Table of contents
32. It is understood that "character" refers to the nature and gravity of the act.
6.1. The nature similar to any other act in art. 7(1)
6.2. The gravity similar to any other act in art. 7(1)
P.21. Evidence of the nature of the act or omission
P.22. Evidence of the context in which it occurred
P.23. Evidence of the personal circumstances of the victim, including age, sex and health
P.24. Evidence of the physical, mental and moral effects of the conduct upon the victim
P.24.1. Evidence of long term effects
P.25. Evidence of acts being carried out in a systematic manner or on a large scale
Element
6.1. The nature similar to any other act in art. 7(1)
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 269-272:
"269. It is not controversial that the category "other inhumane acts" provided for in Article 5 is a residual category, which encompasses acts not specifically enumerated.366 Trial Chambers have considered the threshold to be reached by these other acts in order to be incorporated in this category, reaching similar conclusions as to the serious nature of these acts. The Tadic Trial Chamber found that "inhumane acts" are acts "similar in gravity to those listed in the preceding subparagraphs". In the words of the Kupreskic Trial Chamber, in order to be characterised as inhumane, acts "must be carried out in a systematic manner and on a large scale. In other words, they must be as serious as the other classes of crimes provided for in the other provisions of Article 5."368 The Tadic Trial Chamber, in relation to the requisite nature of "other inhumane acts", held that they "must in fact cause injury to a human being in terms of physical or mental integrity, health or human dignity."
270. Acts such as "mutilation and other types of severe bodily harm", "beatings and other acts of violence", and "serious physical and mental injury"371 have been considered as constituting inhumane acts. The Trial Chamber in Kupreskic took a broader approach of which acts may fall into the category of other inhumane acts in concluding that acts such as the forcible transfer of groups of civilians, enforced prostitution, and the enforced disappearance of persons, may be regarded as "other inhumane acts".
271. Within the context of the discussion of "other inhumane acts", the Blaskic Trial Chamber defined the elements of serious bodily or mental harm thus:
- the victim must have suffered serious bodily or mental harm; the degree of severity must be assessed on a case-by-case basis with due regard for the individual circumstances ;
- the suffering must be the result of an act of the accused or his subordinate;
- when the offence was committed, the accused or his subordinate must have been motivated by the intent to inflict serious bodily or mental harm upon the victim.
In addition, as discussed in relation to the requirements for the application of Article 5 of the Statute, the acts must have been committed as part of a widespread or systematic attack against a civilian population.
272. The Trial Chamber finds that where the act alleged in the Indictment to have caused injuries meets the requirements set out in the preceding paragraph, they may be characterised as "inhumane acts" for the purposes of Article 5 of the Statute."
, para. 563; , para. 237.367 - , para. 729.
368 - , para. 566.
369 - , para. 729.
370 - , para. 730.
371 - , para. 239.
372 - , para. 566. Contrary to the Tadic Appeals Chambers finding, the Trial Chamber appears to have included a requirement that some of the acts that may be characterised as "inhumane acts" be performed with a discriminatory intent.
373 - , para. 243."
"151. The Chamber notes the International Law Commissions commentary. In relation to the Statute, other inhumane acts include acts that are of similar gravity and seriousness to the enumerated acts of murder, extermination, enslavement, deportation, imprisonment, torture, rape, or persecution on political, racial and religious grounds. These will be acts or omissions that deliberately cause serious mental or physical suffering or injury or constitute a serious attack on human dignity. The Prosecution must prove a nexus between the inhumane act and the great suffering or serious injury to mental or physical health of the victim. The Chamber agrees with the Prosecution submission that the acts that rise to the level of inhumane acts should be determined on a case-by-case basis.88
"88. Prosecutors Closing Brief, p. 37."
6.2. The gravity similar to any other act in art. 7(1)
P.22. Evidence of the nature of the act or omission
P.23. Evidence of the context in which it occurred
P.24. Evidence of the personal circumstances of the victim, including age, sex and health
A. Legal source/authority and evidence:
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 74-76:
"(ii) Cruel and inhumane treatment
74. In assessing the content of cruel and inhumane treatment, the Trial Chamber finds that it is assisted by the Tribunals jurisprudence regarding other inhumane acts under Article 5 (i) of the Statute, inhuman treatment under Article 2 (b) of the Statute, and cruel treatment under Article 3 of the Statute.Naletilic Trial Judgement, para. 228 with further references.
