Element:
The Mucić et al.("Čelebići") Trial Chamber stated:
"it can be seen that the most characteristic cases of torture involve positive acts. However, omissions may also provide the requisite material element, provided that the mental or physical suffering caused meets the required level of severity and that the act or omission was intentional, that is an act which, judged objectively, is deliberate and not accidental. Mistreatment that does not rise to the threshold level of severity necessary to be characterised as torture may constitute another offence."[1]
On the distinction between "intent" and "motivation", the Kunarac et al. Appeals Chamber found:
"In this respect, the Appeals Chamber wishes to assert the important distinction between 'intent' and 'motivation'. The Appeals Chamber holds that, even if the perpetrator's motivation is entirely sexual, it does not follow that the perpetrator does not have the intent to commit an act of torture or that his conduct does not cause severe pain or suffering, whether physical or mental, since such pain or suffering is a likely and logical consequence of his conduct. In view of the definition, it is important to establish whether a perpetrator intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental, to his victims." "[2]
Footnotes:
[1] ICTY, Mucić et al. Trial Judgment, 16 November 1998, para. 468.
[2] ICTY, Prosecutor v. Kunarac, Kovac and Vukovic, "Appeals Judgement", IT-96-23-T and IT-96-23/1-A, 12 June 2002, para. 153.
