CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 8 War crimes » Art. 8(2)(a) War crimes » Art. 8(2)(a)(ii)-1 Torture » 5. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.

Element:

5. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.

5.1.1. Evidence of infliction, by act or omission, of physical pain or suffering.

P.1. Evidence of inflicting physical pain or suffering by acts of physical violence.

P.1.1. Evidence of beating / hitting / kicking.

A. Legal source/authority and evidence:

Prosecutor v. Enver Hadihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 1180 and 1279-1280:

"1180. All the Prosecution witnesses are consistent in stating that, throughout their detention in the Music School, they repeatedly underwent cruel treatment and lived in a permanent state of anxiety. Thus, upon their arrival at the School, the detainees were almost systematically kicked and beaten with rubber cable and wooden shovel handles by the soldiers and guards of the School before they were taken to the basement cell.2596 Witness XA recounts that upon his arrival he was hit on the head with a wooden stick when he was climbing the stairs and lost consciousness; when he came to, 15 to 20 7th Brigade soldiers were questioning him while continuing to hit him about the head, on the back and in the stomach, causing him to pass again out. He states that he was subjected to that treatment every day for eight days.2597 The beatings caused him to sustain two fractures of the skull.2598 Another witness recounts that after having lost and regained consciousness several times in the same circumstances, he was forced by a Muslim soldier to eat a military insignia after being threatened with having a rubber cable thrust down his throat if he did not do so.2599"

2596 P 398 (under seal), paras. 4-17; Kruno Rajić, T(F) p. 1797; P 401 (under seal), para. 10.

2597 Witness XA, T(F) pp. 1430-1432 and 1434.

2598 Witness XA, T(F) p. 1435.

2599 P 398 (under seal), para. 13.

"1279. In view of the above evidence and in particular the testimony of persons who were detained at the former JNA Barracks in Travnik, the Chamber finds that cruel treatment was inflicted on civilians and prisoners of war held at the detention centre in the Barracks during the whole of the period at issue. It appears from the testimony, therefore, that detainees were beaten during the period material to the Indictment.2882 The detainees in question were beaten, sometimes for several hours, with various objects and kicked and punched.2883

1280. The Chamber further finds that such beatings were carried out repeatedly. Witness Ivan Josipović was also beaten almost every evening during the first 50 days of his detention.2884 As for Kruno Bonić, it appears from the testimony that he was beaten on several occasions over a period of several months.2885"

2883 Ivan Josipović, T(F) pp. 2440-2441.

2884 Ivan Josipović, T(F) pp. 2442-2443.

2885 P 399 (under seal), para. 9; Ivan Josipović T(F) pp. 2450-2451.

Prosecutor v. Mile Mrkić et al., Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para. 526-527:

"526. Turning next to the allegations of beatings in support of the charges of torture and cruel treatment, the Chamber refers to its earlier findings, that at the arrival of the prisoners of war at Ovćara, they were received by a large number of TO and paramilitary members of the Serb forces as well as some JNA troops. The buses were emptied one by one and the prisoners of war, apart from four, had to pass through a gauntlet of two rows of Serb soldiers, about 10 to 15 on each side, who were beating them severely as they passed through. The prisoners were beaten with a variety of implements including wooden sticks, rifle-butts, poles, chains and crutches. They were kicked and punched. One witness described the beatings in front of the hangar the following way:

I don't know if the civilised world will be able to comprehend this. It is very difficult to describe this. You can't even see this in the movies, the beatings were terrible. People lost their teeth. There was so much blood, once we entered the hangar this straw was strewn on the floor and it was all covered in blood, it's hard to describe it. They were kicking, hitting, yelling, screaming[].

In effect, everyone but four, of the approximately 200 male prisoners from the five buses had to pass through the gauntlet and was heavily beaten. It is not clear from the evidence whether the two women were treated any differently. The soldiers were yelling "Ustashas" and were verbally abusing the prisoners going through the gauntlet.

527. Further, as has been set out earlier in this Judgement, beatings by members of the Serb forces continued inside the hangar. The beatings were not isolated acts, they lasted for some hours during which the vast majority of the prisoners in the hangar was severely beaten. The Chamber refers to its earlier findings that many of the approximately 200 men from the Vukovar hospital were hit in many cases with implements such as iron rods and rifle-butts and kicked. Sinisa Glavasevic, Vlado (Vladimir) Dukic, Tomislav Baumgertner who was 16 or 17 at the time, Damir Kovaci, Damjan Samardzic and Kemal (]eman) Saiti are shown by the evidence to have been beaten particularly severely. According to one witness, 12 of the Serb soldiers descended on Sinisa Glavasevic and beat and kicked him badly. Damir Kovacic was kicked. Damjan Samardzic was punched and beaten by five or six soldiers so severely that for a long time he could not move. Kemal (]eman) Saiti was grabbed by the hair by a Serb paramilitary soldier and his head was violently banged several times against the concrete floor. These beatings were capable of inflicting serious pain and suffering and they indeed did so in many cases."

Prosecutor v. Idriz Balaj et al., Case No. IT-04-84-T, Judgement (TC), 3 April 2008, paras. 187-188:

"187. Based on the evidence, the Trial Chamber concludes that on 22 April 1998, Rosa Radoević, Novak Stijović, and Stania Radoević were stopped by armed KLA soldiers on the road in or near Poar/Pozhare. KLA soldiers subsequently took the three by car in the direction of Glođane/Gllogjan. At the entrance of Glođane/Gllogjan, Novak Stijović and Stania Radoević were kicked and beaten by a group of KLA soldiers with fists and rifle and pistol butts for a considerable amount of time. Novak Stijović fell to the ground and Stania Radoević was bleeding. The three were then taken inside a room in a nearby house and Stania Radoević was beaten and interrogated. Stania Radoević was sent out of the house on the condition that he would go to collect two guns. After some time Rosa Radoević and Novak Stijović were released. Stania Radoević retrieved one gun and then left for Dečani/De?an under the pretext of getting the other gun, but instead escaped and went to the local police station.

188. The Trial Chamber is satisfied that the beating caused Novak Stijović and Stania Radoević serious physical suffering.[]"

Prosecutor v. Dragan Nikolić, Case No. IT-94-2-A, Judgement (AC), 4 February 2005, para. 40:

"40. In light of the above, the Appeals Chamber considers that, while the Trial Chamber erroneously qualified the beatings underlying the crime of torture as having "all of the making of de facto attempted murder", it was reasonable to conclude, on the basis of the evidence before it, that "due to (their( seriousness and particular viciousness", the beatings underlying the crime of torture amounted to the "highest level of torture" as an aggravating factor. The relief sought by the Appellant was that the conclusion of the Trial Chamber at paragraph 213(v) "should not have formed part of the aggravating factors and should be excised (and that( this excision goes to moderate the nature as a whole of the aggravating factors in the case."⁽⁸⁹⁾ Having determined that the Trial Chamber correctly concluded that the gravity of the beatings was to be taken into account as an aggravating factor in assessing the Appellants criminality for acts of torture, the Appeals Chamber does not consider that the excision of the Trial Chambers erroneous characterisation of the beatings as having all of the making of "de facto attempted murder" moderates the nature as a whole of the aggravating factors. Therefore, this part of the Appellants ground of appeal is dismissed."

"89. Appellant's Brief, para. 136."

Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, paras. 189, 192, 196, 200, 208, 213 (v):

"189. The Accused brutally and sadistically beat the detainees. He would kick and punch detainees and use weapons such as iron bars, axe handles, rifle butts, metal "knuckles", truncheons, rubber tubing with lead inside, lengths of wood and wooden bats to beat the detainees.²⁶¹ The Accused even ignored his brother who would often plead with him to stop his criminal conduct by saying: "Dont beat people, Dragan. They are to blame for nothing. Why are you doing this?"²⁶² The other detainees, including the children, observed the Accuseds criminal conduct and were afraid the same might happen to them.²⁶³"

"261. Ibid. [Indictment], paras 8, 23, 27, 28, 31; Witness SU-202, T. 270.

262. Witness SU-032, T. 283.

263. Ibid., T. 278, 279."

"192. One of the most chilling aspects of the Accuseds behaviour was the enjoyment he derived from his acts. Witness SU-032 stated that the Accused "enjoyed himself while he was beating people. I know firsthand that he enjoyed beating Arnaut Fikret. He used to beat him five times a day."²⁶⁶ When two of the victims passed out due to a beating, the Accused and other guards had buckets of water thrown on them to revive them.²⁶⁷ When detainees who were being beaten begged to be shot, the Accused would reply: "A bullet is too expensive to be spent on a Muslim."²⁶⁸"

"266. Witness SU-032, T. 279.

267. Witness SU-202, T. 270. See infra para. 208.

268. Witness SU-032, T. 279."

"196. On one occasion, Habiba Hadzic gave Fikret Arnaut²⁷⁶ some cookies because he had not been given any food. She did not see that Dragan Nikolic was at the door to the hangar. He walked up and crushed the biscuits with his boot, and he ordered her to go outside to the external toilet where he slapped her once then hit her with a rifle butt, knocking her out.²⁷⁷"

"276. See supra subsection V. A. 2. (d) (i)

277. Habiba Hadzic, T. 236-237; see supra para. 105."

"200. [] Many of the then detainees suffer to this day from the lasting not only physical effects of the treatment they received at the hands of the Accused or by his will. Witness SU-115 lost some of her teeth after having them kicked out at Susica and she "still suffer[s] [the] consequences of the beating"²⁸⁷ she received at the camp. Habiba Hadzic has constant pain in her elbow and is unable to take a bath without assistance due to a wound inflicted by the Accused with a rifle butt.²⁸⁸"

"287. Exh. P1, Witness SU-115, para. 9.

288. Habiba Hadzic, T. 239."

"208. The Trial Chamber is convinced that when detainees were beaten outside the hangar at the "A-pole" or when detainees were beaten or "punished" in the "punishment corner" of the hangar, all the detainees, from the very young to the elderly, knew what was happening, heard what was happening and were affected by it. Witness SU -202 testified how he was an eye witness to the beating and killing of Durmo Handzic and Asim Zildzic:

"296. Witness SU-202, T. 269-270."

"213. [] (v) Beatings were placed in the Indictment under the charge of torture. Due to the seriousness and particular viciousness of the beatings, the Trial Chamber considers this conduct as being at the highest level of torture, which has all of the making of de facto attempted murder."

Prosecutor v. Milan Simić, Case No. IT-95-9/2-T, Judgement (TC), 17 October 2002, para. 63:

"63. In relation to count 4, the Plea Agreement details the "instruments" used to beat the victims: the victims were beaten with fists, the leg of a chair, a rod or bar, the butt of a rifle, and were kicked, on various parts of their bodies and especially in the genitals. It further provides that the victims were forced to stand with their arms outstretched, and were ordered to stand with their legs apart in order to receive forceful kicks to their genitals.⁸³"

"83. Plea Agreement, para. 9(d)."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 231, 233, 240 242, 250, 255:

"231. Because of the significance of this event generally to other issues in the case, however, the Trial Chamber exceptionally records that it is satisfied that, on 8 July 1993, Ekrem Zekovic, a Muslim detainee, tried to escape from the KP Dom, but was re-captured the same day.⁶²⁴ As soon as he was brought back to the KP Dom, Zekovic was severely beaten by Milenko Burilo, a guard of the KP Dom.⁶²⁵ While he was being beaten, the Accused intervened to stop it.⁶²⁶ As they were walking away from the scene, Burilo continued to assault Zekovic in the presence of the Accused.⁶²⁷ The Accused denied that he saw Zekovic being beaten.⁶²⁸ The Trial Chamber does not accept the denial of the Accused on that point, nor does his evidence cause the Trial Chamber to have any reasonable doubt that the Zekovic was telling the truth. Zekovic was subsequently put in an isolation cell and then taken out at some point and beaten again with bare hands and with a chain by deputy warden Savo Todovic, in the presence of Boro Ivanovic.⁶²⁹ The Accused met with him and they had a conversation about his attempted escape.⁶³⁰ Zekovic was then returned to the cell and his hands and legs were tied to the floor with a metal ring. The next day, barely able to walk,⁶³¹ he was taken to the courtyard where detainees had been assembled. He was then returned to the isolation cell where he spent 28 days. Seven days of that time were spent on the concrete cell floor, handcuffed at all times except for two occasions when he was taken out to be beaten again by the KP Dom guards on duty.⁶³²

"624. Ekrem Zekovic (T 3555-3565).

