IN THE TRIAL CHAMBER
Before: Judge Florence Ndepele Mwachande Mumba, Presiding
Judge Antonio Cassese
Judge Richard May
Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh
Judgement of: 10 December 1998
PROSECUTOR
v.
ANTO FURUNDZIJA
JUDGEMENT
The Office of the Prosecutor:
Ms. Brenda Hollis
Ms. Patricia Viseur-Sellers
Ms. Michael Blaxill
Counsel for the Accused:
Mr. Luka Misetic
Mr. Sheldon Davidson
The trial of Anto Furundzija, hereafter "accused", a citizen of Bosnia and Herzegovina who was born on 8 July 1969, before this Trial Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, hereafter "International Tribunal", commenced on 8 June 1998 and came to a close on 12 November 1998.
Having considered all of the evidence presented to it during the course of this trial, along with the written and oral submissions of the Office of the Prosecutor, hereafter "Prosecution", and the Defence for the accused, the Trial Chamber,
HEREBY RENDERS ITS JUDGEMENT.
1. The International Tribunal is governed by its Statute, adopted by the Security Council of the United Nations on 25 May 1993, hereafter "Statute",1 and by the Rules of Procedure and Evidence of the International Tribunal, hereafter "Rules", adopted by the Judges of the International Tribunal on 11 February 1994, as amended.2 Under the Statute, the International Tribunal has the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.3 Articles 2 through 5 of the Statute further confer upon the International Tribunal jurisdiction over grave breaches of the Geneva Conventions of 12 August 1949 (Article 2); violations of the laws or customs of war (Article 3); genocide (Article 4); and crimes against humanity (Article 5).
2. On 10 November 1995 Judge Gabrielle Kirk McDonald confirmed the Indictment against the accused, charging him with a grave breach of the Geneva Conventions and violations of the laws or customs of war. The accused was charged with three individual counts of (a) torture and inhumane treatment; (b) torture; and (c) outrages upon personal dignity including rape. These charges were in respect of acts alleged to have been committed at the headquarters of the Jokers, a special unit within the armed forces of the Croatian Community of Herzeg-Bosna, known as the Croatian Defence Council, hereafter "HVO". In her Decision confirming the Indictment, Judge McDonald ordered, pursuant to Rule 53 of the Rules,4 that there be no public disclosure of the Indictment.
3. The accused was arrested on 18 December 1997 by members of the multinational Stabilisation Force, hereafter "SFOR", acting pursuant to a warrant for arrest issued by the International Tribunal. The accused was immediately transferred to the International Tribunal and detained in its detention unit in The Hague, the Netherlands. The same day, the President of the International Tribunal assigned this case to Trial Chamber II, comprising Judge Antonio Cassese, presiding, Judge Richard May and Judge Florence Ndepele Mwachande Mumba. The Trial Chamber remained thus constituted throughout the preliminary proceedings before the trial. On 11 March 1998 Judge Mumba replaced Judge Cassese as Presiding Judge.
4. The initial appearance of the accused, pursuant to Rule 62 of the Rules, was held on 19 December 1997. The accused, represented on this occasion by Mr. Srdjan Joka, a member of the Bar of the Republic of Croatia, entered a plea of not guilty to all counts of the Indictment and was remanded in detention pending trial. In a subsequent Decision effective from 14 January 1998, made pursuant to the Directive of the International Tribunal on the Assignment of Counsel, as amended,5 the Registrar of the International Tribunal determined the accused to be indigent and assigned Mr. Luka S. Misetic, practising in Chicago, in the United States of America, as defence counsel to the accused with his fees to be paid by the International Tribunal.
5. On 13 January 1998 the Prosecution, filed a confidential motion seeking measures for the protection of victims and witnesses. The Defence filed a confidential response on 26 January 1998, opposing the motion, in part on the ground that the measures sought would deny the accused his right to a fair and public hearing as guaranteed by Article 21 of the Statute. Oral argument was heard on the motion during a closed session hearing on 12 February 1998. The Trial Chamber thereupon issued an Order on 13 February 1998 granting the motion in part and deferring consideration of the further measures sought until such time as the Prosecution was able to provide additional information. At a status conference on the same day, the Trial Chamber consulted the parties with a view to enabling it to better manage the case and expedite proceedings. The Prosecution was ordered to provide the Trial Chamber with inter alia the witness statements, other documentary material upon which it intended to rely at trial and a pre- trial brief setting out in full the details of the case and the points at issue. The Order was detailed in a Scheduling Order of 13 February 1998.
6. On 11 February 1998 the Defence filed a confidential motion to compel the production of certain documents by the Prosecution. There followed the Prosecution's confidential response opposing the motion, filed on 23 February 1998. On 4 March 1998 the Trial Chamber instructed the Prosecution to disclose to it the material that was the subject matter of the motion so as to enable the Trial Chamber to adequately consider the matter. The Prosecution, in a confidential and ex parte submission to the Trial Chamber, complied with this Order on 5 March 1998. The following day the Defence filed a confidential reply in support of its motion of 11 February 1998.
7. The Defence, on 26 February 1998, submitted a preliminary motion to dismiss all counts against the accused (Counts 12, 13 and 14), alleging that the Indictment was defective in that it did not contain a concise statement of the facts and the crimes with which the accused was charged. On 27 February 1998 the Defence filed an additional motion to dismiss the count of the Indictment charging the accused with a grave breach of the Geneva Conventions (Count 12), on the ground that the Indictment failed to adequately allege the existence of an international armed conflict. In its response filed on 6 March 1998 the Prosecution opposed the motions; without conceding the arguments of the Defence, the Prosecution declared that it would not pursue Count 12 of the Indictment in the interests of a fair and expeditious trial and the judicial economy of the Trial Chamber.
8. Oral arguments on the three motions were heard in closed session on 9 March 1998 and the Trial Chamber gave its oral ruling on the motions. A closed session status conference was then held, at which the Trial Chamber and the parties discussed discovery matters and the state of preparedness for trial. A written Order confirming the Trial Chamber's oral Decision was issued on 13 March 1998. The Trial Chamber denied the motion to compel the production of documents on the basis that the requested material was irrelevant to the case against the accused. The Trial Chamber also granted the Prosecution leave to withdraw Count 12 of the Indictment but rejected the motion seeking to dismiss all counts against the accused based on defects in the form of the Indictment. The Prosecution was furthermore ordered to file a document specifying the manner in which the accused was alleged to have breached Article 7(1) of the Statute. The Prosecution responded to this Order by filing the said document on 31 March 1998.
9. The Trial Chamber issued an Order on 31 March 1998, setting 8 June 1998 as the date for the commencement of trial. Following the Order, the Defence, on 6 April 1998, filed a motion seeking to dismiss Counts 13 and 14 of the Indictment on the basis of defects in the form of the Indictment, lack of subject-matter jurisdiction and failure to establish a prima facie case. This motion was accompanied by a separate motion filed the same day, in which the Defence sought leave to file the former motion instanter. In a response filed out of time on 22 April 1998, the Prosecution opposed the former motion.
10. In a motion filed on 24 April 1998 the Defence sought to preclude the testimony of all witnesses for whom the Prosecution had witness statements in its possession prior to 8 April 1998 and which the Prosecution had failed to disclose to the Defence. In the motion the Defence noted the Prosecution's obligation under sub-Rule 66(A)(ii) of the Rules to provide the Defence with copies of the statements of all witnesses which it intends to call at trial no later than 60 days before the date set for trial. Also on 24 April 1998, the Prosecution filed an ex parte and confidential motion concerning discovery of transcripts of proceedings. A further confidential motion seeking protective measures for a number of witnesses anticipated to be called at trial was submitted by the Prosecution on 29 April 1998.
11. On 29 April 1998, oral arguments were heard in open session on the Defence motion to dismiss Counts 13 and 14 of the Indictment. Thereafter a closed session status conference was held at which, inter alia, matters relating to the Prosecution's failure to comply with its obligations of disclosure under Rule 66 were discussed. On that day the Trial Chamber issued three separate Decisions in which it granted the Prosecution's motion for protective measures; dismissed the Defence motion to preclude the testimony of certain Prosecution witnesses; and dismissed the Defence motion on Counts 13 and 14 of the Indictment. In this Decision the Trial Chamber held that the relevant motion raised substantive legal issues which were only suitable for determination at trial. In a Scheduling Order issued the same day, the Trial Chamber also expressed its grave concern over the Prosecution's failure to comply with its obligations under sub-Rule 66(A)(ii) and ordered it to provide full disclosure to the Defence pursuant to that Rule no later than 1 May 1998. The Prosecution was further ordered to file, by 4 May 1998, a supplementary document specifying inter alia the acts or omissions that were alleged against the accused and the legal grounds upon which the Prosecution would rely at trial. The Defence was also required to inform the Trial Chamber, by 15 May 1998, whether in consideration of the need to ensure an expeditious trial, it would be in a position to waive its right to timely disclosure under sub-Rule 66(A)(ii) and to proceed with the trial on 8 June 1998, keeping in mind that in the circumstances, postponement of the trial date would not be attributed to the Defence.
12. The Prosecution's confidential reply to the Trial Chamber's Order was filed on 1 May 1998, with a further supplemental document submitted three days later. On 6 May 1998, the Trial Chamber issued an Order directing the Prosecution to file its pre-trial brief no later than 22 May 1998. Also on that day, the Defence filed what it termed an emergency petition in which it stated its belief that the Prosecution was in contempt of the International Tribunal and sought a reconsideration of its motion of 6 April 1998 to dismiss Counts 13 and 14 of the Indictment. Following a response filed by the Prosecution on 11 May 1998, the Defence replied on 12 May 1998. In its Decision on the motion, issued on 13 May 1998, the Trial Chamber found that sufficient information regarding the case against the accused had been provided by the Prosecution to enable the accused to develop his defence. In the circumstances, the Trial Chamber found it unnecessary to rule on the allegation that the Prosecution was in contempt of the International Tribunal and also declined to reconsider its previous Decision on the Defence motion to dismiss Counts 13 and 14 of the Indictment.
13. On 15 May 1998 the Defence filed its response to the Trial Chamber's Order of 29 April 1998 in which it explained that it intended to proceed with trial on 8 June 1998 and objected to any postponement of that date. The Defence also indicated that it would waive neither its right to full disclosure under sub-Rule 66(A)(ii) nor the right of the accused under Article 21 of the Statute to a trial without undue delay. Also on that day, the Prosecution, pursuant to Rule 67 of the Rules, notified the Defence of the names of the witnesses which it intended to call to testify at trial. On 22 May 1998 the Prosecution's pre-trial brief was filed. The Defence filed a supplemental response to the Trial Chamber's Order of 29 April 1998 on 22 May 1998. Therein, in view of its earlier stance, the Defence agreed to file all its pre-trial motions by 22 May 1998 provided the Prosecution would respond to all such motions by 27 May 1998. The Trial Chamber granted this request on 22 May 1998 and the Prosecution was ordered to respond accordingly.
