Table of contents:
Element:
ICTY
As noted by the Trial Chamber in Delalić et al.
"[I]nhuman treatment is an intentional act or omission that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity."[1]
According to the Tadić Trial Judgment:
"[A]s a minimum, [...] 'other inhumane acts' must consist of acts inflicted upon a human being ans must be of a serious nature."[2]
The Vasiljević Trial Chamber stated that:
"The crime of inhumane acts, like inhumane treatment under Article 3, and cruel treatment under Article 2, functions as a residual category for serious charges which are not otherwise enumerated under Article 5. All of these offences require proof of the same elements. The elements to be proved are: (i) the occurrence of an act or omission of similar seriousness to the other enumerated acts under the Article [...]"[3]
"494. The category of “other inhumane acts” contained in Article 5(i) of the Statute is a residual category of crimes against humanity which includes serious criminal acts that are not exhaustively enumerated in Article 5. The following elements are required for an act or omission to constitute an inhumane act under Article 5(i): (i) there was an act or omission of similar seriousness to the other enumerated acts under Article 5; (ii) the act or omission caused serious mental or physical suffering or injury or constituted a serious attack on human dignity; and (iii) the act or omission was committed with the intent to inflict serious physical or mental suffering or to commit a serious attack on the human dignity of the victim(s), or with the knowledge that this act or omission was likely to cause such suffering or a serious attack upon human dignity."
ICTR
The Kayishema Trial Judgement observed that:
"For the accused to be found guilty of crimes against humanity for other inhumane acts they must, inter alia, commit commit an act of similar gravity and seriousness to the other enumerated crimes, with the intention to cause the [...] inhumane act. This important category of crimes is reserved for deliberate forms of infliction with (comparably serious) inhumane results that were intended or foreseeable and done with reckless disregard. [...] In the opinion of the Trial Chamber, this category should not simply be utilised by the Prosecution as an all-encompassing, 'catch-all' category."[4]
By citing the International Law Commission commentary, the Tadić Trial Chamber held that:
"[T]he notion of other inhumane acts is circumscribed by two requirements. First, this category of acts is intended to include only additional acts that are similar in gravity to those listed in the preceding subparagraphs. Secondly, the act must in fact cause injury to a human being in terms of physical or mental integrity, health or human dignity."[5]
The Kupreškić et al. Trial Chamber noted:
"[I]it is possible to identify a set of basic rights appertaining to human beings, the infringement of which may amount, depending on the accompanying circumstances, to a crime against humanity. Thus, for example, serious forms of cruel or degrading treatment of persons belonging to a particular ethnic, religious, political or racial group, or serious widespread or systematic manifestations of cruel or humiliating or degrading treatment with a discriminatory or persecutory intent no doubt amount to crimes against humanity: [...] Plainly, all these, and other similar acts, must be carried out in a systematic manner and on a large scale. In other words, they must be as serious as the other classes of crimes provided for in the other provisions of Article 5. Once the legal parameters for determining the content of the category of "inhumane acts" are identified, resort to the ejusdem generis rule for the purpose of comparing and assessing the gravity of the prohibited act may be warranted."[6]
According to the Trial Chamber in Delalić et al.
"[O]n one occasion during the victim's detention in the Čelebići prison-camp, Esad Landzo placed a burning fuse-cord directly against Vukašin Mrkajic's bare skin in the genital area, thereby inflicting serious pain and injury upon him.
"Although the Defence contends otherwise, the Trial Chamber has found that it is not a necessary element of the offence of willfully causing great suffering or serious injury to the body or health that the harmful act be perpetrated for any particular purpose. Accordingly, in relation to the present charge, the Trial Chamber finds that the intentional act of placing of a burning fuse cord against Vukašin Mrkajic's bare body caused the victim such serious suffering and injury that it constitutes the offence of willfully causing great suffering or serious injury to body or health under Article 2, and cruel treatment under Article 3 of the Statute."[7]
The Delalić et al. Trial Chamber also observed:
"[T]he act of forcing Vaso 'ordic and Veseljko 'ordic to perform fellatio on one another constituted, at least, a fundamental attack on their human dignity. Accordingly, the Trial Chamber finds that this act constitutes the offence of inhuman treatment under Article 2 of the Statute, and cruel treatment under Article 3 of the Statute."[8]
5.1.1. Evidence of the bodily harm
According to the Trial Chamber in Delalić et al.