625. Ekrem Zekovic (T 3567-3569).

626. Ekrem Zekovic (T 3569-3570).

627. Ekrem Zekovic (T 3567-3569, 3573-3575); See also Miladin Matovic (T 6587).

628. T 8121.

629. Ekrem Zekovic (T 3570, 3579-3580).

630. Ekrem Zekovic (T 3574-3575); See also The Accused (T 7681, 8121).

631. Ekrem Zekovic (T 3588).

632. Ekrem Zekovic (T 3591-3595). The second time, he was taken away but not beaten (Ekrem Zekovic, T 3593-3594)."

"233. The Trial Chamber is satisfied that, in the presence of the Accused,⁶³⁴ detainees were told by Todovic that, because of Zekovics escape, all food rations would be halved,⁶³⁵ and that work and medical treatment would be forbidden.⁶³⁶ This punishment actually lasted for at least ten days.⁶³⁷ All rooms were searched and medicines were seized. In addition, following the escape, several detainees, all work companions of Zekovic, were severely beaten by KP Dom guards as punishment for Zekovics escape or in order to obtain information about his whereabouts.⁶³⁸ The Accused denied having been aware of any punishment inflicted as a result of Zekovics escape.⁶³⁹ The Trial Chamber does not accept his evidence; nor did his evidence cause the Trial Chamber to have any reasonable doubt as to the truth of the Prosecution witnesses on this issue. FWS-73 was beaten and kicked with boots on the head and on his lower back so brutally that he continues to the present day to suffer from the consequences of his mistreatment.⁶⁴⁰ Furthermore, a group of detainees, including some of those who had been beaten, were locked in solitary confinement for varying periods of time.⁶⁴¹ FWS-73 stayed in an isolation cell for 12 days.⁶⁴²"

"634. See for example Ekrem Zekovic (T 3587-3588); FWS-250 (T 5066). The Accused himself conceded that he was present during Todovics speech (T 7684-7686).

635. FWS-216 (T 3587).

636. Ekrem Zekovic (T 3587-3588); Safet Avdic (Ex P 123, pp 694-695); FWS-250 (T 5065-5066).

637. FWS-250 (T 5066).

638. FWS-73 (T 3240-3245); FWS-182 (T 1614); FWS-249 (T 4460-4470); Muhamed Lisica (T 4921-4924).

639. T 7686.

640. FWS-73 (T 3240).

641. FWS-73 (T 3240); FWS-249 (T 4471); Muhamed Lisica (T 4926).

642. FWS-73 (T 3240)."

"250. The Trial Chamber is satisfied that, in June or July 1992,⁶⁶¹ Nurko Nisic, Zulfo Veiz and Salem Bico were severely beaten by guards of the KP Dom, or by policemen from outside the KP Dom, who had been allowed by the guards to enter the KP Dom. Nisic was taken out to be beaten on at least two occasions while he was at the KP Dom.⁶⁶² Several inmates saw the bruises on his face and body.⁶⁶³ Sometime in June or July 1992, he was taken from his room and his screams and the provocative remarks of those beating him were heard by other detainees.⁶⁶⁴ He was never seen again after that. The Trial Chamber is satisfied that, when beating him, the KP Dom guards or policemen from outside the KP Dom, intended to obtain from him a confession that he was somehow involved in military activities, or information to that effect.⁶⁶⁵ They may also have intended to punish him because they considered that his alleged military activities were somehow connected with the injury of a Serb soldier named or nicknamed "Bota".⁶⁶⁶ The Trial Chamber is not satisfied, however, that such an intention has been established beyond reasonable doubt. Nisic was beaten extremely severely.⁶⁶⁷ Despite his frailty due to mal-nourishment and mistreatment, he was given no medical assistance and he could not walk for several days following the beatings.⁶⁶⁸ The Trial Chamber is satisfied that the mental and physical pain inflicted upon Nisic by the guards of the KP Dom or policemen for the prohibited purpose which has been accepted amounted to torture within the meaning of Article 3 and Article 5(f) of the Statute."

"661. Safet Avdic (T 483-484); FWS-54 (T 767); FWS-162 (T 1387); FWS-142 (T 1824, 1841); Ahmet Hadzimusic (T 1953); FWS-03 (T 2251); FWS-109 (T 2377-2379); FWS-113 (T 2574-2580); FWS-71 (T 2828); Amir Berberkic (T 3791-3792); FWS-69 (T 4116); FWS-172 (T 4559); FWS-250 (T 5048).

662. FWS-111 (T 1238); FWS-198 (T 1032-1033); FWS-86 (T 1511-1512); FWS-54 (T 1102); FWS-162 (T 1387-1388); Dzevad Lojo (T 645); FWS-142 (T 1824); Ahmet Hadzimusic (T 1953); FWS-104 (T 2176-2177); FWS-03 (T 2251); FWS-109 (T 2380); FWS-113 (T 2580); FWS-71 (T 2829-2830, 2837-2839); Ekrem Zekovic (T 3479-3480); Dr Amir Berberkic (T 3790-3791); FWS-69 (T 4116); FWS-172 (T 4564); FWS-250 (T 5040-5041). See, however, the testimony of Risto Ivanovic who denied that Nurko Nisic was ever beaten while he was detained at the KP Dom (T 6175). This witness further claimed that nobody was ever beaten at the KP Dom and that no guard was ever involved in such mistreatment (T 6179). The Trial Chamber notes that Risto Ivanovic worked in shift at the KP Dom with two guards, Zoran Matovic and Milenko Burilo (T 6180); who have been mentioned repeatedly by Prosecution witnesses as being among the worst principal offenders of beatings (See par 273, infra concerning the finding of the Trial Chamber in respect of those two guards). The Trial Chamber does not accept the evidence of this witness on that point; nor does his evidence cause the Trial Chamber to have a reasonable doubt that the Prosecution witnesses were telling the truth.

663. See for example FWS-111 (T 1238-1239); FWS-198 (T 1032); Rasim Taranin (T 1725); FWS-86 (T 1511-1512); FWS-54 (T 1102); Dzevad Lojo (T 645); FWS-182 (T 1630); Ahmet Hadzimusic (T 1953-1954); FWS-138 (T 2069-2070); FWS-71 (T 2830); Dr Amir Berberkic (T 3791-3792); FWS-172 (T 4566).

664. FWS-198 (T 1005); FWS-162 (T 1387-1388); FWS-142 (T 1824); FWS-104 (T 2176); FWS-109 (T 2380); FWS-71 (T 2839-2840); Ekrem Zekovic (T 3479-3480, 3663); FWS-69 (T 4116); FWS-172 (T 4564); FWS-250 (T 5048-5049).

665. FWS-71 (T 2839-2840); Ekrem Zekovic (3479-3480); FWS-250 (T 5042, 5049).

666. Ekrem Zekovic (T 3479-3480).

667. FWS-215 (T 908); FWS-111 (T 1238); FWS-198 (T 1005-1007, 1032-1034); FWS-82 (T 1725); FWS-86 (T 1510); FWS-54 (T 1102); FWS-162 (T 1386-1388); FWS-85 (T 645-646); FWS-139 (T 358); FWS-182 (T 1630); FWS-142 (T 1824); FWS-119 (T 1954); FWS-138 (T 2070); FWS-104 (T 2176); FWS-03 (T 2251, 2254); FWS-109 (T 2379-2380); FWS-113 (T 2580); FWS-71 (T 2830, 2837, 2840); FWS-73 (T 3264); FWS-216 (T 3479); FWS-214 (T 3791-3792); FWS-69 (T 4116); FWS-172 (T 4654, 4566); FWS-250 (T 5040).

668. FWS-182 (T 1630); FWS-71 (T 2830, 2837); FWS-214 (T 3791-3792); FWS-172 (T 4566)."

"255. The Trial Chamber is satisfied that, on an unknown date in the summer of 1992 but before the month of July, Salko Mandzo was mistaken for another detainee, interrogated and seriously beaten; he was hit with a bat, and cut on the face with a knife.⁶⁸⁰ Salko Mandzo lost consciousness as a result of a blow he received on his head. The fact that the KP Dom guards were mistaken about the identity of the victim does not detract from the conclusion that, when inflicting such severe physical pain, the guards did so with the intention of obtaining either a confession or information from him or the person they believed him to be.⁶⁸¹ One Prosecution witness testified that Savo Todovic and the Accused walked in during the beating and said that they had been mistaken about the identity of the victim.⁶⁸²"

"680. FWS-86 (T 1513); FWS-66 (T 1105); FWS-111 (T 1246-1247); FWS-142 (T 1830); FWS-138 (T 2076-2078); Ahmet Hadzimusic (T 1959); FWS-73 (T 3244); Ekrem Zekovic (T 3473-3474); Dr Amir Berberkic (T 3930-3931); FWS-172 (T 4570); FWS-89 (T 4665).

681. See, in particular, FWS-73 (T 3244). See also Ekrem Zekovic (T 3473).

682. Ekrem Zekovic (T 3473); Salko Mandzo told Ekrem Zekovic about this incident and the Accuseds part in it."

Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, para. 266:

"Both Witness A and Witness D were interrogated by the accused and hit on the feet with a baton by Accused B in the course of this questioning."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 918, 972, 994:

"918. [] In addition, on one particular occasion Hazim Delić and Esad Lando took him out of the Hangar and, while Delić walked over to his car parked around 10 metres away, Lando started kicking and hitting the victim with karate chops, which rendered him unconscious. []"

"972. Describing a later incident, the victim stated that Esad Landzo called him out of the Hangar, put a mask on his head to stop him from making noise and covered the front of the mask with a piece of white cloth to ensure that he could not see his tormentors. Mr. Landzo and several other persons then started beating him with a baseball bat The victim also testified that, on yet another occasion, Esad Landzo took him out of the Hangar, along with Branko Gotovac and his two sons, and beat them with a wooden plank, as well as placing a lit match underneath the victims thumb nail."

"994. Mirko Dordic testified before the Trial Chamber that, in the second part of June 1992, Esad Landzo, who was carrying a baseball bat at the time, took him out of Hangar 6 to another hangar. Mr. Landzo made him lean against a wall and asked him about the whereabouts of some hand grenades and pistols. When Mr. Dordic was unable to provide him with any information in respect of these items, Esad Landzo put a piece of metal in his mouth so that he could not make any noise and then started hitting him with the baseball bat on his legs and rib cage. This went on for a long time and Mr. Dordic fell down and fainted many times. When this occurred, Esad Landzo would make him stand once more and again start beating him. Ultimately, Mr. Landzo allowed Mr. Dordic to return to the Hangar. This beating was so severe that he could not get up unassisted and he remained immobile for quite some time. Subsequently, one of the other inmates of the Hangar told him that he had received about 200 to 250 blows."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 411 413, 680:

"411. Thereafter, on the same evening, the Accused picked up Victim Z (Witness C) and took him to a forest in Gishyeshye Sector, where the Accused stepped on his face, causing his lips to bleed, and kept his foot on Victim Z's face while the Interahamwe Francois and the commune police officer Mugenzi beat him with the butt of their guns. Victim Z was tied to Victim Y with a piece of cloth by Mugenzi, which was used to choke him. Victim Z was also forced by Francois to beat Victim Y with a cudgel he was given. During this time, Victim Z was interrogated, but it is unclear who actually did the interrogation.

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. The Accused then told Victim V to raise his arms in the air and threatened to shoot him. In the presence of the Accused, Victim V was then beaten under interrogation by the Interahamwe Francois and the commune police officer Mugenzi with the butt of a rifle and a stick. Victim Z was beaten on the back with the blunt side of a machete.

413. As a result of the beatings, Victim Y has trouble walking. Victim Z has scars on his back and continuing health problems. Victim V sustained a broken rib from the beatings."

"680. The Tribunal notes that the Accused himself participated in the beating of Victim Y by hitting her on the back with a club, and the beating of Victim Z by stepping on his face and holding his foot there while others beat him. It is alleged that he interrogated them but it is not specifically alleged in Paragraphs 21 and 23 of the Indictment that the Accused committed acts of physical violence. The Tribunal finds, however, that the allegations in the Indictment were sufficient notice to the Accused of the incidents in question, and that the exact role of the Accused in these incidents was a matter which was adjudicated at trial in accordance with the requirements of due process. For these reasons, the Tribunal finds that the Accused may be judged criminally responsible for his direct participation in these beatings, despite the absence of a specific allegation of direct participation by the Accused in the relevant paragraphs of the Indictment."

