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)-2 Inhuman treatment » 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.I nfliction of physical or mental pain or suffering

5.1.1. Evidence of the bodily harm

P.1. Evidence of beating

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 732-736, 773, 775:

"C. Evidence related to confinement under inhumane conditions

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2. Humiliation and psychological abuse

732. During Hasan Bicics detention in the primary school, "Rade", a man from Novi Grad, ordered Muhamed Bicic to beat his brother Hasan, and vice versa, and other prisoners were also ordered to beat each other.¹⁶⁵⁹

733. During Muhamed Bicics detention in the TO building, "Laki" beat him and Hasan Bicic with a police truncheon and ordered them to laugh. Muhamed Bicic also stated that "Zuti" was forced to eat his own excrement after having been beaten in the gym of the primary school in summer 1992.¹⁶⁶⁰

734. The detainees were regularly insulted by their assailants in the detention facilities.¹⁶⁶¹

735. Several Prosecution witnesses gave evidence that they were given lard to eat. As they did not get sufficient food, they would eat it, although the Muslims would normally not eat lard for religious reasons.¹⁶⁶²

736. Witness O testified that on or about 4 July 1992, he and other prisoners in Bosanski Samac were told by Slobodan Jacimovic that they would be executed when they were being taken away to be exchanged.¹⁶⁶³"

"1659 - Hasan Bicic, T. 2745-47; see also Sulejman Tihic, T. 1399; Witness Q, T. 11779; Muhamed Bicic, T. 3010; Osman Jasarevic, Rule 92bis Statement, para. 112; Kemal Mehinovic, T. 7431-32, T. 7436.
1660 - Muhamed Bicic, T. 2942-43, T. 3005, T. 3011. See also Witness Q, T. 11779.
1661 - Witness G, T. 4054-55.
1662 - Ibrahim Salkic, T. 3338-39; Muhamed Bicic, T. 3025; Witness M, T. 5218-19; Kemal Mehinovic, T. 7442-43; Witness E, T. 7711; Witness P (Croat), T. 11558; Witness A (Croat), Rule 92bis Statement, para. 87; Witness O (Croat), Rule 92bis Statement, paras 32, 48. See also Osman Jasarevic, Rule 92bis Statement, para. 112.
1663 - Witness O, Rule 92bis Statement, paras 55-56."

"3. Findings

773. The Trial Chamber is also satisfied that the detainees who were imprisoned in the detention centres in Bosanski Samac were confined under inhumane conditions. The prisoners were subjected to humiliation and degradation. The forced singing of "Chetnik" songs and the verbal abuse of being called "ustasha" or "balija" were forms of such abuse and humiliation of the detainees. They did not have sufficient space, food or water. They suffered from unhygienic conditions, and they did not have appropriate access to medical care. These appalling detention conditions, the cruel and inhumane treatment through beatings and the acts of torture caused severe physical suffering, thus attacking the very fundamentals of human dignity. The Trial Chamber finds that this confinement under inhumane conditions constitutes cruel and inhumane treatment. This was done because of the non-Serb ethnicity of the detainees.

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775. The Trial Chamber is satisfied that during detention in the detention centres in Crkvina and Bijeljina, the prisoners did not have sufficient space and sufficient food and water supply. They were kept in unhygienic conditions and did not have access to sufficient medical care. Furthermore, detainees were subjected to beatings that constituted cruel and inhumane treatment and torture. For these reasons, the Trial Chamber finds that these prisoners were also confined under inhumane conditions that constituted cruel and inhumane treatment."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 209, 215:

"209. The Trial Chamber is satisfied that this incident has been established. On 11 July 1992, FWS-71 was taken out of room 11 and was beaten for about 15 minutes by KP Dom guards Dragan Obrenovic and Zoran Matovic in the corridor in front of room 11.⁵⁸⁹ He was kicked in the chest, around the kidneys, and once slapped in the face. The guards were armed with semi-automatic rifles at the time, but it has not been established that they used them or any other object to beat FWS-71. Nor has it been established that FWS-71 fainted in the course of the beating. He started feeling pain in his lungs and above the right kidney from the beatings after a couple of days, which he said then lasted for about 10 to 15 days.⁵⁹⁰ The Trial Chamber is satisfied that the treatment of FWS-71 is serious enough as to amount to cruel treatment pursuant to Article 3 as well as inhumane acts pursuant to Article 5(i) of the Statute."

"589 - FWS-71 (T 2807).
590 - FWS-71 (T 2808-2809)."

"215. The Trial Chamber is satisfied that the allegations involving Kemo Kajgana (A 10) and Fikret Kovacevic (A 12) have been established. Fikret Kovacevic was taken out of the isolation cell, where he was being held together with Ahmet Duric (A 7), Ahmet Hadzimusic and Kemo Kajgana, and was beaten. Hadzimusic was in the room adjacent to where the beatings occurred and did not see but could hear the beatings taking place.⁶⁰² At some point, the persons administering the beatings took the detainee Kajgana out of the cell and told him that his neighbour Kovacevic was asking for him. They instructed Kajgana to beat Kovacevic with the baton. Since Kajgana beat his fellow detainee only very gently, the baton was taken away from him and he was beaten himself to demonstrate how to administer real blows. Next, the baton was handed to Kovacevic who was also forced to beat Kajgana.⁶⁰³ The Trial Chamber is satisfied that the mistreatment inflicted upon both victims, Kajgana and Kovacevic, is sufficiently serious as to amount to cruel treatment pursuant to Article 3 and inhumane acts pursuant to Article 5(i)."

"602 - Ahmet Hadzimusic (T 1947, 1950).
603 - Ahmet Hadzimusic (T 1948-1949)."

P.2. Evidence of slahing the victims forearms with a knife

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 77-78, 770-771:

"(iii) Beatings

77. The Trial Chamber emphasises that the mere description of bodily assaults as "beatings" does not by itself establish that these beatings constitute the actus reus of cruel and inhumane treatment as persecutory acts. Instead, the beatings have to amount to a "gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5".¹³⁵

78. Taking into consideration the requirements of Article 5 (i) of the Statute as set out above, the Trial Chamber finds that beatings constitute cruel and inhumane treatment if the following elements can be proved:

(a) the beatings caused serious mental or physical suffering or injury or constituted a serious attack on human dignity, and

(b) the beatings were performed deliberately."

"135 - Cf. Kupreskic Trial Judgement, paras 621, 627; Naletilic Trial Judgement, para. 635."

"3. Findings

770. The Trial Chamber is convinced that on 17 April 1992 and in the following months, a large number of non-Serb civilians were repeatedly beaten in the detention facilities in Bosanski Samac and in Crkvina, Brcko, and Bijeljina. Some of the victims had already been beaten upon their arrest. During their imprisonment in the detention facilities, detainees were severely beaten with various objects, such as rifles, metal bars, baseball bats, metal chains, police batons, and chair legs. The detainees were beaten on all parts of their bodies, and many of them suffered serious injuries. Some prisoners were beaten while undergoing interrogation. The beatings were applied by paramilitary forces from Serbia, local policemen, and a few members of the JNA. The beatings took place on a daily basis, day and night. The Defence for all three accused did not contest that such beatings occurred as described by the witnesses .

771. The Trial Chamber is satisfied that these beatings caused severe pain and suffering, both physically and mentally, to the detainees. The Trial Chamber is also satisfied that the beatings were committed on discriminatory grounds. The evidence shows that practically all detainees who were beaten were non-Serbs. On one occasion, a victim was beaten in the crotch, and his assailants told him that Muslims should not propagate .¹⁷²⁸Prisoners were regularly insulted on the basis of their ethnicity.¹⁷²⁹For these reasons, the Trial Chamber finds that the beatings that were committed on discriminatory grounds constitute cruel and inhumane treatment as an underlying act of persecution."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 41-45:

"2. Cruel Treatment

41. This Trial Chamber shares the opinion of the Trial Chamber in the Celebici case which defined cruel treatment as "an intentional act or omission [...] which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity"⁴².

42. The bodily harm suffered by the brothers Zejcir and Resad Osmic is the focus of count 30. The two brothers were first taken to the Brcko police station where Goran Jelisic came looking for them. The accused called them "balijas"⁴³, handcuffed them and punched them. He then made them get into the boot of a red "Zastava 101" car. The victims were thus transported to Luka camp. Goran Jelisic forced them to go into the administrative office in which were his girlfriend Monika, who was sitting at a desk in front of a typewriter, and her brother, Kole. The two brothers were made to stand with their backs to the wall and Goran Jelisic began to hit them with a club, mostly to the head, the neck and the chest. According to one of the brothers, they were allegedly beaten like this for approximately thirty minutes. Zejcir Osmic was then taken to the hangar. Goran Jelisic continued to beat Resad Osmic who was no longer able to open his eyes as his eyelids were too swollen. He ended up collapsing from the blows. Goran Jelisic kicked him in the chest while he was trying to get back up. The accused then left. The victim was not beaten while Goran Jelisic was away. Goran Jelisic returned after approximately ten minutes. His shirt was stained with blood. He explained "I just killed a man from fifty centimetres away. I cut off his ear. He didnt want to talk, like you". The accused then slashed the victims two forearms with a knife before again beating him with a club. Goran Jelisic next made the victim take out his papers and his money. None of his identity papers gave any indication that he was Muslim. The accused then became angry and asked why the two brothers had been brought to Luka. He ordered their immediate release⁴⁴.

