Table of contents:
6. Such person or persons were in the custody or under the control of the perpetrator.
6.1. In the custody of the perpetrator; OR
P.16. Evidence of being kept in the custody of perpetrator.
P.16.1. Evidence of being kept in detention camps.
P.16.2. Evidence of being summoned by the perpetrator.
P.16.3. Evidence of being held in prison or other detention facility upon arrest.
P.16.4. Evidence of being otherwise forced to remain in the perpetrator’s custody.
6.2. Under the control of the perpetrator.
P.17. Evidence of control exercised by the perpetrator.
P.17.1. Evidence of position as a commander of a detention camp.
P.17.2. Evidence of other positions of authority and influence.
6.3. Not required: Involvement of a State official or other person acting in an official capacity.
Element:
6. Such person or persons were in the custody or under the control of the perpetrator.
6.1.In the custody of the perpetrator; OR
P.16. Evidence of being kept in the custody of perpetrator.
P.16.1. Evidence of being kept in detention camps.
A. Legal source/authority and evidence:
Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, para. 184:
"184.They were illegally detained in Sušica camp without any contact to outsiders which could substantially assist them. In the camp the detainees were guarded by men armed with machine guns, grenades, knives and other weapons.255"
255. Witness SU-032, T. 278.
Prosecutor v. Milan Simić, Case No. IT-95-9/2-T, Judgement (TC), 17 October 2002, paras. 68, 70:
"68. […] the fact that the victims had been in detention for two months […]
70. The Trial Chamber finds that there can be no doubt that Milan Simic’s victims were in a position of inferiority and of acute vulnerability, being in the custody and control of the Bosanski Samac authorities:96 they all had been in detention for several months,97 during which they had already suffered extensive and brutal beatings at the hands of others;98 they were defenceless and had no possibility to protect themselves."
"96. Kunarac Appeal Judgement, para. 352. The Appeals Chamber held in the context of rape that vulnerability could be considered both as an element of the crime and as evidence of its gravity, and as such could be taken into account in the course of sentencing.
97. Plea Agreement, para. 9(a).
98. Evidence has been led that, due to the effect of previous beatings, he had to be carried out of the primary school gymnasium to the hallway when called out by Milan Simic. T. 6130-31."
Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 121 – 123:
"121. On or about 16 May 1993, Witness D was arrested and taken to the Bungalow by the accused and Accused B. He was interrogated and assaulted by both of them. Accused B in particular, beat him with his fists and on the feet and toes with a baton, in the presence of Witness E, and most of the time in the presence of the accused who was coming and going.
122. On or about 18 or 19 May 1993, Witness A was arrested and taken from her apartment in Vitez by several members of an elite unit of soldiers attached to the HVO and known as the Jokers. She was driven by car to the Bungalow, the headquarters of the Jokers. Soldiers and several commanders of different units were based at the Bungalow, among whom were the accused, Accused B, Vlado Santic and others.149
149. T. 527-529; Defence Exhibit D14.
123. On arrival at the Bungalow, Witness A was taken to a nearby house, the Holiday Cottage, which formed part of the Bungalow complex. She entered a room described as the large room, which was where the Jokers lodged. She was told to sit down and was offered bread and pat? to eat. Around her, the soldiers, dressed in Jokers uniforms, awaited the arrival of the man referred to as `the Boss', who was going to deal with her. Witness A then heard someone announce the arrival of `Furundzija', and the man she has identified to the satisfaction of the Trial Chamber as being Anto Furundzija, the accused, entered the room holding some papers in his hands."
Prosecutor v. Zejnil Delalić et al, Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 917, 937:
"917. […] but on the successful conclusion of the operation he surrendered to these Bosnian government forces with the automatic rifle which he possessed as a member of the reserve police, and was taken to the Celebici prison-camp for detention. To begin with, he was confined in Tunnel 9 but was later moved to Hangar 6."
"937. […] She was arrested in Donje Selo on 27 May 1992, and taken to the Celebici prison-camp. She was kept in Building B for the first two nights of her detention and was then taken to Building A on the third night, where she stayed until her release on 31 August 1992. […]"
[B. Evidentiary comment:]
P.16.2. Evidence of being summoned 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. 405:
"405. The Chamber finds that on 19 April 1994, Victim U (Witness K) was threatened by the Accused at the bureau communal. She went to the bureau communal because she had been summoned there by the Accused. […]"
[B. Evidentiary comment:]
P.16.3. Evidence of being held in prison or other detention facility upon arrest.