Selmouni v. France, Application No. 25803/94, Judgement (Merits) (European Court of Human Rights), 28 July 1999, paras. 11 15, 17 20, 98, 102:

"11. Mr Selmouni was first questioned from 12.40 a.m. to 1.30 a.m. on 26 November 1991 by the police officers against whom he later made a complaint. Having been questioned and taken back to the court cells, Mr Selmouni had a dizzy spell. The court cell officers took him to the casualty department at Jean Verdier Hospital in Bondy at 3.15 a.m. The medical observations made by the casualty department read as follows:

12. On 26 November 1991 the investigating judge extended police custody by forty-eight hours. Mr Selmouni was questioned from 4.40 p.m. to 5.10 p.m., at 7 p.m., from 8 p.m. to 8.15 p.m. and from 10.25 p.m. to 11.30 p.m. On the same day Mr Selmouni was examined by a Dr Aoustin, who made the following observations:

13. On 27 November 1991 Mr Selmouni was questioned from 11 a.m. to 11.40 a.m. On examining him again, Dr Aoustin made the following notes:

14. After being questioned from 9.30 a.m. to 10.15 a.m. on 28 November 1991, Mr Selmouni was again examined by Dr Aoustin, who noted on his medical certificate:

15. At 11.30 a.m. on 29 November 1991 the applicant was examined by Dr Edery, a general practitioner. He drew up a certificate, at Mr Selmounis request, to the effect that Mr Selmouni claimed to have been assaulted. The certificate stated:

17. On 2 December 1991 the applicant was examined by Dr Nicot from the medical department of Fleury-Mérogis Prison. In a medical certificate drawn up at Mr Selmounis request the doctor made the following observations:

18. On 7 December 1991 Dr Garnier, the expert appointed by the investigating judge, examined the applicant at the prison. Mr Selmouni made the following statement to the doctor:

19. The doctor noted in his report:

20. The conclusion of the report is as follows:

"98. The Court finds that all the injuries recorded in the various medical certificates (see paragraphs 11-15 and 17-20 above) and the applicants statements regarding the ill-treatment to which he had been subjected while in police custody (see paragraphs 18 and 24 above) establish the existence of physical and undoubtedly (notwithstanding the regrettable failure to order a psychological report on Mr Selmouni after the events complained of) mental pain or suffering."

"102. The Court is satisfied that a large number of blows were inflicted on Mr Selmouni. Whatever a persons state of health, it can be presumed that such intensity of blows will cause substantial pain. Moreover, a blow does not automatically leave a visible mark on the body. However, it can be seen from Dr Garniers medical report of 7 December 1991 (see paragraphs 18-20 above) that the marks of the violence Mr Selmouni had endured covered almost all of his body."

Aydin v. Turkey, Application No. 23178/94, Judgement (Merits) (European Court of Human Rights), 25 September 1997,paras. 20, 84:

"20. According to the applicant, she was later brought back to the room where she had been raped. She was beaten for about an hour by several persons who warned her not to report on what they had done to her."

"84. The applicant was also subjected to a series of particularly terrifying and humiliating experiences while in custody at the hands of the security forces at Derik gendarmerie headquarters having regard to her sex and youth and the circumstances under which she was held. She was detained over a period of three days during which she must have been in a constant state of physical pain and mental anguish brought on by the beatings administered to her during questioning and by the apprehension of what would happen to her next."

Muteba v. Zaire, Communication No. 124/1982, Decision (Human Rights Committee), 29 April 1997, UN Doc. CCPR/C/22/D/124/1982, para.10.2:

"[] During the first nine days of detention he was interrogated and subjected to various forms of torture including beatings, electric shocks and mock executions. []"

[B. Evidentiary comment:]

P.1.2. Evidence of falanga.

A. Legal source/authority and evidence:

The Greek Case, ECommHR Report, 1969, ECHR Ybk. 12, 499 500:

"5. In this connection the Commission finds two features common to many of the accounts of torture or ill-treatment: the use of falanga, and, in particular, its use in the washroom and the terrazza in Bouboulinas Street. Not all accounts of the washroom and the terrazza mention the same features, and there are sometimes errors. Thus some describe the small wall outside the washroom; the boiler, the sink with the metal id, and the back door in the washroom; and the notice on the stairs leading to the "terrazza": others do not mention them or say they did not notice them. In two cases, the number of rooms and doors in the building on the "terrazza" is wrongly described⁴.

4. Tsirka and Korovessis; it should be noted that both were allegedly taken up at night-time. Vlassis, who gave evidence on the same day as Korovessis, but had been taken up in day-time, gave an accurate description.

6. Falanga or bastinado has been a method of torture known for centuries. It is the beating of the feet with a wooden or metal stick or bar which, if skilfully done, breaks no bones, makes no skin lesions, and leaves no permanent and recognisable marks, but causes intense pain and swelling of the feet. The use of falanga has been described in a variety of situations: on a bench or chair or on a car seat; with or without shoes on. Sometimes water has been thrown over the feet and sometimes the victim has been made to run around between beatings. Victims have also been gagged.

7. The Commission considers that the variety of situations in which falanga is described as being used, and the differences and errors of description of the washroom and "terrazza", far from putting in question the veracity and reality of the accounts, tend to confirm them. For it is natural that, where several witnesses describe the same place or incident, there will be variations and errors of detail: indeed it is the precise repetition of the same features which would be suspect and would point to fabrication.

8. While falanga and severe beatings of all parts of the body are the commonest forms of torture or ill-treatment that appear in the evidence before the Sub-Commission, other forms have been described: for example, the application of electric shock, squeezing of the head in a vice, pulling out of hair from the head or pubic region, or kicking of the male genital organs, dripping water on the head, and intense noises to prevent sleep.

Falanga has not only been the commonest form of torture or ill-treatment in the cases in which the Sub-Commission has been able to establish the facts to a substantial degree but also appears with great frequency in the further allegations raised in the proceedings with regards to other named detainees. The principal forms of alleged treatment frequently several forms combined in one and the same case are as follows in the two categories:

5. This number includes 69 alleged cases mostly mentioned in the list submitted by the witness Papagiannakis, Verbatim Record (Athens) IV, p. 1076, where torture has been alleged without further specification, it may therefore well include alleged cases of falanga.

9. While it is an important feature of falanga that it generally leaves no enduring marks, beating of the feet may break bones, damage or destroy the nails, or cause skin lesions. The Sub-Commission was denied the opportunity of investigation cases where the breaking of bones⁶, and the destruction of nails⁷, were said to have taken place. There are witnesses who have specified to the Sub-Commission about the condition of the right ankle of Apostolos Dakos⁸."

"6. e.g. Margaritis, Reklitis; in theses cases the medical records were refused.

7. e.g. Maria Kallerghi, Petropoulos, Kiaos; these persons were prevented from appearing before the Sub-Commission.

8. Cf. Part IV, case No. 3."

P.1.3. Evidence of stomping.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998,, para. 409:

"409. With regard to the search for Alexia, wife of Ntereye, the Chamber finds that at on the evening of 20 April 1994, the Accused went with two Interahamwe named Francois and Singuranayo and one communal police officer named Mugenzi to the house of Victim Y (Witness N), a [68] year old woman at the time. Mugenzi took her by the arm to the door and hit her on the head with the barrel of his rifle. Victim Y was then forcibly taken to the Accused, who ordered her to lie down. In the presence of the Accused, Victim Y was beaten by the communal police officer Mugenzi who stepped on her neck, pushed the butt of his rifle into her neck, and stomped on her At the mine, in the presence of the Accused[...] The others stomped on her as well."

[B. Evidentiary comment:]

P.1.4. Evidence of flogging.

A. Legal source/authority and evidence:

ICCPR General Comment 7 (Sixteenth session, 1982): Article 7: Torture or Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/37/40 (1982), para. 2:

"[] In the view of the Committee the prohibition must extend to corporal punishment, including excessive chastisement as educational or disciplinary measure []"

NOTE: This comment is confirmed in ICCPR General Comment 20 (Forty-fourth session, 1992): Article 7: Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment, UN Doc. A/47/40 (1992), para. 5.

[B. Evidentiary comment:]

P.1.5. Being forced to commit attacks on another/others.

Prosecutor v. Enver Hadihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 1182 and 1502:

"1182. On one occasion, for instance, a military police officer ordered Franjo Rajić to hit his mentally handicapped son, Marko Rajić, and when Franjo Rajić refused to comply with the order, the police officer ordered another detainee to hit Franjo Rajić, which he did. However, because the military police officer considered that the blows were not hard enough, he began to hit a prisoner, who already had a broken arm, with a truncheon.2606"

2603 Kruno Rajić, T(F) p. 1800; P 401 (under seal), para. 15.

2604 Kruno Rajić, T(F) p. 1800.

2605 P 402 (under seal), para. 36.

2606 Kruno Rajić, CFR pp.1805-1806.

"1502. Niko Petrović said that after the initial beatings a group of ten armed soldiers took the prisoners out of their cell and ordered them to beat one another. Petrović gave examples of how two brothers were ordered to slap each other in the face, and how he had to slap the person standing next to him. Since Petrović could not bring himself to do it, a member of the "MOS" hit him in the back with the butt of his rifle and ordered him to comply. The soldiers then ordered the prisoners to hit each other harder, this time in the stomach.3379 Niko Petrovićs testimony was corroborated by Marinko Marusić, who stated that he was the person Niko Petrović was ordered to beat during that incident. He added that they were ordered to beat one another on two separate occasions. First, they had to slap and punch one other, and each time the guards thought that the blows were not hard enough, they would beat the prisoners themselves."

Prosecutor v. Naser Orić, Case No. IT-03-68-T, Judgement (TC), 30 June 2006, para. 422:

"422. According to Slavoljub ?ikić, throughout his detention, individuals from the outside were routinely allowed to enter the cell and beat him and the other detainees. On several occasions, detainees themselves were forced to beat each other".

P.1.6. Evidence of inserting objects into the victims mouth.

A. Legal source/authority and evidence:

Prosecutor v. Milan Simić, Case No. IT-95-9/2-T, Judgement (TC), 17 October 2002, para. 63:

"63. [] He had the barrel of a gun pushed into his mouth. []"

[B. Evidentiary comment:]

P.1.7. Evidence of violent shaking.

A. Legal source/authority and evidence:

CAT, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Second periodic report of Israel, 20 November 1998, UN Doc. CAT/C/SR.336, para. 25:

"Wholly reliable sources indicated that in some 6,000 to 8,000 cases the GSS had resorted to the procedure that consisted in violently shaking the detainee. He had spoken of that practice at length during the eighteenth session, demonstrating that such treatment caused severe suffering and was of course inflicted intentionally and for the purpose of obtaining information. That being so, and contrary to what was said in paragraph 49 of the report, the measures in question were indeed forms of torture. The question of the threshold beyond which suffering could be considered severe had also been discussed in 1997, and in the view of many medical experts of the highest level of competence that threshold had been passed in all the cases in question. The Israeli authorities acknowledged that such procedures were inflicted intentionally by public officials with a view to obtaining information; once again, there was no doubt that those cases fell within the meaning of article 1 of the Convention. []"

[B. Evidentiary comment:]

P.2. Evidence of inflicting physical pain or suffering using special devices / instruments and/or substances.

P.2.1. Evidence of using electric shocks.

A. Legal source/authority and evidence:

Aksoy v. Turkey, Application No. 21987/93, Judgement (Merits) (European Court of Human Rights), 18 December 1996, para. 14:

"While he was hanging, the police connected electrodes to his genitals and threw water over him while they electrocuted him. He was blindfolded during this torture, which continued for approximately thirty-five minutes."

Muteba v. Zaire, Communication No. 124/1982, Decision (Human Rights Committee), 29 April 1997, UN Doc. CCPR/C/22/D/124/1982, para.10.2:

"[] During the first nine days of detention he was interrogated and subjected to various forms of torture including beatings, electric shocks and mock executions. []"

Hugo Rodriguez v. Uruguay, Communication No. 322/1988, Views (Human Rights Committee), 19 July 1994, U.N. Doc. CCPR/C/51/D/322/1988, para. 2.1:

"In June 1983, the Uruguayan police arrested the author and his wife, together with several other individuals. The author was taken by plainclothes policemen to the headquarters of the secret police (Direcci?n Nacional de Informaci?n e Inteligencia), where he allegedly was kept handcuffed for several hours, tied to a chair and with his head hooded. He was allegedly forced to stand naked, still handcuffed, and buckets of cold water were poured over him. The next day, he allegedly was forced to lie naked on a metal bedframe; his arms and legs were tied to the frame and electric charges were applied (picana eléctrica) to his eyelids, nose and genitals. Another method of ill-treatment consisted in coiling wire around fingers and genitals and applying electric current to the wire (magneto); at the same time, buckets of dirty water were poured over him. Subsequently, he allegedly was suspended by his arms, and electric shocks were applied to his fingers. This treatment continued for a week []"

Delia Saldias de Lopez v. Uruguay, Communication No. 52/1979, Views (Human Rights Committee), 29 July 1981, U.N. Doc. CCPR/C/OP/1 at 88 (1984), para. 2.3:

"Mr Lopez Burgos was given electric shocks, thrown on the floor, covered with chains that were connected with electric current, kept naked and wet; these tortures allegedly continued for ten days"

[B. Evidentiary comment:]

P.2.2. Evidence of burnings.

A. Legal source/authority and evidence:

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 918, 971, 995:

"918. [] Esad Lando then collected some papers, which he set on fire and over which he heated a knife. Mr. Lando forced Momir Kuljanin to hold the heated knife in his hand, the result of which was the infliction of a serious burn on his palm. Mr. Lando then cut two lines across Mr. Kuljanins hand with the same knife. The resulting blisters led to the swelling of his hand and, due to the lack of medical attention, the wound subsequently became septic."

"[] Mr. Landzo put a gasmask on his head, tightened the screws such that he felt suffocated, and then repeatedly heated a knife and burnt the victims hands, left leg and thighs. When he had finished inflicting these burns upon the victim, Esad Landzo removed the mask and proceeded to kick and hit him on the way back to the Hangar."

