5. The perpetrator caused serious bodily and mental harm to one or more persons.³

5.1. The perpetrator caused serious bodily harm to one or more persons.

P.1. Evidence of acts of bodily torture.

P.2. Evidence of harm that seriously injured health of victims.

P.3. Evidence of harm that caused disfigurement of victim.

P.4. Evidence of harm that caused serious injury to the external, internal organs or senses.

P.5. Evidence of mutilation.

P.6. Evidence that victim’s hand was burnt with hot water.

P.7. Evidence that nails were hammered into detainees’ feet.

P.8. Evidence of interrogations combined with beatings.

P.9. Evidence of interrogations combined with threats of death.

P.10. Evidence of participation in an attack.

P.11. Evidence that the perpetrator conveyed armed attackers to the scene of the crime.

P.12. Evidence of beatings.

P.13. Evidence that victims were forced to run a gauntlet.

P.14. Evidence that victims were forced to eat inedible substances.

P.14.1. Evidence that victims were forced to eat paper.

P.14.2. Evidence that victims were forced to drink petrol.

P.14.3. Evidence that victims were forced to lick their own blood.

P.15. Evidence of humiliation.

P.15.1. Evidence that victims were forced to graze grass like animals.

P.15.2. Evidence that victims were forced to hit their heads against a wall.

P.15.3. Evidence that victims were forced to lick their own blood.

P.15.4. Evidence that victims were forced to run naked while pursued by guards with whips.

P.15.5. Evidence of humiliation of physically and mentally impaired victims.

P.15.6. Evidence of ethnic slurs.

P.16. Evidence that electric shocks were administered.

P.17. Evidence that victims were forced to inflict harm on each other.

P.17.1. Evidence that victims were forced to beat each other.

P.17.2. Evidence that victims were forced to beat each other by running at full speed and butting heads together.

P.17.3. Evidence that victims were forced to slap other detainees.

P.18. Evidence of mass execution survivors’ trauma.

P.19. Evidence of certain crimes committed by the perpetrator.

P.19.1. Evidence of persecution by the perpetrator.

P.19.2. Evidence of deportation by the perpetrator.

P.19.3. Evidence of acts of inhumane or degrading treatment by the perpetrator.

P.20. Evidence of rape and sexual violence.

P.20.1. Evidence that female victims were taken out at night and raped.

P.20.2. Evidence that female victims were raped and sexually assaulted by camp officials.

P.20.3. Evidence that victims were forced to perform sexual acts in public.

P.20.4. Evidence that the perpetrator ordered acts of sexual violence.

P.20.5. Evidence that the perpetrator allowed sexual violence to be perpetrated on premises under his authority.

P.20.6. Evidence that the perpetrator facilitated, through words of encouragement signifying official tolerance, acts of sexual violence.

P.20.7. Evidence that the perpetrator failed to oppose acts of sexual violence.

P.20.8. Evidence of the perpetrator’s presence during the commission of sexual violence.

P.21. Not required: Evidence that the harm was permanent or irremediable.

P.22. Exculpatory: Evidence that the victims of mistreatment were able to escape.

5.2. The perpetrator caused serious mental harm to one or more persons.

P.23. Evidence of acts of mental torture.

P.24. Evidence of harm that caused impairment of mental faculties.

P.25. Evidence of harm that caused serious injury to the mental state of the victim.

P.26. Evidence of psychological damage to victim as a result of detention.

P.27. Evidence of mental harm to victims as a result of knowledge of imminent death.

P.28. Evidence of mental harm as a result of forced removal of identification documents from victims.

P.29. Evidence of mass execution survivors’ trauma.

P.30. Evidence of forced displacement.

P.31. Evidence of mental harm as a result of exposure to killing fields.

P.32. Evidence of rape and sexual violence.

P.32.1. Evidence that female victims were taken out and raped.

P.32.2. Evidence that female victims were raped and sexually assaulted by camp officials.

P.32.3. Evidence that victims were forced to perform sexual acts in public.

P.32.4. Evidence that the perpetrator ordered acts of sexual violence.

P.32.5. Evidence that the perpetrator allowed sexual violence to be perpetrated on premises under his authority.

P.32.6. Evidence that the perpetrator facilitated, through words of encouragement signifying official tolerance, acts of sexual violence.

P.32.7. Evidence that the perpetrator failed to oppose acts of sexual violence.

P.32.8. Evidence of the perpetrator’s presence during the commission of sexual violence.

P.33. Evidence of certain crimes committed by the perpetrator.

P.33.1. Evidence of persecution by the perpetrator.

P.33.2. Evidence of deportation by the perpetrator.

P.33.3. Evidence of acts of inhumane or degrading treatment by the perpetrator.

P.34. Not required: Evidence that the harm was permanent or irremediable.

5. The perpetrator caused serious bodily and mental harm to one or more persons.³

"3. This conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment."

A. Evidentiary comment:

Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Judgement (AC), 12 March 2008, para. 46:

"46. The Appeals Chamber recalls that "serious bodily or mental harm" is not defined in the Statute,113 and that the Appeals Chamber has not squarely addressed the definition of such harm. The quintessential examples of serious bodily harm are torture, rape, and non-fatal physical violence that causes disfigurement or serious injury to the external or internal organs.114 Relatedly, serious mental harm includes "more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat".115 Indeed, nearly all convictions for the causing of serious bodily or mental harm involve rapes or killings.116 To support a conviction for genocide, the bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.117"

113 Semanza Trial Judgement, para. 320.

114 Semanza Trial Judgement, para. 320, referring to Kayishema and Ruzindana Trial Judgement, para. 109; Ntagerura et al. Trial Judgement, para. 664.

115 Kajelijeli Trial Judgement, para. 815, referring to Kayishema and Ruzindana Trial Judgement, para. 110; Semanza

116 See, e.g., Muhimana Trial Judgement, paras. 512, 513, 519; Gacumbitsi Trial Judgement, paras. 292, 293; Ntakirutimana Trial Judgement, paras. 788-790; Musema Trial Judgement, paras. 889, 890.

117 Kajelijeli Trial Judgement, para. 184; Krajišnik Trial Judgement, para. 862; Report of the International Law Commission on the Work of its Forty-Eighth Session 6 May - 26 July 1996, UN GAOR International Law Commission, 51st Sess., Supp. No. 10, p. 91, UN Doc. A/51/10 (1996). In relation to crimes against humanity, a Trial Chamber has refused to find that the removal of a church roof, which deprived Tutsis of an effective hiding place from those who sought to kill them, constituted the causing of serious bodily or mental harm because "the Chamber [was] not satisfied that this act amount[ed] to an act of similar seriousness to other enumerated acts in the Article". Ntakirutimana Trial Judgement, para. 855.

118 Trial Judgement, para.327

Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-I, Judgement (TC), 13 December 2006, para. 327. But see Appeals Chamber’s findings, Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Judgement (AC), 12 March 2008, paras. 47-49 (Below):

"327. The Chamber also finds that the order by Athanase Seromba prohibiting refugees from getting food from the banana plantation facilitated the perpetration of acts causing serious bodily harm to the refugees. Indeed, on 14 April 1994, the refugees lacked food and had very limited access to basic foodstuffs from the outside, due to the encirclement of the church. Under such circumstances, Seromba’s refusal to allow the refugees to get food from the banana plantation substantially contributed to their physical weakening, as they were deprived of food. The Chamber is satisfied that by his conduct, Seromba substantially contributed towards the commission of acts causing serious bodily harm to the Tutsi refugees in Nyange church."

Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Judgement (AC), 12 March 2008, paras. 47-49:

"47. The Appeals Chamber notes that the Trial Chamber did not clearly differentiate the actus reus of the underlying crime and the actus reus for aiding and abetting that crime. The Trial Chamber suggested that "[Athanase] Seromba’s refusal to allow the refugees to get food from the banana plantation substantially contributed to their physical weakening"118 and that "[Athanase] Seromba’s order prohibiting refugees from getting food from the banana plantation, his refusal to celebrate mass in Nyange church, and his decision to expel employees and Tutsi refugees" facilitated their "living in a constant state of anxiety".119 Beyond these vague statements, the only other reference in the Trial Judgement to the underlying acts that caused serious bodily or mental harm is the conclusory statement that "it is beyond dispute that during the events of April 1994 in Nyange church, the attackers and other Interahamwe militiamen [...] caused serious bodily or mental harm to [the Tutsi refugees] on ethnic grounds, with the intent to destroy them, in whole or in part, as an ethnic group."120

48. The Trial Chamber failed to define the underlying crime to which Athanase Seromba’s actions supposedly contributed. It also had a duty to marshal evidence regarding the existence of the underlying crime that caused serious bodily or mental harm, and its parsimonious statements fail to do so. In the absence of such evidence, the Appeals Chamber cannot equate nebulous invocations of "weakening" and "anxiety" with the heinous crimes that obviously constitute serious bodily or mental harm, such as rape and torture.

49. The Appeals Chamber finds that the Trial Chamber failed to establish with sufficient precision the crime of "causing serious bodily or mental harm"; therefore, Athanase Seromba’s conviction for aiding and abetting such a crime cannot stand. Accordingly, the Appeals Chamber grants this sub-ground of appeal and reverses the finding of the Trial Chamber that Athanase Seromba aided and abetted the causing of serious bodily or mental harm."

118 Trial Judgement, para. 327.

119 Trial Judgement, para. 326.

120 Trial Judgement, para. 340.

In the Semanza case, the ICTR Trial Chamber encapsulated the state of the law in relation to this offence, paras. 320 - 323:

"541. Kayishema and Ruzindana, Judgement, TC, para. 109. But see Report of the International Law Commission on the Work of its Forty-Eighth Session 6 May – 26 July 1996, UN GAOR International Law Commission, 51st Sess., Supp. No. 10, p. 91, UN Doc. A/51/10 (1996) ("The bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.").

542. Bagilishema, Judgement, TC, para. 59; Musema, Judgement, TC, para. 156; Rutaganda, Judgement, TC, para. 51; Kayishema and Ruzindana, Judgement, TC, para. 108; Akayesu, Judgement, TC, para. 502.

543. Kayishema and Ruzindana, Judgement, TC, para. 110.

544. Bagilishema, Judgement, TC, paras. 55, 59; Musema, Judgement, TC, paras. 154, 156; Rutaganda, Judgement, TC, paras. 49, 51; Kayishema and Ruzindana, Judgement, TC, paras. 100, 108-110, 112-113.

545. Bagilishema, Judgement, TC, para. 55; Musema, Judgement, TC, para. 154; Rutaganda, Judgement, TC, para. 60; Akayesu, Judgement, TC, paras. 502, 712, 721.’’

5.1. The perpetrator caused serious bodily harm to one or more persons.

P.1. Evidence of acts of bodily torture.

A. Legal source/authority and evidence:

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, para. 502:

"Serious bodily harm is any serious physical injury to the victim, such as torture and sexual violence. This injury need not necessarily be irremediable.⁴⁶²"

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 504, 711-712, 720:

"504. For purposes of interpreting Article 2 (2)(b) of the Statute, the Chamber takes serious bodily or mental harm, without limiting itself thereto, to mean acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution."

"711. With respect to the Prosecutor's allegations in paragraph 16 of the Indictment, the Chamber is satisfied beyond a reasonable doubt that on 19 April 1994, Akayesu on two occasions threatened to kill victim U, a Tutsi woman, while she was being interrogated. He detained her for several hours at the Bureau communal, before allowing her to leave. In the evening of 20 April 1994, during a search conducted in the home of victim V, a Hutu man, Akayesu directly threatened to kill the latter. Victim V was thereafter beaten with a stick and the butt of a rifle by a communal policeman called Mugenzi and one Francois, a member of the Interahamwe militia, in the presence of the accused. One of victim V's ribs was broken as a result of the beating.

712. In the opinion of the Chamber, the acts attributed to the accused in connection with victims U and V constitute serious bodily and mental harm inflicted on the two victims.[…]."

"720. The Chamber finds that the acts alleged in paragraph 21 have been proven. It has been established that on the evening of 20 April 1994, Akayesu, and two Interahamwe militiamen and a communal policeman, one Mugenzi, who was armed at the time of the events in question, went to the house of Victim Y, a 69 year old Hutu woman, to interrogate her on the whereabouts of Alexia , the wife of Professor Ntereye. During the questioning which took place in the presence of Akayesu, the victim was hit and beaten several times. In particular, she was hit with the barrel of a rifle on the head by the communal policeman. She was forcibly taken away and ordered by Akayesu to lie on the ground. Akayesu himself beat her on her back with a stick. Later on, he had her lie down in front of a vehicle and threatened to drive over her if she failed to give the information he sought."

Attorney-General of Israel v. Adolf Eichmann, Judgement (District Court of Jerusalem) (1968) 36 ILR 5, paras. 199, 244:

"199. In the terms of the third Count, item (c) it has been proved that

- and all this with the intention of exterminating the Jewish people."

"244. […]

(3) We convict the accused pursuant to the third Count of the indictment of a crime against the Jewish people, an offence under Section I (a) (I) of the abovementioned law, in that during the period from August 1941 to May 1945 in the territories and areas mentioned in clause (I) of the conviction above he, together with others, caused serious physical and mental harm to millions of Jews with the intent to exterminate the Jewish people."

P.2. Evidence of harm that seriously injured health of victims.

A. Legal source/ authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 744-746, 751-757, 759-760, 763-765, 776-777, 785-786, 793-795, 801-802, 803-804, 807-808, 811-814, 819, 822-823, 828-829, 844, 846-848, 851-853, 856-857, 858-859, 863, 864, 874, 875, 880-882, 886, 887, 892, 896-897, 901-903:

"744. The Trial Chamber will now proceed to detail its findings with respect to those camps and detention facilities in relation to which it is satisfied beyond reasonable doubt that serious bodily and/or mental harm was inflicted upon the Bosnian Muslim and Bosnian Croat detainees, and, further, that it was inflicted intentionally.

a. Banja Luka municipality

i. CSB building

[…]

746. […]At the CSB building, Bosnian Muslims and Bosnian Croats were hit and kicked by policemen and by members of the Banja Luka Special Unit (aka "Specialists"), as they awaited their turn to be interrogated,¹⁸¹¹ as well as during interrogation.¹⁸¹² A Bosnian Muslim man suffered broken ribs and cuts to his face, whilst another broke a few teeth and still bears the marks of strangulation.¹⁸¹³ Samardzija, a commander of the Banja Luka CSB who was interrogating the latter, was present during the beatings.¹⁸¹⁴"

"1811. BT-72, T. 18407 (closed session); see also ex. P2042.