14. On 21 May 1998, the Defence filed a preliminary motion seeking to dismiss Counts 13 and 14 of the Indictment on the ground that the International Tribunal lacked subject-matter jurisdiction to try the charges alleged against the accused under Article 3 of the Statute. Following the Prosecution's response opposing the motion, filed on 27 May 1998, the Trial Chamber issued its Decision denying the motion on 29 May 1998. Rejecting the Defence's interpretation of the Appeals Chamber's Decision in the case of Prosecutor v. Dusko Tadic,6 hereafter Tadic Jurisdiction Decision, the Trial Chamber emphasised that the International Tribunal has jurisdiction over all serious violations of international humanitarian law in accordance with its Statute; that Article 3 is designed to ensure that the mandate of the International Tribunal can be achieved; and that the allegations charged in the Indictment can indeed be prosecuted under Article 3.
15. Also on 29 May 1998, the Prosecution filed a confidential motion. The Prosecution sought the Trial Chamber's determination as to its obligations of disclosure in respect of transcripts in any other trial in which its intended witnesses may have testified and which may have been redacted by order of the Trial Chamber before which the trial in question was heard. A status conference was held in closed session the same day, at which this and other matters relating to the Prosecution's fulfilment of its duty of disclosure were discussed. Following its oral ruling on the same day, the Trial Chamber subsequently issued a written Decision. The Prosecution was ordered inter alia, to turn over to the Defence, by 2 June 1998, all trial transcripts in their redacted form, of the testimony in proceedings before other Trial Chambers given by the witnesses it intended to call at this trial; to decide on whether it would call a particular material witness at trial; and by 2 June 1998 to issue a redacted version of the amended Indictment against the accused. In addition, the Defence was ordered to confirm in writing by 4 June 1998 whether it was fully prepared and ready to proceed to trial on 8 June 1998 on Counts 13 and 14 of the Indictment, it being understood that in the circumstances, postponement of the trial date would not be attributed to the Defence. Declaring that it was appalled by what it considered to be conduct close to negligence in the Prosecution's preparation of the case, the Trial Chamber undertook to issue a separate decision on the Prosecution's handling of this matter. Accordingly, on 5 June 1998, the Trial Chamber issued a formal complaint to the Prosecutor concerning the conduct of the Prosecution. In a communication dated 8 June 1998, the Prosecutor acknowledged the complaint and undertook to investigate the matter.
16. Since the Indictment remains sealed against the other indicted persons, it has not been publicly revealed in its entirety and has required redaction. An amended Indictment, hereafter "Amended Indictment", withdrawing the one grave breach count and associated allegations was filed on 2 June 1998 and is set forth in Annex A to this Judgement. The Defence, on 4 June 1998, informed the Trial Chamber that, due to the continued confinement of the accused it wished to proceed with the trial on the scheduled date of 8 June 1998. However, it continued to assert that the proper remedy for the Prosecution's abuse of the discovery rules was a bar on any witness whose statements had not been supplied to it prior to 8 April 1998. A Prosecution response to this communication was filed on 5 June 1998. On that day the Prosecution also filed a motion in limine regarding the examination of evidence in cases of sexual assault and a further confidential motion requesting protective measures at trial for a number of Prosecution witnesses. Oral arguments on the motions were heard at a closed session hearing on 8 June 1998, during which the Defence presented an oral motion requesting the sequestration of witnesses. Issuing its oral rulings on the motions, which were subsequently confirmed in writing, the Trial Chamber ordered both the Prosecution and the Defence to make every effort to prevent contact between their witnesses prior to and during trial. A number of protective measures at trial, including the use of pseudonyms, were ordered in respect of four Prosecution witnesses, two witnesses being granted leave to testify in closed session and the use of image-distortion being permitted in respect of two others. The Trial Chamber thereafter, in open session, reiterated its willingness to adjourn the proceedings in order to give the Defence such time as it might require and requested the Defence to unequivocally state its readiness to proceed to trial. The Defence informed the Trial Chamber that it was prepared to go forward with the trial.
17. The trial of the accused commenced on 8 June 1998. By then Mr. Sheldon Davidson had been assigned as co-counsel for the Defence. The Prosecution team was lead by Ms. Patricia Viseur-Sellers, assisted by Mr. Michael Blaxill and Ms. Ijeoma Udogaranya. The presentation of the Prosecution case-in-chief lasted four sitting days. During this time, six witnesses testified before the Trial Chamber and four Prosecution exhibits were admitted into evidence.
18. On 11 June 1998, the Defence filed a confidential motion to dismiss the Indictment or, in the alternative, to preclude the Prosecution from adding the accused to Counts 9, 10 and 11 of the Amended Indictment. Following a response from the Prosecution the Trial Chamber issued a Decision the same day dismissing the motion as being misconceived, the Prosecution having made no application to amend the Indictment. On 12 June 1998, the Trial Chamber granted an oral motion by the Defence to disregard the testimony given by Witness A, a witness for the Prosecution who testified earlier that day, relating to acts with which the accused was not charged in the Indictment. The Trial Chamber held that it would only consider as relevant Witness A's evidence in so far as it related to paragraphs 25 and 26 of the Amended Indictment. Following a confidential request for clarification of that Decision filed by the Prosecution on 15 June 1998, the Trial Chamber on that day issued a confidential Decision detailing the extent to which the evidence given by Witness A was held to be admissible.
19. During the trial, the Prosecution, on 17 June 1998, filed a confidential motion seeking inter alia, protective measures for a witness intended to be called in rebuttal. The Defence filed a response opposing the motion on 19 June 1998. Holding that it would be a misuse of the right of rebuttal under Rule 85 of the Rules to permit the Prosecution to introduce such evidence in this instance, the Trial Chamber, in a confidential Decision issued on 19 June 1998, dismissed the motion.
20. The defence case-in-chief commenced on 15 June 1998 and continued over one and a half sitting days. Two witnesses, one an expert witness, appeared on behalf of the Defence and 22 defence exhibits were admitted into evidence. Upon the request of the Defence, protective measures were granted in respect of one witness who was designated by a pseudonym and permitted to give evidence in closed session. With the agreement of the parties and with a view to issuing a combined judgement on the merits and on sentence, if any, the parties during trial also addressed sentencing matters. The Defence called one witness in this regard. Both parties presented their closing arguments on 22 June 1998, whereupon the hearing was closed with judgement reserved to a later date.
21. After the close of the hearings, on 29 June 1998, the Prosecution disclosed two documents to the Defence. One was a redacted certificate dated 11 July 1995 and the other was a witness statement dated 16 September 1995 from a psychologist from the Medica Women's Therapy Centre, hereafter "Medica", in Zenica, Bosnia and Herzegovina,7 concerning Witness A and the treatment that she had received at Medica.
22. On 10 July 1998 the Defence filed a motion to either strike the testimony of Witness A due to what it considered to be misconduct on the part of the Prosecution or, in the event of a conviction, for a new trial. The Prosecution filed its response to the motion on 13 July 1998. The Trial Chamber, on 14 July 1998, after having heard the oral submissions of the parties, issued an oral Decision re- opening the case. The Trial Chamber rejected the Defence request to reconsider its oral Decision on the grounds that the re-opening of the case was an inappropriate remedy. On 16 July 1998 the Trial Chamber issued its written Decision on the matter. It found that there had been serious misconduct on the part of the Prosecution in breach of Rule 68, and that the Defence consequently was prejudiced. It therefore ordered that the proceedings were to be re-opened only in connection with the medical, psychological or psychiatric treatment or counselling received by Witness A after May 1993, and the Prosecution was ordered to disclose any other connected documents.
23. On 20 July 1998, the Defence filed a confidential request for the production of documents pursuant to sub-Rule 66(B). The Prosecution responded thereto on 31 July 1998. On 23 July 1998 however, the Defence filed an application for leave to appeal the Trial Chamber's Decision of 16 July 1998. On 29 July 1998, it also filed a confidential application for the issuance of a subpoena duces tecum to Medica, to which the Prosecution responded on 12 August 1998. The Trial Chamber, on 10 August 1998, stayed its Decision on these motions pending the Appeals Chamber's Decision on the application for leave to appeal. The Defence also filed two ex parte, in camera and sealed motions on 30 July 1998. The one was a request pursuant to Rule 71 for leave to take the deposition of a certain person, and the other concerned an application for the issuance of a subpoena ad testificandum and a letter of request to the Government of the USA. On 10 August 1998, the Trial Chamber issued an ex parte and confidential Order in response to these motions, also staying its Decisions thereto pending the Appeals Chamber's Decision on the application for leave to appeal. In a separate Order, on 10 August 1998 the Trial Chamber issued an ex parte and confidential Order staying its Decision relating to the Prosecution's submission of 31 July 1998, for an ex parte review of material pursuant to the Decision of 16 July 1998.
24. On 24 August 1998, the Appeals Chamber unanimously decided to refuse the Defence request for leave to appeal the Trial Chamber's Decision of 16 July 1998. The Appeals Chamber found that the sub-Rule 73(B) requirements for interlocutory appeals had not been met.
25. The Trial Chamber, on 27 August 1998, issued five Orders relating to the matters stayed pending the Appeals Chamber's determination of the application for leave to appeal the Trial Chamber's Decision of 16 July 1998. In a confidential Order the Trial Chamber dismissed the Defendant's request for the production of documents pursuant to sub-Rule 66(B). In another confidential Order the Trial Chamber allowed the application for the issuance of a subpoena duces tecum to Medica, ordering that any information recovered pursuant to the subpoena be submitted to the Trial Chamber for in camera review. The Defendant's ex parte and confidential request to take the deposition of a certain person was dismissed on the basis that the matters on which the person was expected to testify were beyond the scope of the Trial Chamber's 16 July 1998 ruling. The Trial Chamber accepted the Prosecution's submission for an ex parte review of material in another ex parte and confidential Order, holding that certain exhibits should not be disclosed to the Defence. As to the Defendant's application for issuance of a subpoena ad testificandum and a letter of request to the Government of the USA, the Trial Chamber issued an ex parte and confidential Order dismissing the application.
26. On 9 September 1998 the Defence filed an ex parte, in camera and sealed application for the issuance of a subpoena duces tecum and a letter of request to the Government of Bosnia and Herzegovina. The Trial Chamber issued an Order in response on 21 September 1998, in which the application to issue a subpoena duces tecum to a certain person and the corresponding request for assistance to the Government of Bosnia and Herzegovina was allowed. It also ordered that any information recovered pursuant to the subpoena must be submitted to the Trial Chamber for in camera review to determine its relevance and whether it should be disclosed to the parties. The confidential subpoena duces tecum and the confidential and ex parte request for assistance were issued on 21 September 1998 as well.
27. The reply of Medica in connection with the subpoena duces tecum of 27 August 1998 was filed on 22 September 1998. The Trial Chamber reviewed the Medica documents in camera. After having balanced the interests of medical confidentiality and fairness to the accused the Trial Chamber decided on 24 September 1998 that the Medica documents must be disclosed to both the Prosecution and the Defence in confidence. On 1 October 1998 the Trial Chamber ordered that the re-opening of the proceedings should commence on 9 November 1998.