"The foregoing facts demonstrate that Dragan Kuljanin was subjected to deliberate ill-treatment on numerous occasions during his detention in the Čelebići prison-camp. The Trial Chamber finds that the beatings described above caused Mr. Kuljanin serious suffering and physical injury. Accordingly, with respect to each separate act of ill-treatment found above, the Trial Chamber finds that the offences of willfully causing great suffering or serious injury to body or health under Article 2, and cruel treatment under Article 3 of the Statute, have been proven beyond a reasonable doubt."[9]
5.1.2. Evidence of confinement under inhumane conditions
ICC
According to the Muthaura, Kenyatta and Ali Pre-Trial Chamber:
"[T]hese acts of brutal killings and mutilations in front of the eyes of the victims' family members caused serious mental suffering, and are comparable in their nature and gravity to other acts constituting crimes against humanity."[10]
ICTY
The Delalić et al.Trial Chamber held that:
"While there is no offence of 'inhumane conditions' recognised as such in international humanitarian law, it is necessary to determine whether this concept can be considered as being incorporated into the offences of willfully causing great suffering or serious injury to body or health or cruel treatment."[11]
"The phrase 'inhumane conditions' is a factual description relating to the nature of the general environment in which detained persons are kept and the treatment which they receive."[12]
"[Inhumane conditions] is more appropriately placed within the offence of inhuman treatment."[13]
The Delalić et al.Trial Chamber also held that:
"[M]istreatment [type offences] delineates a minimum standard of treatment which also applies to conditions of detention. During an armed conflict, persons should not be detained in conditions where this minimum standard cannot be met and maintained."[14]
Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 519-521:
"519. The term “imprisonment” pursuant to Article 5(e) of the Statute is understood as arbitrary imprisonment; that is the deprivation of liberty of an individual without the due process of law. The crime of imprisonment consists of the following elements: (i) an individual is deprived of his or her liberty; (ii) the deprivation of liberty is carried our arbitrarily, i.e., there is no legal basis for it; and (iii) the accused or perpetrator acted with the intent to deprive the individual arbitrarily of his or her liberty."
"520. If there is a legal basis for the deprivation of liberty, it must apply throughout the period of imprisonment, for the deprivation of liberty will become arbitrary as soon as the legal basis ceases to exist."
"521. Unlawful detention, carried out on discriminatory grounds, and for which the general elements of persecution are fulfilled, may constitute persecution."
Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 523-525:
"523. While not all forms of forced labour are per se unlawful, acts of forced labour have, in certain circumstances, and when performed with discriminatory intent, been considered to constitute persecution as a crime against humanity. Furthermore, the use of prisoners of war and civilian detainees as human shields is prohibited under international law, and has been held to constitute inhuman or cruel treatment under Articles 2 and 3 of the Statute, respectively, and persecution as a crime against humanity pursuant to Article 5 of the Statute."
"524. The Prosecution needs to demonstrate that an individual was forced to perform labour and that the labour in question was prohibited under international law. The assessment as to whether the labour was performed involuntarily is done on a case-by-case basis and requires a consideration of both objective and subjective criteria. The following criteria may be examined in determining whether an individual was not in a position to make a real choice to undertake labour: (i) the substantially uncompensated aspect of the labour performed; (ii) the vulnerable position in which the detainees found themselves; (iii) the allegations that detainees who were unable or unwilling to work were either forced to do so or put in solitary confinement; (iv) claims of longer term consequences of the labour on the detainees, including on their health; and (v) the fact and the conditions of the detention."
"525. In relation to the second prong and whether the performed labour was prohibited under international law, the Chamber notes that not all forms of forced labour are per se unlawful during armed conflict. In that regard, the Appeals Chamber has held that “[t]here is a principle which states that the work required of a person in the ordinary course of lawful detention is not regarded as forced or compulsory labour.” Furthermore, individuals deprived of liberty, if made to work, shall have the benefit of working conditions and safeguards similar to those enjoyed by the local civilian population. For instance, compelling individuals to dig trenches or to prepare other forms of military installations has been found to constitute cruel treatment and persecution punishable under Articles 3 and 5 of the Statute, respectively. The use of human shields, namely the placement or detention of persons in areas where they may be exposed to combat operations, for the purpose of rendering certain areas or activities immune from military operations or armed attack, is prohibited under international law. The prohibition of the use of human shields is not dependent on actual harm or attack."