1812. BT-69, T. 17703-17705 (closed session); BT-22, T. 4427.

1813. BT-22, T. 4427; BT-69, T. 17705 (closed session).

1814. BT-22, T. 4427; BT-72, T. 18415 (closed session); BT-76, ex. P2044, 92bis statement, 1028818 (under seal)."

"ii. Manjaca

[…]

751. Detainees were subjected to regular beatings.¹⁸²³ Sometimes these beatings were selective.¹⁸²⁴ However detainees were systematically beaten upon arrival.¹⁸²⁵ On these occasions, detainees were beaten by the military police that were manning the camp,¹⁸²⁶ and by those who had accompanied them in their transfer from their municipalities of origin.¹⁸²⁷ Beatings also took place during interrogations.¹⁸²⁸ Beatings were inflicted with the use of, amongst others, fists, feet, batons, wooden poles, rifle butts and electric cables.¹⁸²⁹

752. In some cases, these beatings were so severe as to result in serious injury.¹⁸³⁰ After the beatings some detainees had to be taken to the infirmary, and even physically carried.¹⁸³¹ At times the camp guards would forbid visits to the infirmary, regardless of the detainee’s state of health.¹⁸³² Detainees witnessed beatings being inflicted on other detainees.¹⁸³³

[…]

754. At Manjaca, beatings were administered for the most part by the military police in charge of guarding the camp.¹⁸³⁵ The most brutal camp guards included Zeljko Bulatovic (aka "Fadil Bula"), Zoran LNU (aka "Zoka"), "Pop" and "Spaga".¹⁸³⁶

[…]

757. The Trial Chamber is satisfied that its commander, Bozidar Popovic, was aware of the beatings being inflicted upon the detainees. The Trial Chamber has already found that detainees died inside Manjaca camp as a result of beatings.¹⁸³⁹ Popovic ordered that death certificates giving a false account of the cause of death be issued.¹⁸⁴⁰ Moreover, the detainees’ cowed attitude could only be the result of a very strict discipline regime.¹⁸⁴¹ In addition, the Trial Chamber is satisfied that General Talic was aware of the mistreatment being visited upon detainees and of the conditions in Manjaca camp. At a meeting in the army club in Banja Luka on 22 June 1992, Adil Medic described the conditions he had witnessed in Manjaca camp to General Talic, and told him that detainees said they were being mistreated.¹⁸⁴² On one occasion, Vojo Kupresanin visited Manjaca camp.¹⁸⁴³

1830. Sakib Muhic, T. 8134-8136; Atif Dzafic, ex. P1123, 92bis statement, 2004685. The Trial Chamber has already found that some beatings also resulted in death. See A.2. supra, " The killing of a number of men in Manjaca between 1 June and 18 December 1992 –Banja Luka municipality".
1831. Atif Dzafic, ex. P1123, 92bis statement, 2004685.
1832. Atif Dzafic, ex. P1123, 92bis statement, 2004685.
1833. BT-36, T. 11063-11064 (closed session).
[…]

1836.Asim Egrlic, T. 10606-10607; Sakib Muhic, T. 8144-8145; Atif Dzafic, ex. P1123, 92bis statement, 2004688 ; BT-26, T. 9220 (closed session); Muhamed Filipovic, T. 10106; Jakov Maric, T. 10833.

[…]

1839. See A.2. supra , "The killing of a number of men in Manjaca between 1 June and 18 December 1992 –Banja Luka municipality".

1840. Enis Sabanovic, T. 6517.

1841. Barney Mayhew, T. 13570, 13577; ex. P1617/ S 217 A, "Mayhew Report on Manjaca and Trnopolje", dated 4 September 1992.

1842. Adil Medic, T. 2231-2232, 2276 .

1843. Enis Sabanovic, T. 6577; Adil Draganovic, T. 5114; Jakov Maric, T. 10833-10834."

"759. The Trial Chamber is satisfied that beatings also took place regularly in Mali Logor, involving amongst others the use of fists, feet and batons,¹⁸⁴⁸ and resulting in serious injury or death.¹⁸⁴⁹ These beatings focused on Bosnian Muslims and Bosnian Croats.¹⁸⁵⁰ A Bosnian Croat detainee was forced by a Bosnian Serb military policeman to slap other detainees.¹⁸⁵¹ He suffered psychological damage as a result of his detention and these problems continue to this day.¹⁸⁵² Detainees witnessed these beatings being inflicted on others.¹⁸⁵³

760. It was evident to the judiciary of Banja Luka military court that these beatings were taking place, but their occurrence was not stopped nor were the perpetrators punished.¹⁸⁵⁴"

"iv. Viz Tunjice Penitentiary

763. Bosnian Muslim and Bosnian Croat detainees were beaten immediately upon arrival with fists, feet and truncheons.¹⁸⁵⁸ They were subjected to ethnic slurs.¹⁸⁵⁹ A detainee’s tooth was broken as a result of a Bosnian Serb prison guard introducing the barrel of his pistol into his mouth; he was also threatened with a knife.¹⁸⁶⁰ Another detainee suffered a broken cheekbone.¹⁸⁶¹ On one occasion, the beatings resulted in the death of one detainee.¹⁸⁶² Detainees did not receive any medical attention for the injuries they suffered.¹⁸⁶³

764. The perpetrators of these beatings were the guards.¹⁸⁶⁴ Bosnian Muslim and Bosnian Croat detainees were also beaten by Bosnian Serb detainees.¹⁸⁶⁵

765. Some detainees were transferred to Mali Logor. Prior to being transferred, they were beaten by the Viz Tunjice prison guards and by the Bosnian Serb military police that came to transfer them.¹⁸⁶⁶"

"i. Jasenica Elementary School.

[…]

769. Detainees were beaten at least twice in Jasenica, by members of two paramilitary units, the 'Suha Rebra' and Seselj's Men.¹⁸⁷⁴ Detainees lost consciousness and sustained injuries such as a cut to the leg, broken ribs and a fractured skull.¹⁸⁷⁵ One detainee was provided with medical treatment for his injuries.¹⁸⁷⁶ In addition to these two instances, detainees were also beaten by Bosnian Serb soldiers and civilians.¹⁸⁷⁷"

"776. Beatings were administered regularly in the Kozila logging camp by "Cigo" Zori c and by the guards of the camp,¹⁸⁹⁴ including Zeljko Brankovic and Milan Knezevic.¹⁸⁹⁵ Beatings took place during interrogations and involved the use of fists, feet, rifles, pistols and truncheons.¹⁸⁹⁶ A pistol was put to a Bosnian Muslim detainee’s head during one interrogation.¹⁸⁹⁷ A number of detainees were beaten together at the same time, and also forced to beat each other.¹⁸⁹⁸ During these beatings, detainees were called 'Balija’, subjected to other ethnic slurs and humiliated.¹⁸⁹⁹

777. Some detainees lost consciousness during these beatings.¹⁹⁰⁰ One could not walk the next day as a result of the beatings, the physical consequences of which he still suffers.¹⁹⁰¹ Another was placed in solitary confinement for eleven days after being beaten.¹⁹⁰²"

"780. In the evenings, detainees were forced to sing Serbian songs. They were also beaten with batons and fists.¹⁹⁰⁹ In Kamenica, detainees had to prepare firewood, dig trenches and make a fence around the camp.¹⁹¹⁰

"783. At the SUP building detainees were beaten with police batons, electric cables, steel rods, feet, clubs and chains. They also witnessed beatings being inflicted on others.¹⁹¹⁵ The perpetrators of the beatings were, amongst others, Sasa "Karatista" and Bosko Bilic,¹⁹¹⁶ and some Bosnian Serb soldiers.¹⁹¹⁷

ii. "The House"

"785. At this detention facility, detainees were beaten with fists, chopped wood, rifle butts, police batons and feet.¹⁹¹⁹ As a result of those beatings one detainee sustained fractured ribs and a fractured index finger.¹⁹²⁰ Detainees witnessed the beating and resulting death of Mulo Robovic as he was being taken to the TO warehouse.¹⁹²¹

786. The perpetrators of the beatings were Bosnian Serb soldiers, police officers and military police.¹⁹²²"

iii. Territorial Defence warehouse

"789. At the TO warehouse in Donji Vakuf, beatings occurred very often, also in front of other detainees.¹⁹²⁷ Detainees were beaten with electric cables, bats, rifle butts, and feet.¹⁹²⁸ Detainees who were relatives were forced to beat each other by running at full speed and butting their heads against each other.¹⁹²⁹ Naim Sutkovic, an elderly detainee, died of his injuries as a result of a severe beating.¹⁹³⁰ Detainees witnessed the deaths of others.¹⁹³¹ One of the detainees, a teacher, was beaten by his former student.¹⁹³² No medical attention was provided to those injured as a result of the beatings.¹⁹³³

790. The perpetrators of the beatings were Bosnian Serb local reserve policemen and two military policemen who were not from Donji Vakuf.¹⁹³⁴ Some of the perpetrators of the beatings at the TO warehouse also perpetrated the beatings at the SUP building.¹⁹³⁵"

"iv. Vrbas Promet

"793. Upon arrival, detainees had to run the gauntlet where they were beaten with fists, rifles and batons by Bosnian Serb policemen and soldiers. Amongst the latter was Stojan Subasic,¹⁹⁴² who beat Dzevad Hadzic, the former director of the company he used to work for, accusing him of driving it to bankruptcy.¹⁹⁴³ Other detainees witnessed these beatings.

[…]

795. Beatings continued during the course of detention at Vrbas Promet. Amongst the perpetrators of the beatings were those who were also responsible for beatings at the TO warehouse.¹⁹⁴⁵ On one occasion, Bosnian Serb soldiers came into the Vrbas Promet detention facility, and beat up the detainees.¹⁹⁴⁶"

[…]

1945. Dzevad Doslic, T. 14852.
1946. Safet Bibic, ex. P1694, 92bis statement, 2062054."

"e. Bosanski Novi municipality

[…]

i. Mlavke football stadium

[…]

801. Beatings took place at the Mlavke football stadium.¹⁹⁵⁸ As a result of the beating inflicted by a Bosnian Serb soldier, a detainee was blinded in one eye.¹⁹⁵⁹ Beatings also took place when drunk Bosnian Serb soldiers returned from the front.¹⁹⁶⁰

802. The guards cursed, taunted and threatened the detainees with death, and subjected them to ethnic slurs.¹⁹⁶¹ An armed Bosnian Serb soldier with a gun forced detainees to graze grass like animals, for the purposes of humiliating them.¹⁹⁶²"

"ii. Bosanski Novi fire station

803. The Bosanski Novi fire station was staffed by Bosnian Serb military police and commanded by Bogdan Grab from Josava.¹⁹⁶³ Around 19 Bosnian Muslim men, amongst them prominent citizens, were confined there.¹⁹⁶⁴

804. Beatings took place at the Bosanski Novi Fire Station with "baseball bats", truncheons and wooden sticks, hands and feet, and a man was beaten to death.¹⁹⁶⁵ The beatings were carried out by the military police, including the commander Bogdan Grab, and occasionally by drunken Bosnian Serb soldiers returning from the front who were be brought in to beat the detainees.¹⁹⁶⁶"

"807. Those arrested were beaten in a gauntlet at the steps of the entrance to the SUP building with feet, fists, batons, rifle-butts and chair legs, and were subjected to ethnic slurs.¹⁹⁷¹ A prominent Bosnian Muslim was thrown down the stairs, and as a result carried into the SUP building unconscious, whilst another suffered a cut lip and broken ribs.¹⁹⁷² As a result of the severity of the beatings, the former suffered a serious, lasting injury with continuing effects today.¹⁹⁷³

808. In addition, those arrested were beaten inside the SUP building, during and outside interrogations.¹⁹⁷⁴ The perpetrators of these beatings were Bosnian Serb police officers and local civilians.¹⁹⁷⁵"

"811. Civilians taken to the Nikola Mackic School were beaten when forced to run a gauntlet outside the school, when they were hit and struck with various objects such as sticks, bats and rifles, and were verbally abused.¹⁹⁷⁸ Those gauntlets were variously composed of Bosnian Serb civilians or of regular and reserve Bosnian Serb soldiers and policemen.¹⁹⁷⁹

812. Beatings took place both during and outside interrogations,¹⁹⁸⁰ including the beating of a boy who was 16 and a half and still attending high school, despite the fact that his age was known to the interrogators.¹⁹⁸¹ Bosnian Serb regular and reserve police officers were the perpetrators of these beatings.¹⁹⁸²

813. Bosnian Muslim former police officers were the object of particularly severe physical abuse and humiliation.¹⁹⁸³ Witness Atif Dzafic, the former chief of the Kljuc SJB, was taken before Captain 'Dusko' Milicevic, an inspector of the Banja Luka CSB.¹⁹⁸⁴ Milicevic beat another Bosnian Muslim police officer in the witness’ presence whilst another captain beat the witness.¹⁹⁸⁵

814. There was blood on the walls of the school and on the detainees.¹⁹⁸⁶ One detainee who was bleeding as a result of the beatings was forced to lick his own blood off the floor, which others witnessed.¹⁹⁸⁷ Detainees were forced to extend the three fingers in the Serbian salute.¹⁹⁸⁸"

"819. At the Grabovica School, women and children were verbally abused on departure by the local population.¹⁹⁹⁹ They were made to walk slowly through a gauntlet composed of civilians, mostly women and children, and were beaten.²⁰⁰⁰ A Bosnian Serb woman attempted to stab an underage Bosnian Muslim, but was prevented by a soldier from doing so.²⁰⁰¹"

"822. Beatings occurred upon entering the police station, when detainees were forced to run through gauntlets composed of, on occasion, members of the 'Specialists',²⁰⁰⁶ in the course of which they were beaten with baseball bats, batons, rifle butts, fists, and were kicked.²⁰⁰⁷

823. Detainees were also beaten and abused during interrogation. Detainees were beaten with batons, rifle butts and chair legs and feet.²⁰⁰⁸ Beatings in some cases were extremely severe and lengthy.²⁰⁰⁹ During interrogation, one detainee witnessed the beating of his brother by a 'Specialist'.²⁰¹⁰ Another detainee was forced to eat his statement, which he had written in the Latin script, and forced to rewrite it in Cyrillic.²⁰¹¹"

"iii. Kotor Varos prison

"828. Detainees were beaten upon arrival, with feet and fists, by policemen, one of whom was from the neighbouring municipality of Skender Vakuf.²⁰²²

829. Detainees in Room Three were physically mistreated by outsiders in olive-drab camouflage uniforms, particularly at night.²⁰²³ As a result of these beatings one detainee suffered several bone fractures to nose, teeth and ribs.²⁰²⁴"

"834. The older men were mistreated by being forced to eat paper and drink petrol.²⁰³³ A mentally impaired man was beaten by a Bosnian Serb soldier.²⁰³⁴ Detainees were humiliated when they were forced to sing Serbian songs and to assume a praying position.²⁰³⁵"

"844. At the Omarska camp detainees were systematically beaten upon arrival to the camp.²⁰⁶¹ They were thereafter beaten both routinely²⁰⁶² and during interrogation,²⁰⁶³ with all sorts of implements, including electric cables, rifle butts, police batons, wooden clubs, baseball bats, chains, fists and boots.²⁰⁶⁴ Female detainees were also beaten.²⁰⁶⁵ Beatings occurred during the day, on the way to meals²⁰⁶⁶ and at night.²⁰⁶⁷"

"846. In some cases the beatings were so severe as to result in serious injury, permanent disfigurement, or death.²⁰⁷⁴ Detainees were beaten to death while other detainees were watching.²⁰⁷⁵

847. At Omarska, there were frequent incidents of female detainees being called out by the camp guards and the camp commander to be raped and sexually assaulted.²⁰⁷⁶

848. At Omarska camp, beatings were administered by camp guards, such as Milutin Popovic aka "Pop" and Zarko Marmat.²⁰⁷⁷ On religious holidays or if the relative of a guard was killed in the battlefield, beatings intensified.²⁰⁷⁸ Shift commander Mladjo Radic aka "Krkan" was present during the beatings but did nothing to prevent the beatings,²⁰⁷⁹ and in fact organised the gauntlet of guards that on one occasion beat the detainees.²⁰⁸⁰ Moreover, the following were present when the name of those who would be beaten was called out: Zigic and Kvocka.²⁰⁸¹ Detainees were also beaten by outsiders, including Bosnian Serb soldiers from the front, whilst camp guards stood aside.²⁰⁸²"