"995. [] Mr. Dordic also testified about another particular occasion, towards the middle of July 1992, when Esad Landzo took him to a corner of Hangar 6, forced him to open his mouth, and placed a pair of heated pincers on his tongue. As a result, his mouth, lips and tongue were burnt. Mr. Landzo then put these heated pincers into Mr. Dordics ear."

P.2.3. Evidence of using acid.

A. Legal source/authority and evidence:

Amnesty International et al. v. Sudan, Communication Nos. 48/90, 50/91, 52/91, 89/93, Decision (African Commission on Human and Peoples Rights), 1999. para. 5:

"Individuals had battery acid poured onto open wounds."

[B. Evidentiary comment:]

P.3. Evidence of inflicting physical pain or suffering using water.

P.3.1. Evidence of throwing/soaking of cold and/or dirty water over victim.

A. Legal source/authority and evidence:

Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, para. 190:

"190. After Dragan Nikolic finished beating a detainee named Djidje, he would spill water on the concrete floor in the hangar and make him sit there. []"

Hugo Rodriguez v. Uruguay, Communication No. 322/1988, Views (Human Rights Committee), 19 July 1994, U.N. Doc. CCPR/C/51/D/322/1988, para. 2.1:

"The author was taken by plainclothes policemen to the headquarters of the secret police (Direcci?n Nacional de Informaci?n e Inteligencia), where he allegedly was kept handcuffed for several hours, tied to a chair and with his head hooded. He was allegedly forced to stand naked, still handcuffed, and buckets of cold water were poured over him Another method of ill-treatment consisted in coiling wire around fingers and genitals and applying electric current to the wire (magneto); at the same time, buckets of dirty water were poured over him."

Amnesty International et al. v. Sudan, Communication Nos. 48/90, 50/91, 52/91, 89/93, Decision (African Commission on Human and Peoples Rights), 1999. para. 5:

"Acts of torture include forcing detainees to lie on the floor and being soaked with cold water; confining four groups of individuals in cells 1.8 metres wide and one metre deep, deliberately flooding cells to prevent detainees from lying down"

[B. Evidentiary comment:]

P.3.2. Evidence of using "submarine".

A. Legal source/authority and evidence:

Joaqu?n David Herrera Rubio et al. v. Colombia, Communication No. 161/1983, Views (Human Rights Committee), 2 November 1987, U.N. Doc. CCPR/C/OP/2 at 192 (1990), para. 10.2:

"[H]e was tortured ("submarine"[...])[...]"

Annual Report of the Inter-American Commission on Human Rights 1984-85, OEA/Ser.L/V/II.66 Doc. 10 rev. 116, 1 October 1985, Resolution No. 11/84, Case No. 9274 (Uruguay), para. 2:

"Some days ago, an autopsy carried out at the request of the family by a medical team that included representatives of the relatives of the deceased confirmed that the death had been brought about by torture. According to the claimants, the autopsy revealed that Roslik's lungs contained water and presented signs of asphyxia resulting from immersion; this pointed to the fact that he had been subjected to a form of torture known as the submarine, which consists of submerging the victim in buckets of water.

They added, however, that the vast amount of water found in the lungs confirmed that it had not been caused by an unexpected development during a torture session, for experience with other deaths caused by the submarine torture shows that the victims' lungs never retain such a large volume of water."

Inter-American Commission on Human Rights, "Report on the Situation of Human Rights in Argentina", OEA/Ser.L/V/II.49, Doc. 19 corr.1 (1980), Ch. V, s. D(2)(e):

"Immersion by means of the so-called submarine, where the victims head is covered with a cloth hood and intermittently forced into a vessel containing water, in order to induce asphyxiation as a means of obtaining information from the prisoner."

[B. Evidentiary comment:]

P.3.3. Evidence of using "water treatment".

P.3.4. Evidence of pummelling with high-pressure water while being spun around in a tyre.

A. Legal source/authority and evidence:

Aydin v. Turkey, Application No. 23178/94, Judgement (Merits) (European Court of Human Rights), 25 September 1997,paras. 20, 84:

"20. The applicant alleges that, on arrival at the gendarmerie headquarters, she was separated from her father and her sister-in-law. At some stage she was taken upstairs to a room which she later referred to as the "torture room". There she was stripped of her clothes, put into a car tyre and spun round and round. She was beaten and sprayed with cold water from high-pressure jets."

"84. The applicant was also subjected to a series of particularly terrifying and humiliating experiences while in custody at the hands of the security forces at Derik gendarmerie headquarters having regard to her sex and youth and the circumstances under which she was held [] and on one occasion she was pummelled with high-pressure water while being spun around in a tyre."

[B. Evidentiary comment:]

P.4. Evidence of inflicting physical pain or suffering by forced consumption of solids and liquids.

A. Legal source/authority and evidence:

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 971:

"971. [] On this same occasion, Mr. Landzo also forced the victim to eat grass, as well as filling his mouth with clover and forcing him to drink water."

[B. Evidentiary comment:]

P.5. Evidence of inflicting physical pain or suffering by forcing to take painful positions.

P.5.1. Evidence of plantones.

A. Legal source/authority and evidence:

Violeta Setelich v. Uruguay, Communication No. 63/1979, Views (Human Rights Committee), U.N. Doc. CCPR/C/OP/1 at 101 (1985), paras. 2.4 and 16.2:

"2.4. The author declared that, beginning in February 1978, her husband was once again subjected to inhuman treatment and torture: for three months, he was made to do the "planton" (stand upright' with his eyes blindfolded) throughout the day; he was only able to rest and sleep for a few hours at a time; he was beaten and given insufficient food and he was not allowed to receive visits. In May 1978, he received his first visit after this three months' sanction and his state of health was alarming."

"16. [] There, from February to May 1978, or for the space of three months, he was subjected to torture ("plantones", beatings, lack of food). []"

[B. Evidentiary comment:]

P.5.2. Evidence of using "knee spread"

P.5.3. Evidence of forcing to knee on sharp instruments.

P.5.4. Evidence of suspension.

P.5.5. Evidence of "Palestinian hanging".

A. Legal source/authority and evidence:

Aksoy v. Turkey, Application No. 21987/93, Judgement (Merits) (European Court of Human Rights), 18 December 1996, paras. 14 15:

"14. [] According to the applicant, on the second day of his detention he was stripped naked, his hands were tied behind his back and he was strung up by his arms in the form of torture known as Palestinian hanging [].

15. [] as a result of the torture, he lost the movement of his arms and hands."

[B. Evidentiary comment:]

P.5.6. Evidence of keeping victims tightly tied up.

A. Legal source/authority and evidence:

Amnesty International et al. v. Sudan, Communication Nos. 48/90, 50/91, 52/91, 89/93, Decision (African Commission on Human and Peoples Rights), 1999. para. 5:

"Individuals were bound with rope such that circulation was cut off to parts of their bodies []"

[B. Evidentiary comment:]

P.6. Evidence of inflicting physical pain or suffering by cutting off or extracting.

P.6.1. Evidence of cutting off limbs.

A. Legal source/authority and evidence:

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 170:

"170. According to Witness VA, Rusanganwa was told to stand at the entrance of the church, and the Accused asked him when the "Inkotanyi" were going to arrive.²⁷⁹ Rusanganwa responded: "I am not God, I know neither the day nor the time."²⁸⁰ Witness VA testified that the Accused then took a machete from Hatageka, an Interahamwe accompanying him, and cut one of Rusanganwas legs and an arm.²⁸¹ Bisengimana then took the machete and cut Rusanganwas other limbs."

"279. T. 7 March 2001 p. 77.

280. T. 7 March 2001 p. 77.

281. T. 7 March 2001 pp. 77, 78, 79. The Chamber notes that in the English transcript, the Prosecutor refers to the Accused "cutting off" Rusanganwas limbs. According to that transcript, the witness used "to cut off" after initially using the more general verb "to cut". In contrast, the French transcript generally uses the general verb "couper" and only once uses the more specific verb "amputer". In order to clarify any discrepancy, the Chamber has reviewed the audio recording of the proceedings. The recording clearly indicates that both the Kinyarwanda interpreter and the witness speaking in Kinyarwanda consistently used the infinitive verb "gutema", which is consistent with the general verb "to cut" in English or "couper" in French."

[B. Evidentiary comment:]

P.6.2. Evidence of extraction of nails and/or teeth.

P.7. Evidence of physical pain or suffering caused by deprivation.

P.7.1. Evidence of deprivation of food.

A. Legal source/authority and evidence:

Prosecutor v. Enver Hadihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 1191 and 1681:

"1191. In addition, many witnesses heard by the Chamber referred to the disastrous detention conditions between April and June 1993. Accordingly, several witnesses concur in describing, each in their own manner, the food distributed to the detainees as consisting mainly of small amounts of bread or rice, together with vegetable soup sometimes. Some witnesses stated that detainees did not receive anything to eat for the first two days. The lack of sufficient and proper food weakened the detainees considerably: Kruno Rajić stated that he lost about 30 kilos during his detention, while another detainee stated that he lost 22 kilos."

"1681. Regarding the prevailing detention conditions at the School, all of the former detainees there who appeared before the Chamber complained of the shortage and poor quality of the food. According to two witnesses, on the first day or two in custody, the prisoners were denied food. Later, the approximately 250 to 280 detainees had to share a large pot of soup and a few loaves of bread. Witness ZR stated that one detainee told him that the food situation at the School was such that the prisoners fought each other over loaves of bread."

Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, paras. 190, 196 197:

"190. [] The victim would also not be given any food.²⁶⁴"

"264. Habiba Hadzic, T. 234."

"196. On one occasion, Habiba Hadzic gave Fikret Arnaut²⁷⁶ some cookies because he had not been given any food. []"

"276. See supra subsection V. A. 2. (d) (i)"

"197. [] Habiba Hadzic lost weight²⁸⁰ at the camp because the limited food that was given to the detainees was foul and indigestible.²⁸¹"

"280. Ibid., [Habiba Hadzic] T. 233; see supra para. 105.

281. Ibid., T. 232 and T. 246; Witness SU-202, T. 267 and T. 273; Witness SU-032, T. 278."

John Wight v. Madagascar, Communication No. 115/1982, Views (Human Rights Committee), 24 March 1983, U.N. Doc. Supp. No. 40 (A/40/40) at 171 (1985), para. 15.2:

"John Wight was kept in a solitary room at the political police prison at Ambohibao (DGID), chained to a bed spring on the floor, with minimal clothing and severe rationing of food, for a period of 3 ? months."

[B. Evidentiary comment:]

P.7.2. Evidence of deprivation of sleep.

A. Legal source/authority and evidence:

Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, para. 198:

"198. Sleeping conditions at the camp were described as horrendous or awful. The detainees were made to sleep cramped together on the bare concrete floor of the hangar or wooden boards. Those lucky enough to be sleeping on the wooden boards could find themselves on the bare concrete because when the Accused was angry, he would have the wooden boards removed from the hangar.²⁸²"

"282. Habiba Hadzic, T. 232."

Cantoral Benavides (Preliminary Objections), Petition No. 11.337, Judgement (Inter-American Court of Human Rights), 3 September 1998, Inter-Am. Ct. H.R. (Ser. C) No. 40 (1998), p. 7:

"He was made to lie face up in the sun for hours and was not allowed to open his eyes []"

Amnesty International et al. v. Sudan, Communication Nos. 48/90, 50/91, 52/91, 89/93, Decision (African Commission on Human and Peoples Rights), 1999. para. 5:

"Other accounts describe [] the deliberate banging of doors at frequent intervals throughout the night to prevent sleeping."

CAT, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Second periodic report of Israel, 20 November 1998, UN Doc. CAT/C/SR.336, para. 24:

"In paragraph 49 of the report and elsewhere, the Israeli Government invoked necessity to justify depriving a detainee of sleep. But torture was not authorized even in emergency situations; Mr. Ghanimat had been permitted to sleep for about one hour in 24 over the course of 4 days, which from a medical point of view constituted torture. In another case brought before the High Court (HCJ 2210/96), the detainee had been kept awake for 39 hours followed by 5 hours' rest, then for 47 hours with 2 hours' rest, and then for 22 hours with 5 hours' rest, 47 hours with 5 hours' rest, 46 hours with 5 hours' rest, and finally 48 hours with 6 hours' rest. The situation had perhaps been urgent, but that unquestionably constituted mental torture."

[B. Evidentiary comment:]

P.7.3. Evidence of suffocation / asphyxiation.

A. Legal source/authority and evidence:

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 971:

"971. [] He stated that, on 15 July 1992, Esad Landzo took him out of the Hangar and made him sit on the floor behind an adjoining building. Mr. Landzo put a gasmask on his head, tightened the screws such that he felt suffocated, and then repeatedly heated a knife and burnt the victims hands, left leg and thighs. When he had finished inflicting these burns upon the victim, Esad Landzo removed the mask and proceeded to kick and hit him on the way back to the Hangar."

