Commander in the Serbian Army of Bosnia.

Dragoljub Kunarac was found guilty of crimes against humanity and of violations of the laws or customs of war. On 12 June 2002, the International Criminal Tribunal for Former Yugoslavia Appeals Chamber of the confirmed the 28-year sentence handed down by the Trial Chamber on 22 February 2001.

• Dragoljub Kunarac\'s case is joined with those of Radomir Kovac and Zoran Vukovic.

Identity

• Dragoljub Kunarac, alias « Zaga » and « Dragan » was born on 15 May 1960 in Foca. Before the war he lived for several years in Tivat, Montenegro. From June 1992 to at least February 1993, Dragoljub Kunarac commanded a special reconnaissance unit in the Bosnian Serb army.

Charges

• Dragoljub Kunarac is accused of crimes against humanity and violations of the laws or customs of war for acts of torture, rape, enslavement and plunder of private property, in the framework of events related to the detention of women and children in the Partizan sports Hall and in the buildings of the Kalinovik Primary School, in the municipalities of Foca and Kalinovik, Bosnia- Herzegovina.

Proceedings

• His indictment was issued on 26 June 1996, following incidents in the Foca camp, south-east of Bosnia-Herzegovina.
• He gave himself up on 4 March 1998 and was transferred to The Hague Tribunal on 5 March 1998.
• On 13 March 1998 he pleaded guilty to crimes against humanity for rape. The Chamber finally decided that Dragoljub Kunarac pleaded non guilty, estimating that he did not fully understand the nature and the consequences of the accusations against him when he took his decision.
• Following two amendments of the indictment, he twice pleaded not guilty on 25 August 1998 and 24 September 1999.

Trial Chamber

• Judges: Florence Mumba, David Hunt , Fausto Pocar.
• Prosecutor: Dirk Ryneveld, Peggy Kuo, Hilgegard Uertz-Retzlaff.
• Defence: Slavisa Prodanovic.

Trial

• The trial began on 20 March 2000.
• Dragoljub Kunarac was the first to testify for the Defence.
• The trial ended on 22 November 2000. The Defence asked for the acquittal of the accused, while the Prosecutor asked for 35 years\' imprisonment against Dragoljub Kunarac.

Judgement

• Dragoljub Kunarac was found guilty of crimes against humanity on the counts of enslavement, rape and torture as well as violations of the laws and customs of war on the counts of rape and torture.
• Dragoljub Kunarac was sentenced to 28 years\' imprisonment on 22 February 2001.

Appeal

• Dragoljub Kunarac filed for appeal against the judgement and the sentence on 7 March 2001.

Appeals Chamber

• Judges : Claude Jorda, Mohamed Shahabuddeen, Wolfgang Schomburg, Mehmet Güney. Theodor Meron.
• Prosecutor : Anthony Carmona, Norul Rashid, Susan Lamb, Helen Brady.
• Defence : Slavisa Prodanovic, Dejan Savatic.

Judgement

• All Dragoljub Kunarac grounds for appeal were rejected and his sentence of 28 years\' imprisonment was confirmed by the ICTY on 12 June 2002.
• With regard to the common grounds of appeal relating to Article 5 of the Statute (crimes against humanity), the Appeals Chamber considered that the Trial Chamber had correctly defined the adjective « widespread » as referring inter alia to the number of victims of the attack and to its being carried out on a wide scale and the adjective « systematic » as referring to the organised or repetitive character of the acts of violence.
• Moreover, the Appeals Chamber recalled that the attack either had to be « widespread » or « systematic », specifying that the requirement is disjunctive rather than cumulative. In relation to the circumstances of this case, it concluded that the attack against the non-Serb civilian population of Foca was systematic.
• As for the grounds of appeal relating to the definition of the crime of rape, the Appeals Chamber rejected Dragoljub Kunarac\'s « resistance » requirement, justified neither in law nor in fact, and that the use of force in itself is not an element constituting rape.
• As far as the definition of the crime of torture was concerned, The Chamber specified that some acts establish per se the suffering of those upon whom they are inflicted. Rape is obviously such an act.
• Regarding grounds relating to sentencing, considering the prevailing practice in the former Yugoslav Republic of Bosnia and Herzegovina, the Appeals Chamber considered that the age of 19 was sufficiently close to the protected age of special vulnerability for it to view that age as an aggravating factor.
• In addition, the Appeals Chamber declared that Dragoljub Kunarac\'s discriminatory intent could be regarded as an aggravating factor. Indeed, while discriminatory intent can not be regarded as an aggravating factor when there is persecution (because this intention is an indispensable legal ingredient of that offence), it can be so when any other crime against humanity mentioned under Article 5 is committed because this intention is not required.
• Finally, the Appeals Chamber held that the family aspect should have been taken into consideration as a mitigating factor. However, in view of the number and severity of the offences committed, it found that the sentence imposed by the Trial Chamber was the appropriate one.
• Dragoljub Kunarac was transferred to Germany to serve his sentence.