Prosecutor v. Kunarac (Appellate Judgment)

K, RK and V are Bosnian Serbs who were involved in a Serb campaign against Bosnian Muslims in the area of Foca between April 1992 until at least February 1993. One purpose of the campaign was to cleanse the Foca area of Muslims. In addition to the Muslim armed forces, a target to the campaign was Muslim civilians, particularly Muslim women. The general method used was expulsion through terror. The terror was carried out in multiple ways, including the violent destruction of Muslim religious symbols. Civilian Muslim men and women were rounded up in the villages surrounding Foca and the men and women were separated. Many men were forced to spend long periods of detention in prison and were mistreated. Some men were killed on the spot, some even in front of their families. The women and children were taken to collection points and then detained at various places, including a high school and a sports hall. Many of the women were raped, often multiple times and sometimes in front of many people.

K, RK and V were charged with violations of the law or customs of war and with crimes against humanity – rape, torture, enslavements and outrages upon personal dignity.

[Adapted from INTERIGHTS summary, with permission]

The Appeals Chamber held:

(1) with regard to the common grounds of appeal under Art 3, the Trial Chamber erred in concluding that there was an armed conflict and also establishing the nexus of criminal conduct relating to such a conflict;

(2) the prosecutor did not have to prove that there was an armed conflict in each and every square inch of the area but exists across the entire territory under the control of the warring parties. The Court also held that in showing that there was a nexus between the armed conflict and the criminal behaviour, it is sufficient to show that the existence of the armed conflict must have played a substantial part in the perpetrator’s ability to commit the crime;

(3) with regard to the charges of rape, the appellants submitted that the crime of rape requires force or threat of force and the victim’s ‘continuous’ or ‘genuine’ resistance; the Trial Chamber was correct in finding that the central element of rape is the victim’s lack of consent. The coercive circumstance present in this case made the victim’s consent to the instant sexual acts impossible;

(4) the appellants asserted that the constitutive elements of the crime of torture had not been proven beyond all reasonable doubt; and

(5) some acts establish per se the suffering of those upon whom they are inflicted, and rape is obviously such an act.

[Adapted from INTERIGHTS summary, with permission]

“132. For the most part, the Appellants in this case were convicted of raping women held in de facto military headquarters, detention centres and apartments maintained as soldiers’ residences. As the most egregious aspect of the conditions, the victims were considered the legitimate sexual prey of their captors. Typically, the women were raped by more than one perpetrator and with a regularity that is nearly inconceivable. (Those who initially sought help or resisted were treated to an extra level of brutality). Such detentions amount to circumstances that were so coercive as to negate any possibility of consent.”

“151. Severe pain or suffering, as required by the definition of the crime of torture, can thus be said to be established once rape has been proved, since the act of rape necessarily implies such pain or suffering. The Appeals Chamber thus holds that the severe pain or suffering, whether physical or mental, of the victims cannot be challenged and that the Trial Chamber reasonably concluded that that pain or suffering was sufficient to characterise the acts of the Appellants as acts of torture. The Appellants’ grounds of appeal in this respect are unfounded and, therefore, rejected.”

“166. Since the nature of the acts committed by the Appellant against FWS-75, FWS-87, A.S. and A.B. undeniably reaches the objective threshold for the crime of outrages upon personal dignity set out in the Trial Judgement, the Trial Chamber correctly concluded that any reasonable person would have perceived his acts “to cause serious humiliation, degradation or otherwise be a serious attack on human dignity”. Therefore, it appears highly improbable that the Appellant was not, at the very least, aware that his acts could have such an effect. Consequently this ground of appeal is rejected.”