131 -
132 - , para. 235; Judgement, para. 131.
133 - Judgement, para. 144; , para. 501.
134 - , para. 236; Judgement, para. 132;
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-T, Judgement, 21 May 1999
(""), para. 153; , para. 56."Prosecutor v Mitar Vasiljević, Case No. IT-98-32-T, Judgement (TC), 29 November 2002, para. 235:
"235. To assess the seriousness of an act, consideration must be given to all the factual circumstances. These circumstances may include the nature of the act or omission, the context in which it occurred, the personal circumstances of the victim including age, sex and health, as well as the physical, mental and moral effects of the act upon the victim.Delalic Trial Judgment, par 536;
; , par 501; Judgment, par 132.598 - , par 501; Judgment, par 144."
P.25. Evidence of the physical, mental and moral effects of the conduct upon the victim
P.25.1. Evidence of long term effects
A. Legal source/authority and evidence:
ICC, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC-01/09-02/11, Decision on the confirmation of charges (PTC), 23 January 2012, para. 274-277:
"274. Secondly, the Chamber turns to the Prosecutors allegations of mental suffering on the part of the victims whose family members were killed in front of their eyes.
275. Witness OTP-2 reports having met and spoken to a boy at the Naivasha police station who was "not active", "wouldnt even laugh, he was just very, very rigid". The witness reports that when spoken to, the boy bluntly replied: "The... the Kikuyus killed my father, they h... cut my fathers head".
276. Further, the Chamber notes the evidence relayed in the CIPEV Report, concerning a witness who testified before the CIPEV that, in Naivasha on 28 January 2008, her brother had been killed and mutilated in front of his 5-year-old son. According to the witness, the victims son has since "gone mad".
277. The Chamber considers that these acts of brutal killings and mutilations in front of the eyes of the victims family members caused serious mental suffering, and are comparable in their nature and gravity to other acts constituting crimes against humanity."
Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 74-76:
"(ii) Cruel and inhumane treatment
74. In assessing the content of cruel and inhumane treatment, the Trial Chamber finds that it is assisted by the Tribunals jurisprudence regarding other inhumane acts under Article 5 (i) of the Statute, inhuman treatment under Article 2 (b) of the Statute, and cruel treatment under Article 3 of the Statute.Naletilic Trial Judgement, para. 228 with further references.
131 -
132 - , para. 235; Judgement, para. 131.
133 - Judgement, para. 144; , para. 501.
134 - , para. 236; Judgement, para. 132;
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-T, Judgement, 21 May 1999
(""), para. 153; , para. 56."Prosecutor v Mitar Vasiljević, Case No. IT-98-32-T, Judgement (TC), 29 November 2002, para. 235:
"To assess the seriousness of an act, consideration must be given to all the factual circumstances. These circumstances may include the nature of the act or omission, the context in which it occurred, the personal circumstances of the victim including age, sex and health, as well as the physical, mental and moral effects of the act upon the victim.Delalic Trial Judgment, par 536;
; , par 501; Judgment, par 132.598 - , par 501; Judgment, par 144."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133 , 144:
"2. Findings
133. The Trial Chamber is satisfied that the brutal and deplorable living conditions imposed upon the non-Serb detainees at the KP Dom in the period from April 1992 to July 1993 (discussed below) constituted acts and omissions of a seriousness comparable to the other crimes enumerated under Article 5 and Article 3 of the Tribunals Statute, and thus warrants a finding that those acts and omissions constitute inhumane acts and cruel treatment under those Articles.
144. The Trial Chamber is satisfied that the physical and psychological health of many non-Serb detainees deteriorated or was destroyed as a result of the living conditions accepted as having existed at the KP Dom, and as charged under par 5. 37 and described in Schedule D to the Indictment. In making this finding, the Trial Chamber notes that there is no legal requirement that the suffering of a victim be lasting for the offences of cruel treatment or inhumane acts to be established. However, the Trial Chamber is satisfied that many of the non-Serb detainees continue to suffer lasting physical and psychological effects of their period of detention at the KP Dom. This factor supports the Trial Chambers finding that the acts and omissions found below were of a serious nature."