"851. At Keraterm camp, detainees were beaten on arrival.²⁰⁹⁴ An elderly man was beaten by Bosnian Serb soldiers at the entrance to the camp and accused of killing Serbs in 1942: his nose was broken as a result of this beating.²⁰⁹⁵ Beatings occurred both day and night.²⁰⁹⁶ Beatings were carried out with wooden clubs, baseball bats, electric cables and police batons.²⁰⁹⁷ Nenad Banovic, aka "Cupo", shot at the legs of resting detainees, injuring them.²⁰⁹⁸ Detainees were humiliated and tortured. Certain detainees were singled out for particularly harsh treatment, although it is not clear on what basis they were singled out. Two Bosnian Muslim former policemen were beaten with chains and metal rods.²⁰⁹⁹ One Albanian man died after a few days as a consequence of a beating,²¹⁰⁰ just like a Bosnian Serb detainee and a half Bosnian Croat-half Bosnian Serb detainee.²¹⁰¹

852. In some cases the beatings were so severe as to result in serious injury²¹⁰² and death.²¹⁰³ Beatings and humiliation were often administered in front of other detainees. Female detainees were raped in Keraterm camp.²¹⁰⁴

853. The beatings were administered by the camp guards,²¹⁰⁵ in particular Nenad Banovic "Cupo".²¹⁰⁶ In addition, beatings were administered by people from outside.²¹⁰⁷"

"856. Male detainees were interrogated and beaten, with wooden poles and knives,²¹¹⁴ some until they were unconscious.²¹¹⁵ There was blood on the floor and on the wall of the interrogation room. Detainees were beaten in front of other detainees.²¹¹⁶ Women were raped in Trnopolje camp, including by Kuruzovic, the commander of the camp.²¹¹⁷

At the Trnopolje camp, beatings were administered by the guards.²¹¹⁸ Detainees in Trnopolje were also beaten by people from outside, and the guards did nothing to stop them.²¹¹⁹"

"858. The secretary of the local commune had his office at the Miska Glava dom,²¹²⁰ which was staffed by the Territorial Defence.²¹²¹ About 114 Bosnian Muslim detainees were locked up in the café therein.²¹²²

859. At Miska Glava, detainees were beaten during interrogations by Bosnian Serb soldiers with fists and rifle butts.²¹²³ They suffered concussions, bleeding and heavy bruising.²¹²⁴ They were beaten in the presence of other detainees.²¹²⁵"

"863. Detainees were beaten with metal objects by members of the intervention squad,²¹³² composed of men from Prijedor.²¹³³ One detainee had his temple bone fractured as a result of these beatings.²¹³⁴ Dr. Mahmuljin was beaten with special virulence: 'Dado' Mrdja and Zoran Babic accused him of killing Serb children as a consequence of the allegations aired by Radio Prijedor as part of the propaganda campaign.²¹³⁵ His arm was fractured in several places as a result and he was left unconscious.²¹³⁶ Detainees were also beaten during interrogation and humiliated.²¹³⁷ Detainees were subjected to ethnic slurs.²¹³⁸ From the Prijedor SUP, detainees were transferred to Omarska camp by policemen.²¹³⁹ Prior to their transfer, they were forced to run a gauntlet of policemen.²¹⁴⁰"

"864. The JNA barracks in Prijedor, where at least 30 Bosnian Muslim men were detained, were staffed by the Bosnian Serb military. A detainee was questioned by Kovacevic, the security officer. He was then interrogated and beaten with a stick by a police officer and slapped by Jovic, a Lieutenant in a JNA outfit, which caused him to bleed, and forced to write and sign statements. Detainees were also beaten outside interrogation, including a Muslim religious official, and received injuries. As a result, a detainee suffered difficulty eating.²¹⁴¹"

"874. Beatings also took place in the SUP outside interrogation. Beatings were mostly conducted by the guards.²¹⁶⁶ Danilu sko Kajtez, an SOS member, beat several detainees at the SUP.²¹⁶⁷ Whilst detained at the cells in the SUP, Bosnian Serb soldiers, inebriated at times, were given access to detainees and would beat them, as would civilians.²¹⁶⁸ A detainee was beaten and kicked whilst forced to assume a praying position.²¹⁶⁹ Detainees were subjected to ethnic slurs.²¹⁷⁰"

"875. One detainee suffered fractured ribs as a result of being beaten.²¹⁷¹ Another detainee lost all his teeth.²¹⁷² Another detainee’s hand was burnt with hot water.²¹⁷³ Detainees did not receive any medical treatment.²¹⁷⁴ 'Hodza' Emir Seferovic and SDA secretary Hasim Kamber were beaten daily, and were eventually killed.²¹⁷⁵

"880. Beatings took place with horrifying regularity at the Betonirka factory garages.²¹⁸⁹ Beatings were carried out with the use of cables, feet of tables, spades and feet.²¹⁹⁰ The beatings were at times selective.²¹⁹¹ One detainee testified that he was beaten as a result of the propaganda that had been spread regarding his practice as a doctor.²¹⁹² For the most part, however, the detainees at Betonirka were randomly beaten.²¹⁹³

881. These beatings caused serious injuries to the detainees.²¹⁹⁴ Enver Burnic, a Bosnian Muslim former policeman, was taken outside on St Vitus’ day (28 June) by shift commander Martic, a Bosnian Serb policeman, who was drunk, and by two policemen, and beaten – he was told at the time that a bullet was too costly a way for him to die.²¹⁹⁵

882. The perpetrators of the beatings were the facility’s guards, particularly the shift commander Martic.²¹⁹⁶ Bosnian Serb outsiders also beat the detainees, with the guards’ knowledge and acquiescence.²¹⁹⁷"

"886. There were beatings at the Hasan Kikic gymnasium,²²⁰⁴ as a result of which one detainee was suicidal.²²⁰⁵ These were particularly severe when detainees were led to board the truck that took around 150 of them to Manjaca on 6 June 1992.²²⁰⁶ They were transported in very hot temperatures in trucks covered by tarpaulin, and were not given any water during the whole journey that lasted from morning until evening.²²⁰⁷"

"887. A Bosnian Muslim detainee was beaten with truncheons by two soldiers outside a Bosnian Serb army position in Magarice,²²⁰⁸ after he was taken before Colonel Basara.²²⁰⁹ When he was transferred to the SUP, he was unable to lie down as a result of his injuries, because he was severely beaten.²²¹⁰"

"892. Detainees at the SUP were Bosnian Muslim and Bosnian Croat men.²²¹⁷ Almost all were prominent citizens.²²¹⁸ Detainees were beaten with police batons, rifle butts, fists and feet.²²¹⁹ Detainees witnessed the beatings of other detainees.²²²⁰ They were forced to display the three-fingered Serbian salute, and to sing Serbian songs.²²²¹"

"896. Detainees were beaten with fists, feet, batons, chains, baseball bats and cables.²²²⁶ Detainees were beaten daily.²²²⁷ Detainees witnessed the beatings and deaths of other inmates as a result of the beatings.²²²⁸ They were forced to extend the three-fingered Serbian salute and sing Serbian songs.²²²⁹ Detainees were subjected to ethnic slurs.²²³⁰

897. Beatings were administered by the Bosnian Serb reserve police, and by the 'Mice' paramilitary group, and the worst shift was headed by the Bosnian Serb reserve police officer "Tomo" Mihajlovic.²²³¹"

"901. At Pribinic, detainees were beaten with police batons, rifle butts and chains, clubs, feet, rubber sticks, chains and wooden objects.²²³⁹ Detainees were beaten daily.²²⁴⁰ Some still suffer the serious physical effects of those beatings.²²⁴¹ The Trial Chamber has already found that several men died as a result of the beatings.²²⁴² Detainees witnessed the beatings ²²⁴³ and deaths of other detainees, including that of a mentally impaired man.²²⁴⁴

902. The beatings were administered by the Bosnian Serb military police²²⁴⁵ and, on one occasion, by three Bosnian Serb soldiers who came into the camp.²²⁴⁶ Dragan Babic, the camp commander, was particularly brutal, and personally administered beatings.²²⁴⁷

903. During their stay in Pribinic, detainees were interrogated by Aleksa Jovic, deputy commander of the military police.²²⁴⁸ At some point, Aleksa Jovic ordered that Dragan Babic and some other guards be replaced in view of their brutality. A new commander was appointed by the name of Radic. Despite this, the beatings continued.²²⁴⁹ Detainees complained again to Aleksa Jovic, but to no avail.²²⁵⁰"

Prosecutor v. André Ntagerura et al., Case No. ICTR-96-10A-T, Judgement (TC), 25 February 2004, paras. 686, 692:

[B. Evidentiary comment:]

P.14.3. Evidence that victims were forced to lick their own blood.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 744, 845:

"744. The Trial Chamber will now proceed to detail its findings with respect to those camps and detention facilities in relation to which it is satisfied beyond reasonable doubt that serious bodily and/or mental harm was inflicted upon the Bosnian Muslim and Bosnian Croat detainees, and, further, that it was inflicted intentionally."

"845. Detainees were humiliated: one detainee was forced to hit his head against a wall.²⁰⁶⁸ Another was forced to lick his own blood.²⁰⁶⁹ Yet another was forced to cross the pista naked whilst pursued by a guard with a whip.²⁰⁷⁰ Physically and mentally impaired detainees were humiliated and some eventually killed.²⁰⁷¹ Detainees were regularly threatened with death, including the female detainees.²⁰⁷² Detainees were subjected to ethnic slurs.²⁰⁷³"

[B. Evidentiary comment:]

P.15. Evidence of humiliation.

P.15.1. Evidence that victims were forced to graze grass like animals.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 744, 802:

"744. The Trial Chamber will now proceed to detail its findings with respect to those camps and detention facilities in relation to which it is satisfied beyond reasonable doubt that serious bodily and/or mental harm was inflicted upon the Bosnian Muslim and Bosnian Croat detainees, and, further, that it was inflicted intentionally."

"802. The guards cursed, taunted and threatened the detainees with death, and subjected them to ethnic slurs.¹⁹⁶¹ An armed Bosnian Serb soldier with a gun forced detainees to graze grass like animals, for the purposes of humiliating them.¹⁹⁶²"

[B. Evidentiary comment:]

P.15.2. Evidence that victims were forced to hit their heads against a wall.

A. Legal source/ authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 744, 845:

"744. The Trial Chamber will now proceed to detail its findings with respect to those camps and detention facilities in relation to which it is satisfied beyond reasonable doubt that serious bodily and/or mental harm was inflicted upon the Bosnian Muslim and Bosnian Croat detainees, and, further, that it was inflicted intentionally."

"845. Detainees were humiliated: one detainee was forced to hit his head against a wall.²⁰⁶⁸ […]"

[B. Evidentiary comment:]

P.15.3. Evidence that victims were forced to lick their own blood.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 744, 845:

"744. The Trial Chamber will now proceed to detail its findings with respect to those camps and detention facilities in relation to which it is satisfied beyond reasonable doubt that serious bodily and/or mental harm was inflicted upon the Bosnian Muslim and Bosnian Croat detainees, and, further, that it was inflicted intentionally."

"845. Detainees were humiliated: one detainee was forced to hit his head against a wall.²⁰⁶⁸ Another was forced to lick his own blood.²⁰⁶⁹ Yet another was forced to cross the pista naked whilst pursued by a guard with a whip.²⁰⁷⁰ Physically and mentally impaired detainees were humiliated and some eventually killed.²⁰⁷¹ Detainees were regularly threatened with death, including the female detainees.²⁰⁷² Detainees were subjected to ethnic slurs.²⁰⁷³"

[B. Evidentiary comment:]

P.15.4. Evidence that victims were forced to run naked while pursued by guards with whips.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 744, 845:

"744. The Trial Chamber will now proceed to detail its findings with respect to those camps and detention facilities in relation to which it is satisfied beyond reasonable doubt that serious bodily and/or mental harm was inflicted upon the Bosnian Muslim and Bosnian Croat detainees, and, further, that it was inflicted intentionally."

"845. Detainees were humiliated: one detainee was forced to hit his head against a wall.²⁰⁶⁸ Another was forced to lick his own blood.²⁰⁶⁹ Yet another was forced to cross the pista naked whilst pursued by a guard with a whip.²⁰⁷⁰ Physically and mentally impaired detainees were humiliated and some eventually killed.²⁰⁷¹ Detainees were regularly threatened with death, including the female detainees.²⁰⁷² Detainees were subjected to ethnic slurs.²⁰⁷³"

[B. Evidentiary comment:]

P.15.5. Evidence of humiliation of physically and mentally impaired victims.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 744, 845:

"744. The Trial Chamber will now proceed to detail its findings with respect to those camps and detention facilities in relation to which it is satisfied beyond reasonable doubt that serious bodily and/or mental harm was inflicted upon the Bosnian Muslim and Bosnian Croat detainees, and, further, that it was inflicted intentionally."

"845. Detainees were humiliated: one detainee was forced to hit his head against a wall.²⁰⁶⁸ Another was forced to lick his own blood.²⁰⁶⁹ Yet another was forced to cross the pista naked whilst pursued by a guard with a whip.²⁰⁷⁰ Physically and mentally impaired detainees were humiliated and some eventually killed.²⁰⁷¹ Detainees were regularly threatened with death, including the female detainees.²⁰⁷² Detainees were subjected to ethnic slurs.²⁰⁷³"

[B. Evidentiary comment:]

P.15.6. Evidence of ethnic slurs.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 744, 763, 767, 772, 776, 780, 801-802, 814, 824, 834, 845, 863, 874, 896:

"744. The Trial Chamber will now proceed to detail its findings with respect to those camps and detention facilities in relation to which it is satisfied beyond reasonable doubt that serious bodily and/or mental harm was inflicted upon the Bosnian Muslim and Bosnian Croat detainees, and, further, that it was inflicted intentionally."