43. Count 37 relates to the bodily harm suffered by Muhamed Bukvic. The factual basis offered in support of the guilty plea shows that this man was very severely beaten by Goran Jelisic during an interrogation which he underwent in the administrative offices in Luka camp. The victim, already covered in bruises from the beating he received the previous day from another guard at the camp named Kosta, was beaten all over his body by Goran Jelisic with a truncheon⁴⁵. The accused, using his fingers to squeeze the victims cheeks up towards his eyes, hit him with his truncheon at eye level.

44. The bodily harm inflicted on Amir Didic is covered in count 40. He was beaten several times during the interrogations to which he was subjected in the Luka camp offices. Amir Didic indicated that he had been beaten by several guards even though the accused was by far the most active. Goran Jelisic hit him on one occasion with a fire hose thereby making him lose consciousness. Amir Didic was allegedly beaten to the point of being unrecognisable. He stated that another official at the camp named Kole and the girlfriend of the accused, Monika, were always present during these beatings⁴⁶.

45. The Trial Chamber is of the opinion that the assault described in the indictment, admitted by the accused and moreover confirmed by the elements presented during the trial, constitute inhumane acts."

"42. Celebici Judgement, para. 552.
43. A term which seems to have no direct equivalent in English but which is considered highly offensive.
44. Factual basis, Witness T p. 2-4; Witness U, p. 2-4.
45. Factual basis, p. 15.
46. Factual basis, p. 16."

5.1.2. Evidence of confinement under inhumane conditions

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 133:

"2. Findings

133. The Trial Chamber is satisfied that the brutal and deplorable living conditions imposed upon the non-Serb detainees at the KP Dom in the period from April 1992 to July 1993 (discussed below) constituted acts and omissions of a seriousness comparable to the other crimes enumerated under Article 5 and Article 3 of the Tribunals Statute, and thus warrants a finding that those acts and omissions constitute inhumane acts and cruel treatment under those Articles."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 545-558:

"(e) Cruel Treatment

545. The offences charged as cruel treatment in the Indictment are brought under Article 3 of the Statute, either in the alternative to charges of torture, or additional to charges of wilfully causing great suffering or serious injury or inhuman treatment, brought under Article 2 of the Statute.

(i) Arguments of the Parties

546. The Prosecution argues that cruel treatment has the same elements as the offence of inhuman treatment and encompasses situations where the accused mistreats the victim and subjects him or her to mental or physical pain or suffering, without thereby pursuing any of the purposes underlying the offence of torture⁵⁶⁷. In its Response to the Motion to Dismiss⁵⁶⁸, the Prosecution refers to the discussion in the Tadic Judgment of the meaning of "cruel treatment", in support of this proposition⁵⁶⁹. In that case, Trial Chamber II held that the prohibition on cruel treatment is a means to an end, being that of "ensuring that persons taking no active part in the hostilities shall in all circumstances be treated humanely"⁵⁷⁰. The Judgement further refers to article 4 of Additional Protocol II, wherein the prohibition refers to "violence to the life, health, and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment." ⁵⁷¹

547. The Defence has not made specific submissions with respect to the definition of the offence of cruel treatment. However, in its discussion of "great suffering or serious injury" in the Motion to Dismiss, the Defence stated that the "the drafters of Common Article 3 deliberately kept prohibited acts poorly defined". ⁵⁷²

(ii) Discussion

548. The basis of the inclusion of cruel treatment within Article 3 of the Statute is its prohibition by common article 3(1) of the Geneva Conventions, which proscribes, "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture". In addition to its prohibition in common article 3, cruel treatment or cruelty is proscribed by article 87 of the Third Geneva Convention, which deals with penalties for prisoners of war, and article 4 of Additional Protocol II, which provides that the following behaviour is prohibited:

violence to life, health and physical and or mental well being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment.

549. As with the offence of inhuman treatment, no international instrument defines this offence, although it is specifically prohibited by article 5 of the Universal Declaration of Human Rights, article 7 of the ICCPR, article 5, paragraph 2, of the Inter-American Convention of Human Rights and article 5 of the African Charter of Human and Peoples Rights. In each of these instruments, it is mentioned in the same category of offence as inhuman treatment.

550. In the Tadic Judgment, Trial Chamber II provided its view of the meaning of this offence, stating that, according to common article 3, "the prohibition against cruel treatment is a means to an end, the end being that of ensuring that persons taking no active part in hostilities shall in all circumstances be treated humanely.⁵⁷³" Thus, that Trial Chamber acknowledged that cruel treatment is treatment that is inhuman.

551. Viewed in the context of common article 3, article 4 of Additional Protocol II, the various human rights instruments mentioned above, and the plain ordinary meaning, the Trial Chamber is of the view that cruel treatment is treatment which causes serious mental or physical suffering or constitutes a serious attack upon human dignity, which is equivalent to the offence of inhuman treatment in the framework of the grave breaches provisions of the Geneva Conventions.

(iii) Findings

552. In light of the foregoing, the Trial Chamber finds that cruel treatment constitutes an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. As such, it carries an equivalent meaning and therefore the same residual function for the purposes of common article 3 of the Statute, as inhuman treatment does in relation to grave breaches of the Geneva Conventions. Accordingly, the offence of torture under common article 3 of the Geneva Conventions is also included within the concept of cruel treatment. Treatment that does not meet the purposive requirement for the offence of torture in common article 3, constitutes cruel treatment.

553. Having considered in detail the meaning of the foregoing offences, the Trial Chamber shall now address inhumane conditions, which have been alleged in the Indictment as wilfully causing great suffering and cruel treatment.

(f) Inhumane Conditions

554. Counts 46 and 47 of the Indictment allege the existence of inhumane conditions in the Celebici prison-camp and these are charged as wilfully causing great suffering, under Article 2(c), and cruel treatment, under Article 3 of the Statute. While there is no offence of "inhumane conditions" recognised as such in international humanitarian law, it is necessary to determine whether this concept can be considered as being incorporated into the offences of wilfully causing great suffering or serious injury to body or health or cruel treatment.

555. In its Response to the Motion to Dismiss, the Prosecution addresses the issue of inhumane conditions574. It rejects an argument made by the Defence that, if conditions at a detention facility are inadequate but are nonetheless all that could be provided in the circumstances prevailing at the relevant time, they are not inhumane. In support of its position, the Prosecution argues that, as a matter of law, a detaining authority is not allowed to starve or otherwise keep prisoners in clearly inhumane and life threatening conditions.

556. The phrase "inhumane conditions" is a factual description relating to the nature of the general environment in which detained persons are kept and the treatment which they receive. Accordingly, the Trial Chamber is bound to apply the legal standards found for the offences of wilfully causing great suffering or serious injury to body or health and cruel treatment to this factual category.

557. These legal standards are absolute and not relative. Thus, when considering the factual allegation of inhumane conditions with respect to these legal offences, no reference should be made to the conditions prevailing in the area of detention in order to determine what the standard of treatment should have been. The legal standard in each of the mistreatment offences discussed above delineates a minimum standard of treatment which also applies to conditions of detention. During an armed conflict, persons should not be detained in conditions where this minimum standard cannot be met and maintained.

558. Given that, in the context of Article 3 of the Statute, cruel treatment carries the same meaning as inhuman treatment in the context of Article 2, this allegation of inhumane conditions is appropriately charged as cruel treatment. However, in light of the above discussion of these offences, the Trial Chamber is of the view that, while it is possible to categorise inhumane conditions within the offence of wilfully causing great suffering or serious injury to body or health under Article 2, it is more appropriately placed within the offence of inhuman treatment."

"567. Prosecution Closing Brief, RP D2717; Prosecution Pre-Trial Brief, RP D2825.
568. Prosecution Response to the Motion to Dismiss, RP D5765.
569. Tadic Judgment, paras. 723-726.
570. Tadic Judgment, para. 723.
571. Tadic Judgment, para. 725.
572. Motion to Dismiss, RP D5545.
573. Tadic Judgment, para. 723.
574. Prosecution Response to the Motion to Dismiss, RP D5764."

P.3. Evidence of harassment

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 97, 773,775:

"97. The Trial Chamber finds that harassment, humiliation, the creation of an atmosphere of fear through torture and other forms of physical and psychological abuse, an insufficient supply of food and water, lack of space, unhygienic detention conditions, and an insufficient access to medical care are circumstances that may constitute confinement under inhumane conditions and meet the actus reus of cruel and inhumane treatment as a persecutory act."

"3. Findings

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P.4. Evidence of humiliation and psychological abuse

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 97:

P.4.1. Evidence of detainees being ordered to beat each other

P.4.2. Evidence of detainees being ordered to laugh while being beaten

P.4.3. Evidence of detainees being forced to eat his or her own excrement

P.4.4. Evidence of detainees being regularly insulted

P.4.5. Evidence of detainees being given lard to eat

P.4.6. Evidence of detainees being given food that they would normally not eat for religious reasons

P.4.7. Evidence of detainees being heard to be executed

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 732-736, 773, 775:

"C. Evidence related to confinement under inhumane conditions

[]

2. Humiliation and psychological abuse

734. The detainees were regularly insulted by their assailants in the detention facilities.¹⁶⁶¹

"3. Findings

[]

[B. Evidentiary comment:]

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 142:

"2. Findings

142. The Trial Chamber is satisfied that, in addition to the physically taxing conditions of detention, the non-Serb detainees were also subject to a psychologically exhausting regime while detained at the KP Dom. Any attempts made by non-Serb detainees to improve their living conditions in the camp were punished with solitary confinement.⁴³⁵ Acts which resulted in beatings or periods in the isolation cells⁴³⁶ included efforts to get additional food,⁴³⁷ or access to warm water,⁴³⁸ and attempts to communicate with each other,⁴³⁹ the guards,⁴⁴⁰ or the outside world.⁴⁴¹"

"435 - FWS-182 (T 1611); Safet Avdic (T 460); Dzevad Lojo (T 660, 703).
436 - FWS-138 (T 2067).
437 - FWS-250 (T 5031-5032); FWS-172 (T 4571); FWS-249 (T 4412); FWS-115 (T 746-747).
438 - FWS-71 (T 2807); FWS-111(T 1224-1225); FWS-215 (T 875-877)
439 - Safet Avdic (Ex P 123, p 690).
440 - FWS-182 (T 1613-1614).
441 - FWS-182 (T 1613); Ekrem Zekovic (T 3447-3448); FWS-215 (T 877- 878); FWS-250 (T 5023)."

