The Furundzija Judgment and Its Continued Vitality in International Law

• Publication year: 2022

43 Creighton L. Rev. 505. THE FURUNDZIJA JUDGMENT AND ITS CONTINUED VITALITY IN INTERNATIONAL LAW

THE FURUNDZIJA JUDGMENT AND ITS CONTINUED VITALITY IN INTERNATIONAL LAW

CHAD G. MARZEN(fn*)

I. INTRODUCTION

In the Roman Catholic tradition, the Mass community recites Confiteor, in which the Mass community generally acknowledges an individual's faults and pleas to Mary, the angels, saints, and others in the community to pray to God for that individual's forgiveness.(fn1) One significant line of the Confiteor acknowledges faults "in what I have done, and in what I have failed to do."(fn2) The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia's ("Yugoslavia Tribunal") landmark judgment in the Prosecutor v. Furundzija(fn3) case not only ultimately addressed faults of what Anto Furundzija actually physically committed during a torture-filled interrogation in the Lasva Valley in Bosnia-Herzogovina in May 1993. The decision also addressed faults of what Furundzija failed to do as a military commander of a unit whose soldiers raped a Muslim woman and beat her Croatian friend in his presence while he continued his interrogating.

The Furundzija decision not only declared several significant holdings in the Yugoslavia Tribunal's jurisprudence, but expanded accountability and liability for certain grave violations of international law, not only violations of commission, but of omission as well. First, the Yugoslavia Tribunal reaffirmed the Tadic Jurisdiction(fn4) holding(fn5)and found a state of armed conflict existed when the alleged interrogations, torture, and rape occurred.(fn6) Second, the Yugoslavia Tribunal concretely affirmed that the crime of torture attained the status of a jus cogens (peremptory) norm of international law that allows no derogation by States in any circumstances.(fn7) Third, the Yugoslavia Tribunal clarified the definition of rape under international law,(fn8) and the Furundzija decision was Yugoslavia Tribunal's first decision to consider war crimes charges solely stemming from rape.(fn9) Fifth and finally, the Yugoslavia Tribunal finely distinguished between "perpetrator" liability(fn10) for torture and "aiding and abetting" liability(fn11) for torture, and expanded the scope of "perpetrator liability" for torture to those individuals who may not have even physically participated in the infliction of severe physical or mental pain.(fn12)

The landmark Furundzija decision is now over a decade old, but its legacy remains strong. In this Article, this Author not only addresses Furundzija decision's holdings and its implications in the international sphere, but specifically analyzes the Furundzija decision's legacy on United States domestic cases involving the Alien Tort Statute.(fn13) The Alien Tort Statute provides that the "district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."(fn14) While Furundzija certainly contributed to the expansion of criminal liability under international law, its legacy is not only limited to the international criminal sphere, but applies to civil tort liability through the standard of "aiding and abetting" liability under the Alien Tort Statute. This Author argues that the adoption of Furundzija 's "aiding and abetting" liability standard will make it more likely that individuals will be kept not only criminally responsible for their faults of commission, but of omission as well. In addition, the standard will keep private actors acting in a non-private capacity responsible in the United States for actions committed in concert with foreign governments that commit grave violations of the law of nations. With this legacy, Furundzija stands as one of the most important international judicial decisions of this generation.

II. THE LANDMARK FURUNDZIJA JUDGMENT

A. BACKGROUND

On July 3, 1992, the Croatian Community of Herzog-Bosna declared itself an independent political entity within the Republic of Bosnia and Herzogovina.(fn15) The Croatian Community of Herzog-Bosna's military units (the "HVO") soon engaged in conflict with the Army of Bosnia and Herzegovina ("ABiH") and began attacking mostly Bosnian Muslim villages in the Lasva River Valley.(fn16) Anto Furundzija, only in his early twenties, served as a local commander of a special unit of the HVO military police known as the "Jokers."(fn17)

On April 16, 1993, fighting between the HVO and ABiH broke out in Vitez and Ahmici.(fn18) As such, the HVO searched apartments and houses in the region and subsequently expelled and detained prominent Muslim civilians from their homes.(fn19) Soon thereafter, two critical witnesses in the Prosecutor v. Furundzija (fn20) decision, Witness . (a Muslim woman who was tortured and raped) and Witness D (a Croatian soldier who the Jokers interrogated and tortured) were transported to and interrogated in Nadioci.(fn21)