"763. Bosnian Muslim and Bosnian Croat detainees were beaten immediately upon arrival with fists, feet and truncheons.¹⁸⁵⁸ They were subjected to ethnic slurs.¹⁸⁵⁹ A detainee’s tooth was broken as a result of a Bosnian Serb prison guard introducing the barrel of his pistol into his mouth; he was also threatened with a knife.¹⁸⁶⁰ Another detainee suffered a broken cheekbone.¹⁸⁶¹ On one occasion, the beatings resulted in the death of one detainee.¹⁸⁶² Detainees did not receive any medical attention for the injuries they suffered.¹⁸⁶³"

"767. On 21 and 22 April 1992, at Jasenica, a village at a distance of 18 kilometres from Bosanska Krupa town, Bosnian Serb policemen confined approximately 60 Bosnian Muslims and a few Bosnian Croats in the local elementary school building.¹⁸⁶⁸ Upon arrival, detainees were subjected to ethnic slurs.¹⁸⁶⁹ They were held there until 1 or 2 May 1992.¹⁸⁷⁰"

"772. The Trial Chamber found that Bosnian Serb policemen administered electroshocks to a number of Bosnian Muslim detainees during interrogation, and that at least one of the detainees still suffers from the physical consequences of this treatment today.¹⁸⁸¹ In addition, detainees, including two women, were regularly beaten by policemen and by passers-by, and made to sing Cetnik songs.¹⁸⁸²

"776. Beatings were administered regularly in the Kozila logging camp by "Cigo" Zori c and by the guards of the camp,¹⁸⁹⁴ including Zeljko Brankovic and Milan Knezevic.¹⁸⁹⁵ Beatings took place during interrogations and involved the use of fists, feet, rifles, pistols and truncheons.¹⁸⁹⁶ A pistol was put to a Bosnian Muslim detainee’s head during one interrogation.¹⁸⁹⁷ A number of detainees were beaten together at the same time, and also forced to beat each other.¹⁸⁹⁸ During these beatings, detainees were called 'Balija’, subjected to other ethnic slurs and humiliated.¹⁸⁹⁹"

"780. In the evenings, detainees were forced to sing Serbian songs. They were also beaten with batons and fists.¹⁹⁰⁹ In Kamenica, detainees had to prepare firewood, dig trenches and make a fence around the camp.¹⁹¹⁰

"e. Bosanski Novi municipality

[…]

i. Mlavke football stadium

[…]

801. Beatings took place at the Mlavke football stadium.¹⁹⁵⁸ As a result of the beating inflicted by a Bosnian Serb soldier, a detainee was blinded in one eye.¹⁹⁵⁹ Beatings also took place when drunk Bosnian Serb soldiers returned from the front.¹⁹⁶⁰

802. The guards cursed, taunted and threatened the detainees with death, and subjected them to ethnic slurs.¹⁹⁶¹ An armed Bosnian Serb soldier with a gun forced detainees to graze grass like animals, for the purposes of humiliating them.¹⁹⁶²"

"807. Those arrested were beaten in a gauntlet at the steps of the entrance to the SUP building with feet, fists, batons, rifle-butts and chair legs, and were subjected to ethnic slurs.¹⁹⁷¹ A prominent Bosnian Muslim was thrown down the stairs, and as a result carried into the SUP building unconscious, whilst another suffered a cut lip and broken ribs.¹⁹⁷² As a result of the severity of the beatings, the former suffered a serious, lasting injury with continuing effects today.¹⁹⁷³"

"814. There was blood on the walls of the school and on the detainees.¹⁹⁸⁶ One detainee who was bleeding as a result of the beatings was forced to lick his own blood off the floor, which others witnessed.¹⁹⁸⁷ Detainees were forced to extend the three fingers in the Serbian salute.¹⁹⁸⁸"

"824. Outside interrogation, Bosnian Muslim and Bosnian Croat male and female detainees were forced by a Bosnian Serb policeman to perform sexual acts with each other, in front of a crowd of cheering men in police and Bosnian Serb military uniforms, some of whom were wearing red berets.²⁰¹² Two other male detainees, at least one of whom was a Bosnian Muslim, were forced to perform fellatio on each other by the 'Specialists' whilst being subjected to ethnic slurs.²⁰¹³"

"834. The older men were mistreated by being forced to eat paper and drink petrol.²⁰³³ A mentally impaired man was beaten by a Bosnian Serb soldier.²⁰³⁴ Detainees were humiliated when they were forced to sing Serbian songs and to assume a praying position.²⁰³⁵"

"845. Detainees were humiliated: one detainee was forced to hit his head against a wall.²⁰⁶⁸ Another was forced to lick his own blood.²⁰⁶⁹ Yet another was forced to cross the pista naked whilst pursued by a guard with a whip.²⁰⁷⁰ Physically and mentally impaired detainees were humiliated and some eventually killed.²⁰⁷¹ Detainees were regularly threatened with death, including the female detainees.²⁰⁷² Detainees were subjected to ethnic slurs.²⁰⁷³"

"863. Detainees were beaten with metal objects by members of the intervention squad,²¹³² composed of men from Prijedor.²¹³³ One detainee had his temple bone fractured as a result of these beatings.²¹³⁴ Dr. Mahmuljin was beaten with special virulence: 'Dado' Mrdja and Zoran Babic accused him of killing Serb children as a consequence of the allegations aired by Radio Prijedor as part of the propaganda campaign.²¹³⁵ His arm was fractured in several places as a result and he was left unconscious.²¹³⁶ Detainees were also beaten during interrogation and humiliated.²¹³⁷ Detainees were subjected to ethnic slurs.²¹³⁸ From the Prijedor SUP, detainees were transferred to Omarska camp by policemen.²¹³⁹ Prior to their transfer, they were forced to run a gauntlet of policemen.²¹⁴⁰"

"874. Beatings also took place in the SUP outside interrogation. Beatings were mostly conducted by the guards.²¹⁶⁶ Danilu sko Kajtez, an SOS member, beat several detainees at the SUP.²¹⁶⁷ Whilst detained at the cells in the SUP, Bosnian Serb soldiers, inebriated at times, were given access to detainees and would beat them, as would civilians.²¹⁶⁸ A detainee was beaten and kicked whilst forced to assume a praying position.²¹⁶⁹ Detainees were subjected to ethnic slurs.²¹⁷⁰"

"896. Detainees were beaten with fists, feet, batons, chains, baseball bats and cables.²²²⁶ Detainees were beaten daily.²²²⁷ Detainees witnessed the beatings and deaths of other inmates as a result of the beatings.²²²⁸ They were forced to extend the three-fingered Serbian salute and sing Serbian songs.²²²⁹ Detainees were subjected to ethnic slurs.²²³⁰"

P.16. Evidence that electric shocks were administered.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 744, 772:

"744. The Trial Chamber will now proceed to detail its findings with respect to those camps and detention facilities in relation to which it is satisfied beyond reasonable doubt that serious bodily and/or mental harm was inflicted upon the Bosnian Muslim and Bosnian Croat detainees, and, further, that it was inflicted intentionally."

"772. The Trial Chamber found that Bosnian Serb policemen administered electroshocks to a number of Bosnian Muslim detainees during interrogation, and that at least one of the detainees still suffers from the physical consequences of this treatment today.¹⁸⁸¹ In addition, detainees, including two women, were regularly beaten by policemen and by passers-by, and made to sing Cetnik songs.¹⁸⁸²"

P.17. Evidence that victims were forced to inflict harm on each other.

P.17.1. Evidence that victims were forced to beat each other.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 744, 776-777:

"744. The Trial Chamber will now proceed to detail its findings with respect to those camps and detention facilities in relation to which it is satisfied beyond reasonable doubt that serious bodily and/or mental harm was inflicted upon the Bosnian Muslim and Bosnian Croat detainees, and, further, that it was inflicted intentionally."

"776. Beatings were administered regularly in the Kozila logging camp by "Cigo" Zoric and by the guards of the camp,¹⁸⁹⁴ including Zeljko Brankovic and Milan Knezevic.¹⁸⁹⁵ Beatings took place during interrogations and involved the use of fists, feet, rifles, pistols and truncheons.¹⁸⁹⁶ A pistol was put to a Bosnian Muslim detainee’s head during one interrogation.¹⁸⁹⁷ A number of detainees were beaten together at the same time, and also forced to beat each other.¹⁸⁹⁸ During these beatings, detainees were called 'Balija’, subjected to other ethnic slurs and humiliated.¹⁸⁹⁹

777. Some detainees lost consciousness during these beatings.¹⁹⁰⁰ One could not walk the next day as a result of the beatings, the physical consequences of which he still suffers.¹⁹⁰¹ Another was placed in solitary confinement for eleven days after being beaten.¹⁹⁰²"

[B. Evidentiary comment:]

P.17.2. Evidence that victims were forced to beat each other by running at full speed and butting heads together.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 744, 789-790:

"744. The Trial Chamber will now proceed to detail its findings with respect to those camps and detention facilities in relation to which it is satisfied beyond reasonable doubt that serious bodily and/or mental harm was inflicted upon the Bosnian Muslim and Bosnian Croat detainees, and, further, that it was inflicted intentionally."

"iii. Territorial Defence warehouse

789. At the TO warehouse in Donji Vakuf, beatings occurred very often, also in front of other detainees.¹⁹²⁷ Detainees were beaten with electric cables, bats, rifle butts, and feet.¹⁹²⁸ Detainees who were relatives were forced to beat each other by running at full speed and butting their heads against each other.¹⁹²⁹ Naim Sutkovic, an elderly detainee, died of his injuries as a result of a severe beating.¹⁹³⁰ Detainees witnessed the deaths of others.¹⁹³¹ One of the detainees, a teacher, was beaten by his former student.¹⁹³² No medical attention was provided to those injured as a result of the beatings.¹⁹³³

790. The perpetrators of the beatings were Bosnian Serb local reserve policemen and two military policemen who were not from Donji Vakuf.¹⁹³⁴ Some of the perpetrators of the beatings at the TO warehouse also perpetrated the beatings at the SUP building.¹⁹³⁵"

[B. Evidentiary comment:]

P.17.3. Evidence that victims were forced to slap other detainees.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 744, 759:

"744. The Trial Chamber will now proceed to detail its findings with respect to those camps and detention facilities in relation to which it is satisfied beyond reasonable doubt that serious bodily and/or mental harm was inflicted upon the Bosnian Muslim and Bosnian Croat detainees, and, further, that it was inflicted intentionally."

"759. The Trial Chamber is satisfied that beatings also took place regularly in Mali Logor, involving amongst others the use of fists, feet and batons,¹⁸⁴⁸ and resulting in serious injury or death.¹⁸⁴⁹ These beatings focused on Bosnian Muslims and Bosnian Croats.¹⁸⁵⁰ A Bosnian Croat detainee was forced by a Bosnian Serb military policeman to slap other detainees.¹⁸⁵¹ He suffered psychological damage as a result of his detention and these problems continue to this day.¹⁸⁵² Detainees witnessed these beatings being inflicted on others.¹⁸⁵³"

[B. Evidentiary comment:]

P.18. Evidence of mass execution survivors’ trauma.

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 649:

"647. The Trial Chamber finds that there is sufficient evidence to establish beyond reasonable doubt that the trauma and wounds suffered by those individuals who managed to survive the mass executions does constitute serious bodily and mental harm. The fear of being captured, and, at the moment of the separation, the sense of utter helplessness and extreme fear for their family and friends’ safety as well as for their own safety, is a traumatic experience from which one will not quickly – if ever – recover. Furthermore, the Trial Chamber finds that the men suffered mental harm having their identification documents taken away from them, seeing that they would not be exchanged as previously told, and when they understood what their ultimate fate was. Upon arrival at an execution site, they saw the killing fields covered of bodies of the Bosnian Muslim men brought to the execution site before them and murdered. After having witnessed the executions of relatives and friends, and in some cases suffering from injuries themselves, they suffered the further mental anguish of lying still, in fear, under the bodies - sometimes of relative or friends - for long hours, listening to the sounds of the executions, of the moans of those suffering in pain, and then of the machines as mass graves were dug.²⁰⁷⁴

P.19. Evidence of certain crimes committed by the perpetrator.

A. Evidentiary comment:

Although persecution, deportation and acts of inhumane and degrading treatment have been characterised by the ICTR and ICTY as constituting of the underlying offence of serious bodily and mental harm, they have not been discussed in detail by either Tribunal. These offences overlap with some of the material elements against humanity and prohibitions in international human rights law. (e.g., the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment). For a more elaborate discussion of these crimes, please refer to the specific Mean of Proof Documents for each crime.

One commentator suggests that "it is open to question whether any act or commission which causes serious bodily or mental harm could qualify as an underlying offence for genocide under this subheading or whether it must, in addition, be such as to be liable or have the potential to contribute in some way to the destruction of the group. Could for instance, deportation unaccompanied by any other kind of mistreatment or forced labour or imprisonment ever be regarded as ‘acts causing serious bodily and mental harm’ and thus qualify as genocide all other conditions being met? Strictly speaking the ‘destruction’ requirement of genocide is limited to the accused’s mens rea so that no actual destruction needs to occur for relevant conduct to qualify as genocide. The answer would therefore appear, on its face, to be that any act that causes such harm could in principle qualify as genocide by causing serious bodily and mental harm to the group. The International Law Commission (ILC) has suggested, however, and the Kajelijeli Trial Chamber has quoted it with apparent approval, that the harm must be such as to threaten the destruction of the group in whole or in part. " (footnotes omitted) (Guena?l Mettraux, International Crimes and the Ad Hoc Tribunals, (2005), p. 238) Another view is that the standard proposed by the ILC is excessively demanding, and not supported by the text or the travaux preparatoires; and indicative of a confusion between the mental element of the chapeau and the material element of paragraph (b). (William Schabas, Genocide in International Law (2000), p. 161)

P.19.1. Evidence of persecution by the perpetrator.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 504:

"504. For purposes of interpreting Article 2 (2)(b) of the Statute, the Chamber takes serious bodily or mental harm, without limiting itself thereto, to mean acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution."

[B. Evidentiary comment:]

P.19.2. Evidence of deportation by the perpetrator.

P.19.3. Evidence of acts of inhumane or degrading treatment by the perpetrator.

A. Legal source/authority and evidence:

Prosecutor v. Zdravko Tolimir, Judgement (TC), 12 December 2012, para 754:

754. The group of men that elected not to join the column of Bosnian Muslims who headed to ABiH-held territory after the fall of Srebrenica on 11 July 1995 and instead joined their families to seek shelter at the UN compound in Potočari, must have soon realised there was no hope of being protected. The night before the transportations of the women, children and elderly began, the Bosnian Muslim population in Potočari huddled together in horrid conditions at the UN compound with insufficient food, water or proper sanitation, enduring a night of terror inflicted by Bosnian Serb Forces on the night thereafter. The men were abruptly and systematically separated from their female family members. They were forced to leave their belongings and IDs behind before being detained in the White House, mistreated, and finally shipped off in buses towards Bratunac. At least 800 Bosnian Muslim men, comprised of some of the men from Potočari as well as men captured from the column, were murdered in the Bratunac area while others continued to be detained in various temporary facilities. These men were kept in abominable conditions for a further period of time before being transported to remote locations in the Zvornik area. The Chamber finds that the group of men separated in Potočari and taken to the White House, as well as the group of men who surrendered or were captured from the column throughout 13 July, would have become aware at one stage or another of the real possibility that they would ultimately meet their death at the hands of Bosnian Serb Forces who were detaining them. It finds that the suffering of these men, in the days and hours before they were killed, amounted to serious bodily or mental harm.

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 504:

"504. For purposes of interpreting Article 2 (2)(b) of the Statute, the Chamber takes serious bodily or mental harm, without limiting itself thereto, to mean acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution."

[B. Evidentiary comment:]

P.20. Evidence of rape and sexual violence.

A. Legal source/authority and evidence:

Prosecutor v. Emmanuel Rukundo, Case No. ICTR-2001-70-T , Judgement (TC), 1 December 2010, paras. 381-384, 386-389:

" 381. The actions in question were clearly of a sexual nature: Rukundo forced sexual contact with her by opening the zipper of his trousers, trying to remove her skirt, forcefully lying on top of her and caressing and rubbing himself against her until he ejaculated and lost his erection. Rukundo’s actions and words, such as telling her that if she made love with him he would never forget her, support the Chamber’s finding that his actions were of a sexual nature.