28. The Defence filed a motion on 1 October 1998 requesting the Trial Chamber to order the Prosecution to disclose the identities of various witnesses, interpreters and interviewers, which were redacted by the Prosecution in five documents. The Prosecution's response to the motion was filed on 8 October 1998 following an Order of the Trial Chamber to that effect. On 14 October 1998, the Trial Chamber, in a confidential Decision, noted that following the Prosecution's agreement in its response, the authenticity and admission into evidence of the said documents were no longer at issue. Having noted the purpose of the re-opening of the proceedings and its previous Orders concerning protective measures for witnesses, the Trial Chamber ordered that the Prosecution must disclose to the Defence the identity of certain witnesses and the author of a certificate of psychological treatment.
29. The Government of Bosnia and Herzegovina, on 5 October 1998, filed a confidential and ex parte response to the request for assistance of 21 September 1998. In a confidential Decision of 9 October 1998, the Trial Chamber decided that the response must be disclosed to both parties. According to the response, the sought after information was not in the possession of the person in question.
30. The Defence filed a confidential submission on 9 October 1998 containing a list of the witnesses it intended to call at the re-opening of the proceedings and a summary of the facts on which each would testify. On 13 October 1998, the Trial Chamber issued a confidential Decision on the proposed calling by the Defence of a certain person as an adverse witness. It noted that according to its Decision of 16 July 1998 the Defence may call new evidence only to address any medical, psychological or psychiatric treatment or counselling received by Witness A after May 1993. The Trial Chamber decided that the testimony of the intended adverse witness would not be relevant and that he could not be called as a witness.
31. Also on 9 October 1998, the Defence filed a confidential, ex parte and in camera motion for permission, nunc pro tunc, to disclose the trial testimony of Witnesses A and D to two of its intended expert witnesses, Dr. C.A. Morgan and Dr. J. Younggren. The Trial Chamber subsequently issued a confidential and ex parte Order on 13 October 1998. Having considered its Decision on the protective measures for Witnesses A and D at trial issued on 11 June 1998, the Trial Chamber granted the motion. It allowed the trial testimony to be disclosed to the Defence experts, but only to the extent that it was relevant for the preparation of the expert testimony required by the Defence.
32. On 16 October 1998 the Prosecution filed a confidential submission pursuant to the Trial Chamber orders of 31 August 1998 and 21 September 1998. The Prosecution inter alia requested that the Defence disclose the full statements of the expert witnesses it intended to call at the re-opening of the proceedings instead of the summaries of facts only. The motion also named Dr. D. Brown and Dr. C.C. Rath as the Prosecution's intended expert witnesses. The Trial Chamber issued a Scheduling Order on 20 October 1998, ordering both the Prosecution and Defence to comply with sub-Rule 94 bis (A) and (B)(i) and (ii). The Defence filed their full expert witness statements on 26 October 1998, while the Prosecution likewise submitted the full statements of its two expert witnesses on 30 October 1998. On 30 October 1998 the Defence filed a confidential motion notifying the Trial Chamber that it intended to recall both its expert witnesses in rejoinder. On 2 November 1998 the Prosecution filed a notice pursuant to sub-Rule 94 bis (B) that it wished to cross-examine both the Defence expert witnesses.
33. On 3 November 1998 the Prosecution filed a confidential motion in limine to limit expert evidence. The Defence responded to the Prosecution's motion on 5 November 1998. The Prosecution then, on 6 November 1998, filed a motion requesting leave to file a response to the Defendant's reply to the Prosecution's motion in limine. The Trial Chamber issued two Orders on 6 November 1998. In its confidential Order on the Prosecution motion in limine to limit expert evidence, the Trial Chamber dismissed the Prosecution motion of 3 November 1998. The Trial Chamber, in another confidential Order, also denied the Prosecution leave to file a reply to the Defendant's response of 5 November 1998.
34. The proceedings re-opened on 9 November 1998. Mr. Luka Misetic and Mr. Sheldon Davidson appeared as counsel for the accused. The Prosecution team comprised Ms. Brenda Hollis, Ms. Patricia Viseur-Sellers and Mr. Michael Blaxill. The Defence called four witnesses, including two expert witnesses, while the Prosecution called two expert witnesses.
35. On 9 November 1998 the Trial Chamber received an application to file an amicus curiae brief with the brief attached thereto. The eleven applicants were scholars of the international human rights of women or representatives of non-governmental organizations. The Trial Chamber, on 10 November 1998, issued an Order granting leave to file the amicus curiae brief. On 11 November 1998, another application to file an amicus curiae brief was filed by three applicants on behalf of the Center for Civil and Human Rights of the Notre Dame Law School in Indiana, USA. The Trial Chamber issued an Order granting the applicants leave to file the brief on 11 November 1998. The Trial Chamber orally notified the Prosecution and Defence about these briefs on 11 November 1998 and invited the parties to make written submissions regarding the briefs by 20 November 1998, should they so wish.
36. The re-opened proceedings were closed on 12 November 1998 after the presentation of both parties' closing arguments. On 20 November 1998, the Defence filed a response to the amicus curiae briefs.
37. On 24 November 1998, the Prosecution filed an ex parte and confidential request to redact certain portions from the transcripts of the closing statements delivered on 22 June 1998 to comport with the order for non-disclosure of 10 November 1998. The Trial Chamber granted the request on 25 November 1998. Also on 25 November 1998, the Prosecution filed a motion to expunge certain portions of the 22 June 1998 closing arguments to conform with the decision on protective measures for Witnesses A and D issued by the Trial Chamber on 11 June 1998. On 26 November 1998, the Prosecution filed a confidential motion to conform the Defendant's response to the amicus curiae briefs to various decisions of the Trial Chamber dealing with protective measures for witnesses. The Defence, on 1 December 1998, filed a confidential response to the Prosecution's motions dated 25 and 26 November 1998. The Trial Chamber, on 3 December 1998, issued an Order granting the Prosecution's motions.
38. Paragraphs 1 to 7 of the Amended Indictment set out the background and general context in which the alleged crimes are said to have been committed. The accused is identified in paragraph 9, whilst paragraphs 12 to 17 set forth the general allegations relevant to the specific crimes alleged. The specific charges against the accused are based upon the following factual allegations, which are set out in paragraphs 25 and 26 of the Amended Indictment:
25. On or about 15 May 1993, at the Jokers Headquarters in Nadioci (the "Bungalow"), Anto FURUNDZIJA the local commander of the Jokers, REDACTED and another soldier interrogated Witness A. While being questioned by FURUNDZIJA, REDACTED rubbed his knife against Witness A's inner thigh and lower stomach and threatened to put his knife inside Witness A's vagina should she not tell the truth.
26. Then Witness A and Victim B, a Bosnian Croat who had previously assisted Witness A's family, were taken to another room in the "Bungalow". Victim B had been badly beaten prior to this time. While FURUNDZIJA continued to interrogate Witness A and Victim B, REDACTED beat Witness A and Victim B on the feet with a baton. Then REDACTED forced Witness A to have oral and vaginal sexual intercourse with him. FURUNDZIJA was present during this entire incident and did nothing to stop or curtail REDACTED actions.
In relation to these alleged acts, the Amended Indictment charges the accused with two counts of violations of the laws or customs of war, as recognised by Article 3 of the Statute of the International Tribunal: torture (Count 13) and outrages upon personal dignity including rape (Count 14).
II. THE SUBMISSIONS OF THE PARTIES
39. The Prosecution's factual allegations, substantiating those set out in the Amended Indictment, may briefly be set forth as follows. It is alleged that, on or around 15 May 1993, Witness A, a female Moslem civilian residing in Vitez, was arrested by members of a special unit of the military police of the HVO known as the `Jokers'. The headquarters of the Jokers was in a well-known local hostelry in the village of Nadioci, known as the `Bungalow'. The Jokers took Witness A to a house adjacent to the Bungalow, the `Holiday Cottage', where their living quarters were, and she was detained in a large room, hereafter "large room", in the company of a group of soldiers.
40. The accused, a local commander of the Jokers, arrived at the Holiday Cottage and immediately began to interrogate Witness A about a list of Croatian names and the activities of her sons. During the questioning by the accused, one of the soldiers forced Witness A to undress and then rubbed his knife along her inner thigh and lower stomach and threatened to put his knife inside her vagina should she not tell the truth. The accused continued to interrogate Witness A throughout this threatening conduct.
41. Thereafter, Witness A was moved to another room in the Holiday Cottage. A Croatian soldier, known to Witness A and identified in the Amended Indictment as Victim B, but referred to hereafter as Witness D, because he so appeared as a witness in these proceedings, was also brought into the room. He appeared to have been badly beaten. While the accused continued to interrogate Witness A and Witness D, the same soldier who had earlier assaulted Witness A beat both of them with a baton on their feet and then forced Witness A to have oral and vaginal intercourse with him. The accused did nothing to prevent these acts.
(a) The Individual Criminal Responsibility of the Accused
42. The Prosecution submits that the accused may be held individually responsible for his participation in the alleged crimes pursuant to Article 7(1) of the Statute, which reads: "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles. 2 to 5 of the present Statute, shall be individually responsible for the crime." The Prosecution contends that such liability can be established by showing that the accused had intent to participate in the crime and that his act contributed to its commission. It is further submitted that such contribution does not necessarily require participation in the physical commission of the crime, but that liability accrues where the accused is shown to have been intentionally present at a location where unlawful acts were being committed.8 Accordingly, the Prosecution argues that the accused's alleged acts of encouragement, and his omissions, were sufficient to trigger his individual criminal responsibility under Article 7(1) for the crimes alleged.9
(b) Violations of Common Article 3 of the Geneva Conventions of 1949 (torture)
43. Specifically in relation to the accused, the Prosecution submits that his alleged acts constitute the crime of torture, as recognised in article 3 common to the four Geneva Conventions of 1949, hereafter "common article 3". The Prosecution contends that by his conduct under the factual circumstances alleged, the accused, acting in an official capacity as a uniformed soldier on duty, intentionally inflicted severe physical or mental pain or suffering on Witness A, a non-combatant, during an interrogation for the purpose of obtaining information and for the purpose of intimidation, thereby committing torture. As it is asserted that these events took place in the context of, and were directly linked to, an armed conflict between the armed forces of the Government of the Republic of Bosnia and Herzegovina, which declared itself independent on 6 March 1992, and the armed forces of the Croatian Community of Herzeg-Bosna, which considered itself an independent political entity inside the Republic of Bosnia and Herzegovina, the Prosecution submits that the elements of the crime of torture under common article 3 are met.
(c) Violations of Additional Protocol II of 1977 (outrages upon personal dignity including rape)
44. The Prosecution further submits that the accused is individually criminally responsible for the alleged acts under article 4(2)(e) of Additional Protocol II to the Geneva Conventions, hereafter "Additional Protocol II", which prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault". With reference to the Tadic Jurisdiction Decision that "customary international law imposes criminal liability for serious violations of common article 3 as supplemented by other general principles and rules on the protection of victims of internal armed conflict",10 it was submitted that the substantive offences prohibited by article 4 of Additional Protocol II are part of customary law and that they enhance the protection afforded by common article 3.