[B. Evidentiary comment:]

P.4.9. Evidence of detainees being exposed to the sounds of torture and beatings over a period of months, which made them nervous and panicky

P.4.10. Evidence of the criteria for the selection for beatings etc not being identifiable, which made detainees fearful of being the next victim

P.4.11. Evidence of detainees wrting letters to their family fearing they would not survive

P.4.12. Evidence of detainees witnessing family members being taken out and beaten

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 143:

"2. Findings

143. The Trial Chamber is also satisfied that the non-Serb detainees were subjected to harrowing psychological abuse during their period of detention at the KP Dom.⁴⁴² The detainees were exposed to the sounds of torture and beatings over a period of months, in particular in June and July 1992.⁴⁴³ They became nervous and panicky as a result of these sounds,⁴⁴⁴ and they could not sleep at night.⁴⁴⁵ They could not identify the criteria for the selection for beatings, and they constantly feared that they would be the next to be selected.⁴⁴⁶ Some wrote farewell letters to their family fearing they would not survive.⁴⁴⁷ Some witnessed family members being taken out and heard them being subjected to severe beatings.⁴⁴⁸"

"442 - Safet Avdic (T 537).
443 - FWS-66 (T 1111); FWS-111 (T 1259); FWS-162 (T 1392); FWS-215 (T 901); FWS-54 (T 773); Safet Avdic (T 489); FWS-139 (T 367); FWS-86 (T 1530); Rasim Taranin (T 1724); FWS-138 (T 2090); FWS-104 (T 2182); FWS-03 (T 2261); FWS-144 (T 2301); FWS-71 (T 2889); FWS-109 (T 2377); Dzevad S Lojo (T 2587); Dr Amir Berberkic (T 3931); Safet Avdic (T 494); FWS-86 (T 1520); FWS-144 (T 2301); FWS-71 (T 2889); FWS-198 (T 1013); FWS-215 (T 902).
444 - FWS-111 (T 1259); FWS-162 (T 1392); FWS-54 (T 773); FWS-109 (T 2377).
445 - Rasim Taranin (T 1724); FWS-104 (T 2182); Safet Avdic (T 537).
446 - FWS-66 (T 1111); FWS-198 (T 1023); FWS-215 (T 902); Rasim Taranin (T 1724); FWS-03 (T 2261); Dzevad S Lojo (T 2587-2588).
447 - Dr Amir Berberkic (T 3931- 3932); FWS-159 (T 2508); FWS-215 (T 902); FWS-65 (T 537).
448 - FWS-71 (T 865); Safet Avdic (T 537). Muharem Causevic was taken out and beating during the time his daughter was detained with him: FWS-215 (T 895); FWS-62 (T 1092)."

[B. Evidentiary comment:]

P.5. Evidence of the creation of an atmosphere of fear through torture and other forms of physical and psychological abuse

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 97, 731, 773, 775:

"C. Evidence related to confinement under inhumane conditions

1. Creation of an atmosphere of fear through beatings, torture, and mistreatment

731. Prosecution witnesses Dragan Lukac, Hasan Bicic, Muhamed Bicic, Kemal Mehinovic, Witness M, Dragan Delic, and Witness Q testified that they were living in a constant atmosphere of fear and intimidation that resulted from their mistreatment and that of other detainees during their detention."

"3. Findings

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P.6. Evidence of rape

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 695, 700:

"695. Located in a municipal building near to Vitez railway station and just over two and a half kilometres from the Hotel Vitez¹⁵⁸⁷, Dubravica primary school was the billet for the Vitezovi unit and the Ludwig Pavlovic Brigade¹⁵⁸⁸. During the second half of April 1993, the school also served as an HVO detention centre. Two hundred Muslim men, women and children from the villages of Vitez municipality were detained there¹⁵⁸⁹. They suffered from a lack of food and comfort¹⁵⁹⁰. Furthermore, the women and children were terrorised and threatened by their guards ¹⁵⁹¹. Women were raped by HVO soldiers and members of the Military Police¹⁵⁹².

[]

"700. In conclusion, the Trial Chamber adjudges that in the case in point the material element and mens rea of the crimes of inhuman treatment (count 15) and cruel treatment (count 16) as defined above have been satisfied. The Trial Chamber takes note of the following acts and omissions:

- inflicting physical and mental violence upon the detainees, at the various aforesaid detention sites and whilst they were forced to dig trenches;

- placing the detainees in a life-threatening situation by taking them to the front or nearby;

- the atmosphere of terror reigning in the detention facilities;

- the cases of long-term detention¹⁶¹¹, in several camps under difficult circumstances¹⁶¹².

Moreover, the Trial Chamber adds that the cruel or inhuman treatment was inflicted by HVO soldiers and the Military Police and that the victims were Bosnian Muslims. For the most part they were civilians - the remainder being hors de combat - and therefore were protected persons for the reasons explained earlier."

P.7. Evidence of lack of space/facilities

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 97:

P.7.1. Evidence of overcrowded cells

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 737, 773, 775:

"C. Evidence related to confinement under inhumane conditions

[]

3. Space and facilities

737. Several Prosecution witnesses gave evidence that after 17 April 1992, they were held in the SUP in overcrowded cells, sometimes with not enough room to sit.¹⁶⁶⁴Prisoners had often only cardboard to sleep on.¹⁶⁶⁵The situation in the TO and in the primary and secondary schools was similar.¹⁶⁶⁶In Crkvina¹⁶⁶⁷and Bijeljina,¹⁶⁶⁸the conditions were alike."

"1664 - Sulejman Tihic, T. 1411, T. 1414, T. 3641-42; Dragan Lukac, T. 1746-47, T. 1762, T. 1769; Witness A, Rule 92bis Statement, para. 86; Esad Dagovic, T 3964; Witness L, T. 4341-43; Witness M, T. 5218-19; Ibrahim Salkic, T. 3263-64, T. 3287; Witness C, T. 7919-21; Witness Q, T. 11728-29; Witness E, T. 7679-80, T. 7740-41, T. 7822-23; Kemal Bobic, T. 11403.
1665 - Dragan Lukac, T. 1746, 1769; Witness A, Rule 92bis Statement, para. 86.
1666 - Sulejman Tihic, T. 3641-42; Izet Izetbegovic, T. 2314-15; Hasan Bicic, T. 2669, T. 2714-15; Muhamed Bicic, T. 2937, T. 3026-27; Ibrahim Salkic, T. 3263-66, T. 3330; Kemal Mehinovic, T. 7443; Witness E, T. 7715-17; Hasan Subasic, T. 10944-45; Witness A, Rule 92bis Statement, paras 48, 52; Witness O, Rule 92bis Statement, para. 50; Witness P, T. 11554-55.
1667 - Witness O, Rule 92bis Statement, para. 25.
1668 - Hasan Bicic, T. 2706; Osman Jasarevic, Rule 92bis Statement, paras 100-102."

"3. Findings

[]

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 135:

"2. Findings

[]

135. The Trial Chamber is satisfied that the non-Serb detainees were deliberately housed in cramped conditions. The KP Dom had the capacity to house more than the maximum 500-700 non-Serbs detained, but the detainees were crowded into a small number of rooms.³⁹⁶ Solitary confinement cells designed to hold one person were packed with up to 18 people at a time,³⁹⁷ making it impossible for the detainees to move around the cell,³⁹⁸ or to sleep lying down.³⁹⁹"

"396 - FWS-138 (T 2021); FWS-12 (T 241); Miladin Matovic (T 6460); FWS-162 (T 1359); FWS-198 (T 952, 954); FWS-139 (T 327); FWS-182 (T 1590); FWS-86 (T 1461); FWS-104 (T 2162); FWS-73 (T 3212).
397 - FWS-198 (T 950); FWS-119 (T 1941-1942); FWS-159 (T 1078); FWS-12 (T 243).
398 - FWS-104 T 2162); FWS-54 (T 741); FWS-73 (T 3212).
399 - Safet Avdic (Ex P 121, p 685)."