A. Legal source/authority and evidence:
Selmouni v. France, Application No. 25803/94, Judgement (Merits) (European Court of Human Rights), 28 July 1999, paras. 9 – 10:
"9. On 25 November 1991 Mr Selmouni was arrested following surveillance of a hotel in Paris. After being identified by Dominique Keledjian and his girlfriend, Mr Selmouni explained that he had had business dealings with Dominique Keledjian in the clothes trade. He denied any involvement in drug trafficking.
10. Mr Selmouni was held in police custody from 8.30 p.m. on 25 November 1991 until 7 p.m. on 28 November 1991. He was questioned by police officers from the Seine-Saint-Denis Criminal Investigation Department ("SDPJ 93") in Bobigny."
Aksoy v. Turkey, Application No. 21987/93, Judgement (Merits) (European Court of Human Rights), 18 December 1996, paras. 10 – 13:
"10. The facts in the case are in dispute.
11. According to the applicant, he was taken into custody on 24 November 1992, between 11 p.m. and midnight. Approximately twenty policemen had come to his home, accompanied by a detainee called Metin who, allegedly, had identified the applicant as a member of the PKK, although Mr Aksoy told the police that he did not know Metin.
12. The Government submitted that the applicant was arrested and taken into custody on 26 November 1992 at around 8.30 a.m., together with thirteen others, on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts.
13. The applicant stated that he was taken to Kiziltepe Security Headquarters. After one night, he was transferred to Mardin Antiterrorist Headquarters."
Soering v. United Kingdom, Application No. 14038/88, Judgement (European Court of Human Rights), 7 July 1989, ECHR Series A, No. 161, para. 11:
"11. The applicant, Mr Jens Soering, was born on 1 August 1966 and is a German national. He is currently detained in prison in England pending extradition to the United States of America to face charges of murder in the Commonwealth of Virginia."
[B. Evidentiary comment:]
P.16.4. Evidence of being otherwise forced to remain in the perpetrator’s custody.
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998,, paras. 410 – 412:
"410. Later that night, the Accused picked up Tabita (Victim W) and interrogated her also about the whereabouts of Alexia, the wife of Ntereye. She was then taken in the vehicle back to the mine. […]
411. Thereafter, on the same evening, the Accused picked up Victim Z (Witness C) and took him to a forest in Gishyeshye Sector […]
412. Following the interrogation of Victim Y and Victim Z, the Accused picked up Victim V at a roadblock and took him, with Victim Y and Victim Z, to his house, which was searched by Interahamwe at the direction of the Accused. […]"
Aydin v. Turkey, Application No. 23178/94, Judgement (Merits) (European Court of Human Rights), 25 September 1997,paras. 16 – 18:
"16. According to the applicant, a group of people comprising village guards and a gendarme arrived in her village on 29 June 1993. Although the applicant put the time of their arrival at 5 p.m., the Commission, relying on the recollection of the applicant’s father and sister-in-law, found that it was more likely that this occurred early in the morning of 29 June at around 6 a.m.
17. Four members of the group came to her parents’ home and questioned her family about recent visits to the house by PKK members (see paragraph 14 above). Her family were threatened and subjected to insults. They were then taken to a village square where they were joined by other villagers who had also been forcibly taken from their homes.
18. The applicant, her father, Seydo Aydın, and her sister-in-law, Ferahdiba Aydın, were singled out from the rest of the villagers, blindfolded and driven away to Derik gendarmerie headquarters."
[B. Evidentiary comment:]
6.2.Under the control of the perpetrator.
P.17. Evidence of control exercised by the perpetrator.
P.17.1. Evidence of position as a commander of a detention camp.
A. Legal source/authority and evidence:
Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, paras. 179 – 184:
"179. The Accused admitted having been a commander in Susica camp. Testimony provided at the sentencing hearing disclosed more detail as to his position of authority and responsibility in the camp. Witness SU-032 and Habiba Hadzic stated that "Jenki" was the main commander in the camp.242 As a commander in Susica camp, he had an overall responsibility to protect the detainees from abuse and to ensure that the conditions under which they were forced to live were humane. Instead he chose to mistreat the detainees, thereby setting an example for the guards to follow and contributing to an environment of impunity.