45. It is argued that by his interrogation of Witness A, a non-combatant in the hands of an adverse party during a conflict, throughout which she was "maintained in a state of forced nudity",11 "obligated to submit to several sexual assaults",12 and was "humiliated by attacks on her personal, including sexual, integrity",13 the accused committed outrages upon personal dignity, within the meaning of article 4(2)(e) of Additional Protocol II.
46. Similarly, the Prosecution argues that, by the accused's conduct during the time that "Witness A, a non- combatant in the hands of an adverse party during an armed conflict, was subjected to vaginal, anal and oral forcible sexual penetration",14 the accused is criminally responsible for rape, as recognised under article 4(2)(e) of Additional Protocol II.
47. The Defence did not concede the existence of an armed conflict for the purposes of bringing the alleged crimes within the jurisdictional scope of Article 3 of the Statute.
48. As to the specific allegations in the Amended Indictment, the Defence contended that the accused is not guilty of the crimes alleged. It was asserted that the accused was not present for any sexual assault on Witness A, and submitted that Witness A's recollection of the events, which form the basis for the charge against the accused, is unreliable.
49. In support of these submissions, the Defence relied upon alleged inconsistencies in the testimony of Witness A. For example, the Defence stated that in Witness A's original statement to the Prosecution's investigators in 1995, she did not state that the accused was present while she was being beaten and sexually assaulted during the first phase of the interrogation in the Holiday Cottage.15 Furthermore, the Defence asserted that Witness D, a Prosecution witness, would directly contradict Witness A's recollection of the events alleged.16
50. The findings of the Trial Chamber are set out in the following sections of the Judgement.
III. THE EXISTENCE OF AN ARMED CONFLICT
51. The Prosecution case, as stated in the Amended Indictment, is that from about January 1993 until mid-July 1993 the HVO was engaged in an armed conflict with the Army of Bosnia and Herzegovina, hereafter "ABiH". The Croatian Community of Herzeg-Bosna had declared itself an independent political entity inside the Republic of Bosnia and Herzegovina on 3 July 1992. During this time, the HVO attacked villages inhabited mainly by Bosnian Moslems in the Lasva River Valley region in central Bosnia and Herzegovina, including the municipality of Vitez. The accused was a member of the Jokers, a special unit of the HVO military police, which participated in the armed conflict in the Vitez municipality and especially in the attack on the village of Ahmici. These attacks led to the expulsion, detention, wounding and deaths of numerous civilians. The Prosecution alleges that this was the context in which the crimes, which the accused is alleged to have committed, took place.
52. Evidence of the existence of an armed conflict was given by Prosecution witnesses, including Dr. Muhamed Mujezinovic, a medical doctor in Vitez. According to the witness, the Croatian Democratic Union, hereafter "HDZ", won the first multi-party elections in Vitez in November 1990; the Party of Democratic Action, hereafter "SDA", came second.17 Throughout 1991, relations between the ethnic groups seemed harmonious.18 It was only late in 1991 that Dr. Muhamed Mujezinovic first heard about the political entity of Herzeg-Bosna.19 This witness, a member of the SDA, became vice-president of its executive committee in Vitez in September 1991, and in this capacity he interacted with the HVO on a regular basis.20 In the meantime, the HVO were arming themselves.21 In March 1992, a crisis staff was formed in Vitez in response to the problems generated by the conflicts in Croatia and other parts of Bosnia and Herzegovina; it had an equal ethnic composition.22 In a meeting of the crisis staff held in late April, a member of the HVO said that the Moslems in Vitez had to place themselves under the command of the Croatian Community of Herzeg-Bosna as they had no chance of staying in Vitez; however, this statement was not taken "seriously" and co- operation continued.23
53. The first incident of violence occurred on 20 May 1992 when a young Moslem was killed by an HVO guard.24 This incident was followed by the take-over by the HVO of the local town hall, the police station and the Territorial Defence building on 18 June 1992, over which the flags of Herzeg-Bosna and Croatia were raised.25 At a subsequent meeting of the Vitez crisis staff, the HVO members demanded that the Moslems place themselves under their command.26 The Moslems however considered the actions of the HVO to be an illegal coup and refused to become part of the new government.27 After this, the HVO took control over the town of Vitez.28 Harassment of Moslems became frequent29 and the Moslem community established a co-ordination board for the protection of Moslems.30 In November of 1992, armed conflict erupted between the HVO and ABiH in Novi Travnik; there were simultaneous incidents of violence in Vitez.31 Inter- ethnic tension in Vitez continued to rise as the HVO blockaded the town.32 During this time, killings and other violence became increasingly frequent and Dr. Muhamed Mujezinovic regularly treated the wounded, most of whom were Moslem civilians.33 On 15 January 1993, the Moslems of Vitez converted their Council for the Defence of Moslems into a war presidency which commanded the ABiH and Dr. Mujezinovic became the President.34For a brief period, a joint commission was established to relieve the tension in the area. However, the HVO continued to push for the disarmament of the AbiH.35 Finally, on 16 April 1993, the HVO carried out a concerted attack on both Vitez and Ahmici.36
54. Witness A and Witness C testified that the fighting in Vitez started on 16 April 1993 between 5 a.m. and 6 a.m. with a loud detonation.37 Mr. Sulejman Kavazovic, a member of the Territorial Defence of Bosnia and Herzegovina, testified that after the explosion he saw a lot of HVO soldiers in full combat equipment running toward the part of the city controlled by the Territorial Defence of Bosnia and Herzegovina.38 Witness A and Witness C gave evidence that Moslem apartments were searched by the HVO39 and that prominent Moslems were temporarily detained at the Workers University.40 From that day on, large numbers of the local Moslem population were reduced to living in basements and terrorised by HVO soldiers; Moslems were, on a daily basis, forced from their homes and taken away.41
55. Witness B testified about the HVO attack on Ahmici. On 16 April 1993, she woke up to the sound of shooting and explosions.42 A group of HVO soldiers, including the accused, entered her house and searched it while verbally abusing the witness and her mother.43 Witness B appealed to the accused for help as he was an acquaintance of hers, but he remained silent.44 She was then forced to flee as the soldiers fired at her feet. Her house was set on fire.45
56. Witness D also testified to the outbreak of the armed conflict on 16 April 1993.46 He was an HVO soldier who was arrested and held by the ABiH for about 10 days.47 Subsequently, he was arrested and held by the Jokers for a month.48 On his release, he continued serving as an active HVO soldier until he was wounded in the leg after six weeks.49
57. Mr. Sulejman Kavazovic gave evidence that he was forced to dig trenches on the front-line between the HVO and the Territorial Defence at "the river, at the [pilja locality," and on another occasion at Kratine.50 He testified that the conflict continued into May 1993 and that he served as an officer in the ABiH until he was wounded on 25 May 1993. Mr. Kavazovic received notification of the cessation of hostilities in January 1995.51
58. The Defence has not conceded that a state of armed conflict existed at the relevant time, but called no evidence to counter the submissions of the Prosecution. In his closing remarks, Defence counsel submitted that the Prosecution evidence did not demonstrate that there was an armed conflict in terms of front-lines and military objectives, but only that there was an attack by the HVO on civilians.52
59. It was not disputed that the test to be applied in determining the existence of an armed conflict is that set out by the Appeals Chamber of the International Tribunal in the Tadic Jurisdiction Decision, which states:
[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State.53
Applying that test, the Trial Chamber finds, on the clear evidence in this case, that at the material time, being mid- May 1993, a state of armed conflict existed between the HVO and the ABiH.
60. Considering the above finding, the Trial Chamber must now determine whether a nexus exists between the alleged criminal conduct of the accused and the armed conflict.
IV. THE LINK BETWEEN THE ARMED CONFLICT AND THE ALLEGED FACTS
61. The Prosecution submitted that the accused participated in the armed conflict as a local commander of the Jokers.54 It is in this capacity that he is alleged to have interrogated Witness A, a civilian, about her fighting-age sons and relations between Moslems and HVO personnel.55
62. Several Prosecution witnesses identified the accused as a commander of the Jokers: Dr. Muhamed Mujezinovic,56 Witness D,57 Witness A,58 and Mr. Sulejman Kavazovic.59 Witness B also testified that during the attack on Ahmici, the accused was wearing a Jokers patch on his sleeve.60
63. Witness A testified that during her interrogation, she was accused of co-operating with HVO soldiers, in particular Witness D, with whom she was confronted by the accused. He asked her if she knew a man called Petrovic or another man from Busovaca61 and accused her of having a code-name `Brasno'.62 The accused also demanded to know whether her children were in the army and he threatened personally to kill them,63 Witness D testified that he was beaten and interrogated by members of the Jokers, including the accused, about his arrest by the ABiH and whether he had told them anything about the Jokers.64
64. Although the Defence did not contest that the accused was a member of the Jokers, its case is that he was not present during the sexual assaults on Witness A, and that he did not interrogate her.65 Moreover, the Defence argues that there was no armed conflict to which the accused could be linked.
65. The Trial Chamber accepts the evidence of Witness A about the nature of her interrogation by the accused. She was a civilian in the hands of the Jokers being questioned by the accused, who was a commander of that unit. He was an active combatant and participated in expelling Moslems from their homes. He also participated in arrests such as those of Witnesses D and E. The Trial Chamber holds that these circumstances are sufficient to link the alleged offences committed by the accused to the armed conflict.
V. THE EVENTS AT THE BUNGALOW AND THE HOLIDAY COTTAGE IN NADIOCI
66. The Prosecution case against the accused turns on the evidence of Witness A, and to a lesser extent, Witness D. Both witnesses have testified as to what happened to them in mid-May 1993, at the Bungalow and the Holiday Cottage, in Nadioci, Central Bosnia. The precise dates involved are a matter of dispute between the parties. The Trial Chamber has been assured that these two vital witnesses have had no contact with each other or knowledge of the whereabouts of the other since then.
67. In response, the case of the Defence is that Witness A is mistaken. Due to the traumatic events that she endured and lapse of time, her memory regarding the events at issue is flawed. Suggestions are alleged to have been made to her during vulnerable stages of her physical and psychological recovery, therefore rendering her memory unreliable. This, it is argued, is demonstrated by inconsistencies in the statements, which she gave in 1993, 1995, 1997 and before the Trial Chamber in oral testimony. The Defence further contends that Witness A's testimony is directly contradicted by that of Witness D, thereby making it unreliable. Witness E was called to challenge certain assertions made by Witness D. The evidence of expert witness Dr. Loftus, who did not examine any of the witnesses, but testified in these proceedings, was submitted to demonstrate the weakness of memory, in particular where shock is involved.
68. The Defence does not deny that the accused was in the Holiday Cottage. There has been no denial that Witness A did in fact suffer the atrocities she claims were committed against her; the defence is simply that Witness A's recollection of the events is inaccurate and that the accused was not present when she was being assaulted.
69. Before examining the evidence pertaining to the events in question, it is necessary for the Trial Chamber to establish the factual background and circumstances which led to Witness A and Witness D being together at the Holiday Cottage in May 1993.
