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Serb Soldiers: It Wasn’t Torture

July 2, 2000

THE HAGUE, Netherlands (AP) _ U.N. judges hearing the trial of three Bosnian Serb soldiers accused of systematic rape will listen to arguments this week that could shape how and when sexual torture qualifies as an international war crime.

After months of wrenching testimony from Muslim women during the first international prosecution of wartime sexual enslavement, defense attorneys will ask the Yugoslav war crimes tribunal to dismiss charges of sexual torture against the soldiers. The defense says the charges do not meet international legal standards.

The court’s ruling will further define sexual crimes as they relate to war. It also will clarify whether rape can carry additional penalties as an act of torture if the purpose is to advance strategic objectives.

The tribunal is scheduled to consider the motion when the Foca rape trial resumes Monday and the defense presents its case.

Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, who fought with paramilitary groups during the 1992-95 ethnic conflict in Bosnia, have pleaded innocent to charges of war crimes and crimes against humanity, which carry a maximum life sentence. Only Kunarac and Vukovic are charged with counts of torture.

The rapes were allegedly committed against Muslim women held at a high school, sports hall and motel in the southeast Bosnian city of Foca during the war’s first months. Since the March 20 start of the trial, 16 women have taken the stand, sobbing as they told horrific stories of nightly beatings and sexual assault at gunpoint by gangs of soldiers.

Nevertheless, defense lawyers claim that the prosecution ``did not prove basic elements of the criminal offense of torture.″

They claim that the men, ordinary soldiers acting privately, cannot be held liable for torture. They argue that the women were not interrogated or threatened with harm in order to obtain information or confessions or to intimidate them, and that therefore they were not tortured.

The lawyers also allege that prosecutors failed to prove a link between the sexual abuse and Bosnian Serb military strategy.

The prosecution has maintained that the systematic rape of Muslim women was part of a deliberate strategy to intimidate Muslims into leaving their homes, and therefore was used as a weapon of war.

Mary Adele Greer, a tribunal observer with the Coalition for International Justice, said it’s unlikely judges will dismiss the torture charge before hearing defense evidence.

The judges’ ruling will interpret relatively untested jurisprudence set out in a 1998 war crimes tribunal ruling which gave a detailed interpretation of post-World War II conventions against torture.

In that ruling, judges said that for torture to be punishable as a war crime or crime against humanity, the act must be linked to an armed conflict and be carried out ``by a public official″ or anyone acting on behalf of an ``authority-wielding entity.″

In addition, the ruling said, the act ``must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim.″

Even if the defense motion is accepted, the trial will continue on other charges of war crimes and is expected to last until the end of the year. The men would also be subject to local prosecution under regular criminal law.

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