5.1.4. Evidence of civilians being used as human shields
"525. In relation to the second prong and whether the performed labour was prohibited under international law, the Chamber notes that not all forms of forced labour are per se unlawful during armed conflict. In that regard, the Appeals Chamber has held that “[t]here is a principle which states that the work required of a person in the ordinary course of lawful detention is not regarded as forced or compulsory labour.” Furthermore, individuals deprived of liberty, if made to work, shall have the benefit of working conditions and safeguards similar to those enjoyed by the local civilian population. For instance, compelling individuals to dig trenches or to prepare other forms of military installations has been found to constitute cruel treatment and persecution punishable under Articles 3 and 5 of the Statute, respectively. The use of human shields, namely the placement or detention of persons in areas where they may be exposed to combat operations, for the purpose of rendering certain areas or activities immune from military operations or armed attack, is prohibited under international law. The prohibition of the use of human shields is not dependent on actual harm or attack."
5.1.5. Evidence of conduct related to torture
5.2.B y means of inhumane acts
ICTY
According to the Trial Chamber in Delalić et al.
"[T]he question of whether any particular act which does not fall within the categories of the core group is inconsistent with the principle of humane treatment, and thus constitutes inhuman(e) treatment, is a question of fact to be judged in all the circumstances of the particular case."[15]
The Tadić Trial Chamber observed:
"[The] beatings and other acts of violence which were suffered by the six victims there named, who are Muslims, constitute inhumane acts [...]."[16]
As noted by the Trial Chamber in Blaškić
"[S]erious physical and mental injury - excluding murder - is without doubt an 'inhumane act' within the meaning of Article 5 of the Statute and may, on this ground and if it fits into a widespread or systematic context, assume the characterisation of a crime against humanity."[17]
In Kvočka, the Trial Chamber stated that:
"Mutilation and other types of severe bodily harm, beatings and other acts of violence, serious physical and mental injury, forcible transfer, inhumane and degrading treatment, forced prostitution, and forced disappearance are listed in the jurisprudence of the Tribunal as falling under [the category of inhumane acts].
"The Trial Chamber finds that inhumane acts falling within the meaning of Article 5 (inhumane acts and persecution) of the Statute were committed in Omarska camp. Evidence discloses that detainees were subjected to serious bodily or mental harm through such means as beatings, torture, sexual violence, humiliation, harassment, psychological abuses, and confinement in inhumane conditions."[18]
The Krstić Trial Chamber stated that:
"[T]he civilians assembled at Potočari and transported to Kladanj were not subjected to deportation but rather to forcible transfer. This forcible transfer, in the circumstances of this case, still constitutes a form of inhumane treatment covered under Article 5."[19]
On the contrary, as noted in the Stakić Trial Judgment:
"[T]he Trial Chamber is not convinced that [the forcible removal of individuals to detention facilities] a) reached the same level as other listed crimes under Article 5 of the Statute, b) suffice to base a conviction cumulatively on Article 5(i), and c) in this case might amount to an infringement of the principle nullum crime sine lege certa."[20]
Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 79-80:
"79. As stated above, “other inhumane acts” covers a set of criminal activities not explicitly enumerated. Thus, the case-law has held that the following acts, among others, fall into the category of “inhumane acts”: mutilations and other forms of severe bodily harm, beatings and other acts of violence, serious bodily and mental injury, forcible transfer, inhumane and degrading treatment, forced prostitution and forced disappearance."
"80. The Indictment characterises as inhumane acts under the rubric of crimes against humanity inter alia the “conditions of confinement” as well as the “forcible transfer” allegedly suffered by the civilian Muslim population. Inasmuch as the characterisation of forcible transfer was assessed earlier, the Chamber will state merely that it has been established, based on the definition of the inhumane acts set out above, that detention under harsh conditions is likely to constitute an inhumane act within the meaning of Article 5(i) of the Statute if it causes great suffering or physical or mental anguish or constitutes a serious attack on human dignity."
