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)(iii) Great suffering » 5. The perpetrator caused great physical or mental pain or suffering to, or serious injury to body or health of, one or more persons.

Element:

5. The perpetrator caused great physical or mental pain or suffering to, or serious injury to body or health of, one or more persons.

A. Evidentiary comment:

Some of the following case law has been extracted from crimes of the same family, such as torture or inhumane treatment. The difference between the crimes is one of degree of severity.

5.1.Ca using great pain or suffering; OR

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

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

P.1.1. Evidence of beating.

A. Legal source/authority and evidence:

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)."

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement on Sentence Appeal (AC),8 April 2003, para. 34:

"34. Wilfully causing great suffering or serious injury to three detainees (Count 38). One detainee was forced by Landzo to do push-ups whilst being kicked and hit with a baseball bat. Another detainee had a burning fuse cord placed against his genitals by Landzo. A third detainee was so seriously injured from beatings received before he arrived at the camp that he was unable to stand with his hands against a wall as ordered, and he was hit several times before being pulled away.⁹¹"

91 - Ibid, pars 1025-1026, 1030-1034, 1037-1040, 1047. There is an apparent inconsistency between the findings in pars 1026 and 1047, but no point has been taken in relation to that inconsistency.

[B. Evidentiary comment:]

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

P.2.1. Evidence of physical reaction to pain from high altitude chamber.

A. Legal source/authority and evidence:

United States of America v. Erhard Milch, Case No. 2, Judgement (Military Tribunal No. II), 16 April 1947, reproduced in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Proceedings, Vol. 2 (1949-53), p. 775 :

"But it is indisputable that the experiments conducted by Dr. Rascher involved torture and suffering in the extreme and in many cases resulted in death. Under the specific guidance of Dr. Rascher, the air pressure was reduced to a point which no flier would ever be required to undergo (14,000 meters). The photographs of the subjects undergoing these experiments indicate extreme agony and leave no doubt that any victim who was fortunate enough to survive had undergone a harrowing experience."

[B. Evidentiary comment:]

P.2.2. Evidence of burns and necrosis.

A. Legal source/authority and evidence:

Trial of Öbersturmbannführer Rudolf Franz Ferdinand Hoess, Case No. 38, Judgement (Supreme National Tribunal of Poland), 11-29 March 1947, reported in United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Vol 8 (1948), p. 14:

"These experiments were carried out by Professor Schumann instructed to this purpose by Himmler. They caused undue suffering, permanent injuries or even death of the individuals concerned. The large dosage of X-rays caused not to complete castration, but also burns and necrosis of parts of the body subjected to X-rays."

[B. Evidentiary comment:]

P.2.3. Evidence of slashing the victims forearms with a knife.

A. Legal source/authority and evidence:

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 42-44:

"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."

"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."

[B. Evidentiary comment:]

P.2.4. Evidence of the use of a cattle prod to induce electric shock.

A. Legal source/authority and evidence:

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement on Sentence Appeal (AC),8 April 2003, para. 40:

"40. [] The Trial Chamber found that Delić had used a device similar to a cattle prod which emitted electric shocks on the chest of one detainee, just below his neck. On another occasion, Delić made another detainee to remove his shirt and then used the device on his bare chest, causing him to fall over. Delić then applied the device to his chest again for a prolonged period. The Trial Chamber found that Delić had used this device on numerous detainees in the camp, causing pain, burns, convulsions, twitching and scarring, despite their pleas for mercy, and that that Delić derived sadistic pleasure from the use of this device and from the suffering and humiliation he caused.¹²⁰"

120. First Trial Chamber Judgment, pars 1054-1058.

[B. Evidentiary comment:]

P.3. Evidence of inflicting physical pain or suffering by cutting off or extracting parts of body.

P.3.1. Evidence of non-surgical removal of a breast.

A. Legal source/authority and evidence:

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, para. 935:

"935. The Chamber found that, at Rwankeri cellule on 7 April 1994, a Tutsi girl named Nyiramburanga was mutilated by an Interahamwe who cut off her breast and then licked it."

[B. Evidentiary comment:]

P.3.2. Evidence of forcibly removing genitals.

A. Legal source/authority and evidence:

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC), 16 May 2003 para. 303:

"303. The witness then saw Mika cut off Kabanda's head with a machete, and castrate him."

[B. Evidentiary comment:]

5.1.2. Evidence of causing, by act or omission, great mental pain or suffering.

P.4. Evidence of rape.