B. Background and Circumstances
70. The following testimony of Witness A was undisputed. In May 1993, she was a married woman of Bosnian Moslem origin.
71. Fighting between the HVO and the ABiH broke out in Vitez on 16 April 1993 and, through a series of events, Witness A came to be separated from her husband. She spoke of how, in spite of public warnings not to help Moslems, the man she later came to know as Witness D transferred her two sons to a safer building when she and others were taken to the headquarters of the HVO. At a later stage, she and some friends of the family arranged to have her sons sent to Travnik. Witness A, upon cross-examination, denied that her children were in the AbiH,66 and that her husband had any involvement in the military.67
72. Witness A testified how she came to live in the family apartment in Vitez with one Vlatko Males, a childhood friend of her children; he was of Croatian origin and had a military affiliation to the HVO. Having promised to protect the mother of his friends in their absence, he moved into the apartment with Witness A. On a day in May, which she said was the 15 May 1993,68 several soldiers from an elite unit of the HVO came to her apartment. They were dressed in black uniforms, which had the characteristic insignia of the Jokers, known to be a special task unit of the HVO with a "terrifying" reputation.69 Witness A was not molested at this time, but was ordered to go with them. In her testimony, she recalled that it was approximately 10.30 in the morning.70 She recounted being taken in a sports car to the Bungalow, which had been turned into the headquarters of the Jokers in 1991.
73. Witness D was a member of the HVO, and much of his testimony was undisputed. Following the outbreak of hostilities in Vitez, he was assigned guard duties around the area of the HVO Headquarters, which included several residential buildings. One of these buildings housed the apartment of Witness A. As one of the guards of the apartment block, Witness D, on several occasions during the four to five days that he was stationed there, transferred the children of Witness A to a safer building and back again.71 On or around 8 May 1993, he was captured by the ABiH, and detained for several days, along with two other individuals,72 one of whom was Witness E. During this time, he was interrogated about the HVO in the Vitez region; his videotaped interrogation was shown to the Trial Chamber as Defence Exhibit D9.
74. Defence Exhibit D10, a document issued by the Joint Committee for the Release of Detainees, dated 16 May 1993, demonstrates that Witness D was released in a prisoner-of- war exchange on 16 May 1993. He was then interrogated by the HVO in Busova~a and eventually released.73 His evidence that, upon release, he walked back home was challenged by the testimony of Witness E, who testified that he and Witness D were given a lift back by car.74 Witness D claims that the accused, a soldier identified hereafter as `Accused B' and another person picked him up by car as he was walking back home.75 He was told that they had been looking for him and he was then driven to the Bungalow in Nadioci.
75. At the Bungalow, he told the Trial Chamber, he was held in detention and interrogated. The Defence did not challenge this witness's assertion that the accused questioned him about the circumstances of his arrest by the ABiH and what he had revealed to them, and that the accused also hit the witness. In the course of his detention at the Bungalow, Witness D was subjected to serious physical assaults by Accused B, for what he estimates to be three days, before his encounter with Witness A. The Defence also did not challenge Witness D's allegation that the accused was present for parts of the serious assaults on him.76 Witness E saw this witness on what appears to have been his first day at the Bungalow, before he showed visible signs of physical assault.77 Although Witness D does not mention seeing Witness E at the Bungalow at any time, the latter confirmed that he later witnessed some of the severe physical attacks which Accused B inflicted upon Witness D. Both witnesses spoke of a style of beating, which involved hitting the toes and the top of the foot close to the anklebone with a baton.78 Witness E also testified that he saw Accused B hit Witness D on the head and elsewhere on his body.79 He also corroborates Witness D's testimony that the accused was present for some of the beatings Witness D suffered.80
76. It is uncontested that on arriving at the Bungalow, Witness A was led away along a path to the Holiday Cottage, which appeared to form part of the Bungalow complex. She recalls having seen a large number of armed soldiers, dressed in the characteristic Jokers uniform, around the Bungalow, which was known to be their headquarters. Witness A was taken to a large room in the Holiday Cottage, which appears to have been the living quarters of the soldiers. She was told to sit and eat a piece of bread with pat‚ to give her "strength".81 She was surrounded by soldiers dressed in Jokers uniforms who spoke in expectant tones about the arrival of the `Boss'. There were about forty of them in the room.
77. Witness A then heard someone say, "Furundzija has arrived",82 and a young man entered the room holding some papers.83 Witness A drew the conclusion that this man was the `Boss' who had been expected by the soldiers, and that his name was Furundzija.84
78. The man whom Witness A identified as Furundzija, the `Boss', she described as being a "rather thin young man, rather strong jaw or teeth. Height, well, medium for a man, a metre 75, one metre 80. I cannot tell you exactly"; he had "chestnut to black hair", which was "cut short and combed up".85 Like the other soldiers, he was wearing a black Jokers uniform, but with the sleeves rolled up.86 In her 1995 statement, she described him as "tall, maybe the height of . . . who tells me she is about 172 centimetres tall. He was thin, small featured and had short blond hair."87 In cross-examination, the witness denied having told Prosecution investigators that this man had blond hair. She reiterated that the man definitely had dark brown hair and was around 175 to 180 centimetres tall.88 When questioned by the Presiding Judge, the witness was able to identify the accused in court. Since the events in question, she had only seen him momentarily on a BBC television newscast after he had been arrested by SFOR troops. She recalled thinking that he looked as if he had put on weight.89
79. The Trial Chamber notes that the Medical Report of the accused's examination on arrival at the United Nations Detention Unit, admitted as Defence Exhibit D16, specifies his height as 1.83 metres and his weight as 82 kilograms. There are no notes of any distinguishing features. Defence counsel drew attention to these inconsistencies in the description of the accused, which, it submitted, demonstrated that the accused had not been present as alleged.
80. Witness A recalled that in the large room, the accused read the allegations against her and started to question her about her alleged co-operation with the ABiH90 and about an individual named Petrovic.91 Defence Counsel pointed out that this was inconsistent with her 1995 witness statement in which she stated that the soldiers asked her about Petrovic. The answers she gave the accused were apparently unsatisfactory and she was suddenly grabbed by the hair from behind and a knife was held to her throat. A man said, "If you don't know them, do you know me?".92 This man, Accused B, forced her to undress and to remove her glasses.93 Witness A, under cross-examination, was adamant that Furundzija was in the room before Accused B entered.94
81. The witness has testified that rapes and sexual abuse took place in the large room in the presence of the accused. This evidence falls outside the facts alleged in paragraphs 25 and 26 of the Amended Indictment, and is contrary to earlier submissions by the Prosecution.95 At no stage of the proceedings did the Prosecution seek to modify the Amended Indictment to charge the accused with participation in these assaults. Further to an oral motion by the Defence on 12 June 1998, the Trial Chamber issued a Decision confirming that it would only consider as relevant Witness A's evidence in so far as it relates to paragraphs 25 and 26 as pleaded in the Indictment against the accused. Further clarification was sought by the Prosecution on 15 June 1998 and this was provided by the Trial Chamber orally and in writing on 15 June 1998. Therefore, the Trial Chamber will not consider evidence relating to rapes and sexual assault of Witness A in the presence of the accused, other than those alleged in paragraph 25 and 26 of the Amended Indictment.
82. The accused continued to interrogate Witness A, who was forced to remain naked in front of approximately 40 soldiers. Accused B drew a knife over the body and thigh of Witness A, threatening, inter alia, to cut out her private parts if she did not co-operate.96 As this was happening, it is alleged that the accused continued to interrogate her about her children, her alleged visits to the Moslem part of Vitez and why certain Croats had helped her when she was Moslem.97 The witness testified that the accused also issued threats against her children.98She spoke of a direct relationship between his dissatisfaction with her answers and the assaults inflicted upon her by Accused B.99 She stated: "it was one at the same time the interrogation and the ill-treatment and the abuse".100
83. At one stage during the interrogation, Witness A testified that the accused became annoyed with her responses and left the large room, threatening to force her to confess by confronting her with another person who later turned out to be Witness D.101 The Defence has not disputed that the accused left Witness A in the room and that there followed another phase of serious sexual assaults by Accused B, accompanied by questioning. After being subjected to multiple rapes, sexual assaults and physical abuse by Accused B, she was given a small blanket and taken to another room, the `pantry', still in a state of nudity.
84. While Witness A was being taken to the pantry, Witness D was being brought out from the Bungalow for a confrontation with her. Witness D said that Accused B took him out and the accused met them downstairs in the Bungalow.102 Witness A testified that the accused, another soldier described as Dugi and Accused B, took her out of the large room and that Accused B was with her throughout.103
85. The Defence has pointed to inconsistencies in the order in which the two victims entered the room as an indication that Witness A's memory is unreliable. Her testimony to the Trial Chamber on the order of entry is ambiguous104 but in 1997, she clearly stated that Witness D was already in the room when she entered.105 On the other hand, her 1995 Witness Statement is also clear: she entered the room first, and then Witness D entered.106 Witness D says he entered the room and saw a woman he recognised as Witness A, naked but partially covered by a small blanket, leaning against the wall.107 She was in tears and sobbing.108 He also recalls that as he entered the room, the accused was there.109 Witness A, on her part, recognised Witness D, and described her shock at seeing him: he had a swollen head, bruises on his face, was trembling and appeared to be in a grave condition.110 The Trial Chamber recalls Witness E's testimony that Witness D was hit on the head and was badly beaten by Accused B in the Bungalow.
86. Witness A testified that the accused interrogated both of them.111 They were accused of working for the AbiH.112 Both witnesses then described how Witness D was beaten by Accused B. Witness A described how Accused B hit Witness D on the toes of the feet.113 This was consistent with the description given by Witness E and Witness D of the style of beatings inflicted by Accused B on Witness D in the Bungalow.114 Witness A said that the accused was in the doorway.115 According to Witness D, the door was kept open and there was an audience of Jokers, both inside the room and outside.116 He recalls that the accused was with the soldiers outside the room; he believed that they could see what was going on in the pantry.117
87. The attacks then moved on to Witness A: Accused B had warned Dugi, another soldier, not to hit her as he had "other methods" for women,118 methods which he then put to use. Accused B hit Witness A119 and forced her to perform oral sex on him. He raped her vaginally and anally, and made her lick his penis clean.120 Witness D was forced to watch these assaults and he testified that the accused was one of the soldiers outside the room.121 It appears to the Trial Chamber that the accused would have had to be in the vicinity of the door in order for Witness D to have seen him amidst the group of soldiers. Witness A categorically stated, in response to cross- examination, that the accused was present in the room: "Yes, he was in the room. He watched me and Witness D and Accused B. He was inside the room . and we were all together inside"122 and said that "Furundzija was the person who interrogated and confronted me".123 In Prosecution Exhibit P3, she stated that the accused was there all the time, "because he was the one who was confronting me with Witness D".1 24 In 1995, she stated that the accused "was in the pantry questioning us as we were being beaten. He was there as Accused B forced me to have oral and vaginal sex with him. He did nothing to stop the beatings or the rapes".125 Witness D testified that when he was taken out of the pantry, he saw the accused outside the doorway.126
88. Witness A continued to be sexually assaulted by Accused B until she collapsed in a state of exhaustion. This is demonstrated by the testimony of Witness A, and also by the evidence of Witness D, who having been returned to the Bungalow, heard a woman screaming from the direction of the Holiday Cottage and the name of Furundzija being called out. Later, a man whom Witness A recognised as Dragan Botic eventually took her upstairs to another room in the cottage.
