Dragoljub Kunarac

31.05.2016 ( Last modified: 10.06.2016 )
Trial Watch would like to remind its users that any person charged by national or international authorities is presumed innocent until proven guilty.

facts

Dragoljub Kunarac was born on 15 May 1960 in Foca (Bosnia-Herzegovina).

From April 1992 until at least February 1993, the Foca region was the scene of a conflict which opposed the Serbs and Muslims of Bosnia. The Serb military forces had entirely occupied the town of Foca (south-east of Sarejevo) and the surrounding villages. This area continued to be under siege until mid-July 1992.

Dragoljub Kunarac was at the head of a special unit for reconnaissance which was part of the Foca tactical group of the Bosnian Serb camp. He was a well informed soldier, having access to the highest ranks of the military command in the zone and was in charge of gathering information about the enemy. He was found guilty of the rape of several Muslim women, of inciting his soldiers to commit collective rape, and of forcing women into slavery. He was thereby judged to be guilty of crimes against humanity (torture, enslavement and rape), and of violations of the laws and customs of war (torture and rape).

Soon after the Serb forces seized Foca, they began to arrest its Muslim and Croatian inhabitants. The Serb authorities then reportedly separated the men from the women and illegally detained thousands of Muslims and Croatians in several long or short term detention centres, or assigned them to house arrest. During these arrests, several civilians were killed, beaten or subjected to sexual violence.

Dragoljub Kunarac was cited in the indictment as being the commander of a special reconnaissance unit of the Bosnian Serb Army from June 1992 until at least February 1993.
In his capacity as commander of these soldiers, Dragoljub Kunarac was responsible for the acts of the soldiers subordinate to him and knew or had reason to know that his subordinates sexually assaulted Muslim women. He was personally said to have been involved in sexual assaults and rape of women.

Kunarac gave himself up voluntarily on 4 March 1998, and was handed over to the International Criminal Tribunal for the former Yugoslavia (ICTY) the following day.

legal procedure

Kunarac gave himself up voluntarily on 4 March 1998, and was handed over to the International Criminal Tribunal for the former Yugoslavia (ICTY) the following day.

At his first court appearance, he pleaded not guilty to all of the counts with which he was charged.

Dragoljub Kunarac was indicted on the basis of his individual criminal responsibility (Art.7 (1) ICTY Statute) and/or alternatively on the basis of his responsibility as hierarchical superior (Art. 7 (3) ICTY Statute) for:
– crimes against humanity (Art. 5 ICTY Statute: torture, rape and enslavement);
– violations of the laws and customs of war (Art. 3 ICTY Statute: rape, outrages upon personal dignity, plunder of private property and torture).

His trial, which was heard at the same time as that of Radomir Kovac and Zoran Vukovic, (see “related cases”), opened on 20 March 2000.

On 22 February 2001, the First Trial Chamber of the ICTY sentenced Dragoljub Kunarac to 28 years in prison, judging him to be guilty of torture, rape and enslavement as crimes against humanity and/or as violations of the laws and customs of war.

On 12 June 2002, the Appeals Chamber of the ICTY confirmed the sentence of 28 years imprisonment.

Dragoljub was transferred to Germany on 12 December 2002 to serve out the remainder of his sentence.

spotlight

The decision of 22 February 2001 became the first case in which the ICTY handed down a sentence for rape as a crime against humanity.

It was also the first case at the ICTY for which sentences were pronounced for enslavement as a crime against humanity.

In the decision, the Appeals Chamber also defined torture and stated that it did not have to be the fact of a person acting in an official capacity to qualify as torture:
– “The definition of torture has the following elements:
“(i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental. (ii) The act or omission must be intentional. (iii) The act or omission must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.” (Kunarac, Kovac and Vukovic, Appeals Chamber, 12 June 2002, §. 142)
– “[T]he public official requirement is not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention.” (Kunarac, Kovac and Vukovic, Appeals Chamber, 12 June 2002, §. 148)

context

INTERNATIONAL CRIMINAL TRIBUNAL FOR FORMER YUGOSLAVIA

The conflict in former Yugoslavia from 1991 to 1999, shocked international public opinion because of the abuses revealed by the press, which were committed by all parties to the conflict (massacres, forced displacements of population, concentration camps …). The conflict is considered to consist of several separate conflicts, which were ethnic in nature – the war in Slovenia (1991), the war in Croatia (1991-1995), the war in Bosnia and Herzegovina (1992-1995) and the war Kosovo (1998-1999), which also involved the NATO bombing of Yugoslavia in 1999.

