Foca Rape Case

The Accused

Dragoljub Kunarac, a former commander of a 15-man reconnaissance unit, was sentenced to 28 years imprisonment.

The judges rejected five of the 16 counts against the accused, but the remainder, charging Kunarac with the rape of several girls and the procurement of women and girls for other soldiers, were proved beyond reasonable doubt.

Judge Florence Mumba told Kunarac, "You abused and ravaged Muslim women because of their ethnicity, and from among their number, you picked whomsoever you fancied on a given occasion... By your natural authority [among the soldiers] you could easily have put an end to the women's suffering.

"Your active participation in this nightmarish scheme of sexual exploitation is therefore even more repugnant. You not only mistreated women and girls yourself, but you also organised their transfer to other places, where, as you were fully aware, they would be raped and abused by other soldiers."

Mumba concluded Kunarac's behaviour "calls for a severe penalty".

Radomir Kovac was sentenced to 20 years imprisonment.

"Particularly appalling and deplorable is your treatment of 12-year-old AB, a helpless little child...you abused sexually in the same way as the other girls. You finally sold her like an object," said Mumba.

Of the other three girls, Mumba said, "you kept as your...slaves, to be used whenever the desire took you, to be given to whomsoever you wished to show a favour. You relished in the absolute power you exerted over their lives, which you made abundantly clear by making them dance naked on a table while you watched. When they had served their purpose, you sold them too."

The majority of charges of rape against the third accused, Zoran Vukovic, were not proved beyond reasonable doubt.

But the rape of one 15 year-old-girl, identified only as FWS-50, qualified in four counts as rape and torture - as a crime against humanity (2 counts) and violation of the laws or customs of war (2 counts).

Addressing Vukovic Mumba said, "You showed a total lack of remorse and moral stature by talking about your own daughter after having raped Witness FWS-50, who was only 15-years-old at the time, and mocked her in her grief by saying that you could have treated her much worse still. Your actions call for serious punishment. The Trial Chamber therefore sentences you, Zoran Vukovic, to a single sentence of 12 years imprisonment."

This trial and verdicts have two very important aspects for international law. This is the first conviction by an international court for sexual enslavement and the first trial to deal exclusively with sexual crimes per se rather than grouping such offences with killings and similar war crimes as the "accompanying phenomena" of war.

Enslavement

For the first time sexual enslavement has been punished as a crime against humanity.

"The definition of slavery as set forth in 1926 has been fairly broad and it relied on the powers of ownership," said Peggy Kuo, one of the four members of the prosecution team. " This case clarifies and gives more concrete meaning to those abstract terms. It makes clear that slavery is not only forced labour but can also be sexual in nature."

Following the take-over of several Bosniak (Bosnian Muslim) villages in the region surrounding Foca in July 1992, Bosnian Serb forces detained male survivors in the town's prison, while women and children were taken to a motel in Buk Bijela. Some of the women were later deported, but some continued to be held in the Foca secondary school building and later at a sports hall in the town.

Young women and girls held at these centres were raped almost nightly. Some were taken from the premises to various apartments and houses around the town where soldiers were billeted. Several girls were kept for months where they were placed entirely at the disposal of the soldiers. The women cooked and cleaned for the soldiers, some were sold or "handed on" to other soldiers.

"Detaining or keeping someone in captivity, would...usually not constitute enslavement," the judgement said. But the judges agreed with the prosecutors' arguments that other elements of enslavement existed in the case of Bosniaks from Foca - "control of someone's movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force or threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour."

In addition to the three men convicted last week, four others have been publicly indicted with rapes in Foca. Two, Dragan Gagovic and Janko Janjic, died resisting arrest. Gojko Jankovic and Dragan Zelenovic are still at large.

Cumulative charges

The Foca judgement contains legal findings on another interesting point - cumulative charges.

As with the majority of indictments issued by the tribunal, Kunarac, Kovac and Vukovic were charged cumulatively where one offence was listed under two articles - for instance, rape under Article 5 (crime against humanity) and Article 3 (violation of the laws or customs of war).

Two days earlier the appeals chamber in the Celebici camp case ruled cumulative charging was acceptable, but that cumulative convictions were permissible only "if each statutory provision (article) involved has a materially distinct element not contained in the other."

An element is materially distinct from another, the ruling stated, if it requires proof of a fact not required by the other.

The Foca trial chamber immediately applied this approach. Article 3 requires a close link between the acts of an accused and the armed conflict. Article 5 requires a widespread or systematic attack on a civilian population. These two distinct elements were deemed to have been in existence, which made possible the convictions for rape under both articles and for torture under both articles.

The Appeals chamber's ruling has also been applied when two different offences were charged under a single article - for instance rape and torture under either Article 3 or Article 5.

The acts had to have materially distinct elements, which allowed them both to be present under one article. For instance, rape had the sexual penetration element and torture the severe infliction of pain and suffering aimed at punishing, intimidating, discriminating and so forth. Thus the convictions of the two offences under one article were deemed permissible in Foca case.

Crimes against humanity

This is the first sentence at The Hague tribunal in which sexual crimes were qualified as crimes against humanity.

The tribunal has already heard one trial where rape was sanctioned as a war crime. Ante Furundzija was sentenced to ten years imprisonment in 2000. The rape charges related to an offence committed by one of Furundzija's subordinates during an interrogation. Furundzija was accused of abetting the rapist in order to extract answers from the woman being questioned. This was a case of violation of the laws or customs of war but not a crime against humanity.

In 1998 and 2000, the International Tribunal for Rwanda sentenced Jean Akayesu and Alfred Musema for rapes which were qualified as crimes against humanity, but the case of the two accused differs from Foca rapes because they were not tried exclusively for sexual offences.

The Foca rapes qualified as a crime against humanity, the judges concluded, because they formed part of a campaign of systematic attacks on the Muslim civilian population in the wider area of Foca and because the offences had characteristics of enslavement.

Reactions

Although the judges acquitted the three accused on several counts which were deemed "not proven beyond reasonable doubt" the prosecution team was generally satisfied with the sentences handed down to Kunarac, Kovac and Vukovic. Prosecutor Peggy Kuo said, "The court took these crimes very seriously."

Defence lawyers made no comments after the sentencing but it is expected appeals will be lodged on behalf of all three men.

Various human rights organisations hailed the verdicts as a significant step towards facilitating the punishment of sexual crimes.

But some of the Foca victims were critical of the outcome. While prosecutors stressed the courage of victims who came to testify before the tribunal, some of the witnesses said they regretted appearing because they had expected much tougher sentences.

"I am disappointed with the sentences - given everything that they have done. I no longer believe in those sentences and will not testify before the tribunal," witness 96 told the Dutch television channel AVRO.