6.b.i. [Mental element for Element 5] [Consequence of inflicting severe physical or mental pain or suffering upon one or more persons]: The perpetrator meant to cause severe physical or mental pain or suffering upon one or more persons; OR

6.b.i. [Mental element for Element 5] [Consequence of inflicting severe physical or mental pain or suffering upon one or more persons]: The perpetrator meant to cause severe physical or mental pain or suffering upon one or more persons; OR

According to the Hadžihasanović and Kubura Trial Chamber:

"That evidence suffices to prove beyond a reasonable doubt that defenceless victims were constantly subjected to the cruellest physical abuse, often in front of the other detainees. Apart from that mistreatment, witnesses gave an account of the fear that they felt during their detention and stated that the guards and soldiers at the Music School often threatened the detainees with death, thereby heightening their feelings of insecurity and anxiety. In addition, on the basis of the aforementioned testimony, the Chamber concludes that, during the period of the crimes committed between April and June 1993, the lack of food, the lack of access to adequate sanitary facilities and medical care, together with the fact that it was impossible to sleep in acceptable conditions, are punishable as cruel treatment insofar as they were intended to cause great suffering or serious injury to body and health."[1]

Regarding other events, the Chamber found:

"even though the detention conditions at the School could most probably be regarded as inadequate during normal times, the general situation of the detainees housed in the School gymnasium does not appear to the Chamber to have been so serious as to evidence a deliberate intention to harm or damage the physical integrity or health of the persons concerned."[2]

The Chamber also concluded:

"the Chamber cannot consider the argument put forth by the Defence for the Accused Hadžihasanović according to which the lack of appropriate detention facilities able to accommodate a large number of prisoners is a reason to excuse the very limited, and even inexistent, access to the toilets when those facilities are equipped with them, or maintaining unsanitary conditions, such as a flooded floor in a basement and the absence of light. These facts, established by the aforementioned testimony, clearly indicate that such detention conditions were either the product of a deliberate policy or were allowed to happen, and not the product of necessity."[3]