[B. Evidentiary comment:]

P.7.2. Evidence of not enough room to sit

P.7.3. Evidence of detainees having only cardboard to sleep on

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 737, 773, 775:

"C. Evidence related to confinement under inhumane conditions

[]

3. Space and facilities

"3. Findings

[]

[B. Evidentiary comment:]

P.8. Evidence of inadequate food and water

P.8.1. Evidence of an insufficient supply of food and water

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 738-739, 773 and 775:

"C. Evidence related to confinement under inhumane conditions

[]

4. Adequacy of Food and Water

738. Prosecution witnesses testified that they had an insufficient supply of food and water during their detention in the SUP,¹⁶⁶⁹in the TO,¹⁶⁷⁰in the primary and secondary schools,¹⁶⁷¹in Crkvina,¹⁶⁷²and in Zasavica, ¹⁶⁷³and that the situation was better in Brcko¹⁶⁷⁴and Bijeljina.¹⁶⁷⁵

739. Muhamed Bicic testified that he lost about 60 kilos during his detention.¹⁶⁷⁶Defence witness Stoko Sekulic stated that Marko Filip, the head of the criminal investigations section, told him that two meals were being taken to each prisoner in the TO and in the primary school in May 1992, and that the food for the army was not better. Stoko Sekulic also stated that the bad prison conditions were due to the prevalent material conditions at that time.¹⁶⁷⁷Svetozar Vasovic testified that he brought food to the prisoners in the primary and secondary schools.¹⁶⁷⁸Dr. Ozren Stanimirovic testified that he was aware that prisoners in Bosanski Samac were deprived of food.¹⁶⁷⁹Mladen Borbeli testified that the provision of food in the secondary school was not enough, but no prisoner was famished. He said that he lost weight because he was upset that he was detained for no other reason than being a Croat.¹⁶⁸⁰Stanko Dujkovic testified that the people in Zasavica were able to have normal meals.¹⁶⁸¹Witness DW 3/3 stated the living conditions in Zasavica were excellent while he was there from late July 1992 until about mid-September 1992.¹⁶⁸²Milka Petkovic stated that the people in Zasavica had everything they needed.¹⁶⁸³"

"1669 - Sulejman Tihic, T. 1414, T. 1416-18, T. 1431; Izet Izetbegovic, T. 2294; Dragan Lukac, T. 1746, T. 1769, T. 1781-83; Hasan Bicic, T. 2653; Ibrahim Salkic, T. 3263-64, T. 3287; Esad Dagovic, T. 3976, T. 4003-04; Witness L, T. 4341-43; Kemal Bobic, T. 11403; Witness M, T. 5218-19; Witness E, T. 7711; Witness P, T. 11558; Witness A, Rule 92bis Statement, para. 87; Witness Q, T. 11863-66.
1670 - Sulejman Tihic, T. 1400; Izet Izetbegovic, T. 2314. See also Muhamed Bicic, T. 2963; Hasan Bicic, T. 2670; Ibrahim Salkic, T. 3282; Dragan Delic, T. 6675-77; Witness A, Rule 92bis Statement, para. 53; Muhamed Bicic, T. 2963; Witness N, T. 6076-77; Kemal Mehinovic, T. 7442-43; Witness E, T. 7723; Osman Jasarevic, Rule 92bis Statement, para. 77; Ediba Bobic, T. 11271; Witness P, T. 11556; Fadil Topcagic, T. 18345.
1671 - Hasan Bicic, T. 2722; Ibrahim Salkic, T. 3338-39; Muhamed Bicic, T. 3025. See also Witness N, T. 6151-52; Witness O, Rule 92bis Statement, paras 32, 48; Andrija Petric, T. 17595.
1672 - Jelena Kapetanovic, T. 8952-54, T. 8959-60, T. 8966-69.
1673 - Jelena Kapetanovic, T. 10326-28.
1674 - Sulejman Tihic, T. 3708; Witness N, T. 6092; Muhamed Bicic, T. 2971, T. 3057-58.
1675 - Witness N, T. 6096; Muhamed Bicic, T. 2977; Osman Jasarevic, Rule 92bis Statement, para. 103.
1676 - Muhamed Bicic, T. 3037.
1677 - Stoko Sekulic, T. 18062, T. 18068-70.
1678 - Svetozar Vasovic, T. 14977; Witness DW 2/3, T. 14476.
1679 - Ozren Stanimirovic, T. 13934.
1680 - Mladen Borbeli, T. 14726, T. 14745-46.
1681 - Stanko Dujkovic, Deposition T. 299-300.
1682 - Witness DW 3/3, Rule 92bis Statement, paras 20-21.
1683 - Milka Petkovic, Rule 92bis Statement, para 37."

"3. Findings

[]

[B. Evidentiary comment:]

P.8.2. Evidence of considerable weight loss

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 139:

2. Findings

"133. The Trial Chamber is satisfied that the brutal and deplorable living conditions imposed upon the non-Serb detainees at the KP Dom in the period from April 1992 to July 1993 (discussed below) constituted acts and omissions of a seriousness comparable to the other crimes enumerated under Article 5 and Article 3 of the Tribunals Statute, and thus warrants a finding that those acts and omissions constitute inhumane acts and cruel treatment under those Articles.

[]

139. The Trial Chamber accepts that there may have been a general shortage of food in the Foca region during the conflict,⁴¹⁹ but it is satisfied that there was a deliberate policy to feed the non-Serb detainees barely enough for their survival.⁴²⁰ All non-Serb detainees suffered considerable weight loss ranging from 20 to 40 kilograms during their detention at the KP Dom.⁴²¹ Their diet consisted of a cup of soup which was "little more than water",⁴²² rice or macaroni and a piece of "really thin" bread three times a day.⁴²³ On occasion, they received a tin of pâté to be shared by two persons or eggs for breakfast.⁴²⁴ In contrast, Serb convicts and detainees received "regular army food", not very appetising but nutritious enough to prevent serious weight loss.⁴²⁵ The contrast between the weight loss of non-Serb detainees and the Serb prisoners makes it apparent that non-Serb detainees were fed much less than the Serb detainees. The Trial Chamber is satisfied that the food for all detainees at the KP Dom was cooked in the same cauldron, but that nutritious ingredients, like meat, beans, vegetables and spices, were added to enrich only the meals of Serb detainees and convicts and KP Dom staff, who ate after the non-Serb detainees had received their meals from the cauldron.⁴²⁶ In making these findings, the Trial Chamber rejects the Defence evidence that all the detainees received the same quality and quantity of food while detained at the KP Dom.⁴²⁷"

"419 - Slobodan Solaja (T 5498, 5500); Witness A (T 5522); Milomir Mihajlovic (T 5629); Radomir Dolas (T 5820); Miloslav Krsmanovic (T 6623); Witness B (T 6713); Zarko Vukovic (T 6759); Svetozar Bogdanovic (T 7084); Arsenije Krnojelac (T 7122-7124); Bozo Drakul (T 7191); Vitomir Drakul (T 5669); Dr Drago Vladicic (T 6307); Dr Milovan Dobrilovic (T 6366).
420 - Dr Amir Berberkic (T 3755, 3756); FWS-49 (T 4698); Dzevad Lojo (T 666); FWS-139 (T 343); FWS-86 (T 1507); FWS-49 (T 4698).
421 - FWS-66 (T 1084); FWS-111 (T 1312); FWS-162 (T 1361); FWS-198 (T 956); FWS-215 (T 874); FWS-54 (T 750); Dzevad Lojo (T 664); Safet Avdic (T 536); FWS-139 (T 343); FWS-86 (T 1506); FWS-182 (T 1618); Rasim Taranin (T 1729); FWS-08 (T 1772); FWS-71 (T 2805); FWS-109 (T 2371); FWS-159 (T 2464); Dr Amir Berberkic (T 3755); Safet Avdic (Ex P 123, p 686); FWS-78 (T 2113); FWS-96 (Ex P 186, p 2539).
422 - Rasim Taranin (T 1712-1715).
423 - FWS-162 (T 1361); FWS-198 (T 955); FWS-111 (T 1380); Dzevad Lojo (T 665); FWS-139 (T 341); Dr Amir Berberkic (T 4007); FWS-71 (T 2947); Juso Taranin (T 3027).
424 - FWS-172 (T 4607); FWS-250 (T 5116); FWS-89 (T 4725, 4674). At a later stage of their detention, and only for a period of 15 days, the detainees were given eggs, beans, rice, potatoes or pasta for breakfast: Rasim Taranin (T 1750).
425 - Lazar Stojanovic (T 5717, 5749); Vitomir Drakul (T 5673); Zoran Vukovic (T 5771, 5784-5785).
426 - FWS-08 (T 1804); FWS-138 (T 2063); FWS-71 (T 2952-2953); Rasim Taranin (T 1715); FWS-66 (T 1083); FWS-111 (T 1228-1229); FWS-162 (T 1360).
427 - Krsto Krnojelac (T 5903, 5914, 5916-5917, 5927, 5930); Risto Ivanovic (T 6092, 6094, 6193); Divljan Lazar (T 6043-6044); Miladin Matovic (T 6451-6452); Bozo Drakul (T 7189); The Accused (T 7665); Zoran Vukovic (T 5784-5785); Lazar Stojanovic (T 5717)."

[B. Evidentiary comment:]

P.9. Evidence of unhygienic detention conditions

P.9.1. Evidence of the floors being bloody and very rarely cleaned

P.9.2. Evidence of absence/lack of toilet facilities

P.9.3. Evidence of detainees not being able to wash themselves

P.9.4. Evidence of detainees not being able to clean their clothes

P.9.5. Evidence of change of clothes not being supplied

P.9.6. Evidence of bed linen being never washed or changed

P.9.7. Evidence of only cold water being available

P.9.8. Evidence of regular baths or showers not being provided

P.9.9. Evidence of hygienic products or toiletries not being supplied

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 97, 740, 773, 775:

"C. Evidence related to confinement under inhumane conditions

[]

5. Unhygienic conditions

740. Prosecution witnesses testified that the conditions under which the detainees were imprisoned in the SUP,¹⁶⁸⁴the TO,¹⁶⁸⁵the primary and secondary schools,¹⁶⁸⁶in Crkvina,¹⁶⁸⁷in Brcko,¹⁶⁸⁸and in Bijeljina¹⁶⁸⁹were unhygienic. The floors were often bloody and very rarely cleaned. Prisoners were not able to wash themselves, or to clean their clothes. The toilet facilities were insufficient, and sometimes non existent."

