten on the feet with a baton by the other soldier and
further, that Furundzija stood by, failing to intervene in any way, while Witness A was forced to have oral and vaginal
sexual intercourse with the other soldier.
The trial of Furundzija commenced on 8 June 1998 and the proceedings continued until 22 June 1998, at which time the
hearing was closed with judgement reserved to a later date. Following a motion filed by the Defence, the Trial Chamber
ordered that the proceedings be reopened. These further proceedings covered a period of four days and the trial was
finally closed on 12 November 1998.
The judgement is a document of approximately 100 pages, which this press release does not summarise. It is merely an
outline of the most significant legal aspects of the judgement and an overview of the findings reached by the Chamber.
The full text of the official summary as read out in Court by the Presiding Judge and of the judgement itself will be mailed
upon request by the Public Information Unit.
THE MOST SIGNIFICANT LEGAL ASPECTS
For Article 3 of the Statute (Violations of the laws or customs of war) to apply, the existence of an armed conflict had to be
established. The Trial Chamber relied on the test formulated by the Appeals Chamber in the Tadić case. Accordingly,
based on the evidence submitted by both parties, the Trial Chamber found that, at the material time, a state of armed
conflict existed in central Bosnia and Herzegovina between the HVO and the Army of Bosnia and Herzegovina.
Furthermore, the Trial Chamber found a connection between this armed conflict and the acts underlying the charges
against the accused.
The proceedings that took place in November 1998 essentially dealt with the reliability of Witness A’s evidence in light of
any psychological disorder caused by her traumatic ordeal. The Trial Chamber found that the expert evidence
demonstrated that, even when a person is suffering from PTSD [post-traumatic stress disorder], he or she may still be a
reliable witness, and accepted Witness A’s testimony that she had sufficiently recollected the material aspects of the
relevant events.
The judgement furthermore provides a definition of torture under international humanitarian law. In this regard, the Trial
Chamber found 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.
According to the summary, as read out in court, the Trial Chamber found the elements of the offence 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."
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 recent judgement in the Ćelebići 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 Ćelebići judgement.
According to the summary of the judgement, the Trial Chamber found that under international criminal law 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."
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 is 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.

CREDIT FOR TIME SERVED

According to the Rules of Procedure and Evidence, Mr. Furundzija is entitled to credit for time spent in custody pending
surrender to the Tribunal and time spent in detention pending trial or appeal. Accordingly, the Trial Chamber determined
that 11 months and 22 days will be deducted from the sentence today imposed on Furundzija, together with such
additional time as he may serve pending the determination of any final appeal.

1. Anto Furundzija was found guilty by the International Tribunal for the former Yugoslavia (ICTY)
for war crimes including rapes and tortures which were carried out under his command. The decision is
important as it recognises that rape is a form of torture under internati onal criminal law and lays down a
definition of rape, which explicitly includes forced oral penetration.

2. The accused, Mr Anto Furundzija was charged on 10 November 1995 with three individual
counts of (a) torture and inhumane treatment; (b) torture; and (c) outrages upon personal dignity including
rape, violating the laws or customs of war, committed during the armed conflict in the former Yugoslavia
between the armed forces of the Government of the Republic of Bosnia and Herzegovina and the armed
forces of the Croatian Community of Herzeg- Bosna. Mr Furundzija was a local commander of a special
unit of military police of the Croatian Defence Council (HVO) known as the "Jokers", in which capacity he,
and another soldier, interrogated W itness A. W itness A, a female muslim civilian residing in Vitez, was
arrested around the 15 May 1993 and brought to the Jokers headquarters known locally as the
´´Bungalow´´. She was detained and interrogated about a list of Croatian names and the activities of her
sons. During the interrogation, she was maintained in a state of forced nudity and obliged to submit to
several sexual attacks: she had a knife rubbed against her inner thigh and lower stomach and was
threatened that a knife would be put inside her vagina should she not tell the truth. The accused
furthermore stood by, failing to intervene in any way, while the witness was forced to have oral, anal and
vaginal sexual intercourse with the other soldier. She was subjected to multiple rapes, sexual assaults and
physical abuse while in their custody. The accused was arrested on 18 December 1997 by members of the
multinational stabilisation force (SFOR), acting on a warrant for arrest issued by the International Tribunal.
Preliminary hearings were held from 19 December 199 7 until the date of the instant hearing relating to
protective measures for witnesses, testimonies and amendment of charges.
 3. The trial chamber first discussed the procedural history of the case and concluded that, under
the Tadic test, there was a state of armed conflict between the relevant parties. The Tribunal also made
the factual finding that the accused was the commander of the unit (the boss) and that he was an active
combatant participating in expelling muslims from their homes. This was a suffic ient link to the armed
conflict to make the accused eligible for prosecution.
Given that the Prosecution´s case turned mainly on the evidence of W itness A, the Defense alleged that
she was mistaken and unreliable because she had suffered from post traumati c stress disorder. The
Tribunal however found that this did not affect the realiability of the testimony of the witness.

