Table of contents
P.27. Evidence of a deliberate policy of isolating detainees within a detention centre
P.27.1. Evidence of many of the detainees spenting their entire detention locked in their rooms
P.27.3. Evidence of visits from family members being prohibited
P.27.4. Evidence of television sets and radios being taken away
P.27.5. Evidence of rooms being searched for personal transitor radios
P.27.6. Evidence of access to newspapers or other press being prohibited
P.27.8. Evidence of detainees being not allowed to look out of the windows
P.27.10. Evidnece of violations being punished
P.28. Evidence of a deliberate policy of housing detainees in cramped conditions
P.28.1. Evidence of extra space available in the detention centre not being used
P.29.1. Evidence of available stocks of additional blankets not being provided to all detainees
P.29.3. Evidence of attempts made by detainees to make winter clothes out of blankets were punished
P.30. Evidence of a deliberate policy to feed detainees barely enough for their survival
Element
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 132:
"132. The required mens rea is met where the principal offender, at the time of the act or omission, had the intention to inflict serious physical or mental suffering or to commit a serious attack on the human dignity of the victim, or where he knew that his act or omission was likely to cause serious physical or mental suffering or a serious attack upon human dignity and was reckless as to whether such suffering or attack would result from his act or omission."
"385 - http//www.legal-tools.org/doc/6164a4/Kayishema and Ruzindana Trial Judgment, par 153; http//www.legal-tools.org/doc/176f05/Aleksovski Trial Judgment, par 56."
"153. The Chamber is in no doubt that a third party could suffer serious mental harm by witnessing acts committed against others, particularly against family or friends. However, to find an accused responsible for such harm under crimes against humanity, it is incumbent on the Prosecution to prove the mens rea on the part of the accused. Indeed, as stated above, inhumane acts are, inter alia, those which deliberately cause serious mental suffering. The Chamber considers that an accused may be held liable under these circumstances only where, at the time of the act, the accused had the intention to inflict serious mental suffering on the third party, or where the accused knew that his act was likely to cause serious mental suffering and was reckless as to whether such suffering would result. Accordingly, if at the time of the act, the accused was unaware of the third party bearing witness to his act, then he cannot be held responsible for the mental suffering of the third party."
http//www.legal-tools.org/doc/6b4a33/Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landžo, Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 552:
"552. In light of the foregoing, the Trial Chamber finds that cruel treatment constitutes an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. As such, it carries an equivalent meaning and therefore the same residual function for the purposes of common article 3 of the Statute, as inhuman treatment does in relation to grave breaches of the Geneva Conventions. Accordingly, the offence of torture under common article 3 of the Geneva Conventions is also included within the concept of cruel treatment. Treatment that does not meet the purposive requirement for the offence of torture in common article 3, constitutes cruel treatment."
Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 494, 526:
''494. The category of “other inhumane acts” contained in Article 5(i) of the Statute is a residual category of crimes against humanity which includes serious criminal acts that are not exhaustively enumerated in Article 5. The following elements are required for an act or omission to constitute an inhumane act under Article 5(i): (i) there was an act or omission of similar seriousness to the other enumerated acts under Article 5; (ii) the act or omission caused serious mental or physical suffering or injury or constituted a serious attack on human dignity; and (iii) the act or omission was committed with the intent to inflict serious physical or mental suffering or to commit a serious attack on the human dignity of the victim(s), or with the knowledge that this act or omission was likely to cause such suffering or a serious attack upon human dignity.''
''526. In relation to forced labour, the perpetrator must have intended the victim to perform prohibited work involuntarily. In the absence of direct evidence, intent can be inferred from the circumstances in which the labour was performed. In relation to the use of human shields, the perpetrator must intend to shield a military objective from attack or shield, favour, or impede military operations.''