242. Witness SU-032, T. 278; Habiba Hadzic, T. 229.
180. He was at the camp most of the time, both in the evening and in the afternoons.243 He was armed with a variety of weapons including machine-guns and knives and was accompanied by two trained Doberman guard-dogs.244 The Accused was in charge of the camp at night, and was heard on one occasion saying "I am the commander here now".245 He had everything under his control and issued orders. Eight to twelve guards were guarding the detainees.246 Although the Accused had "the main say" in the camp, he used to "co-operate" with Mico Kraljevic247 and on one occasion he told the detainees words to the effect: "I have to do what Mico tells me to do. He is my god and I am yours."248
243. Habiba Hadzic, T. 230.
244. Witness SU-032, T. 286 and 283.
245. Witness SU-202, T. 269.
246. Habiba Hadzic, T. 230.
247. Ibid., T. 248-249. According to Habiba Hadzic’s testimony, Mico Kraljevic had "his own specials from Rogosija". They would occasionally go to Susica camp, roast a lamb or two and play loud music.
248. Ibid., T. 260.
181. The Accused ordered detainees to sleep in locations outside the camp, in the surrounding houses or lorries.249 Those within the camp were not allowed to move around in the compound outside the hangar without his order.250
249. Ibid., T. 231.
250. Ibid., T. 229.
183. The Accused deliberately and callously committed the crimes in the Indictment. He was not under any orders from his superiors, nor was he under any compulsion or pressure to behave in this manner. When asked about the Accused’s position in the camp, Witness SU-032 replied: "All I knew was that Dragan Nikolic was there at the camp and did whatever he wanted to do, whatever he pleased."251 When asked if Dragan Nikolic held the survival of the detainees in his hands, Witness SU-032 answered in the affirmative.252 The Trial Chamber has no reasonable doubts as to the veracity of this testimony.
251 - Witness SU-032, T. 287.
252 - Ibid., T. 279.
184. Dragan Nikolic used his position of authority to intimidate the detainees and prevent them from resisting. The Accused’s abuse of his superior position in the camp in principle aggravates his crimes. The detainees lived and died by the hand and at the whim or will of Dragan Nikolic. […]"
[B. Evidentiary comment:]
P.17.2. Evidence of other positions of authority and influence.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al, Case No. IT-98-30/1-A, Judgement (AC), 28 February 2005, para. 298:
"298. […] The Appeals Chamber further notes that it has already determined that the Trial Chamber did not limit Kvocka's responsibility to the period he was physically present in the camp but held him responsible for crimes committed in the camp from about 29 May to 23 June 1992, i.e., during the time that he was employed in the camp.648 […]"
648. See above, para. 255.
Prosecutor v. Miroslav Kvočka et al, Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, paras. 361, 368, 370, 435 – 439, 485, 526:
"361. The Trial Chamber finds that Kvocka, a duty officer, was the direct subordinate of Zeljko Meakic, tasked to carry out his orders and to supervise the conduct of the guards."
"368. The Trial Chamber is persuaded by the large number of witnesses who testified that Kvocka occupied a position of authority and influence within the camp. Their evidence included the details described hereafter:
Mirsad Alisic, a former car mechanic of the Ljubija mines in Tomasica, was on the pista when he saw Kvocka, whom he knew well. He testified that Kvocka addressed the detainees on the pista and said that he was the camp commander.610
Witness A, who knew Kvocka from before the war, assumed that Kvocka was a superior because of how guards treated him:
my assumption is that they (Kvocka, Radic, Meakic) were some sort of superiors. All the guards would address him (Kvocka), or if a woman needed something from a guard, the guard would tell us to talk to them.611
Witness AJ said that he thought that Kvocka was deputy commander because Kvocka authorized a change in the location in which Witness AJ was be held:
When I left the interrogation, I can't remember which guard was at the door, but I asked whether I could go into Mujo's room and he said, no, the "green house," that is to say, the pista. And I said, "Well, could I go there?" and he said, " Well, there's Kvocka and Kvocka can say whether you can or not." So for me, Kvocka was the person in charge at the time, and he (Kvocka) gave me this chit, piece of paper, which allowed me to go to Mujo's room.612
Sifeta Susic, a former colleague, testified that Kvocka had been the deputy commander in the Omarska police station613 and that he was the deputy of Zeljko Meakic in the Omarska camp.614
Azedin Oklopcic, who knew Kvocka before the war, believed that Kvocka and Zeljko Meakic had a particular status because they alternated 24 hour shifts, while the guards and the shift leaders took 12 hour shifts.615
Witness AI testified that Kvocka introduced himself as the person responsible for the detainees:
After a certain time had elapsed, we went inside and Kvocka addressed us, and he introduced himself, said he was responsible for us, something along those lines, that everything would be fine, that there were no problems, that we would be questioned , and then that we would be returned home.616"
"610. Mirsad Alisic, T. 2538.