[B. Evidentiary comment:]

P.7.4. Evidence of denial of medical assistance.

A. Legal source/authority and evidence:

Prosecutor v. Mile Mrkić et al., Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para. 528:

"528. The Chamber turns next to the allegations of deprivation of medical care which also support the charges of cruel treatment and torture in the Indictment. The evidence indicates that many of the prisoners taken from the hospital on 20 November 1991 had injuries for which they were being treated in the hospital or otherwise were injured before their death.1876 As has been noted elsewhere in this Judgement no medical care of any kind was provided to any of the prisoners, whether at the JNA barracks, or later at Ovcara.1877 In the circumstances of the present case, however, the Chamber is not persuaded that the acts of deprivation of medical care of those who had been previously injured, in and of themselves, were of the nature to cause severe or serious pain or suffering to amount to torture or cruel treatment. The Chamber would observe that the more seriously injured patients at Vukovar hospital were not included in this group of prisoners and that, both at the JNA barracks and at Ovcara, they were not held for any extended time. Further, in the Chambers view, while many prisoners received serious injuries at Ov~ara, in such cases the infliction of injuries and the failure to provide treatment for the injuries caused, is in reality the same behaviour. The deprivation of medical care in such cases is subsumed in the acts of mistreatment themselves."

Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, para. 197:

"197. [] They included infirm people who suffered from various diseases and illnesses.²⁷⁸ Habiba Hadzic testified that two men died because they were not given medical care.²⁷⁹[]"

"278. Witness SU-032, T. 278.

279. Habiba Hadzic referred to Fikret Arnaut (see supra subsection V. A. 2. (d) (i)), and Fadil Huremovic, who died "because his wife was abused and he was no longer able to suffer that; he just couldnt get up", T. 234-235."

[B. Evidentiary comment:]

P.7.5. Evidence of prolonged denial of sufficient hygiene.

A. Legal source/authority and evidence:

Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, para. 199:

"199. In the hangar building, the stench was terrible.²⁸³ The detainees were unable to wash themselves or their clothes.²⁸⁴ In addition, the detainees had no access to hygiene products.²⁸⁵"

"283. Ibid., [Habiba Hadzic] T. 246.

284. Ibid., [Habiba Hadzic] T. 233.

285. Ibid., [Habiba Hadzic] T. 233-234."

Amnesty International et al. v. Sudan, Communication Nos. 48/90, 50/91, 52/91, 89/93, Decision (African Commission on Human and Peoples Rights), 1999. para. 5:

"Acts of torture include [] prohibiting them from washing."

[B. Evidentiary comment:]

P.7.6. Evidence of deprivation of physical energy by forced physical exertion.

A. Legal source/authority and evidence:

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 995:

"995. Mirko Dordic further testified that Esad Landzo was extremely harsh to him throughout his entire stay inside Hangar 6, for, whenever he passed by him, he would give him a kick or two. Mr. Landzo would also force him to perform ten full push-ups and sometimes to do as many as fifty. In the process of attempting to do these, Mr. Landzo would often kick him."

[B. Evidentiary comment:]

P.7.7. Evidence of solitary confinement / being kept incommunicado.

A. Legal source/authority and evidence:

Velasquez Rodriguez v. Honduras, Petition No. 7920, Judgement (Inter-American Court of Human Rights), 29 July 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), para. 135:

"In contrast to domestic criminal law, in proceedings to determine human rights violations the State cannot rely on the defense that the complainant has failed to present evidence when it cannot be obtained without the State's cooperation."

Suárez Rosero v. Ecuador, Petition No. 11.273, Judgement (Inter-American Court of Human Rights), 12 November 1997, Inter-Am.Ct.H.R. (Ser. C) No. 35 (1997) para. 23:

"With regard to the statement of Mr. Rafael Iván Suárez-Rosero, the Court considers that, since he is the alleged victim in this case and has a possible direct interest in it, his testimony should be assessed in the context of all the evidence in the Case. However, the Court deems it necessary to make one stipulation on the value of this testimony. The Commission argues that Mr. Suárez-Rosero was held incommunicado by the State from June 23 to July 28, 1992. If this were proven, it would necessarily imply that only Mr. Suárez-Rosero and the State would be aware of the treatment the former received during that period. Consequently, they would be the only ones entitled to present evidence on those conditions in the proceeding. In that regard, the Court has already established that

In accordance with this principle, since it has been proven (infra, para. 34(d)) that Mr. Suárez-Rosero was held incommunicado during the period indicated by the Commission, his testimony on the conditions of his incommunicado detention acquires a highly presumptive value, especially when one considers that the State declared that it "could not confirm or guarantee anything" relating to the treatment meted out to Mr. Suárez-Rosero during the time he was held incommunicado."[1]

John Wight v. Madagascar, Communication No. 115/1982, Views (Human Rights Committee), 24 March 1983, U.N. Doc. Supp. No. 40 (A/40/40) at 171 (1985), para. 15.2:

"John Wight was kept in a solitary room at the political police prison at Ambohibao (DGID) [] for a period of 3 ? months. During this period and until July 1979 (10 months) he was held incommunicado [] In November 1981 he was again transferred to the DGID prison where he was kept incommunicado in a basement cell measuring 2m by 1? m in inhuman conditions for a period of one month."

CAT, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Second periodic report of Israel, 20 November 1998, UN Doc. CAT/C/SR.336, para. 23:

"The Israeli authorities had given a reason for hooding detainees; but the fact remained that putting someones head in a bag for six hours on end, as had been the case with Mr. Ghanimat, inflicted, from a medical point of view, severe mental suffering, and there were other ways of keeping a detainee from communicating with others. []"

Lantrip, J., "Torture and Cruel, Inhumane and Degrading Treatment in the Jurisprudence of the Inter-American Court of Human Rights", (1999) 5 ILSA J. Intl and Comp. L. 551:

"Similarly in the Paniagua Morales case, although the Court declared the existence of the practice of forced disappearance and illegal detention accompanied by mistreatment and torture²⁵, it would not presume the existence of violations of Article 5 with regard to these violations, despite its previous decision in the Velasquez Rodriguez and Godinez Cruz cases²⁶. Therefore, some of the victims were not found to have had their Article 5 rights violated despite the incommunicado nature of their detention. This is specifically confusing in light of the Courts emphasis on this type of isolation in the Surez Rosero and Loayza Tamayo cases which both concerned incommunicado detentions."

"25. Paniagua Morales v. Guatemala, Judgment of March 8, 1998, Inter-Am. Ct. H. R. (Ser. C) No. 37 (1998), para, 89(a).

26. Id. Para. 134-135."

"A combination of this flexibility in the burden of proof and the presumptions can go a long way in remedying the problems facing victims in establishing their claims of mistreatment".

"[] Therefore, without evidence to the contrary offered by the State, the Court would give weight to the testimony and claims of the victim.³⁷ In other words, after proving isolated detention and making initial Article 5 claims the burden shifted to the State to show the claims were untrue"

"37. Id. [Suarez Roseno, supra note 20, para. 33]."

[B. Evidentiary comment:]

Prosecutor v. Enver Hadihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 1341:

5.1.2. "1341. Lastly, the fact that the prisoners at the Blacksmith Shop were confined in a room without any light persuades the Chamber that the detainees were exposed to conditions such as clearly to violate their human dignity, punishable as cruel treatment." Evidence of infliction, by act or omission, of mental pain or suffering.

P.8. Evidence of intimidation, coercion, threats and/or causing fear.

P.8.1. Evidence of verbal intimidation, coercion, threats and/or causing fear.

A. Legal source/authority and evidence:

Prosecutor v. Enver Hadihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 1185:

"1185. Lastly, several witnesses stated that they had been threatened on several occasions with death or the worst physical violence against them or their families.In this way, two 7th Brigade military police made Witness XA and another prisoner go outside the School where they forced them to dig a ditch, telling them it was their own grave and sharpening knives in front of them."

Prosecutor v. Mladen Naletelić and Vinko Martinović, Case No. IT-98-34-A, Judgement (AC), 3 May 2006, para. 300:

"300. The Appeals Chamber is satisfied that the Trial Chambers analysis in this case was appropriate. In particular, the Appeals Chamber agrees that telling prisoners falsely that they will be executed, in a "brutal context" that makes the statement believable, can amount to wilfully causing great suffering. In addition, severe physical abuse in the course of interrogation, as was inflicted on Witnesses B, FF and AA, also generally amounts to wilfully causing great suffering, particularly when combined with acts designed to cause psychological torment, such as falsely informing a prisoner that his father had been killed or firing guns at prisoners so as to create an atmosphere of terror."

Prosecutor v. Rasim Delić, Case No. IT-04-83-T, Judgement (TC), 15 September 2008, para. 252:

"252. The Trial Chamber further finds that between 21 and 23 July 1995, members of the EMD intentionally caused the 12 VRS detainees serious mental and physical suffering, as well as injury. The detainees were also subjected to serious attacks on human dignity. The prohibited treatment included beatings, the manner in which the detainees were physically restrained, and the display of the freshly severed heads of Momir Mitrovic and Predrag Knezevic. The 12 VRS detainees were taking no active part in hostilities at the time when the crime occurred. The Trial Chamber finds that the Prosecution has established beyond reasonable doubt the elements of cruel treatment as a violation of the laws or customs of war (Count 2)."

Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 964:

964. As a preliminary point, the Trial Chamber considers that the two survivors of the Drina river incident, VG014 and VG032, were taking no active part in hostilities at the time of the incident. The evidence shows that both of them feared for their lives when Milan Lukic ordered them and the other detained men to move towards and line up along the Drina river. Milan Lukic had issued several threats that the men would be killed should they try to escape. Both witnesses testified to feeling that all hope was lost. In the Trial Chambers opinion, a reasonable inference from the extraordinarily fearful and stressful circumstances in which they were placed is that they endured mental suffering of sufficient gravity to meet the requirements of both Article 3 and Article 5(i) of the Statute."

Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, para. 185, 187 188:

"185. The detainees were powerless and could not avoid daily humiliation, degradation or physical and mental abuse. Witness SU-115 stated:

"257. Exh. P1, Witness SU-115, para. 4 (emphasis added)"

"187. Not one single day and night at the camp passed by without Dragan Nikolic and other co-perpetrators committing barbarous acts.²⁵⁸ He played with the emotions of the inmates and tortured them with his words. After guards had beaten a detainee, the Accused exclaimed: "What? They did not beat you enough; if it had been me, you would not be able to walk", and: "I cant believe how an animal like this cant die; he must have two hearts."²⁵⁹"

"258. Ibid. [Exh. P1, Witness SU-115, para. 4]

259. Indictment, paras 24 and 26."

188. On another occasion he took a detainee to men who were not camp guards. The Accused was heard saying to the men words to the effect: "Here, I brought you something for dinner."²⁶⁰"

"260. Ibid., para. 34 [Indictment, paras 24 and 26]."

Prosecutor v. Milan Simić, Case No. IT-95-9/2-T, Judgement (TC), 17 October 2002, para. 63:

"63. [...] Hadzialiagic, the victim of torture charged in count 7, in addition to being severely beaten, had to face threats that his penis would be cut off. []"

Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, para. 264:

"264. [] The Trial Chamber satisfied that the accused was present in the large room interrogated Witness A, whilst she was in a state of nudity. As she was being interrogated, Accused B rubbed his knife on the inner thighs of Witness A and threatened to cut out her private parts if she did not tell the truth in answer to the interrogation by the accused. [] The physical attacks, as well as the threats to inflict severe injury, caused severe physical and mental suffering to Witness A."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 405, 409 410, 412 and 678:

"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. She was questioned by the Accused in the presence of men whom she had just seen killing Tutsi at the bureau communal. In response to a question from the killers, Victim U heard the Accused tell them that she would be killed after she was questioned about the secrets of the Inkotanyi. The Accused then questioned Victim U and threatened that she would be killed if she did not divulge information about her cooperation with the Inkotanyi. The Accused then locked Victim U in her office and left. When he returned in the afternoon, he resumed questioning Victim U and again threatened that she would be killed if she did not provide information about the Inkotanyi. He left again and returned at midnight with a police officer. The Accused asked her whether she would tell them what she knew and when she said she knew nothing, he said, "I wash my hands of your blood." He then asked the driver and the police to accompany her home."

"409. With regard to the search for Alexia, wife of Ntereye, the Chamber finds that at on the evening of 20 April 1994, the Accused went with two Interahamwe named Francois and Singuranayo and one communal police officer named Mugenzi to the house of Victim Y (Witness N), a [68] year old woman at the time She was then taken to Buguli, where the Accused made her lie down in front of the vehicle and threatened to run her over. At the mine, in the presence of the Accused, she was also threatened and interrogated by Mugenzi, who bound her arms and legs and stomped on her with his foot. The others stomped on her as well.

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. She was asked to get in front of the vehicle, and the Accused threatened to run her over and again interrogated her about the whereabouts of Alexia."

