Table of contents:
6. The perpetrator threatened to kill, injure or continue to detain such person or persons
6.1. The perpetrator threatened to kill such person or persons ; OR
6.2. The perpetrator threatened to injure such person or persons; OR
6.3. The perpetrator threatened to continue to detain such person or persons.
Element:
6. The perpetrator threatened to kill, injure or continue to detain such person or persons
The Blaškić Appeal Chamber noted that:
"the essential element in the crime of hostage-taking is the threat concerning detainees so as to obtain a concession or gain an advantage; a situation of hostage-taking exists when a person seizes or detains and threatens to kill, injure or continue to detain another person in order to compel a third party to do or to abstain from doing something as a condition for the release of that person."[1]
The Sesay, Kallon and Gbao Trial Chamber found:
"there is evidence that RUF fighters threatened to kill, injure or detain captured UNAMSIL peacekeepers. Fighters including Kallon threatened to kill Major Jaganathan at least twice.After Sankoh's arrest, Kasoma and other captured peacekeepers at Yengema were repeatedly threatened and told that they could be killed at any time, their fates conditional on Sankoh's release."[2]
"468. In addition to fulfilling the chapeau requirements for Article 3, the offence of hostagetaking requires the following elements. The actus reus of this offence is the detention of persons and the use of a threat concerning the detained persons, including a threat to kill, injure or continue to detain, in order to obtain a concession or gain an advantage. The Appeals Chamber has held that the prohibition on the taking of hostages pursuant to Common Article 3 applies to “all detained individuals, irrespective of whether their detention is explicitly sought in order to use them as hostages and irrespective of their prior status as combatants”. The mens rea required for hostage-taking is the intention to compel a third party to act or refrain from acting as a condition for the release of the detained persons. Because the essential feature of the offence of hostagetaking is the use of a threat to detainees to obtain a concession or gain an advantage, which may happen at any time during the detention, the requisite intent may be formed at the time of the detention or it may be formed at some later time, after the person has been detained. The erroneous belief that detained combatants are not entitled to Common Article 3 protections is not a defence should the elements of hostage-taking be met."
6.1. The perpetrator threatened to kill such person or persons ; OR
6.2. The perpetrator threatened to injure such person or persons; OR
6.3. The perpetrator threatened to continue to detain such person or persons.
Footnotes:
[1] ICTY, Blaškić Appeal Chamber, 29 July 2004, para. 639.
[2] SCSL, Sesay, Kallon and GbaoTrial Judgment, 2 March 2009, para. 1963 (footnotes omitted).