611. Witness A, T. 5469.
612. Witness AJ, T. 1647.
613. Sifeta Susic, T. 2978.
614. Sifeta Susic, T. 3007.
615. Azedin Okopcic, T. 1758-1759.
616. Witness AI, T. 2106."
"370. Additional evidence concerning Kvocka’s authority over guards was provided by witnesses who testified that they saw or heard Kvocka give the guards orders, which the guards followed:
When a group of new detainees arrived at Omarska from the Keraterm camp on 10 June 1992, "Krle" (Kos) gave the list of their names to Kvocka. The list included the name of Nisret Sivac who was in the group of new arrivals. The guards were beating the new detainees when Kvocka interrupted the guards and asked why Nusret Sivac was brought to the camp instead of Nusreta Sivac, a judge in Prijedor and the intended target of arrest and detention. When a guard asked Kvocka what to do, Kvocka went to see Ranko Mijic, one of the investigation coordinators.621 When he came back, he ordered the guard to return Nusret Sivac to Prijedor. Nusret Sivac testified that during the incident, Kvocka behaved like a deputy commander .622
When Sifeta Susic arrived in the camp by bus, Kvocka ordered an individual dressed like Kvocka, whom she later learned was called Kole or Krle, to immediately return her ID and led her to the eating hall; the other new arrivals however were ordered to lean against the wall whereupon they were beaten by guards in front of Kvocka .623
Witness J testified that she heard Kvocka giving instructions to guards. Asked to comment on Witness J’s statement, Kvocka testified that it was possible that the detainee saw him passing along instructions, which came from Zeljko Meakic.624
Kerim Mesanovic stated that Kvocka would often issue orders to guards, especially with regard to where they should be positioned.625"
"621. Nusret Sivac, T. 3974.
622. Nusret Sivac, T. 3973-3975.
623. Sifeta Susic, T. 2997-2998.
624. Witness J, T. 4845.
625. Kerim Mesanovic, T. 5190-5191."
"435. Many Prosecution witnesses supported Prcac’s description of his administrative duties in the camp and testified that they saw Prcac moving around the camp carrying lists. However, they also ascribed more responsibility or influence to Prcac than he acknowledged: […]"
"436. On the basis of the tasks performed by Prcac and his treatment by others working in the camp, many detainees assumed that Prcac held a position of authority in the Omarska camp: […]"
"437. Some witnesses testified that they were told that Prcac was a commander or deputy commander in Omarska camp: […]"
"438. The evidence adduced at trial demonstrates convincingly that Prcac had some influence in the camp. The fact that Prcac was a former professional policeman coupled with the nature of the tasks he performed in the camp, which involved contacts with guards and investigators and handling of lists of detainees, led detainees to perceive that Prcac held a position of authority in Omarska camp. Prcac accomplished his duties diligently. He on occasion took down particulars of newly arrived detainees,728 solved problems related to the accommodation of detainees or the absence of their names on lists, took care of the transfer of detainees from one camp to the other or from one place in the camp to another, either calling detainees out himself or asking guards to do so.
728. Edin Karagic, T. 12169-12171.
439. Considering the totality of the evidence, the Trial Chamber finds that the Prosecution has not presented sufficient evidence to establish beyond a reasonable doubt that Prcac held the position of deputy commander in the Omarska camp. Accordingly , the allegation that Prcac was deputy commander of the Omarska camp is not established . The Trial Chamber does however find that Prcac was an administrative aide to the commander of Omarska camp."
"485. The Trial Chamber finds that Kos held the position of a guard shift leader in Omarska camp. Following his appointment by Meakic as guard shift leader, Kos performed his duties adequately, giving instructions to guards and orders to female detainees assigned to work in the camp. On rare occasions he prevented guards from committing abuses against detainees. He thus held a position of authority and influence over guards on his shift."