In mid-May 1993, Witness A was taken to the "Bungalow," which served as the Joker's headquarters, and into a room with forty soldiers.(fn22) Soon Furundzija entered the room and started interrogating Witness A, asking her about her children who the Jokers suspected were ABiH soldiers, her visits to the Muslim parts of Vitez, and the reason why certain Croats had assisted her when she was a Muslim.(fn23) During the interrogation, a Joker drew his knife over Witness Aand threatened to cut out her private parts if she did not cooperate.(fn24) Furundzija grew upset with Witness A's responses, and in Furundzija's presence, the Joker, who had earlier threatened Witness A, subjected her to multiple rapes, sexual assaults, and physical abuse in the Bungalow.(fn25)

After the events in the Bungalow, Witness A was taken to the pantry where she was confronted with Witness D. (fn26) Furundzija interrogated both in the pantry, and he accused both of working for the ABiH.(fn27) Witness D was then physically beaten during the interrogation.(fn28) Witness A was raped, forced to perform oral sex on one of the guards, and also made to lick the penis clean of the guard, before collapsing of exhaustion.(fn29)

B.CHARGES AND DEFENSES

On November 10, 1995, the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia ("Yugoslavia Tribunal") charged Anto Furundzija with individual criminal responsibility(fn30) for grave breaches of the Geneva Conventions and war crimes, including three individual counts of torture and inhumane treatment, torture,(fn31)and outrages upon personal dignity(fn32) including rape.(fn33) On December 18, 1997, the NATO Stabilization Force in Bosnia-Herzogovina ("SFOR") arrested Furundzija and transferred him to the detention unit of the Yugoslavia Tribunal to await trial.(fn34)

In response, the defense filed motions to dismiss two counts which the prosecution pursued on the ground that the Yugoslavia Tribunal lacked subject-matter jurisdiction for trial, arguing the Yugoslavia Tribunal had no jurisdiction because no armed conflict was present.(fn35) The Trial Chamber denied the motions.(fn36) On June 8, 1998, Furundzija's trial began with six prosecution witnesses testifying and four exhibits being admitted into evidence.(fn37)

The defense's case-in-chief began on June 15, 1998, with two witnesses appearing for the case, including one expert witness, and twenty-two exhibits being admitted into evidence.(fn38) The defense did not argue that the atrocities committed against Witness A and Witness D did not occur;(fn39) rather, the defense argued that Furundzija did not witness the assaults and attacked the reliability of Witness A 's memory of the events which occurred in the Bungalow and pantry.(fn40)

C. THE FIRST HOLDING: REAFFIRMATION OF TADIC JURISDICTION DECISION

The defense contended the conflict between the Croatian Community of Herzog-Bosna's military units (the "HVO") and Army of Bosnia and Herzegovina ("ABiH") did not qualify as an "armed conflict" which was required to confer subject matter jurisdiction under the Statute of the International Tribunal.(fn41) The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia ("Yugoslavia Tribunal") noted many violent acts that occurred in the Lasva River Valley region in April and May of 1993: a "concerted attack" by the HVO on the towns of Vitez and Ahmici on April 16, 1993,(fn42) a forced removal and detainment of Muslims from their homes,(fn43) and the arson committed on the house of one of the witnesses.(fn44)

The defense argued for a narrow view of "armed conflict," stating that no armed conflict existed because there were no front-line and military objectives present, but only that there were attacks by the HVO on civilians in the region.(fn45) However, the Yugoslavia Tribunal applied the test from the Tadic Jurisdiction(fn46) case, which recognizes an armed conflict exists where "protracted armed violence between governmental authorities and organized armed groups or between such groups within a State,"(fn47) and found "clear evidence" that in mid-May 1993 an armed conflict existed between the HVO and ABiH.(fn48)

D. THE SECOND HOLDING: THE CRIME OF TORTURE IN INTERNATIONAL LAW

The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia ("Yugoslavia Tribunal") next addressed the status of the prohibition against...