## Facts

- Anto Furundzija was a commander in the Croatian Defence Council (HVO) military police special unit known as the “Jokers,” operating in the Lašva Valley area of Bosnia and Herzegovina during the Bosnian conflict.
- In May 1993, Bosnian Muslim civilians were detained and questioned at the Jokers’ headquarters in Nadioci.
- During one interrogation, Furundzija questioned a female detainee while another Jokers member assaulted her, including forced sexual acts and rape, causing severe physical and mental suffering.
- The interrogation and abuse were carried out to obtain information and to intimidate and punish, in the setting of hostilities between Bosnian Croats and Bosnian Muslims.
- Furundzija did not physically commit the rape, but he remained present, continued the questioning, and exercised authority over the situation.
- Furundzija was charged under Article 3 of the ICTY Statute (violations of the laws or customs of war) with:
  - Torture; and
  - Outrages upon personal dignity, including rape.
- The ICTY Trial Chamber II convicted Furundzija and imposed a 10-year prison sentence.
- On appeal, Furundzija challenged, among other matters, the Tribunal’s power to prosecute the charged conduct and asserted fair-trial errors, including an impartiality challenge to a trial judge based on prior work connected to condemnation of conflict-related sexual violence.

## Issues

1. Whether the ICTY had jurisdiction under Article 3 of its Statute to prosecute torture and outrages upon personal dignity, including rape, committed in connection with the armed conflict in central Bosnia.
2. What elements define the war crime of torture under customary international law, including whether the prohibition of torture has peremptory (jus cogens) status.
3. Whether rape and other sexual violence committed during detention or interrogation may amount to torture and/or an outrage upon personal dignity under international humanitarian law.
4. What standards govern individual criminal responsibility for (a) co-perpetration of torture and (b) aiding and abetting outrages upon personal dignity, including whether authoritative presence and continued participation in an interrogation can substantially assist a rape.
5. Whether a trial judge’s prior participation in a UN body that addressed sexual violence in the former Yugoslavia required disqualification for lack of impartiality.

## Decision

- The Trial Chamber found that an armed conflict existed in the relevant area and time, and that the charged conduct had the required connection to the conflict to fall within Article 3.
- The Trial Chamber held Furundzija guilty of torture (Count 1) as a co-perpetrator based on his leading role in the interrogation during which severe suffering was inflicted for prohibited purposes.
- The Trial Chamber held Furundzija guilty of aiding and abetting outrages upon personal dignity, including rape (Count 2), concluding his presence, authority, and conduct during the interrogation substantially contributed to the sexual violence.
- The Trial Chamber sentenced Furundzija to 10 years’ imprisonment.
- The ICTY Appeals Chamber affirmed the convictions and the 10-year sentence, rejecting jurisdictional and fair-trial challenges.
- The Appeals Chamber rejected the impartiality claim, holding that prior involvement in general UN work condemning sexual violence did not, without case-specific indicators, create a reasonable appearance of bias.

## Legal Principles

- Torture under customary international law involves the intentional infliction, by act or omission, of severe physical or mental pain or suffering for a prohibited purpose (such as obtaining information, intimidation, punishment, or discrimination), by or with the involvement (including acquiescence) of a person acting in an official capacity.
- The prohibition of torture is a peremptory (jus cogens) norm of general international law; it is non-derogable and binds all states, supporting duties to prevent and punish torture.
- Sexual violence, including rape, can constitute torture when it causes severe physical or mental suffering and is carried out for a prohibited purpose, including as part of interrogation.
- Outrages upon personal dignity under Article 3 include humiliating and degrading treatment such as rape and sexual assaults committed in the context of and connected to an armed conflict.
- Aiding and abetting requires practical assistance, encouragement, or moral support that has a substantial effect on the commission of the crime, coupled with knowledge that the accused’s acts assist the crime; the aider and abettor need not share the principal perpetrator’s intent.
- Co-perpetration can be established where an accused plays a leading role and shares intent in the commission of torture, even if another participant applies the immediate physical force.
- Judicial impartiality is assessed objectively; prior participation in general condemnations of categories of international crimes does not, by itself, establish bias toward a particular accused.

## Conclusion

In *Prosecutor v. Furundzija*, as reported at 121 International Law Reports 213 (2002), the ICTY upheld Furundzija’s convictions and 10-year sentence for torture and for aiding and abetting outrages upon personal dignity, including rape, arising from an interrogation in which a detainee was sexually assaulted. The Tribunal recognized torture’s prohibition as jus cogens, confirmed that rape in interrogation can meet the legal definition of torture, applied standards for co-perpetration and aiding and abetting based on substantial contribution and knowledge, and rejected a judicial-bias challenge grounded in a judge’s prior UN service.


Prosecutor v. Furundzija, 121 International Law Reports 213 (2002)