382. In Akayesu, the Trial Chamber stated that,

383. When it was put to Witness CCH in cross-examination that Rukundo did not use any threat or force to convince her to have sexual intercourse with him, she replied that "[y]ou don’t need to use a gun to threaten somebody. He definitely did not point his gun at me. But, remember that he’s the one who pushed me to the bed, and he took into account the weakness -- the weak point from which I was. That was also a disguised threat …"572 She further testified that she drank a beer with Rukundo to acknowledge his position of authority and that she ultimately thought he was taking advantage of his position.573

384. The Chamber notes that Witness CCH testified that the situation surrounding the Tutsi refugees at the St. Léon Minor Seminary from April until June 1994 was dangerous.574 Other witnesses testified that many Tutsi refugees were regularly abducted from the St. Léon Minor Seminary and killed.575 Witness CCH further testified that, fearing for her life, she implored the Accused to hide her. Rukundo compounded her fear by indicating that she and her family must be killed because her relative was an Inyenzi. At all material times, Rukundo was armed with a gun. After Witness CCH assisted Rukundo to bring some of his belongings to a small room, he locked her inside the room alone with him; and, placing a pistol on a nearby table, he proceeded to force himself upon her, while she struggled to free herself from his control. The Chamber finds that these events, taken together, clearly constitute coercive circumstances."

"386. The Chamber has already expressed the general standard required to find serious mental harm with regards to the allegation at the Bishopric. Although the mental harm suffered must be more than a minor or temporary impairment of mental faculties, it need not be permanent or irremediable.578 Additionally, the Trial Chamber in Kamuhanda stated that serious mental harm could be found when there is a non-mortal act, such as sexual assault, combined with the threat of death.579 It has further been held that "rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims and are even […] one of the worst ways of inflicting harm on the victim as he or she suffers both bodily and mental harm."580

387. The evidence of Witness CCH, which the Chamber has accepted, describes a young Tutsi woman fearing for her life and seeking protection from a member of the clergy, known to her, who was in a position of authority. Instead of providing protection, Rukundo abused Witness CCH by sexually assaulting her under coercive circumstances.

388. The Chamber acknowledges that it has not had the benefit of any direct evidence on Witness CCH’s mental state, following the sexual assault, apart from her testimony that she could not tell anyone about the incident. The Chamber, however, recalls that it may draw inferences from the evidence presented. The Chamber finds it necessary to look beyond the sexual act in question and finds it particularly important to consider the highly charged, oppressive and other circumstances surrounding the sexual assault on Witness CCH. The Chamber notes in particular the following circumstances:

1) Members of her ethnic group were victims of mass killings;

2) She and her family, fearing death in this way, sought refuge in a religious institution;

3) Upon seeing a familiar and trusted person of authority and of the church, i.e. the Accused,she requested protection for herself;

4) When the Accused refused her the protection she had requested, he specifically threatened her – that her family was to be killed for its association with the "Inyenzi";

5) Rukundo had a firearm;

6) Still hoping to be protected, Witness CCH sought to ingratiate herself to Rukundo by assisting him to carry his effects into a nearby room;

7) The Accused locked her in the room with him, put his firearm down nearby and proceeded to physically manhandle her in a sexual way; and

8) At the time of the incident, Witness CCH was sexually inexperienced.

389. In light of the established jurisprudence and the totality of the evidence, in particular the surrounding circumstances of the sexual assault, the Chamber finds, Judge Park dissenting, that the only reasonable conclusion is that Witness CCH suffered serious mental harm as a consequence of Rukundo’s actions."

571 Akayesu, Judgement (TC), para. 688.

572 T. 14 February 2007, p. 20.

573 T. 13 February 2007, p. 61.

574 T. 13 February 2007, pp. 66-67.

578 Rutaganda, Judgement (TC), para. 50; See also Brđanin, Judgement (TC), para. 690; Seromba, Judgement (AC), para. 46.

579 Kamuhanda, Judgement (TC), para. 634.

580 Akayesu, Judgement (TC), para. 731.

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, para. 502:

"Serious bodily harm is any serious physical injury to the victim, such as torture and sexual violence. This injury need not necessarily be irremediable.⁴⁶²"

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, paras. 291-293:

"Causing Serious Bodily or Mental Harm to members of the Tutsi Ethnic Group

291. Serious bodily harm means any form of physical harm or act that causes serious bodily injury to the victim, such as torture and sexual violence. Serious bodily harm does not necessarily mean that the harm is irremediable.²⁷⁰ Similarly, serious mental harm can be construed as some type of impairment of mental faculties, or harm that causes serious injury to the mental state of the victim. ²⁷¹

292. With regard to paragraph 21 of the Indictment, the Chamber has already found that the Accused publicly instigated the rape of Tutsi women and girls, and that the rape of Witness TAQ and seven other Tutsi women and girls by attackers who heeded the instigation was a direct consequence thereof. The Chamber finds that these rapes caused serious physical harm to members of the Tutsi ethnic group. Thus, the Chamber finds that, as to the specific crime of serious bodily harm, Sylvestre Gacumbitsi incurs responsibility for the crime of genocide by instigating the rape of Tutsi women and girls.

293. Accordingly, the Chamber finds Sylvestre Gacumbitsi GUILTY of GENOCIDE, pursuant to Article 2(3)(a) and (b), as charged under Count 1 of the Indictment."

"270. Akayesu Judgment (TC), para. 502, Kayishema and Ruzindana Judgment (TC), para. 110, Semanza Judgment (TC), paras. 320 to 321.

271. See ILC Report (1996), para. 14, under Article 17 of the Draft Code of Crimes. Bodily harm is defined therein as "some type of physical injury", while mental harm is defined as "some type of impairment of mental faculties".

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, paras. 633-634:

"Causing Serious Bodily or Mental Harm to Members of the Group

633. Regarding the requirement under Article 2(2)(b) that in order to be held liable by causing serious bodily or mental harm to members of the group, the International Law Commission has indicated that this covers two types of harm that may be inflicted on an individual, namely bodily harm which involves some type of physical injury and mental harm which involves some type of impairment of mental faculties. The International Law Commission further observed that the bodily or mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.

634. Trial Chambers of the Tribunal have held that what is "bodily" or "mental" harm should be determined on a case-by-case basis and have further held that "serious bodily harm" does not necessarily have to be permanent or irremediable, and that it includes non-mortal acts of sexual violence, rape, mutilations and interrogations combined with beatings and/or threats of death. The Trial Chamber in Kayishema and Ruzindana considered "serious mental harm" to include more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat. The state of the law in this regard is aptly captured in the conclusion drawn by the Semanza Trial Chamber:

Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, paras. 907-908:

"Fifthly, the Chamber finds that it has been established beyond a reasonable doubt that on 13 May 1994, during the above-mentioned attack on Muyira Hill, Musema, having been told by a policeman called Ruhindara that a young Tutsi woman, a teacher by the name Nyiramusugi, was still alive, asked Ruhindara to catch her and to bring her to him. With the help of four young men, Ruhindara dragged the woman on the ground and brought her to Musema who had his rifle in his hand. The four young men, who were restraining Nyiramusugi, dropped her on the ground and pinned her down. Two of them held her arms, while the other two clamped her legs. The latter two opened the legs of the young woman and Musema tore her garments and undergarments, before undressing himself. In a loud voice, Musema said: "The pride of the Tutsi is going to end today". Musema raped Nyiramusugi. During the rape, as Nyiramusugi struggled, Musema immobilized her by taking her arm which he forcibly held to her neck. Standing nearby, the four men who initially held Nyiramusugi to the ground watched the scene. After Musema's departure, they came back to the woman and also raped her in turns. Thereafter, they left Nyiramusugi for dead.

The Chamber finds that Musema incurs individual criminal responsibility under Article 6 (1) of the Statute, for having raped, in concert with others, a young Tutsi woman and for thus having caused serious bodily and mental harm to a member of the Tutsi group. The Chamber also finds that Musema incurs individual criminal responsibility under Article 6(1) of the Statute, for having abetted others to rape the girl, by the said act of rape and the example he thus set."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 688, 731-733:

"688. The Tribunal defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. The Tribunal considers sexual violence, which includes rape, as any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact. The incident described by Witness KK in which the Accused ordered the Interahamwe to undress a student and force her to do gymnastics naked in the public courtyard of the bureau communal, in front of a crowd, constitutes sexual violence. The Tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal. Sexual violence falls within the scope of "other inhumane acts", set forth Article 3(i) of the Tribunal's Statute, "outrages upon personal dignity," set forth in Article 4(e) of the Statute, and "serious bodily or mental harm," set forth in Article 2(2)(b) of the Statute."

"731. With regard, particularly, to the acts described in paragraphs 12(A) and 12(B) of the Indictment, that is, rape and sexual violence, the Chamber wishes to underscore the fact that in its opinion, they constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such. Indeed, rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims¹⁸¹ and are even, according to the Chamber, one of the worst ways of inflict harm on the victim as he or she suffers both bodily and mental harm. In light of all the evidence before it, the Chamber is satisfied that the acts of rape and sexual violence described above, were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated, and raped several times, often in public, in the Bureau Communal premises or in other public places, and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.

732. The rape of Tutsi women was systematic and was perpetrated against all Tutsi women and solely against them. A Tutsi woman, married to a Hutu, testified before the Chamber that she was not raped because her ethnic background was unknown. As part of the propaganda campaign geared to mobilizing the Hutu against the Tutsi, the Tutsi women were presented as sexual objects. Indeed, the Chamber was told, for an example, that before being raped and killed, Alexia, who was the wife of the Professor, Ntereye, and her two nieces, were forced by the Interahamwe to undress and ordered to run and do exercises "in order to display the thighs of Tutsi women". The Interahamwe who raped Alexia said, as he threw her on the ground and got on top of her, "let us now see what the vagina of a Tutsi woman takes like". As stated above, Akayesu himself, speaking to the Interahamwe who were committing the rapes, said to them: "don't ever ask again what a Tutsi woman tastes like". This sexualized representation of ethnic identity graphically illustrates that tutsi women were subjected to sexual violence because they were Tutsi. Sexual violence was a step in the process of destruction of the tutsi group - destruction of the spirit, of the will to live, and of life itself.

733. On the basis of the substantial testimonies brought before it, the Chamber finds that in most cases, the rapes of Tutsi women in Taba, were accompanied with the intent to kill those women. Many rapes were perpetrated near mass graves where the women were taken to be killed. A victim testified that Tutsi women caught could be taken away by peasants and men with the promise that they would be collected later to be executed. Following an act of gang rape, a witness heard Akayesu say "tomorrow they will be killed" and they were actually killed. In this respect, it appears clearly to the Chamber that the acts of rape and sexual violence, as other acts of serious bodily and mental harm committed against the Tutsi, reflected the determination to make Tutsi women suffer and to mutilate them even before killing them, the intent being to destroy the Tutsi group while inflicting acute suffering on its members in the process."

P.20.1. Evidence that female victims were taken out at night and raped.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 835:

"835. Female detainees were taken out during the night by Bosnian Serb soldiers who wore camouflage uniforms, and who were from Banja Luka, and by policemen from Kotor Varos.²⁰³⁶ At least two female detainees were raped.^2037"

[B. Evidentiary comment:]

P.20.2. Evidence that female victims were raped and sexually assaulted by camp officials.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 847, 856:

"847. At Omarska, there were frequent incidents of female detainees being called out by the camp guards and the camp commander to be raped and sexually assaulted.²⁰⁷⁶"

"856. […] Women were raped in Trnopolje camp, including by Kuruzovic, the commander of the camp.²¹¹⁷

[B. Evidentiary comment:]

P.20.3. Evidence that victims were forced to perform sexual acts in public.

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 824- 825:

Outside interrogation, Bosnian Muslim and Bosnian Croat male and female detainees were forced by a Bosnian Serb policeman to perform sexual acts with each other, in front of a crowd of cheering men in police and Bosnian Serb military uniforms, some of whom were wearing red berets.²⁰¹² Two other male detainees, at least one of whom was a Bosnian Muslim, were forced to perform fellatio on each other by the 'Specialists' whilst being subjected to ethnic slurs.²⁰¹³

Detainees were forced to extend the Serbian three-fingered salute and were beaten.²⁰¹⁴

[B. Evidentiary comment:]

P.20.4. Evidence that the perpetrator ordered acts of sexual violence.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 692, 704-705:

"692. The Tribunal finds, under Article 6(1) of its Statute, that the Accused, by his own words, specifically ordered, instigated, aided and abetted the following acts of sexual violence:

(i) the multiple acts of rape of ten girls and women, including Witness JJ, by numerous Interahamwe in the cultural center of the bureau communal;
(ii) the rape of Witness OO by an Interahamwe named Antoine in a field near the bureau communal;

(iii) the forced undressing and public marching of Chantal naked at the bureau communal."

"704. The Chamber finds that, as pertains to the acts alleged in paragraph 12, it has been established that, throughout the period covered in the Indictment, Akayesu, in his capacity as bourgmestre, was responsible for maintaining law and public order in the commune of Taba and that he had effective authority over the communal police. Moreover, as "leader" of Taba commune, of which he was one of the most prominent figures, the inhabitants respected him and followed his orders. Akayesu himself admitted before the Chamber that he had the power to assemble the population and that they obeyed his instructions. It has also been proven that a very large number of Tutsi were killed in Taba between 7 April and the end of June 1994, while Akayesu was bourgmestre of the Commune. Knowing of such killings, he opposed them and attempted to prevent them only until 18 April 1994, date after which he not only stopped trying to maintain law and order in his commune, but was also present during the acts of violence and killings, and sometimes even gave orders himself for bodily or mental harm to be caused to certain Tutsi, and endorsed and even ordered the killing of several Tutsi.

705. In the opinion of the Chamber, the said acts indeed incur the individual criminal responsibility of Akayesu for having ordered, committed, or otherwise aided and abetted in the preparation or execution of the killing of and causing serious bodily or mental harm to members of the Tutsi group. Indeed, the Chamber holds that the fact that Akayesu, as a local authority, failed to oppose such killings and serious bodily or mental harm constituted a form of tacit encouragement, which was compounded by being present to such criminal acts."

[B. Evidentiary comment:]

P.20.5. Evidence that the perpetrator allowed sexual violence to be perpetrated on premises under his authority.

A. Legal source/authority and evidence:

Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T, Judgement (TC), 24 June 2011, para. 5869:

"5869. There was no evidence of Nyiramasuhuko’s direct involvement in ordering the rape of Witness TA or the other Tutsi women on this occasion in mid-May 1994. Nonetheless, the Interahamwe were acting under the orders of Ntahobali and Nyiramasuhuko to load the truck with people. The Interahamwe accompanied Ntahobali and Nyiramasuhuko who were in the cabin of the vehicle as it transported the Interahamwe to the BPO. This assisted, encouraged or lent moral support to the perpetration of the rapes and had a substantial effect on the realisation of these crimes. Therefore, Nyiramasuhuko, by her presence and position of authority, is guilty of aiding and abetting the rapes at the BPO."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 693- 694:

"693. The Tribunal finds, under Article 6(1) of its Statute, that the Accused aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal, while he was present on the premises in respect of (i) and in his presence in respect of (ii) and (iii), and by facilitating the commission of these acts through his words of encouragement in other acts of sexual violence, which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:

(i) the multiple acts of rape of fifteen girls and women, including Witness JJ, by numerous Interahamwe in the cultural center of the bureau communal;

(ii) the rape of a woman by Interahamwe in between two buildings of the bureau communal, witnessed by Witness NN;

(iii) the forced undressing of the wife of Tharcisse after making her sit in the mud outside the bureau communal, as witnessed by Witness KK;

694. The Tribunal finds, under Article 6(1) of its Statute, that the Accused, having had reason to know that sexual violence was occurring, aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal and by facilitating the commission of such sexual violence through his words of encouragement in other acts of sexual violence which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:

(i) the rape of Witness JJ by an Interahamwe who took her from outside the bureau communal and raped her in a nearby forest;

(ii) the rape of the younger sister of Witness NN by an Interahamwe at the bureau communal;

(iii) the multiple rapes of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe by Interahamwe near the bureau communal;

(iv) 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."