The conflicts accompanied the break-up of Yugoslavia, when the constituent republics declared their independence. The wars mostly ended after peace accords were signed, and new republics were given full international recognition of their statehood.

In order to restore peace and security in the region, the Security Council acting under Chapter VII of UN Charter, created on 25 May 1993, by Resolution 827, the International Criminal Tribunal for the Former Yugoslavia (ICTY). It was determined that pursuant to numerous reports of, among other, mass killings, systematic detention, rapes, practice of “ethnic cleansing”, transfers, etc., these acts constituted a threat to international peace and security, necessitating a reaction by Security Council. As the Tribunal was created during the ongoing conflict, the Security Council expressed its hopes that ICTY would contribute to halting violations in the region. Its headquarters are in The Hague, Netherlands.

The Tribunal has jurisdiction to prosecute persons responsible for serious violations of international humanitarian law – grave breaches of Geneva Conventions, violations of laws and customs of war, genocide and crimes against humanity – allegedly committed in the territory of the former Yugoslavia after 1 January 1991, (no end date was specified). Since its creation, the ICTY has indicted more than 160 people, including heads of states and government members.

The Tribunal’s mandate was originally meant to expire on 31 December 2009, but the Security Council voted unanimously to extend the mandate of the Court with several judges, including permanent judges, so that the ongoing trials can be completed. According to the “ICTY Completion Strategy Report” from 18 May 2011, all trials were supposed to be completed by the end of 2012, and all the appeals by the end of 2015. The exceptions were cases of Radovan Karadzic, Ratko Mladic and Goran Hadzic.

The Security Council adopted resolution 1966 on 22 December 2010, establishing International Residual Mechanism for Criminal Tribunals. The ICTY residual mechanism began functioning on 1 July 2013.

The Tribunal was called to finish its work by the end of 2014, in order to prepare closure and transfer of cases to the Residual Mechanism. The Mechanism is a small and temporary body, which plays important role in ensuring that the completion strategy of ICTY does not result in impunity of fugitives and in injustice. It is conducting all outstanding first instance trials, including those of Karadzic, Mladic and Hadzic. It is also to complete all appeals proceedings that were filed before 1 July 2013.

The ICTY is not the only court with jurisdiction to try alleged perpetrators of serious violations of international humanitarian law committed in the former Yugoslavia. The Tribunal has concurrent jurisdiction with national courts. However, it takes precedence over them and may require the referral from the national court at any stage of the proceedings (Article 9 of the ICTY Statute). The Statute does not elaborate how the primacy is to be exercised, but it was asserted by the judges of the ICTY in the Rules of Procedure and Evidence. The primacy can be asserted in three cases: when an international crime is intentionally or unwittingly prosecuted before national court as an “ordinary criminal offence”, when a national court is unreliable, or when the case is closely related, or may be relevant to other cases being tried by the ICTY.

NATIONAL JURISDICTIONS

National courts also have jurisdiction to prosecute alleged perpetrators of serious violations of international humanitarian law.

In the former Yugoslavia, the trials of those accused of war crimes have been opened by the courts of Bosnia and Herzegovina. The Section for War Crimes was set up in the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina. The Special Chamber for War Crimes has jurisdiction to prosecute the most serious alleged war crimes committed in Bosnia, and was created to relieve the ICTY, so that it can focus on criminals of high rank. Its establishment was also considered necessary for effective war crimes prosecution in Bosnia. The opening of the Special Chamber was on 9 March 2005.

Additionally, pursuant to UN Security Council Resolution 1244 from 10 June 1999, UN administration was created in Kosovo. Consequently, in 2000 “Regulation 64” Panels in Courts of Kosovo were created, which are mixed chambers at the local courts. They have two international judges and one national. These panels work in collaboration with the ICTY. They have jurisdiction over those responsible for genocide, war crimes and crimes against humanity. They focus on prosecuting lower ranking offenders.

In Serbia, the Office of the War Crimes Prosecutor was established on 1 July 2003. It was created to detect and prosecute perpetrators of criminal offenses against humanity and international law, and offences recognised by the ICTY Statute, regardless of the nationality, citizenship, race or religion of the perpetrator and the victim, as long as the acts were committed on the territory of former Yugoslavia after 1 January 1991. Its seat is in Belgrade, Serbia.

Other relevant national jurisdictions are under the principle of universal jurisdiction, which allows states with a specific legal basis, to try perpetrators of serious crimes regardless of their nationality or that of the victims and regardless of where the crime was committed.