"1684 - Dragan Lukac, T. 1806; Ibrahim Salkic, T. 3263-64, T. 3287; Hasan Bicic, T. 2653; Esad Dagovic, T. 3943, T. 4002-03; Witness E, T. 7710-11; Witness C, T. 7924; Witness Q, T. 11730-31; Witness L, T. 4341-43; Kemal Mehinovic, T. 7431; Witness A, Rule 92bis Statement, paras 87, 90; Witness P, T. 11558.
1685 - Hasan Subasic, T. 11015-17; Izet Izetbegovic, T. 2314; Sulejman Tihic, T. 1400; Hasan Bicic, T. 2669-71; Muhamed Bicic, T. 2962; Ibrahim Salkic, T. 3374; Kemal Mehinovic, T. 7445, T. 7457-58; Osman Jasarevic, Rule 92bis Statement, paras 67, 76; Witness P, T. 11556, 11558.
1686 - Muhamed Bicic, T. 3025; Hasan Bicic, T. 2722-24; Witness N, T. 6149-51; Witness O, Rule 92bis Statement, paras 32, 49.
1687 - Jelena Kapetanovic, T. 8952-54; Witness O, Rule 92bis Statement, para. 25.
1688 - Hasan Bicic, T. 2685, T. 2691-93; Muhamed Bicic, T. 2971; Osman Jasarevic, Rule 92bis Statement, para. 93; Dragan Delic, T. 6768.
1689 - Hasan Bicic, T. 2706-07; Muhamed Bicic, T. 2976."

"3. Findings

[]

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 136:

"2. Findings

[]

136. The Trial Chamber is satisfied that the policy of overcrowding the detainees was aggravated by the poor hygienic conditions. Bedding was insufficient or non -existent.⁴⁰⁰ The only bed linen provided was that left over from former convicts, and these items were never washed or changed throughout 1992.⁴⁰¹ While there were toilets and wash basins in the rooms, only cold water was available.⁴⁰² Regular baths or showers were not provided, nor were hygienic products or toiletries supplied.⁴⁰³ Changes of clothes or facilities for washing clothes were not supplied.⁴⁰⁴ As a result of these conditions, chicken lice spread from the prison farm to the rooms of the detainees.⁴⁰⁵"

"400 - FWS-85 (T 664); Safet Avdic (T 456); Ex P 123, p 685; FWS-159 (T 2450).
401 - FWS-250 (T 5117-5118); FWS-182 (T 1615); Dzevad S Lojo (T 2562).
402 - FWS-139 (T 341); FWS-182 (T 1615); FWS-73 (T 3422). A couple of detainees who worked had access to hot water. FWS-250 could heat water and wash because he worked where there were heating facilities: (T 5117). FWS-89 also had access to hot water because he worked in the kitchen (T 4661).
403 - FWS-172 (T 4607); FWS-69 (T 4066); FWS-139 (T 341); FWS-182 (T 1615).
404 - FWS-73 (T 3424); FWS-159 (T 2466); FWS-250 (T 5118); (Ex P 123, p 686); FWS-73 (T 3424). There were some items of clothing which had been left behind by former regular convicts.
405 - FWS-111 (T 1227); FWS-182 (T 1615); Dzevad S Lojo (T 2564); FWS-73 (T 3422)."

[B. Evidentiary comment:]

P.10. Evidence of an insufficient access to medical care

P.10.1. Evidence of insufficient medical care

P.10.2. Evidence of sporadic medical treatment

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 94-97, 741-742, 773, 775:

"(vi) Confinement under inhumane conditions

94. When discussing "confinement under inhumane conditions", the Kvocka Trial Chamber found that:

95. The Trial Chamber went on to examine harassment, humiliation and psychological abuse stating that "these acts are not explicitly listed under Article 5 nor do they appear as specific offences under other Articles of the Statute",¹⁷² and concluded that:

the horrendous conditions of detention and the demoralizing treatment of detainees in Omarska camp were sufficiently degrading and traumatizing to constitute per se an outrage upon personal dignity, which qualifies as persecution since it was clearly committed on discriminatory grounds.

96. The Krnojelac Trial Chamber further observed:

The establishment and perpetuation of inhumane conditions is separately charged as inhumane acts, a crime against humanity pursuant to Article 5(i) of the Statute, and as cruel treatment, a violation of the law or customs of war pursuant to Article 3 of the Statute, and as such is of sufficient gravity to constitute persecution.

97. The Trial Chamber finds that harassment, humiliation, the creation of an atmosphere of fear through torture and other forms of physical and psychological abuse, an insufficient supply of food and water, lack of space, unhygienic detention conditions, and an insufficient access to medical care are circumstances that may constitute confinement under inhumane conditions and meet the actus reus of cruel and inhumane treatment as a persecutory act."

"171 - Kvocka Trial Judgement, para. 189.
172 - Kvocka Trial Judgement, para. 190.
173 - Kvocka Trial Judgement, paras 191-192
174 - Krnojelac Trial Judgement, paras 439, 443."

"C. Evidence related to confinement under inhumane conditions

[] 6. Access to Medical Care

741. Witnesses for the Prosecution gave evidence that access to medical care in the various detention facilities was insufficient, as there was only sporadic medical treatment.¹⁶⁹⁰

742. Defence witness Mladen Borbeli testified that in the secondary school, there were regular visits of doctors and nurses who dispended mostly tranquilisers and sleeping pills.¹⁶⁹¹Defence witness Dr. Ozren Stanimirovic testified that he and other doctors were visiting prisoners in the various detention camps in Bosanski Samac. He stated that he had set up clinics at the SUP, the TO and at Zasavica, and that he treated some detainees with minor complaints, but did not see severely injured detainees. He also stated that prisoners told him of the poor sanitary conditions, inadequate food and lack of clean clothes, but that he did not go inside any of the detention places as his clinics were set up in different rooms.¹⁶⁹²"

"1690 - Dragan Lukac, T. 1701; Sulejman Tihic, T. 1452-53; Muhamed Bicic, T. 2948-52, T. 2954-55, T. 2987-92, T. 3057-58; Esad Dagovic, T. 3965-67; Witness M, T. 5241-47; Kemal Mehinovic, T. 7425-27, T. 7451-52; Witness E, T. 7686; T. 7706-09; T. 2954-55; Ibrahim Salkic, T. 3284-85, T. 3297-98, T. 3318; Witness N, T. 6074, T. 6094-95, T. 6125, T. 6143, T. 6164-66; Dragan Delic, T. 6768, T. 6692; Witness Q, T. 11760-62; Witness A, Rule 92bis Statement, para. 57; Osman Jasarevic, Rule 92bis Statement, paras 78, 90; Witness O, Rule 92bis Statement, para. 41; Jelena Kapetanovic, T. 8973-76, T. 10326-28.
1691 - Mladen Borbeli, T. 14726, T. 14748-49; Witness DW 2/3, T. 14482-83.
1692 - Ozren Stanimirovic, T. 13932-34."
Simic et al Trial Judgment, paras. 773 and 775:

"3. Findings

[]

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 140-141:

"2. Findings

[]

140. The Trial Chamber accepts that a basic medical service was provided to the non-Serb detainees. Gojko Jokanovic, a male nurse, was at the KP Dom on a daily basis and did whatever he could to help the non-Serb detainees.⁴²⁸ Doctors from Foca hospital also visited the KP Dom on a regular basis.⁴²⁹ The Trial Chamber also accepts that medicines may have been in short supply throughout Foca due to the war and therefore does not find that there was a deliberate policy of withholding available medical supplies from non-Serb detainees.⁴³⁰

141. The Trial Chamber is satisfied, however, that some of the non-Serb detainees were not provided with medical help which was available, and in particular that emergency cases were not handled with proper care.⁴³¹ Non-Serb detainees who arrived at the KP Dom with injuries sustained prior to or in the course of their arrest were not given access to medical treatment,⁴³² nor were non-Serb detainees who were severely beaten during interrogations at the KP Dom. The injuries inflicted upon these non-Serb detainees were obviously in need of medical treatment.⁴³³ The Trial Chamber is further satisfied that detainees who were kept in isolation cells and solitary confinement were denied all access to medical care.⁴³⁴"