[B. Evidentiary comment:]

P.20.6. Evidence that the perpetrator facilitated, through words of encouragement signifying official tolerance, acts of sexual violence.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 693- 694:

"693. The Tribunal finds, under Article 6(1) of its Statute, that the Accused aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal, while he was present on the premises in respect of (i) and in his presence in respect of (ii) and (iii), and by facilitating the commission of these acts through his words of encouragement in other acts of sexual violence, which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:

(i) the multiple acts of rape of fifteen girls and women, including Witness JJ, by numerous Interahamwe in the cultural center of the bureau communal;
(ii) the rape of a woman by Interahamwe in between two buildings of the bureau communal, witnessed by Witness NN; (iii) the forced undressing of the wife of Tharcisse after making her sit in the mud outside the bureau communal, as witnessed by Witness KK;

694. The Tribunal finds, under Article 6(1) of its Statute, that the Accused, having had reason to know that sexual violence was occurring, aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal and by facilitating the commission of such sexual violence through his words of encouragement in other acts of sexual violence which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:

(i) the rape of Witness JJ by an Interahamwe who took her from outside the bureau communal and raped her in a nearby forest;

(ii) the rape of the younger sister of Witness NN by an Interahamwe at the bureau communal;

(iii) the multiple rapes of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe by Interahamwe near the bureau communal;

(iv) 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."

[B. Evidentiary comment:]

P.20.7. Evidence that the perpetrator failed to oppose acts of sexual violence.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 705:

"705. In the opinion of the Chamber, the said acts indeed incur the individual criminal responsibility of Akayesu for having ordered, committed, or otherwise aided and abetted in the preparation or execution of the killing of and causing serious bodily or mental harm to members of the Tutsi group. Indeed, the Chamber holds that the fact that Akayesu, as a local authority, failed to oppose such killings and serious bodily or mental harm constituted a form of tacit encouragement, which was compounded by being present to such criminal acts."

[B. Evidentiary comment:]

P.20.8. Evidence of the perpetrator’s presence during the commission of sexual violence.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 704-707:

"704. The Chamber finds that, as pertains to the acts alleged in paragraph 12, it has been established that, throughout the period covered in the Indictment, Akayesu, in his capacity as bourgmestre, was responsible for maintaining law and public order in the commune of Taba and that he had effective authority over the communal police. Moreover, as "leader" of Taba commune, of which he was one of the most prominent figures, the inhabitants respected him and followed his orders. Akayesu himself admitted before the Chamber that he had the power to assemble the population and that they obeyed his instructions. It has also been proven that a very large number of Tutsi were killed in Taba between 7 April and the end of June 1994, while Akayesu was bourgmestre of the Commune. Knowing of such killings, he opposed them and attempted to prevent them only until 18 April 1994, date after which he not only stopped trying to maintain law and order in his commune, but was also present during the acts of violence and killings, and sometimes even gave orders himself for bodily or mental harm to be caused to certain Tutsi, and endorsed and even ordered the killing of several Tutsi.

705. In the opinion of the Chamber, the said acts indeed incur the individual criminal responsibility of Akayesu for having ordered, committed, or otherwise aided and abetted in the preparation or execution of the killing of and causing serious bodily or mental harm to members of the Tutsi group. Indeed, the Chamber holds that the fact that Akayesu, as a local authority, failed to oppose such killings and serious bodily or mental harm constituted a form of tacit encouragement, which was compounded by being present to such criminal acts.

706. With regard to the acts alleged in paragraphs 12 (A) and 12 (B) of the Indictment, the Prosecutor has shown beyond a reasonable doubt that between 7 April and the end of June 1994, numerous Tutsi who sought refuge at the Taba Bureau communal were frequently beaten by members of the Interahamwe on or near the premises of the Bureau communal. Some of them were killed. Numerous Tutsi women were forced to endure acts of sexual violence, mutilations and rape, often repeatedly, often publicly and often by more than one assailant. Tutsi women were systematically raped, as one female victim testified to by saying that "each time that you met assailants, they raped you". Numerous incidents of such rape and sexual violence against Tutsi women occurred inside or near the Bureau communal. It has been proven that some communal policemen armed with guns and the accused himself were present while some of these rapes and sexual violence were being committed. Furthermore, it is proven that on several occasions, by his presence, his attitude and his utterances, Akayesu encouraged such acts, one particular witness testifying that Akayesu, addressed the Interahamwe who were committing the rapes and said that "never ask me again what a Tutsi woman tastes like" ¹⁷⁷. In the opinion of the Chamber, this constitutes tacit encouragement to the rapes that were being committed.

707. In the opinion of the Chamber, the above-mentioned acts with which Akayesu is charged indeed render him individually criminally responsible for having abetted in the preparation or execution of the killings of members of the Tutsi group and the infliction of serious bodily and mental harm on members of said group."

[B. Evidentiary comment:]

P.21. Not required: Evidence that the harm was permanent or irremediable.

A. Legal source/authority and evidence:

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 844:

"844. The Trial Chamber finds that the killing operation inflicted serious bodily and mental harm on the Muslims of Eastern Bosnia. […]

They were detained in intolerable conditions of overcrowded facilities with no food, little if any water and abhorrent sanitary conditions. In many instances they were subjected to taunting and physical abuse. […]"

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 759:

"759. The Trial Chamber is satisfied that beatings also took place regularly in Mali Logor, involving amongst others the use of fists, feet and batons,¹⁸⁴⁸ and resulting in serious injury or death.¹⁸⁴⁹ These beatings focused on Bosnian Muslims and Bosnian Croats.¹⁸⁵⁰ A Bosnian Croat detainee was forced by a Bosnian Serb military policeman to slap other detainees.¹⁸⁵¹ He suffered psychological damage as a result of his detention and these problems continue to this day.¹⁸⁵² Detainees witnessed these beatings being inflicted on others.¹⁸⁵³"

 

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 844:

"844. The Trial Chamber finds that the killing operation inflicted serious bodily and mental harm on the Muslims of Eastern Bosnia. […]

They were detained in intolerable conditions of overcrowded facilities with no food, little if any water and abhorrent sanitary conditions. In many instances they were subjected to taunting and physical abuse. […]"

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, paras. 650- 652:

"650. Furthermore, the Trial Chamber is convinced that the forced displacement of women, children, and elderly people was itself a traumatic experience, which, in the circumstances of this case, reaches the requisite level of causing serious mental harm under Article 4(2)(b) of the Statute. The forced displacement began with the Bosnian Muslim population fleeing from the enclave after a five-day military offensive, while being shot at as they moved from Srebrenica town to Potocari in search of refuge from the fighting. Leaving their homes and possessions, the Bosnian Muslims did so after determining that it was simply impossible to remain safe in Srebrenica town. Upon arrival in Potocari, the Bosnian Muslim population did not find the refuge they were seeking: rather they found UNPROFOR unable to provide the assistance they needed: DutchBat was woefully unprepared for the mass influx of people to its base. After months of having its supply convoys searched or blocked, it did not have adequate supplies of food, medicine or even water for the thousands of Bosnian Muslims who arrived. Furthermore, it did not have adequate space in which to keep 25,000 -30,000 people protected from the heat, let alone a place to rest or to sleep. Next, the Bosnian Muslims watched helplessly as Potocari was overrun – and essentially over taken – by Bosnian Serb forces, including General Mladic. As the brutal separations began under the watchful eye of the Bosnian Serb forces and the abuse of the population became more widespread, particularly during the "night of terror", the Bosnian Muslims were terrified – and helpless. After their husbands, fathers and sons were taken from them, the Bosnian Muslim women felt even more vulnerable and afraid – afraid not only for their own safety, but especially that of their loved ones. Having left Srebrenica to escape from the Bosnian Serbs, the Bosnian Muslim population saw that they must move farther than Potocari to be safe. As they boarded the buses, without being asked even for their name, the Bosnian Muslims saw the smoke from their homes being burned and knew that this was not a temporary displacement for their immediate safety. Rather, this displacement was a critical step in achieving the ultimate objective of the attack on the Srebrenica enclave to eliminate the Bosnian Muslim population from the enclave.

[…]

652. The Trial Chamber has no doubt that the suffering of the women, children and elderly people who were cruelly separated from their loved and forcibly transferred, and the terrible consequences that this had on their life, reaches the threshold of serious mental harm under Article 4(2)(b) of the Statute. The Trial Chamber also finds that the level of mental anguish suffered by the women, children and elderly people who were forcibly displaced from their homes - in such a manner as to traumatise them and prevent them from ever returning - obliged to abandon their property and their belongings as well as their traditions and more in general their relationship with the territory they were living on, does constitute serious mental harm."

 

P.25. Evidence of harm that caused serious injury to the mental state of the victim.

Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, paras. 205-219: 

'' 205. The Appeals Chamber will now review the Trial Chamber’s assessment of the seriousness of the mental harm suffered by each category of Bosnian Muslims detained by the VRS or affected by their operations in Srebrenica and Žepa. In doing so, the Appeals Chamber is following the analysis of the Trial Chamber, which also separately assessed the harm inflicted on each of those categories of Bosnian Muslim civilians to determine whether their suffering meets the threshold of “serious mental harm” under Article 4(2)(b) of the Statute.⁵⁹⁰''

⁵⁹⁰ Trial Judgement, paras 753-759.

''206. With regard to Tolimir’s argument that the mental harm suffered by those Bosnian Muslim men who were subsequently killed cannot be considered a separate act of genocide, the Appeals Chamber notes that “threats of death” and knowledge of impending death have been accepted as amounting to serious mental harm under Article 4 of the Statute.⁵⁹¹ The Appeals Chamber further observes that there is nothing in the Statute or the Genocide Convention that prevents a trial chamber from considering the harm suffered by a victim prior to death as a separate actus reus of genocide. Moreover, it recalls that a trial chamber has the duty to identify all the legal implications of the evidence presented.⁵⁹² Tolimir thus fails to demonstrate any error in the Trial Chamber’s finding that the suffering endured by the Bosnian Muslim men prior to being killed constituted serious mental harm as a separate genocidal act.⁵⁹³''

⁵⁹¹ See Popović et al. Trial Judgement, paras 812, 844; Blagojević and Jokić Trial Judgement, para. 649; Br|anin Trial Judgement, para. 690; Krstić Trial Judgement, para. 543. See also Bosnia Genocide Judgment, paras 290-291 (accepting that the experience of those Bosnian Muslim men from Srebrenica who were about to be executed amounted to serious mental harm and was “fully persuaded that both killings within the terms of Article II (a) of the Convention, and acts causing serious bodily or mental harm within the terms of Article II (b) thereof occurred during the Srebrenica massacre”).

⁵⁹² Krnojelac Appeal Judgement, para. 172; Rutaganda Appeal Judgement, para. 580.

⁵⁹³ Trial Judgement, paras 754-755.

''207. The Appeals Chamber also rejects Tolimir’s argument that the survivors of the killings did not suffer serious mental harm because the harm they experienced was individualised. The Appeals Chamber notes the Trial Chamber’s findings that these survivors had “horrific confrontations with death [that] have had a long-lasting impact” on their ability to lead “a normal and constructive life”.⁵⁹⁴ It is clear from these findings that the harm suffered by these survivors was the direct consequence of intentional acts perpetrated upon them not as individuals, but as Muslims of Eastern BiH.⁵⁹⁵ The Appeals Chamber notes that there is ICTY and other international jurisprudence for the proposition that survivors of killing operations may suffer serious mental harm amounting to an act of genocide.⁵⁹⁶ The Appeals Chamber finds no error in the Trial Chamber’s conclusion that the mental harm suffered by the survivors of the killings qualified as an act of genocide under Article 4 of the Statute. The Appeals Chamber thus dismisses Tolimir’s arguments.''

⁵⁹⁴ Trial Judgement, para. 755.

⁵⁹⁵ This does not confuse attempted murder with the infliction of serious mental harm, as Tolimir contends. See Appeal Brief, para. 147. The crime of attempted murder addresses the legal consequences of the attempt to kill as a threat to the physical integrity of a human being, without consideration of its impact on the psychological health of the victim. The focus of the Trial Chamber’s analysis under Article 4(2)(b) of the Statute, however, was precisely the impact of the killing operation and its surrounding circumstances on the mental condition of the Bosnian Muslim men who were subjected to that operation, including those who did not survive it. See Trial Judgement, paras 753- 755. The Appeals Chamber also notes that the Trial Chamber properly found that the mental harm suffered by the men who survived arose not only from their being subjected to the killing operation itself, but also from having subsequently experienced the horrific circumstances of their escapes. Trial Judgement, para. 755.

⁵⁹⁶ See Popović et al. Trial Judgement, para. 845; Blagojević and Jokić Trial Judgement, para. 647; Krstić Trial Judgement, para. 514; Bosnia Genocide Judgment, paras 290-291.

''208. The Appeals Chamber first turns to Tolimir’s argument that the Trial Chamber erred in law by considering the forcible transfer of the Bosnian Muslim populations out of Srebrenica and Žepa as an act causing serious mental harm. The Trial Chamber held that: [w]hile forcible transfer does not constitute a genocidal act by itself, it can, in certain circumstances, be an underlying act causing serious bodily or mental harm – in particular if the forcible transfer operation was conducted under such circumstances as to lead to the death of all or part of the displaced population.⁵⁹⁷''

⁵⁹⁷ Trial Judgement, para. 739 (internal citations omitted).

''209. A forcible transfer operation may still “ensure the physical destruction” of the protected group⁶⁰⁰ by causing serious mental harm or leading to conditions of life calculated to bring about the group’s physical destruction, even if the group members are not transferred to places of execution. In past cases before the Tribunal, various trial chambers have recognised that forced displacement may – depending on the circumstances of the case – inflict serious mental harm, by causing grave and long-term disadvantage to a person’s ability to lead a normal and constructive life so as to contribute or tend to contribute to the destruction of the group as a whole or a part thereof.⁶⁰¹''

⁶⁰⁰ Krstić Appeal Judgement, para. 31.

⁶⁰¹ See Blagojević and Jokić Trial Judgement, para. 646 and n. 2071; Krstić Trial Judgement, paras 513, 518; Krajišnik Trial Judgement, para. 862.

''210. Tolimir’s challenge to the Trial Chamber’s ultimate conclusion that the suffering of the women, children, and elderly forcibly transferred from Srebrenica resulted in serious mental harm is also without merit. The Trial Chamber assessed the seriousness of the harm caused to the displaced Bosnian Muslims by considering the painful separation process from their male family members at Potočari, the fear and uncertainty as to their fate and that of their detained male relatives, and the appalling conditions of the journey to Muslim-held territory by bus and on foot.⁶⁰² The Trial Chamber also considered the continuation of their profound trauma, as well as the financial and emotional difficulties they faced in their “drastically changed” lives following the forced transfer.⁶⁰³ It is clear from these findings that the Trial Chamber did not find that the forcible transfer was per se an act of genocide, as Tolimir suggests.⁶⁰⁴ Rather, the Trial Chamber evaluated all the relevant acts perpetrated against the Bosnian Muslim women, children, and elderly arising from the forcible transfer operation and the separation from and killings of their male relatives in determining whether their suffering amounted to serious mental harm. Tolimir fails to show that this holistic assessment of factors and evidence in order to assess the harm caused to the group as a result of the forcible transfer operation was an error.''

⁶⁰² Trial Judgement, para. 756.