A. Legal source/authority and evidence:

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement on Sentence Appeal (AC),8 April 2003, para. 40:

"40. The Trial Chamber found that Witness A was also raped by Delić, on three occasions : the first upon her arrival at the camp, after Delić had interrogated her and threatened to shoot her and to have her transferred to another camp if she did not comply with his orders; the second at the same place, where he was seated in uniform with a pistol and a rifle, when he had anal intercourse with her, causing her to bleed, and then he had vaginal intercourse with her; and the third at a time when Delić, armed with hand grenades, a pistol and a rifle, had vaginal intercourse with her. The Trial Chamber found that each of the rapes was committed in order to intimidate, coerce and punish Witness A, that the first was also to obtain information from her, and that each of the rapes caused Witness A severe mental and physical pain and suffering.¹¹⁷"

117. Ibid, pars 958-964.

P.5. Evidence of changes in behaviour.

A. Legal source/authority and evidence:

"German personnel performing experiments often observed from hiding the behaviours of castrated Jewish men and women, who were especially accommodated in common. Thus they wanted to ascertain changes which may have occurred within their libido."

5.1.3. The seriousness of the pain or suffering inflicted.

P.6. Evidence of objective seriousness of the pain or suffering inflicted.

P.6.1. Evidence of long term effects.

A. Legal source/authority and evidence:

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."

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

"2. Findings

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

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

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 243:

"243. This crime, set forth in Article 2(c) of the Statute, is one of a group of crimes falling under the general heading of inhuman treatment. The ICRC Commentary to Geneva Convention IV provides the following discussion in relation to this crime:

Wilfully causing great suffering: - This refers to suffering inflicted without the ends in view for which torture is inflicted or biological experiments carried out. It would therefore be inflicted as a punishment, in revenge or for some other motive, perhaps out of pure sadism. In view of the fact that suffering in this case does not seem, to judge by the phrase which follows, to imply injury to body or health, it may be wondered if this is not a special offence not dealt with by national legislation. Since the Conventions do not specify that only physical suffering is meant, it can quite legitimately be held to cover moral suffering also.

331 - ICRC

[B. Evidentiary comment:]

P.6.2. Evidence of death.

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 Accused's conduct is demonstrated by his search for Rusanganwa in the crowd and the nature of his question concerning the RPF advance.

[B. Evidentiary comment:]

P.7. Evidence of subjective criteria.

P.7.1. Evidence of the personal circumstances of the victim, including age, sex and health.

A. Legal source/authority and evidence:

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

"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."

[B. Evidentiary comment:]

P.8. Not sufficient: Evidence of common injuries.

5.2.Ca using serious injury to body or health.

5.2.1. Evidence of causing, by act or omission, injury to body or health.

P.9. Evidence of damage to physical or mental health.

P.9.1. Evidence of physical injury.

P.9.2. Evidence of mental injury.

P.9.3. 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:]

P.10. Evidence of causing injury to body or health by deprivation.

P.10.1. Evidence of denial of the most basic protection against freezing temperature during the winter.

A. Legal source/authority and evidence:

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

"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:]

5.2.2. The seriousness of the injury to body or health.

P.11. Evidence of the objective severity.

P.11.1. Evidence of death.

A. Legal source/authority and evidence:

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

[B. Evidentiary comment:]

P.11.2. Evidence of a person being injured to the extent that the person is left for dead.

A. Legal source/authority and evidence:

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, para. 163:

"163. There is no doubt that by these words, the Accused was ordering the murder of each of the 15 Tutsi survivors, given that once these words were uttered, the attackers attacked the survivors with machetes, with two of them mutilating Witness TAX, despite her pleas, leaving her for dead."

[B. Evidentiary comment:]

P.11.3. Evidence of long term effects.

A. Legal source/authority and evidence:

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

"2. Findings

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 243-244:

331 - ICRC Commentary (GC IV), p. 599.

"244. In interpreting this Commentary, the Chamber agrees with the findings of the Trial Chamber in Celebici, which held, inter alia, that the scope of this crime encompasses mental, in addition to physical suffering. Moreover, the Celebici Trial Chamber held that the terms "great" and "serious", which qualify the terms "suffering" and "injury", respectively, merely require a finding that a particular act of mistreatment, in order to fall within the ambit of this crime, must occasion suffering or injury of the requisite level of seriousness.³³²"

332 - Celebici Trial Judgement, para. 510.

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 510:

"510. [W]hen ascertaining the meaning of the term "serious" in the absence of other interpretative material, the Trial Chamber must look to the plain ordinary meaning of the word. The Oxford English Dictionary defines this word as "not slight or negligible". Similarly, the term "great" is defined as "much above average in size, amount or intensity". The Trial Chamber therefore views these quantitative expressions as providing for the basic requirement that a particular act of mistreatment results in a requisite level of serious suffering or injury."

[B. Evidentiary comment:]

P.12. Evidence of the subjective severity.

P.12.1. Evidence of the personal circumstances of the victim, including age, sex and health.

A. Legal source/authority and evidence:

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

[B. Evidentiary comment:]

P.13. Not sufficient: Evidence of conduct which do not meet the severity requirement of torture.

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."