P.28. Evidence of a deliberate policy of isolating detainees within a detention centre
P.28.1. Evidence of many of the detainees spenting their entire detention locked in their rooms
P.28.3. Evidence of visits from family members being prohibited
P.28.4. Evidence of television sets and radios being taken away
P.28.5. Evidence of rooms being searched for personal transitor radios
P.28.6. Evidence of access to newspapers or other press being prohibited
P.28.8. Evidence of detainees being not allowed to look out of the windows
P.28.10. Evidnece of violations being punished
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133-134:
"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 Tribunal’s Statute, and thus warrants a finding that those acts and omissions constitute inhumane acts and cruel treatment under those Articles.
134. The Trial Chamber is satisfied that there was a deliberate policy of isolating detainees within the KP Dom. Many of the detainees spent their entire detention locked in their rooms, and were only taken out to the canteen for meals while others kept in solitary confinement cells were not taken out at all, receiving their meals in their cells. Only those detainees given work assignments were permitted to spend prolonged periods outside of their rooms. Visits from family members were prohibited after May 1992. Television sets and radios which had been left at the KP Dom by former convicts were taken away, and rooms were searched for personal transistor radios which were seized. Access to recent newspapers or other press was prohibited. Any form of information exchange and communication between detainees in different rooms and between detainees and guards was prohibited. Detainees were not allowed to look out of the windows, although some did so Detainees who were taken to work assignments outside of the KP Dom were kept isolated in a separate room to prevent news about the "outside world" spreading among the other detainees. To ensure compliance with these unwritten "rules" on communication, violations were punished with solitary confinement and/or mistreatment, such as beatings."
P.29. Evidence of a deliberate policy of housing detainees in cramped conditions
P.29.1. Evidence of extra space available in the detention centre not being used
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 135:
"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 Tribunal’s Statute, and thus warrants a finding that those acts and omissions constitute inhumane acts and cruel treatment under those Articles.
135. The Trial Chamber is satisfied that the non-Serb detainees were deliberately housed in cramped conditions. The KP Dom had the capacity to house more than the maximum 500-700 non-Serbs detained, but the detainees were crowded into a small number of rooms. Solitary confinement cells designed to hold one person were packed with up to 18 people at a time, making it impossible for the detainees to move around the cell, or to sleep lying down."
P.30.1. Evidence of available stocks of additional blankets not being provided to all detainees
P.30.3. Evidence of attempts made by detainees to make winter clothes out of blankets were punished
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 137-138:
"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 Tribunal’s Statute, and thus warrants a finding that those acts and omissions constitute inhumane acts and cruel treatment under those Articles.
[…]
137. The Trial Chamber is satisfied that detainees were denied the most basic protection against freezing temperatures during the winter of 1992-1993. Most of the non-Serb detainees had been arrested in the early summer of 1992. Due to the information given to them in the course of arrest, namely, that they would be taken for an interview and returned to their homes the same day, they left in what they happened to be wearing at the time. As a result, they were inadequately clothed for winter conditions. The Trial Chamber accepts that the heating system at the KP Dom was broken and that there were some attempts made by the administration to repair it, but it is equally satisfied that no other available measures were taken to protect the non-Serb detainees from the cold Stoves and furnaces had been produced to heat the offices in the administration building, and there was sufficient raw material for such furnaces to have been produced for the non-Serb detainees. However, it was not until October 1993 that furnaces were finally provided to the non-Serb detainees, and then it was by the ICRC.
138. The Trial Chamber is further satisfied that the suffering of the non-Serb detainees during the winter of 1992 was the result of a deliberate policy on the part of those in charge of the KP Dom. There were available stocks of additional blankets, but they were not provided to all detainees. Broken window panes in the detainees cells were not repaired or covered, and open windows out of the reach of detainees were not closed. Attempts made by some of the non-Serb detainees to make winter clothes out of blankets were punished. The blankets were removed and those involved were sent to solitary confinement, where temperatures were lower."
P.31. Evidence of a deliberate policy to feed detainees barely enough for their survival
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 139:
"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 Tribunal’s Statute, and thus warrants a finding that those acts and omissions constitute inhumane acts and cruel treatment under those Articles.