"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. The Accused then told Victim V to raise his arms in the air and threatened to shoot him."

"678. The Tribunal notes that paragraph 16 of the Indictment alleges that the Accused threatened to kill the husband and child of Victim U. The factual finding of the Tribunal is that the Accused threatened to kill Victim U, not her husband and child. The Tribunal considers that the allegations set forth in the Indictment sufficiently informed the Accused, in accordance with the requirements of due process, of the charge against him. The material allegation is that he threatened Victim U. Whether the threat was against her life or the life of her immediate family is not legally significant in the Tribunal's view."

[B. Evidentiary comment:]

P.8.2. Evidence of shooting in the presence of victims.

A. Legal source/authority and evidence:

Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, para. 191:

"191. On one occasion, the Accused entered the hangar and started to shoot at the walls. All the detainees lay on the floor. He said that the Green Berets were attacking the camp. The Accused continued to fire his weapon until he had emptied the entire magazine and then left the hangar.²⁶⁵"

"265. Witness SU-202, T. 273-274."

Prosecutor v. Milan Simić, Case No. IT-95-9/2-T, Judgement (TC), 17 October 2002, para. 63:

"63. [] The victims of both counts also had to endure gunshots fired over their heads. []"

[B. Evidentiary comment:]

P.8.3. Evidence of forcing to watch mock executions.

A. Legal source/authority and evidence:

Amnesty International et al. v. Sudan, Communication Nos. 48/90, 50/91, 52/91, 89/93, Decision (African Commission on Human and Peoples Rights), 1999. para. 5:

"Acts of torture include forcing individuals to face mock executions."

Muteba v. Zaire, Communication No. 124/1982, Decision (Human Rights Committee), 29 April 1997, UN Doc. CCPR/C/22/D/124/1982, para.10.2:

"[] During the first nine days of detention he was interrogated and subjected to various forms of torture including beatings, electric shocks and mock executions. []"

[B. Evidentiary comment:]

P.8.4. Evidence of blindfolding.

A. Legal source/authority and evidence:

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 972:

Aydin v. Turkey, Application No. 23178/94, Judgement (Merits) (European Court of Human Rights), 25 September 1997,para. 84:

"84. The applicant was also subjected to a series of particularly terrifying and humiliating experiences while in custody at the hands of the security forces at Derik gendarmerie headquarters having regard to her sex and youth and the circumstances under which she was held. She was detained over a period of three days during which she must have been bewildered and disoriented by being kept blindfolded"

[B. Evidentiary comment:]

P.8.5. Evidence of threats made concerning the ill-treatment of a victims children.

A. Legal source/authority and evidence:

Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 968-969, 975:

968. VG013, VG018, VG038, VG078, VG084, VG101 and Hasib Kurspahic survived the Pionirska street incident. The Trial Chamber recalls that VG078 and VG101 escaped as the group was being transferred from Jusuf Memics house to Adem Omeragics house. The Trial Chamber is satisfied that the survivors were civilians who took no active part in hostilities.

969. The Trial Chamber is satisfied that Milan Lukics acts of robbing VG013, VG018, VG038, VG078, VG084, VG101 and Hasib Kurspahic of their valuables at gunpoint in Jusuf Memics house, and of placing VG013, VG018, VG038, VG084 and Hasib Kurspahic in Adem Omeragics house and setting the house on fire are of a gravity similar to the other offences listed under Articles 3 and 5 of the Statute. The Trial Chamber is also satisfied that Milan Lukics acts of shooting at the windows of Adem Omeragics house as VG013 and VG038 escaped through them, and of wounding VG013 in the process, are of a gravity similar to the other offences listed in these artickles"

"975. The Trial Chamber is satisfied that Milan Lukićs acts, placing Zehra Turjačanin in Meho Aljićs house, shooting at, and throwing grenades into, the house, and setting the house on fire, are of gravity similar to the other offences listed under Articles 3 and 5 of the Statute. The only reasonable inference to be drawn from the evidence is that Milan Lukić wilfully intended to inflict serious physical and mental suffering upon Zehra Turjačanin."

Akkoc v. Turkey, Application Nos. 22947/93 and 22948/93, Judgement (Merits) (European Court of Human Rights), 10 October 2000, para. 116:

"116. The Court accepts the findings of the Commission concerning the ill-treatment inflicted upon the applicant, which involved electric shocks, hot-and-cold water treatment, and blows to the head (see paragraphs 24-25 above). It notes the elements of psychological pressure suffered by the applicant, in particular the threats made concerning the ill-treatment of her children, which caused the applicant intense fear and apprehension. This treatment left the applicant with long-term symptoms of anxiety and insecurity, diagnosed as post-traumatic stress disorder and requiring treatment by medication."

[B. Evidentiary comment:]

P.9. Evidence of humiliation, degradation and/or outrages upon personal dignity.

A. Legal source/authority and evidence:

Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, para. 191:

"191. The Accused subjected the detainees to particularly humiliating and degrading treatment. This was especially true for female detainees. Like all other detainees, they had to relieve themselves in front of all the others in the hangar in buckets placed near the hangar door.²⁷⁴ For example, Habiba Hadzic, was ordered by the Accused to wash and put cream on his feet for his personal refreshment.²⁷⁵"

"274. Ibid., [Witness SU-032] T. 246.

275. Habiba Hadzic, T. 237-238."

Prosecutor v. Milan Simić, Case No. IT-95-9/2-T, Judgement (TC), 17 October 2002, para. 63:

"63. [] The sexual, violent, and humiliating, nature of the acts are therefore considered in aggravation, as it would certainly have increased the mental suffering and feeling of degradation experienced by the victims. []"

Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 157-158:

"157. The parties do not contest that detainees in the three camps were subjected to torture as defined in the Tribunal jurisprudence. The Trial Chamber finds that many of the acts of beating or interrogating detainees and acts of humiliation and psychological abuses, as described in Part II of this Judgement, were committed with a specific intent to punish detainees suspected of participating in armed rebellion against Bosnian Serb forces and other acts were committed to obtain information or a confession. Virtually all acts of intentionally inflicting physical and mental violence were committed with an intent to intimidate, humiliate, and discriminate against non-Serb detainees.

158. The Trial Chamber is satisfied that torture falling within the meaning of Articles 3 and 5 (torture and persecution) of the Statute was committed in the camp. Whether responsibility for torture can be imputed to each accused is a separate issue to be subsequently addressed."

[B. Evidentiary comment:]

P.9.1. Evidence of verbal humiliation, degradation and/or outrages upon personal dignity.

A. Legal source/authority and evidence:

Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, paras. 187 188:

"258. Ibid. [Exh. P1, Witness SU-115, para. 4]

259. Indictment, paras 24 and 26."

188. On another occasion he took a detainee to men who were not camp guards. The Accused was heard saying to the men words to the effect: "Here, I brought you something for dinner."²⁶⁰"

"260. Ibid., para. 34 [Indictment, paras 24 and 26]."

[B. Evidentiary comment:]

P.9.2. Evidence of sexual humiliation, degradation and/or outrages upon personal dignity.

A. Legal source/authority and evidence:

Prosecutor v. Enver Hadihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 1393:

"1393. Next, as far as the first group of prisoners is concerned, the Chamber is convinced, on the basis of the depositions of Witnesses Z12 and Z13, that on several occasions the mujahedin threatened Witnesses Z12, Z13 and Zvonko Kukrić with physical injury and kicked them. The Chamber is also convinced that the mujahedin humiliated the detainees, whether by forcing them to tread on a rosary or by ordering Witness Z13 to simulate fellatio on Zvonko Kukrić without the latter exposing his genitals. Although that treatment was without any doubt dishonouring and painful, the Chamber is not convinced that the abuse was sufficiently serious to constitute cruel treatment within the meaning of Article 3 of the Statute."

Selmouni v. France, Application No. 25803/94, Judgement (Merits) (European Court of Human Rights), 28 July 1999, para. 102:

"102. The Court also notes that the applicant was dragged along by his hair; that he was made to run along a corridor with police officers positioned on either side to trip him up; that he was made to kneel down in front of a young woman to whom someone said "Look, youre going to hear somebody sing"; that one police officer then showed him his penis, saying "Here, suck this", before urinating over him; and that he was threatened with a blowlamp and then a syringe (see paragraph 24 above). Besides the violent nature of the above acts, the Court is bound to observe that they would be heinous and humiliating for anyone, irrespective of their condition."

[B. Evidentiary comment:]

P.9.3. Evidence of the presence of onlookers, particularly family members, in the course of rape.

A. Legal source/authority and evidence:

Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 149:

"149. [] The presence of onlookers, particularly family members, also inflicts severe mental harm amounting to torture on the person being raped."

[B. Evidentiary comment:]

P.9.4. Evidence of forcing to watch severe mistreatment or serious sexual attacks directed at a victims acquaintance, relative or family member.

A. Legal source/authority and evidence:

Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 149:

"149. Damage to physical or mental health will be taken into account in assessing the gravity of the harm inflicted. The Trial Chamber notes that abuse amounting to torture need not necessarily involve physical injury, as mental harm is a prevalent form of inflicting torture. For instance, the mental suffering caused to an individual who is forced to watch severe mistreatment inflicted on a relative would rise to the level of gravity required under the crime of torture. Similarly, the Furundzija Trial Chamber found that being forced to watch serious sexual attacks inflicted on a female acquaintance was torture for the forced observer.³⁰⁹ []"

"309. Furundzija Trial Chamber Judgement, para. 267."

[B. Evidentiary comment:]

P.10. Evidence of rape.

A. Legal source/authority and evidence:

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 482:

"482. Noting, in particular, the extreme level of fear occasioned by the circumstances surrounding the event and the nature of the rape of Victim A, the Chamber finds that the perpetrator inflicted severe mental suffering sufficient to form the material element of torture. It is therefore unnecessary to determine whether this rape also inflicted severe physical pain or suffering, for which the Prosecutor only adduced evidence of the fact that non-consensual intercourse occurred."

P.11. Evidence of long-term mental effect of torture as an aggravating factor.

A. Legal source/authority and evidence:

Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, paras. 200 205:

"200. The effects of Susica did not end once a detainee left the camp²⁸⁶. []"

"286. Krnojelac Trial Judgement, para. 512: "Consideration of the consequences of a crime upon the victim who is directly injured by it is, however, always relevant to the sentencing of the offender. Where such consequences are part of the definition of the offence, they may not be considered as an aggravating circumstance in imposing sentence, but the extent of the long-term physical, psychological and emotional suffering of the immediate victims is relevant to the gravity of the offences." (emphasis is in the original)."

201. The emotional effects of Susica on the detainees are in some cases more permanent than the physical effects. Witness SU-115 stated additionally:

"289. Exh. P1, Witness SU-115, para. 11, quoted as it reads in the English version of Exh. P1; see supra para. 205."

202. Witness SU-230 recalled:

"290. Exh. P1, Witness SU-230, paras 6 and 12, quoted as it reads in the English version of Exh. P1."

203. Witness SU-032, who was sexually assaulted at the camp, testified about what she felt after the assault and what effect the assault made on her son:

"291. Witness SU-032, T. 282, T. 278."

204. Aside from her physical pain, Habiba Hadzic continues to suffer from the time she spent in the camp:

"292. Habiba Hadzic, T. 247."

205. In the expert statement psychotherapist Maria Zepter makes the following observation, which, although not related to this specific case, is generally applicable to the impact of similar detention on detainees:

"293. Exh. P6, Expert Statement of Maria Zepter, p. 3."

5.1.3. Evidence of infliction, by act or omission, of both physical and mental pain or suffering.

Prosecutor v. Mile Mrkić et al., Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para. 525:

"525. Turning next to the conditions of detention at Ovcara, the Chamber observes that the prisoners from the hospital were kept under armed guard in the hangar at Ovcara from their arrival at between approximately 1330 and 1430 hours until late evening, some may even have still been alive and in the hangar until after midnight. Inside the hangar there were at least 200 prisoners from the hospital. Many were forced to lean against the wall with their arms held up and their legs spread. There was nothing in the hangar, only some hay at one end. The floor was concrete. The detainees were terribly frightened. It was apparent that something bad awaited them.The atmosphere was miserable.1863 Screams, moans, sobs, and cries for help were to be heard. A JNA officer who arrived at the hangar in the afternoon of 20 November 1991 described what he saw inside the hangar as "mayhem." These conditions were such as to cause serious mental or physical suffering and they indeed did so."

P.12. Evidence of inflicting pain or suffering of sexual nature.

P.12.1. Evidence of rape.