⁶⁰³ Trial Judgement, paras 756-757.

⁶⁰⁴ See Appeal Brief, para. 149.

''211. Further, the Appeals Chamber is not persuaded that the Trial Chamber was not entitled to take into account the inability and fears of the group to return to their former homes, or the posttransfer quality of their life in making such an assessment. The Trial Chamber did not view each of those factors in isolation, nor did it hold that the inability of the surviving Bosnian Muslims to return to their place or their post-transfer living conditions amounted to serious mental harm per se; it holistically evaluated the suffering inflicted upon the women, children, and elderly of Srebrenica as a result of the Bosnian Serb Forces’ operations. Tolimir does not offer any reason why the posttransfer suffering of the surviving Bosnian Muslims should not be considered in evaluating whether serious mental harm was inflicted. The Appeals Chamber notes that these factors are particularly relevant to considering whether the harm caused grave and long-term disadvantage to the ability of members of the protected group to lead a normal and constructive life.⁶⁰⁵''

⁶⁰⁵ See supra, para. 201.

''212. Contrary to Tolimir’s contention,⁶⁰⁶ the Trial Chamber did make findings satisfying the requirement that the harm suffered be of such a nature that it tends to contribute to the destruction of the protected group as such. The Appeals Chamber notes in this regard the Trial Chamber’s findings that the lives of the displaced population “drastically changed”, while some women have been “so profoundly traumatized that they prefer to die”.⁶⁰⁷ As noted above, serious mental harm need not result from acts causing permanent or irremediable mental impairment. It suffices that the harmful conduct caused grave and long-term disadvantage to the ability of the members of the protected group to lead a normal and constructive life⁶⁰⁸ so as to threaten the physical destruction of the group in whole or in part.⁶⁰⁹ The Appeals Chamber is satisfied that the Trial Chamber provided sufficient reasoning for its conclusion that the suffering of the women, children, and elderly forcibly transferred from Srebrenica amounted to serious mental harm under Article 4 of the Statute. Tolimir’s arguments are therefore dismissed.''

⁶⁰⁶ See Appeal Brief, para. 149.

⁶⁰⁷ Trial Judgement, para. 757 (also quoting the testimony of a Bosnian Muslim woman, stating that “I live but actually my life does not exist, or we can say my life goes on but I do not exist”).

⁶⁰⁸ See supra, para. 201.

⁶⁰⁹ Seromba Appeal Judgement, para. 46.

''213. The Trial Chamber assessed the plight of the Bosnian Muslims forcibly transferred from Žepa separately from the suffering of the Bosnian Muslims of Srebrenica and acknowledged that the displacement of the Žepa population took place under “slightly different circumstances” from the transfer of the women, children, and elderly from Srebrenica, despite the existence of “some important similarities”.⁶¹⁰ Unlike the Srebrenica transfer operation, the Trial Chamber made no findings that in Žepa, families were separated by force or that mass executions occurred.⁶¹¹ The Trial Chamber held that Žepa’s Bosnian Muslims suffered serious mental harm as a result of: (i) the intense VRS attacks on surrounding villages immediately prior to the forcible transfer operation; (ii) the pressure exerted by the VRS on the population that fled to the mountains to return to the enclave; (iii) the news about the murders of the men from Srebrenica beginning to spread; and (iv) the circumstances of the forcible transfer, particularly, Tolimir walking through the crowd directing activities and brandishing a weapon in the air and Mladić entering numerous buses and telling the Bosnian Muslims that he was giving them their lives as a gift.⁶¹² The Appeals Chamber notes the Trial Chamber’s reliance on evidence that during the evacuation, “there was an atmosphere of fear and intimidation in the enclave”.⁶¹³ The Trial Chamber found that: The Bosnian Muslims were afraid and tired, many of them having lost track of family members who had fled to the mountains or the forests in the days preceding the start of the transportation. [Tolimir], who appeared to be directing the VRS as they boarded Bosnian Muslim civilians onto the buses, was observed waving his pistol up at the sky, knowing “very well what he was doing”. In addition, the VRS was using megaphones from a surrounding hill to broadcast messages to the Bosnian Muslims. In one instance, Esma Palić recalls them calling out “People of Žepa, this is Ratko Mladić talking to you. […] You cannot stay in Žepa. Take white flags and start walking toward Brezova Ravan, where there are buses waiting for you.” Moreover, information about the events following the fall of the Srebrenica enclave was beginning to circulate amongst some of the civilians, although people did not yet know the enormity of what had taken place. ⁶¹⁴''

⁶¹⁰ Trial Judgement, para. 758.

⁶¹¹ The killings of the three Žepa leaders by the Bosnian Serb Forces will be evaluated separately below. In any case, those three killings do not qualify as “massive”.

⁶¹² Trial Judgement, para. 758. The Appeals Chamber notes that the Trial Judgement mistakenly refers to paragraph 673 of the Trial Judgement for its findings in this regard, whereas this incident is discussed in paragraph 643 of the Trial Judgement.

⁶¹³ Trial Judgement, para. 643.

⁶¹⁴ Trial Judgement, para. 643.

''215. On the other hand, the Appeals Chamber recalls that serious mental harm results only from acts causing grave and long-term disadvantage to the ability of members of the protected group to lead a normal and constructive life⁶¹⁸ and threatening the physical destruction of the group as such.⁶¹⁹ The Appeals Chamber, Judges Sekule and Güney dissenting, notes, however, that, unlike the Bosnian Muslims forcibly transferred from Srebrenica, the Trial Chamber made no findings and cited no evidence as to the lasting impact of the forcible transfer operation on Žepa’s population in terms of causing a grave and long-term disadvantage to their ability to lead a normal and constructive life.⁶²⁰ Even though the emotional pain and distress inflicted upon Žepa’s Bosnian Muslims was irrefutably grave, no evidence of any long-term psychological trauma was cited in the Trial Judgement.⁶²¹''

⁶¹⁸ See supra, paras 203-204, 209.

⁶¹⁹ Seromba Appeal Judgement, para. 46.

⁶²⁰ Trial Judgement, para. 758. Cf. Trial Judgement, para. 757.

⁶²¹ See Trial Judgement, para. 758.

''216. In reaching its conclusion as to the seriousness of the mental harm inflicted on Srebrenica’s displaced population, the Trial Chamber relied principally on the painful process of the violent, coercive separation from their male family members, the subsequent uncertainty of what happened to their male relatives, and the continuing “emotional distress caused by the loss of their loved ones” following the transfer, all of which prevented the recovery of the displaced population and heir ability to lead normal lives.⁶²² By contrast, in the case of the Žepa population, the Trial Chamber based its assessment on the pressure exerted by the VRS on the Bosnian Muslim population to leave the enclave, the news of the murders of the Bosnian Muslim men from Potočari starting to spread, and the threatening conduct of Tolimir and Mladić during the operation.⁶²³ While the circumstances of the forcible transfer must have been frightening for Žepa’s population, serious mental harm must be “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”.⁶²⁴ The Appeals Chamber further recalls that acts falling under Article 4(2)(b) of the Statute require proof of a result, i.e., that serious mental harm was inflicted.⁶²⁵''

⁶²² Trial Judgement, paras 756-757.

⁶²³ Trial Judgement, para. 758.

⁶²⁴ Seromba Appeal Judgement, para. 46.

⁶²⁵ Trial Judgement, para. 737; Br|anin Trial Judgement, para. 688; Stakić Trial Judgement, para. 514. See also Popović et al. Trial Judgement, para. 811.

''217. The Trial Chamber did not find that Žepa’s Bosnian Muslim population suffered a mass violent separation of families and the ongoing trauma of having lost their family members, like the Bosnian Muslims from Srebrenica,⁶²⁶ and failed to point to any evidence on the record establishing that the mental harm suffered by that group tended to contribute to the destruction of the Muslims of Eastern BiH as such.⁶²⁷ Even if all the factors considered by the Trial Chamber were established, in the absence of findings or references to evidence of any long-term consequences of the forcible transfer operation on the Žepa population and the Bosnian Muslim population of Eastern BiH in general and of a link between the circumstances of the transfer operation in Žepa and the physical destruction of the protected group as a whole, no reasonable trial chamber could have found that the Bosnian Muslims forcibly transferred from Žepa suffered serious mental harm within the meaning of Article 4(2)(b) of the Statute. The Appeals Chamber, Judges Sekule and Güney dissenting, thus reverses the Trial Chamber’s findings in this regard and Tolimir’s remaining arguments are rendered moot and need not be addressed.''

⁶²⁶ The Appeals Chamber acknowledges the Trial Chamber’s finding that, “[i]n the period leading up to the fall of the Žepa enclave, the population of Žepa, including the able-bodied men and some wounded, had fled to the surrounding mountains”. See Trial Judgement, para. 639. The Trial Chamber also found that, even though Žepa’s Muslim civilians “started returning to the centre of Žepa in order to be evacuated” once news about the 24 July 1995 evacuation agreement began to spread (Trial Judgement, para. 639), “[m]ost of the able-bodied men, including members of the ABiH, remained in the mountains at this time”. Trial Judgement, n. 2737, and authorities cited therein. In analysing whether the genocidal act of Article 4(2)(b) of the Statute had been committed, however, the Trial Chamber did not list the de facto separation of families in Žepa among the factors causing serious mental harm to the Bosnian Muslims of Žepa (Trial Judgement, para. 758), even though it did hold that serious mental harm was caused as a result of, inter alia, the forced, violent separation of Srebrenica’s Muslim families in Potočari, which resulted in the detention of men and boys from Srebrenica and their subsequent murders by the Bosnian Serb Forces. See Trial Judgement, para. 756.

⁶²⁷ Cf. Seromba Appeal Judgement, para. 48 (“the Appeals Chamber cannot equate nebulous invocations of 'weakening’ and 'anxiety’ with the heinous crimes that obviously constitute serious bodily or mental harm, such as rape and torture.”).

''218. This conclusion, of course, does not amount to a conclusion that the Bosnian Muslims of Žepa were not the victims of genocide. The Appeals Chamber emphasises that the only question addressed here is whether the Trial Chamber erred in finding that the forcible transfer operation in Žepa – which the Trial Chamber distinguished from the transfer operation in Srebrenica and analysed separately vis-à-vis the actus reus of Article 4(2)(b) of the Statute – inflicted on the transferred Muslim population serious mental harm, as that term is used in Article 4(2)(b) of the Statute and the Genocide Convention.''

 

''219. Accordingly, the Appeals Chamber, Judges Sekule and Güney dissenting, grants Ground of Appeal 10 in part and reverses Tolimir’s conviction for genocide through causing serious mental harm to the Bosnian Muslim population of Eastern BiH under Article 4(2)(b) of the Statute, to the extent that this conviction was based on the Bosnian Serb operations in Žepa.''

P.31. Evidence of mental harm as a result of exposure to killing fields.

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, paras. 647- 649:

"647. The Trial Chamber finds that there is sufficient evidence to establish beyond reasonable doubt that the trauma and wounds suffered by those individuals who managed to survive the mass executions does constitute serious bodily and mental harm. The fear of being captured, and, at the moment of the separation, the sense of utter helplessness and extreme fear for their family and friends’ safety as well as for their own safety, is a traumatic experience from which one will not quickly – if ever – recover. Furthermore, the Trial Chamber finds that the men suffered mental harm having their identification documents taken away from them, seeing that they would not be exchanged as previously told, and when they understood what their ultimate fate was. Upon arrival at an execution site, they saw the killing fields covered of bodies of the Bosnian Muslim men brought to the execution site before them and murdered. After having witnessed the executions of relatives and friends, and in some cases suffering from injuries themselves, they suffered the further mental anguish of lying still, in fear, under the bodies - sometimes of relative or friends - for long hours, listening to the sounds of the executions, of the moans of those suffering in pain, and then of the machines as mass graves were dug.²⁰⁷⁴

648.The Trial Chamber recalls the testimony of Witness P-111, a survivor of the Petkovci Dam mass execution, who was badly injured and who managed to survive remaining in the same position among the bodies of the other dead men:²⁰⁷⁵

649. The Trial Chamber is also aware that the men who were separated, detained, abused and subsequently killed suffered serious mental harm in that they knew what their fate was: the last sight that many of the victims saw was killing fields full of bodies of the Bosnian Muslim men brought to the execution site before them."

"2074. Mevludin Oric was transported to the execution site at Orahovac with his cousin, Hariz. The two men held hands as the bursts of fire started. Mevludin Oric fell to the ground, with his cousin falling on top of him. Mevludin Oric lay there, under his cousin’s body, listening to the screams and groans of the injured men, while group after group of men was brought to the location and executed. Miraculously, Mevludin Oric was not hurt. Mevludin Oric, T. 1357. Mevludin Oric witnessed the meadow full of bodies. Ibid , T. 1360. He described his escape from the meadow as follows: "I couldn't crawl away. When I got up, I found Hurem who was alive. And I stepped across dead bodies, and there was too much blood that was beginning to congeal. So it was very hard. It was very slippery to walk there." Id.

2075. Witness P-111, T. 1417-23.

2076. Witness P-111, T. 1421."

P.32. Evidence of rape and sexual violence.

A. Legal source/authority and evidence:

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, para. 502:

"Serious bodily harm is any serious physical injury to the victim, such as torture and sexual violence. This injury need not necessarily be irremediable.⁴⁶²"

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, paras. 291-293:

"Causing Serious Bodily or Mental Harm to members of the Tutsi Ethnic Group

291. Serious bodily harm means any form of physical harm or act that causes serious bodily injury to the victim, such as torture and sexual violence. Serious bodily harm does not necessarily mean that the harm is irremediable.²⁷⁰ Similarly, serious mental harm can be construed as some type of impairment of mental faculties, or harm that causes serious injury to the mental state of the victim. ²⁷¹

292. With regard to paragraph 21 of the Indictment, the Chamber has already found that the Accused publicly instigated the rape of Tutsi women and girls, and that the rape of Witness TAQ and seven other Tutsi women and girls by attackers who heeded the instigation was a direct consequence thereof. The Chamber finds that these rapes caused serious physical harm to members of the Tutsi ethnic group. Thus, the Chamber finds that, as to the specific crime of serious bodily harm, Sylvestre Gacumbitsi incurs responsibility for the crime of genocide by instigating the rape of Tutsi women and girls.

293. Accordingly, the Chamber finds Sylvestre Gacumbitsi GUILTY of GENOCIDE, pursuant to Article 2(3)(a) and (b), as charged under Count 1 of the Indictment."

"270. Akayesu Judgment (TC), para. 502, Kayishema and Ruzindana Judgment (TC), para. 110, Semanza Judgment (TC), paras. 320 to 321.

271. See ILC Report (1996), para. 14, under Article 17 of the Draft Code of Crimes. Bodily harm is defined therein as "some type of physical injury", while mental harm is defined as "some type of impairment of mental faculties".

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, paras. 633-634:

"Causing Serious Bodily or Mental Harm to Members of the Group

633. Regarding the requirement under Article 2(2)(b) that in order to be held liable by causing serious bodily or mental harm to members of the group, the International Law Commission has indicated that this covers two types of harm that may be inflicted on an individual, namely bodily harm which involves some type of physical injury and mental harm which involves some type of impairment of mental faculties. The International Law Commission further observed that the bodily or mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.

