## Facts

- During the 1993 armed conflict in Bosnia and Herzegovina, Anto Furundžija was a local commander and interrogator for the Croatian Defence Council’s “Jokers” unit in the Lašva Valley.
- At a unit-controlled cottage, a detained civilian woman (“Witness A”) was interrogated about alleged enemy activity.
- During the interrogation, another unit member threatened Witness A with a knife and raped her.
- Furundžija directed and conducted the interrogation, remained physically present throughout the threats and rape, and did not intervene.
- The prosecution charged Furundžija under Article 3 of the ICTY Statute with (1) torture and (2) outrages upon personal dignity, including rape, arising from the same incident.

## Issues

1. Whether the charged acts occurred in the context of an armed conflict and had a sufficient nexus to qualify as violations of the laws or customs of war under Article 3 of the ICTY Statute.
2. Whether the treatment of Witness A, including rape during interrogation and threats, constituted torture and/or outrages upon personal dignity (including rape) as war crimes.
3. Whether Furundžija incurred individual criminal responsibility for aiding and abetting, although he did not physically commit the rape, based on his presence, authority, and conduct.
4. What customary international law rules govern torture, including whether the prohibition of torture is a peremptory norm (jus cogens) creating obligations owed erga omnes.

## Decision

- The Trial Chamber found an armed conflict existed at the relevant time and that the crimes were sufficiently connected to the conflict to fall within Article 3.
- The Chamber held that the interrogation setting, knife threats, and rape constituted torture and also constituted outrages upon personal dignity, including rape, as war crimes.
- Furundžija was found guilty as an aider and abettor of:
  - Torture (Count 1), and
  - Outrages upon personal dignity, including rape (Count 2).
- The Chamber imposed a term of imprisonment.

## Legal Principles

- Aiding and abetting (actus reus) consists of acts, including moral support or encouragement, that assist the principal and have a substantial effect on the commission of the crime; assistance need not be tangible or indispensable.
- Presence can constitute aiding and abetting when combined with authority and conduct that provide moral support to the principal during the commission of the crime.
- Aiding and abetting (mens rea) requires knowing participation: awareness of one’s contribution and a conscious decision to participate in the commission of the offense.
- Torture under customary international law involves intentional infliction of severe physical or mental pain or suffering for a prohibited purpose (such as obtaining information, punishment, intimidation, or discrimination); rape in detention/interrogation can satisfy these elements.
- Rape and coercive sexual humiliation against persons under control of a party to the conflict constitute serious outrages upon personal dignity and may also qualify as torture when the requisite elements are met.
- The prohibition of torture is a norm of customary international law of peremptory character (jus cogens), generating obligations owed erga omnes, including duties to suppress and punish torture and to prosecute or extradite suspected torturers.

## Conclusion

The ICTY held Furundžija criminally responsible for aiding and abetting torture and rape based on his authoritative presence and conduct during an interrogation, and it articulated influential rules on complicity, the treatment of sexual violence as torture and an outrage upon personal dignity, and torture’s status as a jus cogens norm imposing obligations on all states.


Prosecutor v. Furundžija, Case No. IT-95-17/1-T (Int’l Crim. Trib. for the Former Yugoslavia Dec. 10, 1998)