A. Legal source/authority and evidence:

Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, para. 194:

"194. The Accused abused his personal position of power especially vis à vis the female detainees of Susica camp. He personally removed and returned women of all ages from the hangar, handing them over to men whom he knew would sexually abuse or rape them.²⁷¹ Witness SU-032 believes had they resisted, they would have been liquidated.²⁷² Witness SU-032 would have to agonize throughout the day, knowing what was to be her fate in the coming night.²⁷³"

"271. Witness SU-032, T. 279-280: "Dragan Nikolic took girls and women out of the hangar. In the evening, he would take girls out, and they would return in the morning, dishevelled, sad. They were not allowed to speak to the rest of us.[] But eventually each of them would confide in her sister or mother and tell them what had happened to them the previous night.[] You can imagine what happened to them. They were removed against their own will, and they were unable to resist. They could not defend themselves, and they had to do what they were told and ordered to do. They were forced to and I dont know how to put it to have intercourse with strangers or sometimes men they even knew. They had to do every single thing they were told to do"; Witness SU-202, T. 273

272. Witness SU-032, T. 280-281.

273. Ibid., T. 281."

Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002, paras. 139, 151, 185:

"139. The Respondent claims that the pain and suffering inflicted on FWS-50 through the Appellant Vukovics sexual acts was established. She asserts that, after leaving Foca, FWS-50 went to a physician who noted physiological and psychological symptoms resulting from rape, that she felt the need to go to a psychiatrist, and that she testified to having experienced suffering and pain when orally raped by Vukovic in Buk Bijela."

"151. Severe pain or suffering, as required by the definition of the crime of torture, can thus be said to be established once rape has been proved, since the act of rape necessarily implies such pain or suffering. The Appeals Chamber thus holds that the severe pain or suffering, whether physical or mental, of the victims cannot be challenged and that the Trial Chamber reasonably concluded that the pain or suffering was sufficient to characterise the acts of the Appellants as acts of torture."

"185. [] The physical pain, fear, anguish, uncertainty and humiliation to which the Appellants repeatedly subjected their victims elevate their acts to those of torture. These were not isolated instances. Rather, the deliberate and co-ordinated commission of rapes was carried out with breathtaking impunity over a long period of time. Nor did the age of the victims provide any protection from such acts. (Indeed, the Trial Chamber considered the youth of several of the victims as aggravating factors.) Whether rousted from their unquiet rest to endure the grim nightly ritual of selection or passed around in a vicious parody of processing at headquarters, the victims endured repeated rapes, implicating not only the offence of rape but also that of torture under Article 5 of the Statute. In the egregious circumstances of this case, the Appeals Chamber finds that all the elements of rape and torture are met. []"

Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 87 88, 163, 266:

"87. The attacks then moved on to Witness A: Accused B had warned Dugi, another soldier, not to hit her as he had "other methods" for women,¹¹⁸ methods which he then put to use. Accused B hit Witness A¹¹⁹ and forced her to perform oral sex on him. He raped her vaginally and anally, and made her lick his penis clean.¹²⁰ Witness D was forced to watch these assaults and he testified that the accused was one of the soldiers outside the room.¹²¹ It appears to the Trial Chamber that the accused would have had to be in the vicinity of the door in order for Witness D to have seen him amidst the group of soldiers. Witness A categorically stated, in response to cross- examination, that the accused was present in the room: "Yes, he was in the room. He watched me and Witness D and Accused B. He was inside the room . and we were all together inside"¹²² and said that "Furundzija was the person who interrogated and confronted me".¹²³ In Prosecution Exhibit P3, she stated that the accused was there all the time, "because he was the one who was confronting me with Witness D".¹²⁴ In 1995, she stated that the accused "was in the pantry questioning us as we were being beaten. He was there as Accused B forced me to have oral and vaginal sex with him. He did nothing to stop the beatings or the rapes".¹²⁵ Witness D testified that when he was taken out of the pantry, he saw the accused outside the doorway.¹²⁶

"118. T. 413; Prosecution Exhibit P3, p. 26; Defence Exhibit D13, p. 7.

119. Defence Exhibit D13, p. 7; Defence Exhibit 8, p. 6.

120. T. 415 and T. 350; Defence Exhibit D13, p. 6; Defence Exhibit D8, p. 6.

121. T. 351; Defence Exhibit D8, p. 6.

122. T. 415.

123. T. 480.

124. Prosecution Exhibit P3, p. 27.

125. Defence Exhibit D13, p. 7.

126. T. 352 ("He remained there [ in the Holiday Cottage] "); Defence Exhibit D8, p. 6."

88. Witness A continued to be sexually assaulted by Accused B until she collapsed in a state of exhaustion. This is demonstrated by the testimony of Witness A, and also by the evidence of Witness D, who having been returned to the Bungalow, heard a woman screaming from the direction of the Holiday Cottage and the name of Furundzija being called out. Later, a man whom Witness A recognised as Dragan Botic eventually took her upstairs to another room in the cottage."

"163. [] International case law,¹⁸⁵ and the reports of the United Nations Special Rapporteur¹⁸⁶ evince a momentum towards addressing, through legal process, the use of rape in the course of detention and interrogation as a means of torture and, therefore, as a violation of international law. Rape is resorted to either by the interrogator himself or by other persons associated with the interrogation of a detainee, as a means of punishing, intimidating, coercing or humiliating the victim, or obtaining information, or a confession, from the victim or a third person. In human rights law, in such situations the rape may amount to torture, as demonstrated by the finding of the European Court of Human Rights in Aydin¹⁸⁷ and the Inter-American Court of Human Rights in Meijia.¹⁸⁸"

"185. See e.g. Aksoy v. Turkey, Judgment of 18 Dec. 1996, Eur. Ct. H.R., Reports of Judgments and Decisions 1996-VI; Aydin v. Turkey, Judgment of 25 Sept. 1997, Eur. Ct. of H.R., Reports of Judgments and Decisions, 1997-VI, paras. 62-88, hereafter "Aydin"; Fernando and Raquel Mejia v. Peru (Decision of 1 March 1996), Report No. 5/96, case no 10.970, in Annual Report of the Inter-American Commission on Human Rights 1995 OEA/Ser.L/V/II.91, pp. 182-188, hereafter "Meijia".

186. See e.g. Report of 1986 (Special Rapporteur P. Kooijmans, E/CN.4/1986/15, pp. 29-30) and the Report of 1995 (Special Rapporteur N. Rodley, E/CN.4/1995/34, pp. 8-10).

187. Paras. 83-84.

188. At pp. 182-188."

"266. Accused B again assaulted Witness A who was still naked, before an audience of soldiers. He raped her by the mouth, vagina and anus and forced her to lick his penis clean. The accused continued to interrogate Witness A in the same manner as he had done earlier in the large room. As the interrogation intensified, so did the sexual assaults and the rape."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 937 938, 942, 958 961, 964:

"937. [] Ms. Cecez was interrogated by Mr. Delic, who asked her about the whereabouts of her husband and slapped her. She was then taken to a second room with three men, including Mr. Delic. Hazim Delic who was in uniform and carrying a stick, then ordered her to take her clothes off. He then partially undressed her, put her face down on the bed and penetrated her vagina with his penis. He subsequently turned her over on to her back, took off the remainder of her clothes and again penetrated her vagina with his penis. During this time, Mr. Dzajic was lying on another bed in the same room and the other man present was standing guard at the door of the room. Mr. Delic told her that the reason she was there was her husband, and that she would not be there if he was. Later that evening Zdravko Mucić came to the room where she was being kept and asked about the whereabouts of her husband. He noticed her appearance and asked her whether anyone had touched her. She did not dare to say anything as Delic had instructed her not to do so. However Mr. Mucić "could notice that I [Ms. Cecez] had been raped because there was a big trace of sperm left on the bed". ⁹⁰³

"903. T. 496."

938. The effect of this rape by Hazim Delic was expressed by Ms. Cecez, when she stated: " he trampled on my pride and I will never be able to be the woman that I was"⁹⁰⁴. Ms. Cecez lived in constant fear while she was in the prison-camp and was suicidal. Further, Ms. Cecez was subjected to multiple rapes on the third night of her detention in the prison-camp when she was transferred from Building B to a small room in Building A. After the third act of rape that evening she stated "[i]t was difficult for me. I was a woman who only lived for one man and I was his all my life, and I think that I was just getting separated from my body at this time."⁹⁰⁵ In addition, she was subjected to a further rape in July 1992. As a result of her experiences in the prison-camp Ms. Cecez stated that "[p]sychologically and physically I was completely worn out. They kill you psychologically." ⁹⁰⁶"

"904. T. 494.

905. T. 503.

906. T. 551."

"942. Finally, there can be no question that these rapes caused severe mental pain and suffering to Ms. Ćećez. The effects of the rapes that she suffered at the hands of Hazim Delić are readily apparent from her own testimony and included living in a state of constant fear and depression, suicidal tendencies, and exhaustion, both mental and physical."

"958. The Trial Chamber thus finds that Ms. Antic was raped for the first time on the night of her arrival in the prison-camp. On this occasion she was called out of Building A and brought to Hazim Delic in Building B, who was wearing a uniform. He began to interrogate her and told her that if she did not do whatever he asked she would be sent to another camp or she would be shot. Mr. Delic ordered her to take her clothes off, threatened her and ignored her crying pleas for him not to touch her. He pointed a rifle at her while she took her clothes off and ordered her to lie on a bed. Mr. Delic then raped her by penetrating her vagina with his penis, he ejaculated on the lower part of her stomach and continued to threaten and curse her.

959. She was brought back to her room in Building A in tears, where she stated that she exclaimed, "Oh, fuck you, God, in case you exist. Why did you not protect me from this?"⁹¹³ The following day, Hazim Delic came to the door of the room where she was sleeping and she began crying upon seeing him. He then said to her "[w]hy are you crying? This will not be your last time". Ms. Antic stated during her testimony "I felt so miserably [sic], I was constantly crying. I was like crazy, as if I had gone crazy."⁹¹⁴ The rape and the severe emotional psychological suffering and injury experienced by Ms. Antic was also reported by Ms. Cecez and Dr. Grubac.

"913. T. 1780.

914. T. 1777-T. 1780."

960. The second rape occurred when Hazim Delic came to Building A and ordered Ms. Antic to go to Building B to wash herself. After doing so, she was led to the same room in which she was first raped, where Delic, who had a pistol and a rifle and was in uniform, was sitting on a desk. She started crying once again out of fear. He ordered her to take her clothes off. She kept telling him that she was sick and asking him not to touch her. Out of fear that he would kill her she complied with his orders. Mr. Delic told her to get on the bed and to turn around and kneel. After doing so he penetrated her anus with his penis while she screamed from pain. He was unable to penetrate her fully and she started to bleed. Mr. Delic then turned her around and penetrated her vagina with his penis and ejaculated on her lower abdomen. After the rape Ms. Antic continued crying, felt very ill and experienced bleeding from her anus, which she treated with a compress, and was provided with tranquillisers.

961. The third rape occurred in Building A. It was daylight when Hazim Delic came in, armed with hand grenades, a pistol and rifle. He threatened her and she again said that she was a sick woman and asked him not to touch her. He ordered her to undress and get on the bed. She did so under pressure and threat. Mr. Delic then pulled his trousers down to his boots and raped her by penetrating her vagina with his penis. He then ejaculated on her abdomen."

"964. Finally, there can be no question that these rapes caused severe mental and physical pain and suffering to Ms. Antic. The effects of the rapes that she suffered at the hands of Hazim Delic, including the extreme pain of anal penetration and subsequent bleeding, the severe psychological distress evidenced by the victim while being raped under circumstance where Mr. Delic was armed and threatening her life, and the general depression of the victim, evidenced by her constant crying, the feeling that she was going crazy and the fact that she was treated with tranquilizers, demonstrate most emphatically the severe pain and suffering that she endured."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998,, para. 597:

"597. Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

Aydin v. Turkey, Application No. 23178/94, Judgement (Merits) (European Court of Human Rights), 25 September 1997,para. 20:

"At a later stage she was taken clothed but blindfolded to an interrogation room. With the door of the room locked, an individual in military clothing forcibly removed her clothes, laid her on her back and raped her. By the time he had finished she was in severe pain and covered in blood. She was ordered to get dressed and subsequently taken to another room. According to the applicant, she was later brought back to the room where she had been raped."

Aydin v. Turkey Application No. 23178/94, Report (European Commission on Human Rights), 7 March 1996, , para. 189:

"In the Commissions opinion, the nature of such an act, which strikes at the heart of the victims physical and moral integrity, must be characterised as particularly cruel and involving acute physical and psychological suffering. This is aggravated when committed by a person in authority over the victim. Having regard therefore to the extreme vulnerability of the applicant and the deliberate infliction on her of serious and cruel ill-treatment in a coercive and punitive context, the Commission finds that such ill-treatment must be regarded as torture within the meaning of Article 3 of the Convention."

Raquel Mart? de Mej?a v. Peru, Petition No. 10.970, Report No. 5/96, Report (Inter-American Commission on Human Rights), 1 March 1996, OEA/Ser.L/V/II.91 Doc. 7 at 157 (1996), s. 3(a)::

"[T]he Commission considers that rape is a physical and mental abuse that is perpetrated as a result of an act of violence. The definition of rape contained in Article 170 of the Peruvian Criminal Code confirms this by using the phrasing "[h]e who, with violence or serious threat, obliges a person to practice the sex act[...]" The Special Rapporteur against Torture has noted that sexual abuse is one of the various methods of physical torture. Moreover, rape is considered to be a method of psychological torture because its objective, in many cases, is not just to humiliate the victim but also her family or community. In this connection, the above-mentioned Special Rapporteur has stated that, particularly in Peru, "[...]rape would appear to be a weapon used to punish, intimidate and humiliate."