"428 - Lazar Stojanovic (T 5718); Risto Ivanovic (T 6097); Miladin Matovic (T 6457); The Accused (T 7666); FWS-86 (T 1551); Gojko Jokanovic (T 1146); FWS-71 (T 2950); FWS-109 (T 2422); Dzevad S Lojo (T 2511); (Dr Amir Berberkic (T 3738).
429 - Dr Drago Vladicic (T 6311); Dr Milovan Dobrilovic (T 6369-T 6299, 6297); Miladin Matovic (T 6457-6458); Lazar Stojanovic (T 5718); Risto Ivanovic (T 6097); Miladin Matovic (T 6457-6458); Dr Vladicic (T 6339-6340); Dr Milovan Dobrilovic (T 6343); The Accused (T 7666); FWS-182 (T 1840). Cedo Dragovic would give medicines to those with heart conditions: FWS-03 (T 2273); FWS-71 (T 2949); Dzevad S Lojo (T 2550). Dr Amir Berberkic (T 3741); FWS-69 (T 4063); FWS-172 (T 4595).
430 - FWS-71 T 2949); FWS-69 (T 4063); FWS-172 (T 4595). In other cases, however, detainees did receive sophisticated treatment, as, for instance, infusions or antibiotic injections: FWS-86 (T 1551); FWS-66 (T 1146); FWS-182 (T 1688); FWS-03 (T 2273); FWS-71 (T 2949-2950). Dr Drago Vladicic and Dr Milovan Dobrilovic both claimed that the infirmary was sufficiently equipped and that they could procure lacking medicine from Foca hospital. (T 6304-6306, 6344).
431 - See the case of Enes Hadzic par 145, infra.
432 - FWS-86 (T 1532-1533); FWS-182 (T 1586); FWS-159 (T 2442, 2448); Dzevad S Lojo (T 2539, 2350); Dr Amir Berberkic (T 3737). Dr Drago Vladicic never treated any injuries caused by maltreatment and never came across combat injuries such as wounds from firearms at the KP Dom (T 6324). Likewise, Dr Milovan Dobrilovic testified that he never noticed any traces of mistreatment on any Muslim patient (T 6345).
433 - As to the numerous victims of beatings and torture and the injuries observed by detainees, See pars 190-306 infra; FWS-109 (T 2167-2168); FWS-03 (T 2248); FWS-73 (T 3261); Dzevad S Lojo (T 2572); FWS-198 (T 1010); Dr Amir Berberkic (T 3782).
434 - FWS-159 (T 2470, 2507); Ekrem Zekovic (T 3588, 3595). The visiting doctors claimed that all detainees who were in need could receive medical help. However they never visited any detainee in his room and never went to the isolation cells: Dr Milovan Dobrilovic (T 6353); Dr Drago Vladicic (T 6328). Only those detainees who were brought to the infirmary received treatment: Dr Milovan Dobrilovic (T 653-654); Dr Drago Vladicic (T 6316, 6328)."

[B. Evidentiary comment:]

P.11. Evidence of denial of the most basic protection against freezing temperature during the winter

P.11.1. Evidence of the heating system at the detention centre being broken

P.11.2. Evidence that available measures were not taken to protect detainees/ prisoners from the cold

P.11.3. Evidence of available stocks of additional blankets not being provided to all detainees

P.11.4. Evidence of broken window panes not being repaired or covered, and open windows out of the reach of detainees were not closed

P.11.5. Evidence of attempts made by detainees to make winter clothes out of blankets were punished

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 137-138:

"2. Findings

[]

137. The Trial Chamber is satisfied that detainees were denied the most basic protection against freezing temperatures during the winter of 1992-1993.⁴⁰⁶ Most of the non-Serb detainees had been arrested in the early summer of 1992. Due to the information given to them in the course of arrest, namely, that they would be taken for an interview and returned to their homes the same day, they left in what they happened to be wearing at the time.⁴⁰⁷ As a result, they were inadequately clothed for winter conditions. The Trial Chamber accepts that the heating system at the KP Dom was broken and that there were some attempts made by the administration to repair it,⁴⁰⁸ but it is equally satisfied that no other available measures were taken to protect the non-Serb detainees from the cold.⁴⁰⁹ Stoves and furnaces had been produced to heat the offices in the administration building,⁴¹⁰ and there was sufficient raw material for such furnaces to have been produced for the non-Serb detainees.⁴¹¹ However, it was not until October 1993 that furnaces were finally provided to the non-Serb detainees, and then it was by the ICRC.⁴¹²

138. The Trial Chamber is further satisfied that the suffering of the non-Serb detainees during the winter of 1992 was the result of a deliberate policy on the part of those in charge of the KP Dom. There were available stocks of additional blankets,⁴¹³ but they were not provided to all detainees.⁴¹⁴ Broken window panes in the detainees cells were not repaired or covered,⁴¹⁵ and open windows out of the reach of detainees were not closed.⁴¹⁶ Attempts made by some of the non-Serb detainees to make winter clothes out of blankets were punished.⁴¹⁷ The blankets were removed and those involved were sent to solitary confinement, where temperatures were lower.⁴¹⁸"

[B. Evidentiary comment:]

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 84-93 :

"(v) Forced labour assignments

84. Forced labour assignments infringe upon a number of norms of international human rights and humanitarian law. In time of peace the international and regional human rights treaties provide for certain prohibitions against forced or compulsory labour.¹⁴⁴ The discussion below focuses on the prohibition of unlawful labour during an armed conflict as defined by the norms of international humanitarian law.

85. Trial Chambers of the Tribunal have held that the charge of "forced labour assignments" may constitute the basis of the crime of enslavement¹⁴⁵ as a crime against humanity under Article 5 (c), and the offence of slavery as a violation of the laws or customs of war under Article 3¹⁴⁶ of the Statute,¹⁴⁷ and as such this offence is of sufficient gravity to support a charge of persecution.

86. The underlying acts of the charge of "forced labour assignments" infringe upon certain provisions of Geneva Conventions III and IV,¹⁴⁸ and as such may constitute a violation of the laws or customs of war other than grave breaches of the Geneva Conventions, falling within the scope of Article 3 of the Statute.¹⁴⁹ It is settled case-law of the Tribunal that the law of the Geneva Conventions is part of customary international law.¹⁵⁰ As a crime against humanity under Article 5 of the Statute, the definition of forced labour is not restricted by the jurisdictional requirements applicable to grave breaches of the Geneva Conventions under Article 2 of the Statute, including the characterization of the conflict as international and the victims as "protected persons".

87. International humanitarian law generally prohibits forced or involuntary labour in international,¹⁵¹ as well as internal armed conflicts.¹⁵² As held in the Krnojelac Trial Judgement, the determination of whether protected persons laboured involuntary is a factual question, which has to be considered in light of all factual circumstances on a case by case basis. ¹⁵³

88. Not all types of forced or compulsory labour are per se unlawful under international humanitarian law.¹⁵⁴ Article 51 of Geneva Convention IV, applicable in international armed conflicts, sets out the circumstances under which civilians may be made to work. It allows persons above 18 years of age to be subjected to compulsory labour in two narrowly defined categories and only if strict conditions are met.¹⁵⁵ Compulsory labour may be lawful only if required for the needs of the army of occupation ¹⁵⁶ for maintaining public services, and for the feeding, sheltering, clothing, transportation or health, for the benefit of the population of the occupied country.¹⁵⁷ Civilians however cannot be requisitioned for such work as "the construction of fortifications, trenches, or aerial bases," nor can forced labour be performed for strategic or tactical interests of the army.¹⁵⁸ It should be noted that international humanitarian law has endorsed the principle of narrow interpretation of this provision. A commentary noted that:

89. Similarly, under Geneva Convention III, prisoners of war may be subjected to certain types of involuntary labour.¹⁶⁰ The Convention however proscribes compelling prisoners of war to do dangerous or unhealthy work, or assigning a prisoner of war to "labour that would be looked upon as humiliating for a member of the detaining powers own forces."¹⁶¹ While the text of the Convention refers to the removal of mines as an example of dangerous work, the Commentary to the Convention notes that the ban on forced dangerous work is intended to cover labour done "in the vicinity either of key military objectives or c of the battlefield."¹⁶²

90. If persons protected under Geneva Conventions III and IV are made to work, international humanitarian law sets out the conditions under which this may be done. Under Geneva Convention III, prisoners of war are entitled to "suitable working conditions, especially as regards to accommodation and food."¹⁶³ Geneva Convention IV requires that working conditions for civilians in occupied territories, such as payment, working hours, safety, and others, should comply with the legislation in force in the occupied country.¹⁶⁴ In the context of a non-international armed conflict, civilians deprived of liberty, if made to work, shall have the benefit of working conditions and safeguards similar to those enjoyed by the local civilian population.¹⁶⁵

91. The Trial Chamber notes that certain types of forced labour may amount to cruel and inhumane treatment if the conditions under which the labour is rendered are such as to create danger for the life or health of the civilians, or may arouse in them feelings of fear, and humiliation. It should be noted here that the principle of humane treatment enshrined in the Geneva Conventions implies an obligation for the occupying powers to protect civilians against inhumane acts.¹⁶⁶ Forcing protected persons to work in life-threatening circumstances fails to meet the obligation for protection against acts of violence and may result in inflicting upon these persons physical and mental suffering. It has been held that placing detainees in life-threatening situations constitutes cruel and inhuman treatment. ¹⁶⁷

92. It is important to emphasize that inhumane treatment encompasses not only acts or omissions that cause serious mental or physical suffering, but also acts or omissions that constitute a serious attack on human dignity. ¹⁶⁸ Among the provisions prohibiting humiliating and degrading treatment,¹⁶⁹ Article 52, paragraph 2 of Geneva Convention III explicitly proscribes compelling prisoners of war to do humiliating labour. The Commentary to Geneva Convention III notes that the prohibition is against making the prisoner "the laughing stock of those around him."¹⁷⁰ An inquiry into the specific circumstances in each case will be necessary in order to determine whether the conditions under which civilians were forced to work constituted a serious attack on human dignity.

93. The Trial Chamber finds that forced labour assignments which require civilians to take part in military operations violate the fundamental norms of international humanitarian law as defined above. The Trial Chamber is also satisfied that forced labour assignments which result in exposing civilians to dangerous or humiliating conditions amount to cruel and inhumane treatment. These acts reach the same level of gravity as the other crimes against humanity and if performed with the requisite discriminatory intent may constitute persecution."

The Occupying Power may not compel protected persons to work unless they are over eighteen years of age, and then only on work which is necessary either for the needs of the army of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country. Protected persons may not be compelled to undertake any work which would involve them in the obligation of taking part in the military operations. The Occupying Power may not compel protected persons to employ forcible means to ensure the security of the installations where they are performing compulsory labour.