ICTR
In this regard, the Kayishema and Ruzindana Trial Chamber noted that:
"[T]he acts that rise to the level of inhumane acts should be determined on a case-by-case basis."[21]
In Akayesu, the Trial Chamber noted:
"Sexual violence falls within the scope of 'other inhumane acts', set forth Article 3(i) of the Tribunal's Statute [...]."[22]
"The Accused is judged criminally responsible under Article 3(i) of the Statute for the following other inhumane acts: (i) the forced undressing of the wife of Tharcisse outside the bureau communal, after making her sit in the mud, as witnessed by Witness KK; (ii) the forced undressing and public marching of Chantal naked at the bureau communal; (iii) the forced undressing of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe, and the forcing of the women to perform exercises naked in public near the bureau communal."[23]
Footnotes:
[1] ICTY, Prosecutor v. Delalić et al., ''Judgement", IT-96-21-T, 16 November 1998, para. 543.
[2] ICTY, Prosecutor v. Tadić (alias "Dule"), "Judgement", IT-94-1-T, 7 May 1997, para. 728.
[3] ICTY, Prosecutor v. Vasiljević, "Judgement", IT-98-32-T, 25 February 2004, para. 234.
[4] ICTR, Prosecutor v. Kayishema and Ruzidana, "Judgement", ICTR-95-1-T, 21 May 1999, para. 583.
[5] ICTY, Prosecutor v. Tadić (alias "Dule"), "Judgement", IT-94-1-T, 7 May 1997, para. 729.
[6] ICTY, Prosecutor v. Kupreškić et al., "Judgement", IT-95-16-T, 14 January 2000, para. 566.
[7] ICTY, Prosecutor v. Delalić et al., ''Judgement", IT-96-21-T, 16 November 1998, para. 1039-1040.
[8] ICTY, Prosecutor v. Delalić et al., ''Judgement", IT-96-21-T, 16 November 1998, para. 1066.
[9] ICTY, Prosecutor v. Delalić et al., ''Judgement", IT-96-21-T, 16 November 1998, para. 1034.
[10] ICC, Prosecutor v. Muthaura, Kenyatta and Ali, "Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute", ICC-01/09-02/11, 23 January 2012, para. 277.
[11] ICTY, Prosecutor v. Delalić et al., "Judgement", IT-96-21-T, 16 November 1998, para. 554.
[12] ICTY, Prosecutor v. Delalić et al., ''Judgement", IT-96-21-T, 16 November 1998, para. 556.
[13] ICTY, Prosecutor v. Delalić et al., ''Judgement", IT-96-21-T, 16 November 1998, para. 558.
[14] ICTY, Prosecutor v. Delalić et al., ''Judgement", IT-96-21-T, 16 November 1998, para. 557.
[15] ICTY, Prosecutor v. Delalić et al., ''Judgement", IT-96-21-T, 16 November 1998, para. 544.
[16] ICTY, Prosecutor v. Tadić (alias "Dule"), "Judgement", IT-94-1-T, 7 May 1997, para. 730.
[17] ICTY, Prosecutor v. Blaškić, "Judgement", IT-95-14-T, 3 March 2000, para. 239.
[18] ICTY, Prosecutor v. Kvočka et al., "Judgement", IT-98-30/1-T, 2 November 2001, para. 208-209.
[19] ICTY, Prosecutor v. Krstić, ''Judgement'', IT-98-33-T, 2 August 2001, para. 532.
[20] ICTY, Prosecutor v. Stakić, "Judgement", IT-97-24-T, 31 July 2003, para. 723.
[21] ICTR, Prosecutor v. Kayishema and Ruzindana,''Judgement'', ICTR-95-1-T, 21 May 1999, para. 151.
[22] ICTR, Prosecutor v. Akayesu, "Judgement", ICTR-96-4-T, 2 September 1998, para. 688.
[23] ICTR, Prosecutor v. Akayesu, "Judgement", ICTR-96-4-T, 2 September 1998, para. 697.