"Rape causes physical and mental suffering in the victim. In addition to the violence suffered at the time it is committed, the victims are commonly hurt or, in some cases, are even made pregnant. The fact of being made the subject of abuse of this nature also causes a psychological trauma that results, on the one hand, from having been humiliated and victimized, and on the other, from suffering the condemnation of the members of their community if they report what has been done to them.

"Raquel Mej?a was a victim of rape, and in consequence of an act of violence that cause [sic] her "physical and mental pain and suffering". As she states in her testimony, after having been raped she "was in a state of shock, sitting there alone in her room". She was in no hurry to file the appropriate complaint for fear of suffering "public ostracism". "The victims of sexual abuse do not report the matter because they feel humiliated. In addition, no woman wants to publicly announce that she has been raped. She does not know how her husband will react. [Moreover], the integrity of the family is at stake, the children might feel humiliated if they know what has happened to their mother"."

[B. Evidentiary comment:]

P.12.2. Evidence of sexual abuse / assault.

A. Legal source/authority and evidence:

Prosecutor v. Dragan Nikolić, Case No. IT-94-2-T, Judgement (TC), 18 December 2003, para. 194:

272. Witness SU-032, T. 280-281.

273. Ibid., T. 281."

Prosecutor v. Anto Furundija, Case No. IT-95-17/1-A, Judgement (AC), 21 July 2000, paras. 113 114, 124 126:

"113. The Trial Chamber based this conclusion upon its findings that Witness A was interrogated in the Large Room in a state of nudity, and that, "[a]s she was being interrogated, Accused B rubbed his knife on the inner thighs of Witness A and threatened to cut out her private parts if she did not tell the truth in answer to the interrogation by the accused."¹⁵⁶ It is difficult to ignore the intimidating and humiliating aspects of that scene and their devastating impact on the physical and mental state of Witness A. The act of Accused B rubbing his knife against Witness A's inner thighs and threatening to put his knife inside her vagina was carried out parallel to the interrogation of Witness A by the Appellant. The entire scene was marked by the Appellant's showing of his annoyance with Witness A and the laughter and stares of the on-looking soldiers.

"156 Ibid. [Judgment, para. 264]"

114. The Appeals Chamber finds this element of the ground to be unmeritorious. It also finds it inconceivable that it could ever be argued that the acts charged in paragraph 25 of the Amended Indictment, namely, the rubbing of a knife against a woman's thighs and stomach, coupled with a threat to insert the knife into her vagina, once proven, are not serious enough to amount to torture. This element of the second ground of appeal must fail."

"124. Witness A was interrogated by the accused. She was forced by Accused B to undress and remain naked before a substantial number of soldiers. She was subjected to cruel, inhuman and degrading treatment and to threats of serious physical assault by Accused B in the course of her interrogation by the accused. The purpose of this abuse was to extract information from Witness A about her family, her connection with the ABiH and her relationship with certain Croatian soldiers, and also to degrade and humiliate her. The interrogation by the accused and the abuse by Accused B were parallel to each other.

125. Witness A was left by the accused in the custody of Accused B, who proceeded to rape her, sexually assault her, and to physically abuse and degrade her.

126. Witness A was subjected to severe physical and mental suffering and public humiliation."

Aydin v. Turkey, Application No. 23178/94, Judgement (Merits) (European Court of Human Rights), 25 September 1997,para. 84:

"The applicant was also subjected to a series of particularly terrifying and humiliating experiences while in custody at the hands of the security forces at Derik gendarmerie headquarters having regard to her sex and youth and the circumstances under which she was held She was also paraded naked in humiliating circumstances thus adding to her overall sense of vulnerability[...]"

[B. Evidentiary comment:]

5.1.4. The severity of the pain or suffering inflicted.

A. Legal source/authority and evidence:

Prosecutor v. Milan Simić, Case No. IT-95-9/2-T, Judgement (TC), 17 October 2002, para. 34:

"34. [] The objective or absolute degree of pain required for an act to constitute torture, however, has not been determined in the Tribunals case-law and must be assessed on a case by case basis, taking account of all the specific circumstances of the case.⁵⁵ []"

"55. Kunarac Appeal Judgement, paras 149-50; Krnojelac Trial Judgement, para. 182."

Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 142:

"142. Consistent with human rights jurisprudence interpreting torture,²⁹⁹ the Celebici Trial Chamber has indicated that the severity of the pain or suffering is a distinguishing characteristic of torture that sets it apart from similar offences.^300"

"299. See for instance Ireland v. United Kingdom, 18 January 1978, Series A no. 25, para. 167 in which the European Court of Human Rights indicated that the distinction between the notions of torture, inhuman treatment and degrading treatment, 밺erives principally from the difference in the intensity of the suffering inflicted? See also the Human Rights Committee 20/44 of 3 April 1992, para. 4.

300. Celebici Trial Chamber Judgement, para. 468."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 468-469:

"468. [] Mistreatment that does not rise to the threshold level of severity necessary to be characterised as torture may constitute another offence.

469. As evidenced by the jurisprudence set forth above, it is difficult to articulate with any degree of precision the threshold level of suffering at which other forms of mistreatment become torture. []"

Selmouni v. France, Application No. 25803/94, Judgement (Merits) (European Court of Human Rights), 28 July 1999, para. 100:

"[] The Court considers that this "severity" is, like the "minimum severity" required for the application of Article 3, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc."

[B. Evidentiary comment:]

P.13. Evidence of the objective severity of the harm inflicted.

P.13.1. P.13.1. Evidence of acts severe enough per se to constitute torture.

P.13.2. P.13.2. Evidence of acts that are likely to constitute torture depending on the circumstances.

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. 143 and 144:

144. The UN Special Rapporteur on Torture, human rights bodies, and legal scholars have listed several acts that are considered severe enough per se to constitute torture and those that are likely to constitute torture depending on the circumstances.³⁰³ Beating, sexual violence, prolonged denial of sleep, food, hygiene, and medical assistance, as well as threats to torture , rape, or kill relatives were among the acts most commonly mentioned as those likely to constitute torture. Mutilation of body parts would be an example of acts per se constituting torture."

"301 - Celebici Trial Chamber Judgement, para. 469.

303 - UN Special Rapporteur on Torture, Question of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/56/156, 3 July 2001, paras 8 et seq. The Human Rights Committee, in its concluding observations on Israel in 1998, found that interrogation techniques such as handcuffing, hooding, shaking, and sleep deprivation constitute a violation of Article 7 of the International Covenant on Civil and Political Rights in any circumstances, whether used alone or in combination. Consideration of Reports Submitted by States Parties under Article 40 of the Covenant? UN Doc. CCPR/C/79/Add.93, 18 August 1998, para. 19. In Domukovsky et al. v. Georgia, the Human Rights Committee described, as both torture and inhuman treatment, the cumulative effect of severe beatings, physical and moral pressure, including infliction of concussion, broken bones, burning and wounding, scarring and threats to family. Human Rights Committee, 623-624, 626, 627/95, para. 18.6. But see Ireland v. United Kingdom, Judgement of 18 January 1978, Series A/25 (1979-1980) 2 EHHR 25, para. 167, which found that the cumulative effects of hooding detainees, subjecting them to constant and intense white noise, sleep deprivation, giving them insufficient food and drink, and making them stand for long periods in a painful posture, was inhuman treatment, but did not amount to torture. The contemporary jurisprudence and analysis is more reflective of the current recognition of the various forms that torture may take. See e.g. Rhonda Copelon, Recognizing the Egregious in the Everyday, Domestic Violence as Torture, 25 Colum. Hum. Rts. L. Rev. 291 (1994)."

[B. Evidentiary comment:]

P.14. Evidence of the subjective criteria.

P.14.1. Evidence of the physical or mental effect of the treatment upon a victim.

P.14.2. Evidence of factors such as the victims age, sex, or state of health.

A. Legal source/authority and evidence:

Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 143:

"143. A precise threshold for determining what degree of suffering is sufficient to meet the definition of torture has not been delineated.³⁰¹In assessing the seriousness of any mistreatment, the Trial Chamber must first consider the objective severity of the harm inflicted. Subjective criteria, such as the physical or mental effect of the treatment upon the particular victim and, in some cases, factors such as the victims age, sex, or state of health will also be relevant in assessing the gravity of the harm.³⁰²"

"301. Celebici Trial Chamber Judgement, para. 469.

302. The Trial Chamber뭩 position is consistent in that regard with the position of the ECHR with respect to Article 3 of the European Convention, which indicated that the minimum level of severity required is necessarily a relative assessment which 밺epends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim.? Ireland v. United Kingdom, 18 January 1978, Series A no. 25, para. 162."

Byrnes, A., "Torture and Other Offences Involving the Violation of the Physical or Mental Integrity of the Human Person", in G. K. McDonald and O. Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law, Volume 1 Commentary, p. 209:

"As noted above, the Strasbourg organs have held that the assessment of whether conduct in a particular case constitute torture or inhuman or degrading treatment depends on all the circumstances of the case, "including, in some cases, the sex, age and state of health of the victim".⁵⁵ It thus appears that the personal characteristics of the victim (not restricted to sex, age and health) may be taken into account in the assessment. However, although the response of the individual affected is relevant, whether Article 3 has been violated "is not entirely dependent on the [persons] subjective appreciations and feelings.⁵⁶

Thus, the assessment involves both objective and subjective elements, and the same conduct could amount to torture in one case and a lesser form of ill-treatment (or even fall outside the prohibition) in another. In cases in which the persons with power over an individual know that that individual has a particular vulnerability, consciously attacking that vulnerability may well result in greater pain or suffering for that individual than for someone without that characteristic. The more severe impact on that individual should be taken into account in assessing whether the act amounts to torture.⁵⁷"

"55. Ireland v. United Kingdom, supra note 32, para. 162. See also id. [Tyrer v. United Kingdom, 26 Eur. Ct. H. R. (ser. A) at 16-17, para. 31 (Eur. Ct. H. R.)(1978)], Separate Opinion of Judge Zekia, at 97 (separation of mother and nursing infant).

56. VAN DijK AND VAN HOOF, supra note 12, at 313, and the cases cited at 313-15 in relation to degrading treatment.

57. See, e.g., the case of Orellana Stormont v. Guatemala, in which the Inter-American Commission considered a communication in respect of a woman alleged to have been kidnapped and disappeared by agents of the Guatemalan state. Her captors subjected her to various forms of ill-treatment, including covering her head with a hood that had been sprayed with insecticide. Her captors knew that she was an asthmatic and that the chemicals would bring on an asthmatic attack which they did, as a result of which she nearly died. The Commission concluded that she had been tortured. Case 9120, Reprot No. 56/96, 6 Dec. 1996. Inter-Am. C.H.R. 320, para. 32 (1997). See also the case of Estrella v. Uruguay, UN Human Rights Committee, Communication No. 74/1980, in 2 SELECTED DECISIONS UNDER THE OPTIONAL PROTOCOL (Seventeenth to Thirty-Second Sessions) 93, para. 8.3 (1990) (in which the victim, a pianist, was subjected to various forms of psychological torture, including threats to amputate his hands with a chainsaw) ("2SELECTED DECISIONS")."

[B. Evidentiary comment:]

P.15. Evidence of damage to physical or mental health.

P.15.1. Evidence of physical injury.

P.15.2. Evidence of mental injury.

P.15.3. Not required: Evidence of permanent physical or mental injury.

A. Legal source/authority and evidence:

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 486:

"486. The Chamber found, in relation to paragraph 3.18 of the Indictment, that on 13 April 1994, the Accused, in the presence of Bourgmestre Bisengimana, intentionally inflicted serious injuries on Victim C, Rusanganwa, during questioning. The Accused asked Rusanganwa when the Inkotanyi were going to arrive, and the victim responded that he did not know. The Accused then inflicted injuries upon Rusanganwa with a machete, resulting in his death. On this basis, the Chamber finds that the physical and mental pain and suffering were severe. The Chamber also finds that the Accused acted with the aim of obtaining information from the victim. The intentional nature of the Accuseds conduct is demonstrated by his search for Rusanganwa in the crowd and the nature of his question concerning the RPF advance."

Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, paras. 148-149:

"148. Although such torture practices often cause permanent damage to the health of the victims, permanent injury is not a requirement for torture.

149. Damage to physical or mental health will be taken into account in assessing the gravity of the harm inflicted. The Trial Chamber notes that abuse amounting to torture need not necessarily involve physical injury, as mental harm is a prevalent form of inflicting torture. For instance, the mental suffering caused to an individual who is forced to watch severe mistreatment inflicted on a relative would rise to the level of gravity required under the crime of torture."

[B. Evidentiary comment:]

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