## Facts

- Bosnian Serb forces and associated groups conducted a campaign in and around Foča, Bosnia and Herzegovina (1992–1993), targeting Bosnian Muslim civilians, particularly women and girls, through detention, terror, and expulsion.
- Women and girls were rounded up, separated from men, and detained in locations including a school, a sports hall, and private apartments used as soldiers’ quarters.
- Victims were subjected to repeated rapes, sexual assaults, humiliation, and other mistreatment; some detainees were threatened, mistreated, or killed.
- Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković (Bosnian Serb perpetrators) participated in sexual violence and related abuses against detained Bosnian Muslim women and girls.
- The Trial Chamber convicted Kunarac, Kovač, and Vuković of crimes against humanity and violations of the laws or customs of war, including rape, torture, and (for Kunarac and Kovač) enslavement, and imposed sentences of 28, 20, and 12 years, respectively.
- All three appealed; the Appeals Chamber reviewed challenges to legal standards, factual findings, evidentiary rulings, and the application of the proof standard.

## Issues

1. Whether the prosecution had to prove an armed conflict in every locality and what connection (“nexus”) must exist between the armed conflict and Article 3 war crimes.
2. Whether rape under international criminal law requires proof of force or victim resistance, or whether lack of consent—assessed in context—is dispositive.
3. Whether the elements of torture were satisfied, including whether rape can constitute torture and what purposes and severity requirements apply.
4. Whether the evidence supported findings of enslavement as a crime against humanity based on “ownership-type” powers and exploitation.
5. Whether alleged evidentiary errors and credibility assessments required reversal under the appellate standard for factual findings.

## Decision

- The Appeals Chamber dismissed all grounds of appeal and affirmed the convictions and sentences.
- It upheld the finding that an armed conflict existed in the relevant territory and that the charged acts were sufficiently connected to the armed conflict for Article 3.
- It affirmed a definition of rape centered on non-consensual sexual penetration, without requiring proof of force or continuous physical resistance, particularly where coercive detention conditions negate meaningful consent.
- It confirmed that rape may constitute torture when it intentionally inflicts severe physical or mental pain or suffering for a prohibited purpose, including discrimination, intimidation, or coercion.
- It upheld convictions for enslavement where perpetrators exercised powers attaching to ownership, including controlling movement, preventing escape, and exploiting victims for repeated sexual access.
- It rejected challenges to witness credibility and factual determinations, finding no error that no reasonable trier of fact could have made and no miscarriage of justice.

## Legal Principles

- For war crimes under Article 3, the prosecution need not show fighting in every specific location; it is enough that an armed conflict existed in the territory controlled by parties to the conflict.
- The armed conflict “nexus” is satisfied where the conflict substantially enabled the perpetrator to commit the crime or affected the manner of commission.
- Rape is established by non-consensual sexual penetration; force or proof of persistent resistance is not a required element, and coercive circumstances may render genuine consent impossible.
- Certain acts, including rape, can inherently establish severe suffering for torture when committed intentionally for prohibited purposes.
- Enslavement as a crime against humanity involves exercising any or all powers attaching to the right of ownership; relevant indicia include control of movement, threats, duration of detention, prevention of escape, and exploitation (including sexual exploitation).
- On appeal, factual findings are disturbed only where no reasonable trier of fact could have reached them or where an error caused a miscarriage of justice.

## Conclusion

The Appeals Chamber affirmed the appellants’ convictions and sentences for widespread sexual violence and related abuses in Foča, clarifying that rape focuses on lack of consent assessed in coercive context, that rape can constitute torture, that enslavement turns on ownership-type control and exploitation, and that war-crimes liability requires a substantial connection between the armed conflict and the crimes.


Prosecutor v. Kunarac, Case No. IT-96-23 & IT-96-23/1-A (Int’l Crim. Trib. Former Yugoslavia App. Ch. 2002)