[…]
139. The Trial Chamber accepts that there may have been a general shortage of food in the Foca region during the conflict, but it is satisfied that there was a deliberate policy to feed the non-Serb detainees barely enough for their survival. All non-Serb detainees suffered considerable weight loss ranging from 20 to 40 kilograms during their detention at the KP Dom. Their diet consisted of a cup of soup which was "little more than water", rice or macaroni and a piece of "really thin" bread three times a day. On occasion, they received a tin of pâté to be shared by two persons or eggs for breakfast. In contrast, Serb convicts and detainees received "regular army food", not very appetising but nutritious enough to prevent serious weight loss. The contrast between the weight loss of non-Serb detainees and the Serb prisoners makes it apparent that non-Serb detainees were fed much less than the Serb detainees. The Trial Chamber is satisfied that the food for all detainees at the KP Dom was cooked in the same cauldron, but that nutritious ingredients, like meat, beans, vegetables and spices, were added to enrich only the meals of Serb detainees and convicts and KP Dom staff, who ate after the non-Serb detainees had received their meals from the cauldron. In making these findings, the Trial Chamber rejects the Defence evidence that all the detainees received the same quality and quantity of food while detained at the KP Dom."
"419 - Slobodan Solaja (T 5498, 5500); Witness A (T 5522); Milomir Mihajlovic (T 5629); Radomir Dolas (T 5820); Miloslav Krsmanovic (T 6623); Witness B (T 6713); Zarko Vukovic (T 6759); Svetozar Bogdanovic (T 7084); Arsenije Krnojelac (T 7122-7124); Bozo Drakul (T 7191); Vitomir Drakul (T 5669); Dr Drago Vladicic (T 6307); Dr Milovan Dobrilovic (T 6366).
420 - Dr Amir Berberkic (T 3755, 3756); FWS-49 (T 4698); Dzevad Lojo (T 666); FWS-139 (T 343); FWS-86 (T 1507); FWS-49 (T 4698).
421 - FWS-66 (T 1084); FWS-111 (T 1312); FWS-162 (T 1361); FWS-198 (T 956); FWS-215 (T 874); FWS-54 (T 750); Dzevad Lojo (T 664); Safet Avdic (T 536); FWS-139 (T 343); FWS-86 (T 1506); FWS-182 (T 1618); Rasim Taranin (T 1729); FWS-08 (T 1772); FWS-71 (T 2805); FWS-109 (T 2371); FWS-159 (T 2464); Dr Amir Berberkic (T 3755); Safet Avdic (Ex P 123, p 686); FWS-78 (T 2113); FWS-96 (Ex P 186, p 2539).
422 - Rasim Taranin (T 1712-1715).
423 - FWS-162 (T 1361); FWS-198 (T 955); FWS-111 (T 1380); Dzevad Lojo (T 665); FWS-139 (T 341); Dr Amir Berberkic (T 4007); FWS-71 (T 2947); Juso Taranin (T 3027).
424 - FWS-172 (T 4607); FWS-250 (T 5116); FWS-89 (T 4725, 4674). At a later stage of their detention, and only for a period of 15 days, the detainees were given eggs, beans, rice, potatoes or pasta for breakfast: Rasim Taranin (T 1750).
425 - Lazar Stojanovic (T 5717, 5749); Vitomir Drakul (T 5673); Zoran Vukovic (T 5771, 5784-5785).
426 - FWS-08 (T 1804); FWS-138 (T 2063); FWS-71 (T 2952-2953); Rasim Taranin (T 1715); FWS-66 (T 1083); FWS-111 (T 1228-1229); FWS-162 (T 1360).
427 - Krsto Krnojelac (T 5903, 5914, 5916-5917, 5927, 5930); Risto Ivanovic (T 6092, 6094, 6193); Divljan Lazar (T 6043-6044); Miladin Matovic (T 6451-6452); Bozo Drakul (T 7189); The Accused (T 7665); Zoran Vukovic (T 5784-5785); Lazar Stojanovic (T 5717)."