P.26. Evidence of acts being carried out in a systematic manner or on a large scale
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 269-272:
"269. It is not controversial that the category "other inhumane acts" provided for in Article 5 is a residual category, which encompasses acts not specifically enumerated. Trial Chambers have considered the threshold to be reached by these other acts in order to be incorporated in this category, reaching similar conclusions as to the serious nature of these acts. The Tadic Trial Chamber found that "inhumane acts" are acts "similar in gravity to those listed in the preceding subparagraphs". In the words of the Kupreskic Trial Chamber, in order to be characterised as inhumane, acts "must be carried out in a systematic manner and on a large scale. In other words, they must be as serious as the other classes of crimes provided for in the other provisions of Article 5." The Tadic Trial Chamber, in relation to the requisite nature of "other inhumane acts", held that they "must in fact cause injury to a human being in terms of physical or mental integrity, health or human dignity."369
270. Acts such as "mutilation and other types of severe bodily harm", "beatings and other acts of violence", and "serious physical and mental injury"371 have been considered as constituting inhumane acts. The Trial Chamber in Kupreskic took a broader approach of which acts may fall into the category of other inhumane acts in concluding that acts such as the forcible transfer of groups of civilians, enforced prostitution, and the enforced disappearance of persons, may be regarded as "other inhumane acts".
271. Within the context of the discussion of "other inhumane acts", the Blaskic Trial Chamber defined the elements of serious bodily or mental harm thus:
- the victim must have suffered serious bodily or mental harm; the degree of severity must be assessed on a case-by-case basis with due regard for the individual circumstances ;
- the suffering must be the result of an act of the accused or his subordinate;
- when the offence was committed, the accused or his subordinate must have been motivated by the intent to inflict serious bodily or mental harm upon the victim.
In addition, as discussed in relation to the requirements for the application of Article 5 of the Statute, the acts must have been committed as part of a widespread or systematic attack against a civilian population.
272. The Trial Chamber finds that where the act alleged in the Indictment to have caused injuries meets the requirements set out in the preceding paragraph, they may be characterised as "inhumane acts" for the purposes of Article 5 of the Statute."
, para. 563; , para. 237.367 - , para. 729.
368 - , para. 566.
369 - , para. 729.
370 - , para. 730.
371 - , para. 239.
372 - , para. 566. Contrary to the Tadic Appeals Chambers finding, the Trial Chamber appears to have included a requirement that some of the acts that may be characterised as "inhumane acts" be performed with a discriminatory intent.
373 - , para. 243."
Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000
, para. 566:
"566. Less broad parameters for the interpretation of "other inhumane acts" can instead be identified in international standards on human rights such as those laid down in the Universal Declaration on Human Rights of 1948 and the two United Nations Covenants on Human Rights of 1966. Drawing upon the various provisions of these texts, it is possible to identify a set of basic rights appertaining to human beings , the infringement of which may amount, depending on the accompanying circumstances , to a crime against humanity. Thus, for example, serious forms of cruel or degrading treatment of persons belonging to a particular ethnic, religious, political or racial group, or serious widespread or systematic manifestations of cruel or humiliating or degrading treatment with a discriminatory or persecutory intent no doubt amount to crimes against humanity: inhuman or degrading treatment is prohibited by the United Nations Covenant on Civil and Political Rights (Article 7), the European Convention on Human Rights, of 1950 (Article 3), the Inter-American Convention on Human Rights of 9 June 1994 (Article 5) and the 1984 Convention against Torture (Article 1). Similarly, the expression at issue undoubtedly embraces the forcible transfer of groups of civilians (which is to some extent covered by Article 49 of the IVth Convention of 1949 and Article 17(1) of the Additional Protocol II of 1977), enforced prostitution (indisputably a serious attack on human dignity pursuant to most international instruments on human rights), as well as the enforced disappearance of persons (prohibited by General Assembly Resolution 47/133 of 18 December 1992 and the Inter-American Convention of 9 June 1994). Plainly, all these, and other similar acts, must be carried out in a systematic manner and on a large scale. In other words, they must be as serious as the other classes of crimes provided for in the other provisions of Article 5. Once the legal parameters for determining the content of the category of "inhumane acts" are identified, resort to the ejusdem generis rule for the purpose of comparing and assessing the gravity of the prohibited act may be warranted."