"526. The Trial Chamber finds that Radic had substantial authority over guards on his shift in the camp and that he used his power to prevent crimes selectively, while ignoring the vast majority of crimes committed during his shift."
Prosecutor v. Zejnil Delalić et al, Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 963:
"963. These rapes were intentionally committed by Hazim Delic who was an official of the Bosnian authorities running the prison-camp."
[B. Evidentiary comment:]
6.3.Not required: Involvement of a State official or other person acting in an official capacity.
P.18. Not required: Evidence of the involvement of a State official or other person acting in an official capacity.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al, Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, paras. 137-141:
"137. Torture has been defined by the Tribunal jurisprudence as severe mental or physical suffering deliberately inflicted upon a person for a prohibited purpose, such as to obtain information or to discriminate against the victim. Differing views have been expressed in the jurisprudence of the Tribunal as to whether the suffering must be inflicted by a public agent or the representative of a public authority in order to meet the definition of torture.
138. The Kunarac Judgement departed from the previous definitions of torture set forth by the Trial Chambers of the ICTY293 and the ICTR,294 in ruling that, in contrast to international human rights law, international humanitarian law does not require the involvement of a state official or of any other authority-wielding person in order for the offence to be regarded as torture.295
139. The Trial Chamber is persuaded by the reasoning of the Kunarac Trial Chamber that the state actor requirement imposed by international human rights law is inconsistent with the application of individual criminal responsibility for international crimes found in international humanitarian law and international criminal law.296
140. The Trial Chamber also agrees with the Celebici Trial Chamber that the prohibited purposes listed in the Torture Convention as reflected by customary international law do not constitute an exhaustive list, and should be regarded as merely representative297 and notes that the Furundzija Trial Chamber concluded that humiliating the victim or a third person constitutes a prohibited purpose for torture under international humanitarian law.298
141. The Trial Chamber applies the following definition of torture to this case:
(i) Torture consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental;
(ii) the act or omission must be intentional; and
(iii) the act or omission must be for a prohibited purpose, such as obtaining information or a confession, punishing, intimidating, humiliating, or coercing the victim or a third person, or discriminating, on any ground, against the victim or a third person."
"293. Furundzija Trial Chamber Judgement, para. 162.
294. Akayesu Trial Chamber Judgement, para. 594.
295. Kunarac Trial Chamber Judgement, para. 496.
296. Article 7(2)(e) of the Rome Statute, concerning torture as a crime against humanity, similarly does not impose the State action requirement: (e) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.
297. Celebici Trial Chamber Judgement, para. 470.
298. Furundzija Trial Chamber Judgement, para. 162."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, para. 496:
"496. The Trial Chamber concludes that the definition of torture under international humanitarian law does not comprise the same elements as the definition of torture generally applied under human rights law. In particular, the Trial Chamber is of the view that the presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law.
P.19. Evidence of the involvement of a State official or other person acting in an official capacity as an aggravating factor.
A. Legal source/authority and evidence:
Prosecutor v. Milan Simić, Case No. IT-95-9/2-T, Judgement (TC), 17 October 2002, para. 67:
"67. While such persons have often been charged under the doctrine of command responsibility pursuant to Article 7(3) of the Statute, Milan Simic, due to his direct participation , was charged under Article 7(1) of the Statute. This Trial Chamber finds that while he was not charged as a superior per se, his position of authority is nonetheless relevant, as an aggravating factor, as Milan Simic clearly went to the primary school using his official capacity. Hasan Bicic testified that Milan Simic’s escorts called him "President" during the events, while Ibrahim Salkic testified that Milan Simic introduced himself as "the Serb minister".91 Considering his position, Milan Simic’s participation in the torture of the detainees referred to in counts 4 and 7 must have left the impression on those present with him in the primary school at the time that this type of conduct was permissible, or even, encouraged."
"91. T. 2729-33 and 3356."
Aydin v. Turkey, Application No. 23178/94, Judgement (Merits) (European Court of Human Rights), 25 September 1997,para. 83:
"83. While being held in detention the applicant was raped by a person whose identity has still to be determined. Rape of a detainee by an official of the State must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of the victim."