89. The further abuses visited upon Witness A, who remained in the custody of the Jokers for several weeks, are not the subject matter of the charges against the accused. Witness A continued to be detained until she was released in a prisoner exchange on 15 August 1993. Whilst in captivity, she was repeatedly raped, sexually assaulted and subjected to other cruel, inhuman and degrading treatment. As a result, she experienced severe physical and mental suffering.
E. The Re-opening of the Proceedings
1. Background and Reasons for Re-Opening the Proceedings
90. On 29 June 1998, after the proceedings and closing submissions had been concluded, the Prosecution disclosed for the first time to the Defence a document entitled "Certificate of Psychological Treatment" from Medica, a Womens' Therapy Center in Zenica, dated 11 July 1995.127 This document related to Witness A and stated that she had contacted Medica on 24 December 1993 in connection with the psychological trauma she had been suffering since she was abused in the Bungalow. Defence Exhibit D37 stated that she had been receiving treatment in the counselling center and that the symptoms of Post-Traumatic Stress Disorder, hereafter "PTSD", had been relieved. The Prosecution also disclosed a statement dated 16 September 1995 from an unidentified witness who stated that she had first seen Witness A on 24 December 1993 at Medica and last saw the witness on 11 July 1995.128
91. Thereupon the Defence filed a motion requesting the Trial Chamber to strike out the testimony of Witness A because the late disclosure of the said documents prejudiced the Defence and that such prejudice permeated the strategy of the whole Defence case. Alternatively, it was requested that in the event of a conviction, a new trial be ordered. The Prosecution responded, after which the Trial Chamber heard oral submissions by both parties.
92. In the Decision of 16 July 1998 the Trial Chamber ruled that the interests of justice required a re-opening of the proceedings as the only available means to remedy the prejudice suffered by the Defence. The Prosecution disclosed the Medica documents to the Defence only after the close of the trial. These documents referred to medical and psychological treatment that Witness A was alleged to have received at Medica. In the circumstances of this case, the late-disclosed material was considered to be relevant to the issue of credibility of Witness A's testimony. The prejudice suffered directly stemmed from the fact that the Defence was unable to fully cross-examine relevant Prosecution witnesses and to call evidence to deal with the issues raised by the Medica documents. This right is encapsulated in Article 21(4)(e) of the Statute, which reads: "In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: . . .; (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him . . .." In the event, the Trial Chamber ordered the re-opening of the proceedings. It permitted the recalling of Prosecution witnesses for cross-examination, but solely on any "medical, psychological or psychiatric treatment or counselling received by Witness A after May 1993".129 The Trial Chamber also permitted the Defence to call evidence on these issues and the Prosecution to call evidence in rebuttal.
93. The Trial Chamber further considered the rights of the accused and Witness A. In the circumstances of the case, the Trial Chamber was of the view that the protection of Witness A could only be allowed to affect the public nature of the trial, not its fairness. This view is supported by Article 20(4) of the Statute. The Statutory provisions of Articles 20(1), 21(2) and in particular the guarantees that an accused is entitled to according to Article 21(4), mandate the Trial Chamber to ensure that the accused receives a fair trial. These Articles read as follows: Article 20(4) provides that "the hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence."; Article 20(1) reads that "the Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses."; and Article 21(2) reads that "in the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to Article 22 of the Statute". In addition, Article 21(3) of the Statute, which reads, "the accused shall be presumed innocent until proved guilty according to the provisions of the present Statute", upholds the presumption of innocence of the accused. The Trial Chamber therefore has to allow the accused to explore every possible defence within the provisions of the Statute. Cognisant of its duty to search for the truth and applying the `interests of justice' test inherent in its powers, the Trial Chamber decided to re-open the proceedings to allow the Defence to remedy the prejudice suffered.
94. On 14 September 1998, in response to a subpoena duces tecum, Medica produced a report, Defence Exhibit D24, on the treatment of Witness A. The report states that on the basis of supportive and therapeutic work with the patient and information on what had occurred, it was possible to conclude that the patient was exhibiting symptoms of PTSD. An attached report compiled by a psychologist dated 24 December 1993 states that Witness A could not sleep without therapy and was afraid to fall asleep, thought of herself as unimportant, had an uncontrolled recollection of events and allowed herself to cry, and suppressed thoughts of the rapes. On 11 July 1995 she is recorded as occasionally coming to talk, taking a tranquilliser called Apaurin, and suffering from insomnia and weeping fits.
95. The case re-opened on 9 November 1998 and the Trial Chamber heard evidence for four days until 12 November 1998. Witness A and Dr. Mujezinovic were recalled for cross- examination, each side called two expert witnesses and both sides made submissions. What follows is a summary of the evidence relating to the central issue, namely whether the reliability of the evidence of Witness A has or may have been affected by any psychological disorder from which she may have suffered as a result of her ordeal. It is thus necessary to consider whether she was suffering from PTSD, and, if so, whether it has or may have affected her memory.
2. Summary of the Relevant Evidence
96. Dr. Mujezinovic said that he saw Witness A in the autumn of 1993. She was frightened and said that she wanted to kill herself; she could not sleep, had nightmares and thought people were accusing her and staring. He referred her to Dr. Racic-Sabic, an associate of Medica who worked in the neuro-psychiatric department in Zenica. The latter subsequently told him that Witness A would need a long period of psychiatric treatment as she was seriously traumatised.
97. Witness A gave a different account. She agreed that she had met Dr. Mujezinovic in 1993 and had a conversation. Although she was physically exhausted and had difficulty sleeping, she did not seek psychiatric help. She was not referred to Dr. Racic-Sabic and had no contact with that doctor. Medica had approached her and she had not asked for psychological assistance. She did not agree with the Medica Report and the diagnosis of PTSD. However, she had taken tranquillisers. She maintained that she accurately remembered the events which form the subject of this case.
98. Explanations for the discrepancies between the evidence of Dr. Mujezinovic and Witness A are to be found in the evidence of two experts. The Defence called Dr. Charles Morgan, Associate Professor of Psychiatry at Yale University School of Medicine and Associate Director of the PTSD Program at the National Centre for PTSD. He said that Witness A's denials that she had PTSD or treatment, were consistent with findings in studies of PTSD, for example, Dr. Carol North found in her study that subjects deny having symptoms of PTSD.130
99. Dr. Craig Rath, an experienced clinical and forensic psychologist from California, called by the Prosecution, said that the discrepancy is to be explained because while Medica believed that Witness A was starting psychotherapy, she herself did not see it in that light. This is because a typical approach in psychiatric treatment is to ask broad questions. The witness was demonstrating symptoms into which she had little insight. Medica approached her in a general manner in order to ventilate her feelings. Witness A then felt a little better and left what Medica saw as the therapy situation but without having built a therapeutic alliance with a therapist, although her "ventilation" had been therapeutic. Dr. Rath said that this would account for the discrepancy in the evidence. Medica viewed her as being treated, but there is no evidence that typical therapeutic techniques were ever applied and there is an issue whether she engaged in psychotherapy.131 The difference in the accounts between the witness and Medica can be explained in these terms; the witness felt as if she had an informal talk with them whereas according to Medica this was part of her treatment.
100. The Trial Chamber accepts the evidence of Dr. Rath on this subject and finds that Witness A is mistaken in saying that she was not referred for treatment.
101. The Trial Chamber accepts the diagnosis that it is likely that Witness A had PTSD. This is based on the certificate from Medica and the evidence of Dr. Morgan, an expert in PTSD, who said that his reading of the documents suggested that Witness A was suffering from chronic PTSD. Dr. Daniel Brown, Assistant Clinical Professor in Psychology, Harvard Medical School, called by the Prosecution, agreed although pointing out that it is not clear whether Witness A had met all the criteria for PTSD.132
102. The Defence case was that because Witness A was suffering from PTSD and may have been treated for it, Witness A's memory was likely to have been affected and contaminated. This case was based on the evidence of Dr. Morgan to the effect that high levels of stress hormones can damage the area of the brain called the hippocampus, responsible for memory. Studies showed that the hippocampus in people with PTSD had been damaged and people suffering from PTSD performed more poorly in memory tests than people without PTSD. Studies which the witness had conducted with people suffering from PTSD showed a greater inconsistency in their accounts than people without PTSD.133 Dr. Morgan used charts to demonstrate what he viewed as the inconsistencies in Witness A's accounts. Dr. Morgan said when giving evidence in rejoinder that he would not consider a single course of information from the reported memory of one individual suffering from PTSD to be scientifically reliable and that he would want independent corroborating evidence.134
103. The Defence also called Dr. Jeffrey Younggren, an experienced clinical and forensic psychologist from California and a Fellow of the American Psychological Association who has treated many PTSD victims. He said that his reading indicated that the trauma can have an effect on memory: the more trauma, the worse the memory. He referred to a report entitled "Medica's Psycho Team",135 which stated that Medica had no knowledge about trauma and how to deal with it and lacked experience and theoretical knowledge. The witness said that this state of affairs could lead to contamination of memory, that group therapy can then fill in the blanks and lead to false beliefs. If Witness A participated in "dream and imagined journeys",136 it could contribute to false beliefs.137 The witness also said that he was concerned about the mixed mission of Medica in saying that "their goal is to deal with war criminals".138 This goal may be incompatible with the recovery and treatment of trauma patients.139
104. For the Prosecution, Dr. Brown said that there was a link between PTSD and inconsistency but it did not mean that the trauma caused inconsistency. The evidence about accuracy in recollection of normal, meaningful, personal events shows that the more meaningful the experience, the greater the accuracy of retention. It also shows that inconsistency does not necessarily mean inaccuracy.140 Dr. Brown said that it was not known if Witness A had hippocampal damage.141 Dr. Rath pointed out that there was no evidence that Witness A had engaged in group or "dream" psychotherapy or that a therapist had contaminated her memory.
105. The Prosecution argued in its closing remarks that any arguments that Witness A's credibility was diminished due to therapeutic interference with her memory or because of biological damage to her brain were based on pure speculation. PTSD does not render a person's memory of traumatic events unworthy of belief. In fact, the expert evidence indicated that intense experiences such as the events in this case are often remembered accurately despite some inconsistencies. The actions of the accused as interrogator and "boss" were core to this experience and the evidence of Witness D corroborated this core. The Prosecution concluded by stating it had proved the guilt of the accused beyond reasonable doubt.
106. The Defence argued in its closing remarks that as part of the standard of proof beyond reasonable doubt, doubts in this case should be resolved in favour of the accused. According to the Defence, the diagnosis of PTSD presents an explanation for the inconsistencies in Witness A's various statements and further discrepancies between her evidence and that of other witnesses and documentary evidence. In conclusion the Defence argued that these inconsistencies should not be dismissed but that they indicated a failure on the part of the Prosecution to meet the burden of proof in this case.