Every such person shall, so far as possible, be kept in his usual place of employment. Workers shall be paid a fair wage and the work shall be proportionate to their physical and intellectual capacities. The legislation in force concerning working conditions, and safeguards as regards, in particular, such matters as wages, hours of work, equipment, preliminary training, and compensation for occupational accidents and diseases, shall be applicable to the protected persons assigned to the work referred to in this Article.

P.12. Evidence of type forced labour assignment

P.12.1. Evidence of military assignment on the frontline which exposed civilians to dangerous conditions and a high risk of being injured or killed

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 834-835:

"2. Findings

834. The Trial Chamber is satisfied that civilians who had to report every day in front of the Pensioners Home as well as civilians who were detained¹⁹³⁸were forced to dig trenches,¹⁹³⁹build bunkers,¹⁹⁴⁰carry sandbags or railway sleepers for the construction of trenches, ¹⁹⁴¹and build other fortifications¹⁹⁴²on the frontline. It has been established that this work was not rendered voluntarily. Civilians were compelled to work under the supervision of armed guards,¹⁹⁴³who beat, or fired at those who tried to escape.¹⁹⁴⁴The Trial Chamber also accepts that the civilians who were forced to dig trenches, and to work on the frontline were not paid for their work.¹⁹⁴⁵

835. The Trial Chamber is satisfied that civilians working on military assignments on the frontline were exposed to dangerous conditions and were under a high risk of being injured or killed.¹⁹⁴⁶The Trial Chamber accepts that the acts of forcing civilians to work in life-threatening circumstances where they could be exposed to physical and mental suffering fail to meet the obligation for humane treatment of civilians enshrined in the Geneva Conventions and amount to cruel and inhumane treatment. The Trial Chamber is satisfied that these assignments were made on a discriminatory basis and that they reach the level of seriousness required for persecution."

"1938 - Osman Jasarevic, Rule 92bis Statement, para. 108.
1939 - Esad Dagovic, T. 3923; Witness L, T. 4281; Witness M, T. 5042-43; Nusret Hadzijusufovic, T. 6876, T. 6881-83, Safet Dagovic, T. 7190-91, T. 7193, T. 7200, T. 7216; Kemal Mehinovic, T. 7399-00, Exhibit P9J.
1940 - Nusret Hadzijusufovic, T. 6875; Kemal Mehinovic, T. 7400.
1941 - Esad Dagovic, T. 5914; Witness C, T. 7909.
1942 - Safet Dagovic, T. 7190-91.
1943 - Esad Dagovic, T. 3925; Witness L, T. 4282; Nusret Hadzijusufovic, T. 6876, T. 6881, T. 6886; Safet Dagovic, T. 7201; Kemal Mehinovic, T. 7398-99.
1944 - Witness G, T. 4091-92.
1945 - Esad Dagovic, T. 3923; Witness L, T. 4294; Nusret Hadzijusufovic, T. 6926; Safet Dagovic, T. 7198; Kemal Mehinovic, T. 7402; Witness C, T. 7913.
1946 - Safet Dagovic, T. 7192, T. 7194; Nusret Hadzijusufovic, T. 6884; Kemal Mehinovic, T. 7401-03; Witness C, T. 7910-12."

Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 700:

- inflicting physical and mental violence upon the detainees, at the various aforesaid detention sites and whilst they were forced to dig trenches;

- placing the detainees in a life-threatening situation by taking them to the front or nearby;

- the atmosphere of terror reigning in the detention facilities;

- the cases of long-term detention¹⁶¹¹, in several camps under difficult circumstances¹⁶¹².

"1611 - In general the maximum stay in detention within a single facility does not seem to have been extremely long: Kaonik 2 months; Kiseljak barracks 2 months; Rotilj 2 months; veterinary station 4 days; Dubravica school 20 days; cultural centre - 2 weeks; Gacice 16 days; and, finally, the SDK building a few days.
1612 - For example, after the HVO attack in April, witness DD was forced to remain in his village. He was interned in Rotilj village from 6 September to 20 September and then in the Kiseljak barracks until 30 September. He then dug trenches for a month at Kresevo before again being interned at the Kiseljak barracks until 15 November. In the end, he was interned in Rotilj village until he was exchanged on 14 January 1994, witness DD, PT pp. 7035-7060. Likewise, between April and 6 November 1993, witness JJ was interned in his village, in Rotilj and at the Kiseljak barracks. Witness JJ, PT p. 7399, p. 7405, pp. 7410-7411, p. 7421. Lastly, witness TT was detained from June 1993 until March 1994 in various locations, including the Kiseljak barracks. Witness TT, PT pp. 9328-9335."

[B. Evidentiary comment:]

P.12.2. Evidence of the use of detainees to dig trenches at the front under dangerous circumstances

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 713:

"b) Conclusions

713. To start with, the Trial Chamber reiterates its conclusion that the use of detainees to dig trenches at the front under dangerous circumstances must be characterised as inhuman or cruel treatment. The motive of their guards is of little significance."

[B. Evidentiary comment:]

P.12.3. Evidence of humiliating assignments

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 837:

"2. Findings

[]

837. The Trial Chamber is satisfied that non-Serb civilians were subjected to humiliating forced labour. Sulejman Tihic was forced to sweep the street outside the municipality building and the SUP building, while people walked by.¹⁹⁴⁸Dragan Lukac had to clean a room in front of two Bosnian women and felt humiliated.¹⁹⁴⁹Ahmet Hadzialijagic had to sweep the streets in front of the bank, which he used to manage. The director of a textile company had to sweep the compounds of the Samac textile industry.¹⁹⁵⁰The Trial Chamber is satisfied that these assignments were such as to arouse feelings of fear and subordination, capable of causing the said persons psychological suffering, and of debasing them and the group to which they belonged, and as such constitute cruel and inhumane treatment. While single incidences of humiliating assignments may not reach the level of gravity required for persecution, the Trial Chamber accepts that these assignments were part of a pattern targeting the Bosnian Muslim and Bosnian Croat political and economic leadership. The Trial Chamber is satisfied that the humiliating assignments reach the level of gravity to amount to persecution."

"1948 - Sulejman Tihic, T. 1414.
1949 - Dragan Lukac, T. 1755-57.
1950 - Hajrija Drljacic, T. 8053-54."

[B. Evidentiary comment:]

P.12.4. Evidence of civilians being forced to loot

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 838:

"2. Findings

[]

838. The Trial Chamber accepts that the Bosnian Muslims and Bosnian Croats who were forced to loot the houses of people from their town, who sometimes they knew well and highly respected, were subjected to humiliating treatment.¹⁹⁵¹ The Trial Chamber is satisfied that the debasement and the psychological pain to which the non-Serb civilians forced to steal were subjected attain the level of severity required for the treatment to be considered humiliating. The Trial Chamber however is not satisfied that the evidence presented proves beyond reasonable doubt the Crisis Staffs participation in forcing civilians to loot through the forced labour programme."

"1951 - Nusret Hadzijusufovic, T. 6923; Witness K, T. 4634; Witness M, T. 5056."

[B. Evidentiary comment:]

P.13. Evidence of working conditions

P.13.1. Evidence of payment and compensation

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 834-835:

"2. Findings

[B. Evidentiary comment:]

P.13.2. Evidence of dangerous conditions

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 834-835:

"2. Findings

[B. Evidentiary comment:]

5.1.4. Evidence of civilians being used as human shields

P.14. Evidence of taking civilians to a place targeted by enemy

P.15. Evidence of those civilians being told or made aware of their being used as human shields

P.16. Evidence of those civilians being watched over by soldiers

P.17. Evidence of those civilians being told that whoever moved would be instantly cut down

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 709-716:

"3. Inhuman and cruel treatment: human shields

709. According to the indictment, Bosnian Muslim civilians were used as human shields to prevent the Bosnian army from firing on HVO positions or to force Bosnian Muslim combatants to surrender. The HVO allegedly used human shields in January or February 1993 in the village of Merdani and on 16 and 20 April 1993 in Vitez¹⁶²⁰.

710. Thus, the accused allegedly committed a grave breach covered by Article 2(b ) of the Tribunals Statute (inhuman treatment - count 19) and a violation of the laws or customs of war covered by Article 3 of the Statute and recognised by Article 3(1)(a) of the Geneva Conventions (cruel treatment - count 20).

a) The arguments of the parties

711. The Prosecution submitted that the HVOs use of Bosnian Muslim detainees as human shields was based on three events or distinct types of action. First, on 19 and 20 April 1993, the Bosnian Muslims detained at Vitez cinema were allegedly used as human shields in an attempt to halt the ABiH shelling the CBOZ and Vitez Brigade headquarters. Then, on 20 April 1993, the HVO purportedly placed 250 Muslim men, women and children around the Hotel Vitez for about three hours in order to try and halt the ABiH shelling of that zone. Last, the HVO was allegedly engaged in a widespread practice consisting of using the detainees forced to dig trenches on the front-line positions as human shields. The detainees thus placed in a dangerous situation around (or in) buildings constituting military objectives were allegedly victims of great physical and mental suffering or of serious attacks upon their human dignity¹⁶²¹.