In assesing the criminal responsibility of the accused for torture and the rapes, the tribunal found that the
the accused was clearly r esponsible given his commanding role. It found that although he had not
perpetrated the rapes and sexual violence himself, he was party to it at all times, given that he and the
soldier carried out different roles during the interrogation. W itness A, the v ictim was repeatedly raped in
front of him, or when he was just outside the door. The rapes were also perpetrated with the purpose to
humillitate the witness given that on many occassions there were other soldiers watching and another
witness (d) who was forced to have sex with her.

Torture in International Humanitarian law

The Tribunal noted that the prohibition of torture was clearly provided for by the Geneva Conventions and
its additional protocols. After outlining some previous treaties such as the Leiber Code, the Tribunal held
that the prohibition against torture is a general rule of international law. The Tribunal also stressed that in
international humanitarian law, depending on the specific circumstances of the case, torture may be
prosecuted as a category of such broad international crimes as serious violations of humanitarian law,
grave breaches of the Geneva Conventions, crimes against humanity or genocide.
It also noted, that in addition to individual criminal liability, State responsibility may ensue as a result of
State officials engaging in torture or failing to prevent torture or to punish torturers. After spelling out the
elements of torture in international humanitarian law, the Tribunal stated that one of the possible purposes
of torture could also be the humilitation of the victim. The Court noted that rape could be employed, in the
course of detention and interrogation as a means of torture and, therefore it constituted a violation of
international law.

It then went on to state that de pending upon the circumstances, under international criminal law, rape may
acquire the status of a crime distinct from torture.

Rape and other serious sexual assaults in international humanitarian law

The chamber noted that rape in time of war is specifica lly prohibited by various treaties: the Geneva
Conventions 1949, Additional Protocol 1 of 1977 and Additional protocol II of 1977. Furthermore, other
sexual assaults are expressly or implicitly prohibited in various provisions of the same treaties.
The trial chamber explicitly stated that it is indisputable that rape and other serious sexual assaults in
armed conflict entail the criminal liability of the perpetrators. It also noted that in human rights law, the
protection of physical integrity protects agai nst rape and sexual abuse.

The Furundzija judgement then considered a definition of rape in international criminal law. The Tribunal
found that there was no established definition of rape in international law and went on to cite the definition
of rape in the Akayesu case, in which the chamber of the ICTR stated that rape was a physical invasion of
a sexual nature, committed on a person under circumstances which are coercive.

Instead of adopting this expansive definition, the trial chamber decided to look fo r a definition by turning to
the principles of criminal law common to the major legal systems of the world. It found that there was a
general trend in national legislation to broaden the definition of rape so that it now embraces acts which
were previously classified as comparatively less serious offences, such as sexual or indecent assault.

The Chamber found that there was general consensus amongst the systems that rape was the forcible
sexual penetration of the human body by the penis or the forcible inse rtion of any other object into either
the vagina or the anus. The Tribunal noted however there was a major discrepancy with regard to the
criminalisation of forced oral penetration. The trial chamber then held that the forced penetration of the
mouth by the male sexual organ constitutes a most humiliating and degrading attack upon human dignity.
It found that consonant with this principle forced oral penetration amounted to rape for the purposes of
international criminal law. The trial chamber then laid dow n the following objective elements of rape (para.
185)
(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.
The trial chamber then went on to state that not only the commission of rape or serious sexual assault, but
also the planning, ordering or instigating of such acts, as well as aiding and abetting in the penetration,
are prohibited. The chamber considered t he standard in international criminal law of responsibility for
aiding and abetting and found that the mens rea requirement is knowledge while, the actus reus consists
of practical assistance, encouragement, or moral support which has a substantial effect on the
perpetration of the crime.

4. Based on the above reasoning, the chamber found that the elements of torture had been met and
found that the accused was a co -perpetrator of torture as a war crime (count 13). 10 years imprisonment.

The trial chamber was also satisfied that all the elements of rape were met and found that the accused
inflicted outrages upon her personal dignity and sexual integrity, for the severe physical and mental pain,
along with public humiliation. He was found guilty of aiding and abetting under Count 14 for the violation
of the laws or customs of war (outrages upon person dignity including rape). 8 years imprisonment.