107. The Trial Chamber granted the applications seeking leave to file two amicus curiae briefs. Timely assistance in this manner is generally appreciated. Unfortunately, both the briefs dealt at great length with issues pertaining to the re-opening of the instant proceedings. By the time the two briefs were received, the re-opening of the proceedings had already been decided having commenced on 9 November 1998. Nevertheless, from the discussion on the re- opening proceedings above it should be clear that it was not the fact that Witness A received any medical and psychological counselling that automatically led the Trial Chamber to re-open the proceedings. Rather, the proceedings had to be re-opened in light of the late disclosure of the Medica material and the Trial Chamber's duty to uphold the fairness and presumption of innocence, as discussed above.
108. Having seen and heard all the witnesses and considered the evidence, the Trial Chamber has come to the following conclusions: the Trial Chamber finds 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 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.
109. The Trial Chamber bears in mind that even when a person is suffering from 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.
F. Inconsistencies in the Testimony of Witness A
110. Following the findings above, the Trial Chamber has to examine the inconsistencies in the testimony of Witness A in order to determine whether they are sufficient to render the material aspects of the evidence of Witness A unreliable. In doing so the Trial Chamber recalls the testimony of Dr. Morgan to the effect that tests carried out to determine the consistency and accuracy of answers given by subjects in memory studies have no bearing on the truthfulness of a witness in court proceedings in that there is no model in the world that can directly measure what anyone knows in their mind. Further, Dr. Morgan added that, "I know of no way of measuring what people actually remember."142 Much of the Defence challenge to the reliability of Witness A centred around statements allegedly made by her to sources not associated with the International Tribunal.
111. The witness denied that Defence Exhibit D11b, a hand- written statement, was in her handwriting or had been signed by her. Therefore, this exhibit and the typed versions,143 which appear as statements dated 11 September 1996 from the State Commission for Gathering Facts on War Crimes at the Territory of the Republic of Bosnia and Herzegovina, are unreliable.
112. Witness A also denies having given evidence in legal proceedings brought against Dario Kordic and others. She recalls having a conversation about her experiences, but denies having given a formal statement in the course of legal proceedings. The document filed as Defence Exhibit D12, Witness Interview on 21 December 1993 by the Investigating Judge of the Zenica High Court in the Criminal Case of Dario Kordic et al, has relevant identifications blacked out, including that of the signature of the witness. Witness A did not recognise this document. In the circumstances, this exhibit and its English translation, Defence Exhibit D12a, cannot be relied upon. As a consequence, challenges to the reliability of the testimony of Witness A which have been made on the basis of these documents are not accepted by the Trial Chamber.
113. The Trial Chamber finds that, despite her inconsistencies on the finer details which the Defence has validly pointed out, Witness A is a reliable witness. The evidence of expert witness Dr. Loftus, and cross-examination of Witness A, have not cast doubts on the reliability of her testimony. There is no evidence to substantiate the allegation made in the Defence closing statement that persons such as Enes Surkovic made suggestions on the sequence of events and identities of those involved in abusing Witness A and that these people influenced her recollection of events. The Trial Chamber is of the view that survivors of such traumatic experiences cannot reasonably be expected to recall the precise minutiae of events, such as exact dates or times. Neither can they reasonably be expected to recall every single element of a complicated and traumatic sequence of events. In fact, inconsistencies may, in certain circumstances, indicate truthfulness and the absence of interference with witnesses. The Trial Chamber therefore attaches no particular significance to the inconsistencies in the order in which Witnesses A and D say they entered the pantry.
114. The Trial Chamber notes that the evidence of Witness A consistently places the accused at the scenes of the crimes committed against her in the Holiday Cottage in May 1993. It is also significant to note that she has been consistent throughout her statements in her recollection that the accused was never the one assaulting her during her period of captivity in the Holiday Cottage; Accused B is always described as the actual perpetrator of the rapes and other assaults. The Trial Chamber finds that Witness A has identified the accused as Anto Furundzija, the Boss. The inconsistencies in her identification testimony are minor and reasonable. In light of her recollection at the time of seeing the accused on television and even noticing that he had put on weight, the Trial Chamber is satisfied that the accused has sufficiently identified Witness A.
115. With respect to inconsistencies as to dates, the Trial Chamber observes that the dates referred to in oral testimony were put to Witness A by Defence Counsel; she herself admitted to being poor with dates and did not volunteer the information on the exact dates of the assaults. The Trial Chamber is more concerned with the events that occurred rather than the exact date on which they happened.
116. Witness A dealt with cross-examination in an honest and confident way and countered challenges to her memory of events by indicating that she was testifying to the best of her recollection, that the evidence she gave was the way she, as the person who endured these events, saw them happen. She told the Trial Chamber that "in those moments, one does not analyse too much",144 an observation confirmed by the views of expert witness Dr. Loftus.145 The witness's manner in court was convincing and although her testimony, in accordance with Rule 96 of the Rules146, requires no corroboration, the Trial Chamber notes that the evidence of Witness D does confirm the evidence of Witness A in this regard. The Trial Chamber also notes that cross-examination of Witness D did not touch upon his detention at the Bungalow or the Holiday Cottage. Witness E, a witness for the Defence, testified that he found Witness D at the Bungalow and saw him being beaten by Accused B and that the accused was present during some of the assaults. When Witness E left the Bungalow, Witness D stayed behind, being eventually confronted with Witness A.
G. The Evidence of Witness D and Witness E
117. Witnesses A and D described in detail the treatment they received at the hands of the accused and Accused B in a convincing manner. The style of beatings described by Witness D in the Bungalow was consistent with that described by Witness E who, although aged sixteen at the material time, appeared confident of his recollection. Witness D, as a member of the HVO who was suspected by the accused and Accused B of having betrayed them to the ABiH, knew the Jokers well. Notwithstanding his detention and punishment at their hands, he returned to active duty with the HVO upon his release. Both Witness D and Witness E clearly described the roles played by the accused and Accused B at the Bungalow. There was nothing material to cast doubt on their testimony.
118. With respect to the dates involved, Witness D consistently said that he could not remember exact dates.147 He readily accepted the date shown on Defence Exhibit D10 as being the date of his release by the ABiH and identified his signature on the exhibit. He appeared not to have known Witness E beforehand as he was not sure about the name of "this person"148 although he recalled having been released together with a "younger man" and another "older man".
119. The Trial Chamber attaches no particular significance to the question whether Witness D walked home alone, or whether he was driven back together with Witness E after their release on 16 May 1993. It is sufficient that Witness D was arrested and taken to the Bungalow earlier than Witness E.
120. Having considered the evidence, the Trial Chamber is satisfied beyond reasonable doubt that the following findings may be made.
121. On or about 16 May 1993, Witness D was arrested and taken to the Bungalow by the accused and Accused B. He was interrogated and assaulted by both of them. Accused B in particular, beat him with his fists and on the feet and toes with a baton, in the presence of Witness E, and most of the time in the presence of the accused who was coming and going.
122. On or about 18 or 19 May 1993, Witness A was arrested and taken from her apartment in Vitez by several members of an elite unit of soldiers attached to the HVO and known as the Jokers. She was driven by car to the Bungalow, the headquarters of the Jokers. Soldiers and several commanders of different units were based at the Bungalow, among whom were the accused, Accused B, Vlado Santic and others.149
123. On arrival at the Bungalow, Witness A was taken to a nearby house, the Holiday Cottage, which formed part of the Bungalow complex. She entered a room described as the large room, which was where the Jokers lodged. She was told to sit down and was offered bread and pat‚ to eat. Around her, the soldiers, dressed in Jokers uniforms, awaited the arrival of the man referred to as `the Boss', who was going to deal with her. Witness A then heard someone announce the arrival of `Furundzija', and the man she has identified to the satisfaction of the Trial Chamber as being Anto Furundzija, the accused, entered the room holding some papers in his hands.
124. Witness A was interrogated by the accused. She 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 in the course of her interrogation by the accused. The purpose of this abuse was to extract information from Witness A about her family, her connection with the ABiH and her relationship with certain Croatian soldiers, and also to degrade and humiliate her. The interrogation by the accused and the abuse by Accused B were parallel to each other.
125. Witness A was left by the accused in the custody of Accused B, who proceeded to rape her, sexually assault her, and to physically abuse and degrade her.
126. Witness A was subjected to severe physical and mental suffering and public humiliation.
127. The interrogation of Witness A continued in the pantry, once more before an audience of soldiers. Whilst naked but covered by a small blanket, she was interrogated by the accused. She was subjected to rape, sexual assaults, and cruel, inhuman and degrading treatment by Accused B. Witness D was also interrogated by the accused and subjected to serious physical assaults by Accused B. He was made to watch rape and sexual assault perpetrated upon a woman whom he knew, in order to force him to admit allegations made against her. In this regard, both witnesses were humiliated.
128. Accused B beat Witness D and repeatedly raped Witness A. The accused was present in the room as he carried on his interrogations. When not in the room, he was present in the near vicinity, just outside an open door and he knew that crimes including rape were being committed. In fact, the acts by Accused B were performed in pursuance of the accused's interrogation.
129. It is clear that in the pantry, both Witness A and Witness D were subjected to severe physical and mental suffering and they were also publicly humiliated.
130. There is no doubt that the accused and Accused B, as commanders, divided the process of interrogation by performing different functions. The role of the accused was to question, while Accused B's role was to assault and threaten in order to elicit the required information from Witness A and Witness D.
A. Article 3 of the Statute (Violations of the Laws or Customs of War)
131. Article 3 of the Statute of the International Tribunal provides as follows:
The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property.
132. As interpreted by the Appeals Chamber in the Tadic Jurisdiction Decision,150 Article 3 has a very broad scope. It 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. It is immaterial whether the breach occurs within the context of an international or internal armed conflict.
133. It follows that the list of offences contained in Article 3 is merely illustrative; according to the interpretation propounded by the Appeals Chamber, and as is clear from the text of Article 3, this provision also covers serious violations of international rules of humanitarian law not included in that list. In short, more than the other substantive provisions of the Statute, Article 3 constitutes an `umbrella rule'. While the other provisions envisage classes of offences they indicate in terms, Article 3 makes an open-ended reference to all international rules of humanitarian law: pursuant to Article 3 serious violations of any international rule of humanitarian law may be regarded as crimes falling under this provision of the Statute, if the requisite conditions are met.
B. Torture in International Law
1. International Humanitarian Law
134. Torture in times of armed conflict is specifically prohibited by international treaty law, in particular by the Geneva Conventions of 1949151 and the two Additional Protocols of 1977.152
135. Under the Statute of the International Tribunal, as interpreted by the Appeals Chamber in the Tadic Jurisdiction Decision,153 these treaty provisions may be applied as such by the International Tribunal if it is proved that at the relevant time all the parties to the conflict were bound by them. In casu, Bosnia and Herzegovina ratified the Geneva Conventions of 1949 and both Additional Protocols of 1977 on 31 December 1992. Accordingly, at least common article 3 of the Geneva Conventions of 1949 and article 4 of Additional Protocol II, both of which explicitly prohibit torture, were applicable as minimum fundamental guarantees of treaty law in the territory of Bosnia and Herzegovina at the time relevant to the Indictment. In addition, in 1992, the parties to the conflict in Bosnia and Herzegovina undertook to observe the most important provisions of the Geneva Conventions, including those prohibiting torture.154 Thus undoubtedly the provisions concerning torture applied qua treaty law in the territory of Bosnia and Herzegovina as between the parties to the conflict.