634. Trial Chambers of the Tribunal have held that what is "bodily" or "mental" harm should be determined on a case-by-case basis and have further held that "serious bodily harm" does not necessarily have to be permanent or irremediable, and that it includes non-mortal acts of sexual violence, rape, mutilations and interrogations combined with beatings and/or threats of death. The Trial Chamber in Kayishema and Ruzindana considered "serious mental harm" to include more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat. The state of the law in this regard is aptly captured in the conclusion drawn by the Semanza Trial Chamber: The Chamber adopts the foregoing standards pronounced in Akayesu and Kayishema and Ruzindana as to the determination of serious bodily or mental harm. In addition, the Chamber finds that serious mental harm need not be permanent or irremediable."

Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, paras. 907-908:

"Fifthly, the Chamber finds that it has been established beyond a reasonable doubt that on 13 May 1994, during the above-mentioned attack on Muyira Hill, Musema, having been told by a policeman called Ruhindara that a young Tutsi woman, a teacher by the name Nyiramusugi, was still alive, asked Ruhindara to catch her and to bring her to him. With the help of four young men, Ruhindara dragged the woman on the ground and brought her to Musema who had his rifle in his hand. The four young men, who were restraining Nyiramusugi, dropped her on the ground and pinned her down. Two of them held her arms, while the other two clamped her legs. The latter two opened the legs of the young woman and Musema tore her garments and undergarments, before undressing himself. In a loud voice, Musema said: "The pride of the Tutsi is going to end today". Musema raped Nyiramusugi. During the rape, as Nyiramusugi struggled, Musema immobilized her by taking her arm which he forcibly held to her neck. Standing nearby, the four men who initially held Nyiramusugi to the ground watched the scene. After Musema's departure, they came back to the woman and also raped her in turns. Thereafter, they left Nyiramusugi for dead.

The Chamber finds that Musema incurs individual criminal responsibility under Article 6 (1) of the Statute, for having raped, in concert with others, a young Tutsi woman and for thus having caused serious bodily and mental harm to a member of the Tutsi group. The Chamber also finds that Musema incurs individual criminal responsibility under Article 6(1) of the Statute, for having abetted others to rape the girl, by the said act of rape and the example he thus set."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 688, 731-733:

"688. The Tribunal defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. The Tribunal considers sexual violence, which includes rape, as any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact. The incident described by Witness KK in which the Accused ordered the Interahamwe to undress a student and force her to do gymnastics naked in the public courtyard of the bureau communal, in front of a crowd, constitutes sexual violence. The Tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or the military presence of Interahamwe among refugee Tutsi women at the bureau communal. Sexual violence falls within the scope of "other inhumane acts", set forth Article 3(i) of the Tribunal's Statute, "outrages upon personal dignity," set forth in Article 4(e) of the Statute, and "serious bodily or mental harm," set forth in Article 2(2)(b) of the Statute."

"731. With regard, particularly, to the acts described in paragraphs 12(A) and 12(B) of the Indictment, that is, rape and sexual violence, the Chamber wishes to underscore the fact that in its opinion, they constitute genocide in the same way as any other act as long as they were committed with the specific intent to destroy, in whole or in part, a particular group, targeted as such. Indeed, rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims¹⁸¹ and are even, according to the Chamber, one of the worst ways of inflict harm on the victim as he or she suffers both bodily and mental harm. In light of all the evidence before it, the Chamber is satisfied that the acts of rape and sexual violence described above, were committed solely against Tutsi women, many of whom were subjected to the worst public humiliation, mutilated, and raped several times, often in public, in the Bureau Communal premises or in other public places, and often by more than one assailant. These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.

732. The rape of Tutsi women was systematic and was perpetrated against all Tutsi women and solely against them. A Tutsi woman, married to a Hutu, testified before the Chamber that she was not raped because her ethnic background was unknown. As part of the propaganda campaign geared to mobilizing the Hutu against the Tutsi, the Tutsi women were presented as sexual objects. Indeed, the Chamber was told, for an example, that before being raped and killed, Alexia, who was the wife of the Professor, Ntereye, and her two nieces, were forced by the Interahamwe to undress and ordered to run and do exercises "in order to display the thighs of Tutsi women". The Interahamwe who raped Alexia said, as he threw her on the ground and got on top of her, "let us now see what the vagina of a Tutsi woman takes like". As stated above, Akayesu himself, speaking to the Interahamwe who were committing the rapes, said to them: "don't ever ask again what a Tutsi woman tastes like". This sexualized representation of ethnic identity graphically illustrates that tutsi women were subjected to sexual violence because they were Tutsi. Sexual violence was a step in the process of destruction of the tutsi group - destruction of the spirit, of the will to live, and of life itself.

733. On the basis of the substantial testimonies brought before it, the Chamber finds that in most cases, the rapes of Tutsi women in Taba, were accompanied with the intent to kill those women. Many rapes were perpetrated near mass graves where the women were taken to be killed. A victim testified that Tutsi women caught could be taken away by peasants and men with the promise that they would be collected later to be executed. Following an act of gang rape, a witness heard Akayesu say "tomorrow they will be killed" and they were actually killed. In this respect, it appears clearly to the Chamber that the acts of rape and sexual violence, as other acts of serious bodily and mental harm committed against the Tutsi, reflected the determination to make Tutsi women suffer and to mutilate them even before killing them, the intent being to destroy the Tutsi group while inflicting acute suffering on its members in the process."

 

P.32.1. Evidence that female victims were taken out and raped.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 835:

"835. Female detainees were taken out during the night by Bosnian Serb soldiers who wore camouflage uniforms, and who were from Banja Luka, and by policemen from Kotor Varos.²⁰³⁶ At least two female detainees were raped.^2037"

[B. Evidentiary comment:]

P.32.2. Evidence that female victims were raped and sexually assaulted by camp officials.

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 847, 856:

"847. At Omarska, there were frequent incidents of female detainees being called out by the camp guards and the camp commander to be raped and sexually assaulted.²⁰⁷⁶"

"856. […] Women were raped in Trnopolje camp, including by Kuruzovic, the commander of the camp.²¹¹⁷

[B. Evidentiary comment:]

P.32.3. Evidence that victims were forced to perform sexual acts in public.

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 824- 825:

Outside interrogation, Bosnian Muslim and Bosnian Croat male and female detainees were forced by a Bosnian Serb policeman to perform sexual acts with each other, in front of a crowd of cheering men in police and Bosnian Serb military uniforms, some of whom were wearing red berets.²⁰¹² Two other male detainees, at least one of whom was a Bosnian Muslim, were forced to perform fellatio on each other by the 'Specialists' whilst being subjected to ethnic slurs.²⁰¹³

Detainees were forced to extend the Serbian three-fingered salute and were beaten.²⁰¹⁴

[B. Evidentiary comment:]

P.32.4. Evidence that the perpetrator ordered acts of sexual violence.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 692, 704-705:

"692. The Tribunal finds, under Article 6(1) of its Statute, that the Accused, by his own words, specifically ordered, instigated, aided and abetted the following acts of sexual violence:

(i) the multiple acts of rape of ten girls and women, including Witness JJ, by numerous Interahamwe in the cultural center of the bureau communal;
(ii) the rape of Witness OO by an Interahamwe named Antoine in a field near the bureau communal;(iii) the forced undressing and public marching of Chantal naked at the bureau communal."

"704. The Chamber finds that, as pertains to the acts alleged in paragraph 12, it has been established that, throughout the period covered in the Indictment, Akayesu, in his capacity as bourgmestre, was responsible for maintaining law and public order in the commune of Taba and that he had effective authority over the communal police. Moreover, as "leader" of Taba commune, of which he was one of the most prominent figures, the inhabitants respected him and followed his orders. Akayesu himself admitted before the Chamber that he had the power to assemble the population and that they obeyed his instructions. It has also been proven that a very large number of Tutsi were killed in Taba between 7 April and the end of June 1994, while Akayesu was bourgmestre of the Commune. Knowing of such killings, he opposed them and attempted to prevent them only until 18 April 1994, date after which he not only stopped trying to maintain law and order in his commune, but was also present during the acts of violence and killings, and sometimes even gave orders himself for bodily or mental harm to be caused to certain Tutsi, and endorsed and even ordered the killing of several Tutsi.

705. In the opinion of the Chamber, the said acts indeed incur the individual criminal responsibility of Akayesu for having ordered, committed, or otherwise aided and abetted in the preparation or execution of the killing of and causing serious bodily or mental harm to members of the Tutsi group. Indeed, the Chamber holds that the fact that Akayesu, as a local authority, failed to oppose such killings and serious bodily or mental harm constituted a form of tacit encouragement, which was compounded by being present to such criminal acts."

[B. Evidentiary comment:]

P.32.5. Evidence that the perpetrator allowed sexual violence to be perpetrated on premises under his authority.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 693- 694:

"693. The Tribunal finds, under Article 6(1) of its Statute, that the Accused aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal, while he was present on the premises in respect of (i) and in his presence in respect of (ii) and (iii), and by facilitating the commission of these acts through his words of encouragement in other acts of sexual violence, which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:

(i) the multiple acts of rape of fifteen girls and women, including Witness JJ, by numerous Interahamwe in the cultural center of the bureau communal;

(ii) the rape of a woman by Interahamwe in between two buildings of the bureau communal, witnessed by Witness NN;

(iii) the forced undressing of the wife of Tharcisse after making her sit in the mud outside the bureau communal, as witnessed by Witness KK;

694. The Tribunal finds, under Article 6(1) of its Statute, that the Accused, having had reason to know that sexual violence was occurring, aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal and by facilitating the commission of such sexual violence through his words of encouragement in other acts of sexual violence which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:

(i) the rape of Witness JJ by an Interahamwe who took her from outside the bureau communal and raped her in a nearby forest;

(ii) the rape of the younger sister of Witness NN by an Interahamwe at the bureau communal;

(iii) the multiple rapes of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe by Interahamwe near the bureau communal;

(iv) 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."

[B. Evidentiary comment:]

P.32.6. Evidence that the perpetrator facilitated, through words of encouragement signifying official tolerance, acts of sexual violence.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 693- 694:

"693. The Tribunal finds, under Article 6(1) of its Statute, that the Accused aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal, while he was present on the premises in respect of (i) and in his presence in respect of (ii) and (iii), and by facilitating the commission of these acts through his words of encouragement in other acts of sexual violence, which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:

(i) the multiple acts of rape of fifteen girls and women, including Witness JJ, by numerous Interahamwe in the cultural center of the bureau communal;
(ii) the rape of a woman by Interahamwe in between two buildings of the bureau communal, witnessed by Witness NN;
(iii) the forced undressing of the wife of Tharcisse after making her sit in the mud outside the bureau communal, as witnessed by Witness KK;

694. The Tribunal finds, under Article 6(1) of its Statute, that the Accused, having had reason to know that sexual violence was occurring, aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal and by facilitating the commission of such sexual violence through his words of encouragement in other acts of sexual violence which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place:

(i) the rape of Witness JJ by an Interahamwe who took her from outside the bureau communal and raped her in a nearby forest;

(ii) the rape of the younger sister of Witness NN by an Interahamwe at the bureau communal;

(iii) the multiple rapes of Alexia, wife of Ntereye, and her two nieces Louise and Nishimwe by Interahamwe near the bureau communal;

(iv) 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."

[B. Evidentiary comment:]

P.32.7. Evidence that the perpetrator failed to oppose acts of sexual violence.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 705:

"705. In the opinion of the Chamber, the said acts indeed incur the individual criminal responsibility of Akayesu for having ordered, committed, or otherwise aided and abetted in the preparation or execution of the killing of and causing serious bodily or mental harm to members of the Tutsi group. Indeed, the Chamber holds that the fact that Akayesu, as a local authority, failed to oppose such killings and serious bodily or mental harm constituted a form of tacit encouragement, which was compounded by being present to such criminal acts."

[B. Evidentiary comment:]

P.32.8. Evidence of the perpetrator’s presence during the commission of sexual violence.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 704-707:

"704. The Chamber finds that, as pertains to the acts alleged in paragraph 12, it has been established that, throughout the period covered in the Indictment, Akayesu, in his capacity as bourgmestre, was responsible for maintaining law and public order in the commune of Taba and that he had effective authority over the communal police. Moreover, as "leader" of Taba commune, of which he was one of the most prominent figures, the inhabitants respected him and followed his orders. Akayesu himself admitted before the Chamber that he had the power to assemble the population and that they obeyed his instructions. It has also been proven that a very large number of Tutsi were killed in Taba between 7 April and the end of June 1994, while Akayesu was bourgmestre of the Commune. Knowing of such killings, he opposed them and attempted to prevent them only until 18 April 1994, date after which he not only stopped trying to maintain law and order in his commune, but was also present during the acts of violence and killings, and sometimes even gave orders himself for bodily or mental harm to be caused to certain Tutsi, and endorsed and even ordered the killing of several Tutsi.

705. In the opinion of the Chamber, the said acts indeed incur the individual criminal responsibility of Akayesu for having ordered, committed, or otherwise aided and abetted in the preparation or execution of the killing of and causing serious bodily or mental harm to members of the Tutsi group. Indeed, the Chamber holds that the fact that Akayesu, as a local authority, failed to oppose such killings and serious bodily or mental harm constituted a form of tacit encouragement, which was compounded by being present to such criminal acts.

706. With regard to the acts alleged in paragraphs 12 (A) and 12 (B) of the Indictment, the Prosecutor has shown beyond a reasonable doubt that between 7 April and the end of June 1994, numerous Tutsi who sought refuge at the Taba Bureau communal were frequently beaten by members of the Interahamwe on or near the premises of the Bureau communal. Some of them were killed. Numerous Tutsi women were forced to endure acts of sexual violence, mutilations and rape, often repeatedly, often publicly and often by more than one assailant. Tutsi women were systematically raped, as one female victim testified to by saying that "each time that you met assailants, they raped you". Numerous incidents of such rape and sexual violence against Tutsi women occurred inside or near the Bureau communal. It has been proven that some communal policemen armed with guns and the accused himself were present while some of these rapes and sexual violence were being committed. Furthermore, it is proven that on several occasions, by his presence, his attitude and his utterances, Akayesu encouraged such acts, one particular witness testifying that Akayesu, addressed the Interahamwe who were committing the rapes and said that "never ask me again what a Tutsi woman tastes like" ¹⁷⁷. In the opinion of the Chamber, this constitutes tacit encouragement to the rapes that were being committed.

707. In the opinion of the Chamber, the above-mentioned acts with which Akayesu is charged indeed render him individually criminally responsible for having abetted in the preparation or execution of the killings of members of the Tutsi group and the infliction of serious bodily and mental harm on members of said group."

[B. Evidentiary comment:]

P.33. Evidence of certain crimes committed by the perpetrator.

See ‘Evidentiary comment:’ under P.18.

P.33.1. Evidence of persecution by the perpetrator.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 504:

"504. For purposes of interpreting Article 2 (2)(b) of the Statute, the Chamber takes serious bodily or mental harm, without limiting itself thereto, to mean acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution."

[B. Evidentiary comment:]

P.33.2. Evidence of deportation by the perpetrator.

A. Legal source/authority and evidence:

P.33.3. Evidence of acts of inhumane or degrading treatment by the perpetrator.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 504:

"504. For purposes of interpreting Article 2 (2)(b) of the Statute, the Chamber takes serious bodily or mental harm, without limiting itself thereto, to mean acts of torture, be they bodily or mental, inhumane or degrading treatment, persecution."

[B. Evidentiary comment:]

P.34. Not required: Evidence that the harm was permanent or irremediable.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 502:

"Causing serious bodily or mental harm to members of the group does not necessarily mean that the harm is permanent and irremediable."