712. On this point, the Defence did not prefer any other arguments than those used more generally in respect of detention issues.

b) Conclusions

714. Around 20 April 1993, Vitez and in particular the HVO headquarters at the Hotel Vitez were shelled¹⁶²². That same day, following the attack on Gacice village by Croatian forces, a column of 247 Muslim men, women and children¹⁶²³was directed to a spot just in front of the Hotel Vitez. Once there, the men were led off elsewhere¹⁶²⁴. Witness Hrusti c was seated in a shell crater opposite the Hotel:

One of the soldiers said, while we were standing there, "you are going to sit here now and let your people shell you, because they have been shelling us up to now, and you better sit down and wait".¹⁶²⁵

The persons assembled were watched over by soldiers inside the Hotel Vitez. They told them that whoever moved would be instantly cut down. After about two and a half to three hours, the persons were taken back to their village¹⁶²⁶.

715. Moreover, the Trial Chamber recalls that on 19 and 20 April 1993, many Muslim civilians were detained at Dubravica school, also the billet of the Vitezovi, and at Vitez cultural centre, the headquarters of Mario Cerkez. Nonetheless, although it is conceivable that a military force might seek to protect its headquarters unlawfully by detaining members of the enemy there, the Prosecution did not prove beyond all reasonable doubt that the detainees in question were aware of a potential attack against which they were allegedly used as protection. Unlike for the Hotel Vitez , it was not established that the detainees at Dubravica school and Vitez cultural centre suffered as a result of being used as human shields.

716. In conclusion, the Trial Chamber is of the view that on 20 April 1993, the villagers of Gacice served as human shields for the accuseds headquarters in Vitez . Quite evidently, this inflicted considerable mental suffering upon the persons involved. As they were Muslim civilians or Muslims no longer taking part in combat operations, the Trial Chamber adjudges that, by this act, they suffered inhuman treatment (count 19) and, consequently, cruel treatment (count 20)."

[B. Evidentiary comment:]

5.1.5. Evidence of conduct related to torture

P.18. Evidence of conduct which do not meet the severity requirement of torture

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 219:

"219. The Trial Chamber is satisfied that, on 8 August 1992, FWS-54 was beaten by a KP Dom guard named Pilica Blagojevic as punishment for giving a fellow detainee an extra slice of bread contrary to orders. As a result of the beating, FWS-54 was seriously bruised and lost a few teeth.⁶⁰⁵ After the beating, he was locked up in solitary confinement for three or four days.⁶⁰⁶ Despite the degree of seriousness of the physical abuse, the condition of the victim prior to his beating and isolation, the consequences of the beating upon the victim and the fact that punishment was meted out for a minor breach of the prison regulations, the Trial Chamber is not satisfied that the acts in question should be regarded as torture pursuant to the definition given above. Although the losing of teeth and the bruising of the body constitute a serious infringement upon the victims well-being, they do not, in the circumstances of this case, reach the degree of severity implicit in the definition of torture. Torture is among the most serious abuses upon physical or mental integrity.⁶⁰⁷ Further, and crucially, in case of doubt as to whether or not the act is serious enough to amount to torture, the Accused should have the benefit of that doubt, and the acts for which he is charged should be considered under the heading of the less serious offence, namely cruel treatment under Article 3 or inhumane acts under Article 5(i)."

"605 - FWS-54 (T 747); Rasim Taranin (T 1716).
606 - FWS-54 (T 749).
607 - See par 180, supra."

P.19. Evidence of conduct which do not meet the prohibited purpose requirement of torture

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 252:

"252. The Trial Chamber is satisfied that, while he was detained at the KP Dom, Salem Bico, another Muslim detainee, was taken out and beaten by guards of the KP Dom, or policemen from outside the KP Dom, on repeated occasions.⁶⁷³ Like Zulfo Veiz, he was taken out of his room sometime in June or July 1992, and he never came back.⁶⁷⁴ Screams and moans and finally shots were heard coming from the administrative building on the night he was taken.⁶⁷⁵ Although the Trial Chamber is satisfied that the beatings were of a very severe nature,⁶⁷⁶ there is no evidence that the beating was pursued for any of the listed prohibited purposes rather than being purely arbitrary. Consequently, the Trial Chamber is not satisfied that the mistreatment of Salem Bico amounted to torture pursuant to Article 3 and Article 5(f) of the Statute. The abuse was, however, of such a nature as to qualify as inhumane acts under Article 5(i) as well as cruel treatment under Article 3 of the Statute, and the Trial Chamber is accordingly satisfied that all the elements of those two offences have been established."

"673 - FWS-111 (T 1237-1239); FWS-215 (T 901); Dr Amir Berberkic (T 3793).
674 - FWS-111 (T 1237-1238); FWS-138 (T 2081); FWS-54 (769); FWS-08 (T 1783); Dr Amir Berberkic (T 3793); FWS-172 (T 4560-4561). The Trial Chamber is satisfied that the pattern demonstrated by the evidence establishes that Bico was beaten. See pars 326-327, infra, the reference to pattern evidence in the section on murder.
675 - FWS-198 (T 1018); FWS-109 (2377 2380); FWS-109 (T 2430-2431); FWS-71 (T 2864); FWS-69 (T 4122).
676 - See also par 263, infra, findings in respect of incidents No 5 in Schedule B."

5.2. The severity/seriousness of the conduct

P.20. Evidence of the nature of the act or omission

P.21. Evidence of the context in which it occurred

P.22. Evidence of the personal circumstances of the victim, including age, sex and health

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 74-76:

"(ii) Cruel and inhumane treatment

74. In assessing the content of cruel and inhumane treatment, the Trial Chamber finds that it is assisted by the Tribunals jurisprudence regarding other inhumane acts under Article 5 (i) of the Statute, inhuman treatment under Article 2 (b) of the Statute, and cruel treatment under Article 3 of the Statute.¹³⁰ The elements of these offences are the same, namely:

(a) an intentional act or omission of similar gravity to the other enumerated acts under the Article concerned;

(b) the act or omission caused serious mental or physical suffering or injury or constituted a serious attack on human dignity; and

(c) the act or omission was performed deliberately by the accused or a person or persons for whose acts and omissions he bears criminal responsibility.¹³¹

75. Consideration must be given to all the factual circumstances in the determination of the seriousness of the act, including the nature of the act or omission, the context in which it occurred, the personal circumstances of the victim, including age, sex and health, as well as the physical, mental and moral effects of the act upon the victim.¹³² While there is no requirement that the suffering imposed by the act has long term effects on the victim, the fact that an act has had long term effects may be relevant to the determination of the seriousness of the act.¹³³

76. The Vasiljevic Trial Chamber held that the mens rea for inhumane acts is met "where the offender, at the time of the act or omission, had the intention to inflict serious physical or mental suffering or to commit a serious attack on the human dignity of the victim, or where he knew that his act or omission was likely to cause serious physical or mental suffering or a serious attack upon human dignity and was reckless thereto".¹³⁴ The Trial Chamber accepts this definition."

"130 - "Cruel treatment" is included in Common Article 3 of the Geneva Conventions of 1949, and it is accepted in the jurisprudence of the Tribunal that violations of Common Article 3 are covered by Article 3 of the Statute; Naletilic Trial Judgement, para. 228 with further references.
131 - Krnojelac Trial Judgement, para. 130; Vasiljevic Trial Judgement, para. 234; Celebici Appeal Judgement, para. 426.
132 - Vasiljevic Trial Judgement, para. 235; Krnojelac Trial Judgement, para. 131.
133 - Krnojelac Trial Judgement, para. 144; Kunarac Trial Judgement, para. 501.
134 - Vasiljevic Trial Judgement, para. 236; Krnojelac Trial Judgement, para. 132; Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-T, Judgement, 21 May 1999 ("Kayishema Trial Judgement"), para. 153; Aleksovski Trial Judgement, para. 56."

Prosecutor v Mitar Vasiljević, Case No. IT-98-32-T, Judgement (TC), 29 November 2002, para. 235:

"235. To assess the seriousness of an act, consideration must be given to all the factual circumstances. These circumstances may include the nature of the act or omission, the context in which it occurred, the personal circumstances of the victim including age, sex and health, as well as the physical, mental and moral effects of the act upon the victim.⁵⁹⁷ While there is no requirement that the suffering imposed by the act have long term effects on the victim, the fact that an act has had long term effects may be relevant to the determination of the seriousness of the act.⁵⁹⁸"

"597 - Delalic Trial Judgment, par 536; Jelisic Trial Judgment par 57; Kunarac Trial Judgment, par 501; Krnojelac Trial Judgment, par 132.
598 - Kunarac Trial Judgment, par 501; Krnojelac Trial Judgment, par 144."

P.23. Evidence of the physical, mental and moral effects of the conduct upon the victim

P.23.1. Evidence of long term effects

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 74-76:

"(ii) Cruel and inhumane treatment

(a) an intentional act or omission of similar gravity to the other enumerated acts under the Article concerned;

(b) the act or omission caused serious mental or physical suffering or injury or constituted a serious attack on human dignity; and

(c) the act or omission was performed deliberately by the accused or a person or persons for whose acts and omissions he bears criminal responsibility.¹³¹

Prosecutor v Mitar Vasiljević, Case No. IT-98-32-T, Judgement (TC), 29 November 2002, para. 235:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 144:

"2. Findings

144. The Trial Chamber is satisfied that the physical and psychological health of many non-Serb detainees deteriorated or was destroyed as a result of the living conditions accepted as having existed at the KP Dom, and as charged under par 5. 37 and described in Schedule D to the Indictment. In making this finding, the Trial Chamber notes that there is no legal requirement that the suffering of a victim be lasting for the offences of cruel treatment or inhumane acts to be established. However, the Trial Chamber is satisfied that many of the non-Serb detainees continue to suffer lasting physical and psychological effects of their period of detention at the KP Dom. This factor supports the Trial Chambers finding that the acts and omissions found below were of a serious nature."

[B. Evidentiary comment:]

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