136. The Trial Chamber also notes that torture was prohibited as a war crime under article 142 of the Penal Code of the Socialist Federal Republic of Yugoslavia, hereafter "SFRY", and that the same violation has been made punishable in the Republic of Bosnia and Herzegovina by virtue of the decree-law of 11 April 1992.155
137. The Trial Chamber does not need to determine whether the Geneva Conventions and the Additional Protocols passed into customary law in their entirety, as was recently held by the Constitutional Court of Colombia,156 or whether, as seems more plausible, only the most important provisions of these treaties have acquired the status of general international law. In any case, the proposition is warranted that a general prohibition against torture has evolved in customary international law. This prohibition has gradually crystallised from the Lieber Code157 and The Hague Conventions, in particular articles 4 and 46 of the Regulations annexed to Convention IV of 1907,158 read in conjunction with the `Martens clause' laid down in the Preamble to the same Convention.159 Torture was not specifically mentioned in the London Agreement of 8 August 1945 establishing the International Military Tribunal at Nuremberg, hereafter "London Agreement", but it was one of the acts expressly classified as a crime against humanity under article II(1)(c) of Allied Control Council Law No. 10,160 hereafter "Control Council Law No.10". As stated above, the Geneva Conventions of 1949 and the Protocols of 1977 prohibit torture in terms.
138. That these treaty provisions have ripened into customary rules is evinced by various factors. First, these treaties and in particular the Geneva Conventions have been ratified by practically all States of the world. Admittedly those treaty provisions remain as such and any contracting party is formally entitled to relieve itself of its obligations by denouncing the treaty (an occurrence that seems extremely unlikely in reality); nevertheless the practically universal participation in these treaties shows that all States accept among other things the prohibition of torture. In other words, this participation is highly indicative of the attitude of States to the prohibition of torture. Secondly, no State has ever claimed that it was authorised to practice torture in time of armed conflict, nor has any State shown or manifested opposition to the implementation of treaty provisions against torture. When a State has been taken to task because its officials allegedly resorted to torture, it has normally responded that the allegation was unfounded, thus expressly or implicitly upholding the prohibition of this odious practice. Thirdly, the International Court of Justice has authoritatively, albeit not with express reference to torture, confirmed this custom-creating process: in the Nicaragua case it held that common article 3 of the 1949 Geneva Conventions, which inter alia prohibits torture against persons taking no active part in hostilities, is now well-established as belonging to the corpus of customary international law and is applicable both to international and internal armed conflicts.161
139. It therefore seems incontrovertible that torture in time of armed conflict is prohibited by a general rule of international law. In armed conflicts this rule may be applied both as part of international customary law and - if the requisite conditions are met - qua treaty law, the content of the prohibition being the same.
140. The treaty and customary rules referred to above impose obligations upon States and other entities in an armed conflict, but first and foremost address themselves to the acts of individuals, in particular to State officials or more generally, to officials of a party to the conflict or else to individuals acting at the instigation or with the consent or acquiescence of a party to the conflict. Both customary rules and treaty provisions applicable in times of armed conflict prohibit any act of torture. Those who engage in torture are personally accountable at the criminal level for such acts. As the International Military Tribunal at Nuremberg put it in general terms: "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced".162 Individuals are personally responsible, whatever their official position, even if they are heads of State or government ministers: Article 7(2) of the Statute and article 6(2) of the Statute of the International Criminal Tribunal for Rwanda, hereafter "ICTR" are indisputably declaratory of customary international law.
141. It should be stressed that in international humanitarian law, depending upon the specific circumstances of each 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.
142. Under current international humanitarian law, 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. If carried out as an extensive practice of State officials, torture amounts to a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, thus constituting a particularly grave wrongful act generating State responsibility.
2. International Human Rights Law
143. The prohibition of torture laid down in international humanitarian law with regard to situations of armed conflict is reinforced by the body of international treaty rules on human rights: these rules ban torture both in armed conflict and in time of peace.163 In addition, treaties as well as resolutions of international organisations set up mechanisms designed to ensure that the prohibition is implemented and to prevent resort to torture as much as possible.164
144. It should be noted that the prohibition of torture laid down in human rights treaties enshrines an absolute right, which can never be derogated from, not even in time of emergency (on this ground the prohibition also applies to situations of armed conflicts). This is linked to the fact, discussed below, that the prohibition on torture is a peremptory norm or jus cogens. This prohibition is so extensive that States are even barred by international law from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture.165
145. These treaty provisions impose upon States the obligation to prohibit and punish torture, as well as to refrain from engaging in torture through their officials. In international human rights law, which deals with State responsibility rather than individual criminal responsibility, torture is prohibited as a criminal offence to be punished under national law; in addition, all States parties to the relevant treaties have been granted, and are obliged to exercise, jurisdiction to investigate, prosecute and punish offenders.166 Thus, in human rights law too, the prohibition of torture extends to and has a direct bearing on the criminal liability of individuals.
146. The existence of this corpus of general and treaty rules proscribing torture shows that the international community, aware of the importance of outlawing this heinous phenomenon, has decided to suppress any manifestation of torture by operating both at the interstate level and at the level of individuals. No legal loopholes have been left.
3. Main Features of the Prohibition Against Torture in International Law
147. There exists today universal revulsion against torture: as a USA Court put it in Filartiga v. Pe•a-Irala, "the torturer has become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind".167 This revulsion, as well as the importance States attach to the eradication of torture, has led to the cluster of treaty and customary rules on torture acquiring a particularly high status in the international normative system, a status similar to that of principles such as those prohibiting genocide, slavery, racial discrimination, aggression, the acquisition of territory by force and the forcible suppression of the right of peoples to self-determination. The prohibition against torture exhibits three important features, which are probably held in common with the other general principles protecting fundamental human rights.
(a) The Prohibition Even Covers Potential Breaches
148. Firstly, given the importance that the international community attaches to the protection of individuals from torture, the prohibition against torture is particularly stringent and sweeping. States are obliged not only to prohibit and punish torture, but also to forestall its occurrence: it is insufficient merely to intervene after the infliction of torture, when the physical or moral integrity of human beings has already been irremediably harmed. Consequently, States are bound to put in place all those measures that may pre-empt the perpetration of torture. As was authoritatively held by the European Court of Human Rights in Soering,168 international law intends to bar not only actual breaches but also potential breaches of the prohibition against torture (as well as any inhuman and degrading treatment). It follows that international rules prohibit not only torture but also (i) the failure to adopt the national measures necessary for implementing the prohibition and (ii) the maintenance in force or passage of laws which are contrary to the prohibition.
149. Let us consider these two aspects separately. Normally States, when they undertake international obligations through treaties or customary rules, adopt all the legislative and administrative measures necessary for implementing such obligations. However, subject to obvious exceptions, failure to pass the required implementing legislation has only a potential effect: the wrongful fact occurs only when administrative or judicial measures are taken which, being contrary to international rules due to the lack of implementing legislation, generate State responsibility. By contrast, in the case of torture, the requirement that States expeditiously institute national implementing measures is an integral part of the international obligation to prohibit this practice. Consequently, States must immediately set in motion all those procedures and measures that may make it possible, within their municipal legal system, to forestall any act of torture or expeditiously put an end to any torture that is occurring.
150. Another facet of the same legal effect must be emphasised. Normally, the maintenance or passage of national legislation inconsistent with international rules generates State responsibility and consequently gives rise to a corresponding claim for cessation and reparation (lato sensu) only when such legislation is concretely applied.169 By contrast, in the case of torture, the mere fact of keeping in force or passing legislation contrary to the international prohibition of torture generates international State responsibility. The value of freedom from torture is so great that it becomes imperative to preclude any national legislative act authorising or condoning torture or at any rate capable of bringing about this effect.
(b) The Prohibition Imposes Obligations Erga Omnes
151. Furthermore, the prohibition of torture imposes upon States obligations erga omnes, that is, obligations owed towards all the other members of the international community, each of which then has a correlative right. In addition, the violation of such an obligation simultaneously constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued.
152. Where there exist international bodies charged with impartially monitoring compliance with treaty provisions on torture, these bodies enjoy priority over individual States in establishing whether a certain State has taken all the necessary measures to prevent and punish torture and, if they have not, in calling upon that State to fulfil its international obligations. The existence of such international mechanisms makes it possible for compliance with international law to be ensured in a neutral and impartial manner.
(c) The Prohibition Has Acquired the Status of Jus Cogens
153. While the erga omnes nature just mentioned appertains to the area of international enforcement (lato sensu), the other major feature of the principle proscribing torture relates to the hierarchy of rules in the international normative order. Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even "ordinary" customary rules.170 The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.
154. Clearly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community. Furthermore, this prohibition is designed to produce a deterrent effect, in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate.
155. The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter- state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio,171 and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law.172 If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition. Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful; or the victim could bring a civil suit for damage in a foreign court, which would therefore be asked inter alia to disregard the legal value of the national authorising act. What is even more important is that perpetrators of torture acting upon or benefiting from those national measures may nevertheless be held criminally responsible for torture, whether in a foreign State, or in their own State under a subsequent regime. In short, in spite of possible national authorisation by legislative or judicial bodies to violate the principle banning torture, individuals remain bound to comply with that principle. As the International Military Tribunal at Nuremberg put it: "individuals have international duties which transcend the national obligations of obedience imposed by the individual State".173
156. Furthermore, at the individual level, that is, that of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction. Indeed, it would be inconsistent on the one hand to prohibit torture to such an extent as to restrict the normally unfettered treaty- making power of sovereign States, and on the other hand bar States from prosecuting and punishing those torturers who have engaged in this odious practice abroad. This legal basis for States' universal jurisdiction over torture bears out and strengthens the legal foundation for such jurisdiction found by other courts in the inherently universal character of the crime. It has been held that international crimes being universally condemned wherever they occur, every State has the right to prosecute and punish the authors of such crimes. As stated in general terms by the Supreme Court of Israel in Eichmann, and echoed by a USA court in Demjanjuk, "it is the universal character of the crimes in question i.e. international crimes which vests in every State the authority to try and punish those who participated in their commission".174
157. It would seem that other consequences include the fact that torture may not be covered by a statute of limitations, and must not be excluded from extradition under any political offence exemption.
4. Torture Under Article 3 of the Statute
158. Torture is not specifically prohibited under Article 3 of the Statute. As noted in paragraph 133 of this Judgement, Article 3 constitutes an `umbrella rule', which makes an open-ended reference to all international rules of humanitarian law. In its "Decision On The Defendant's Motion To Dismiss Counts 13 and 14 of The Indictment (Lack Of Subject Matter Jurisdiction)" issued on 29 May 1998, the Trial Chamber held that Article 3 of the Statute covers torture and outrages upon personal dignity including rape, and that the Trial Chamber has jurisdiction over alleged