Table of contents:
P.14. Evidence inferred from an utterance, document or a deed.
P.14.1. Evidence inferred from perpetrator having generalized information.
P.14.2. Evidence inferred from a telephone conversation about the conditions the detainees live in.
P.14.3. Evidence inferred from direct death threats by the perpetrator.
P.15. Evidence inferred from a circumstance
P.15.1. Evidence inferred from the perpetrators presence during the commission of the offence.
Element:
P.14. Evidence inferred from an utterance, document or a deed.
P.14.1. Evidence inferred from perpetrator having generalized information.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, paras. 154-155:
"154. The Celebici Appeals Judgement defines the "had reason to know" standard by setting out that "[a] showing that a superior had some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he 'had reason to know' [...] This information does not need to provide specific information about unlawful acts committed or about to be committed. For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge." 184
155. [ ] Such an inference is not admissible with regard to the principles governing individual criminal responsibility. In other words, and again using the above example of the crime of torture, in order to determine whether an accused "had reason to know" that his subordinates had committed or were about to commit acts of torture, the court must ascertain whether he had sufficiently alarming information (bearing in mind that, as set out above, such information need not be specific) to alert him to the risk of acts of torture being committed, that is of beatings being inflicted not arbitrarily but for one of the prohibited purpose of torture. Thus, it is not enough that an accused has sufficient information about beatings inflicted by his subordinates; he must also have information -- albeit general -- which alerts him to the risk of beatings being inflicted for one of the purposes provided for in the prohibition against torture."
184. Celebici Appeals Judgement, para. 238.
[B. Evidentiary comment:]
P.14.2. Evidence inferred from a telephone conversation about the conditions the detainees live in.
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 574:
574. Simo Zaric testified that he contacted Lt. Col. Stevan Nikolic and asked him to do whatever was possible to help the detainees out of the "inferno". He stated that a man had been killed for no reason and that he had information that people were exposed to all sorts of torture and maltreatment. In addition, the building they were in was not secure. Lt. Col. Stevan Nikolic then contacted Captain Petrovic, who was previously a security officer in the 17th Tactical Group and in the garrison of Brcko, and they agreed to transfer the people to the JNA barracks in Brcko. Lt. Col. Stevan Nikolic then advised Simo Zaric of this. They carried this out on 26 April 1992 after loading the detainees onto trucks with the assistance of Makso Simeunovic, Savo Cancarevic and Mihajlo Topolovac.1242 Simo Zaric testified that he insisted for the transfer of detainees to be conducted immediately, as he knew that Lugar had gone out for a coffee.1243 After the detainees had left the TO, Simo Zaric left immediately, fearing that Stevan Todorovic, with the police and the "multicoloureds" would return.1244
1242. Simo Zaric, T. 19390-92.
1243. Simo Zaric, T. 19337.
1244. Simo Zaric, T. 19390.
[B. Evidentiary comment:]
P.14.3. Evidence inferred from direct death threats by the perpetrator.
A. Legal source/authority and evidence:
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998 para. 711:
"711. With respect to the Prosecutor's allegations in paragraph 16 of the Indictment, the Chamber is satisfied beyond a reasonable doubt that on 19 April 1994, Akayesu on two occasions threatened to kill victim U, a Tutsi woman, while she was being interrogated. He detained her for several hours at the Bureau communal, before allowing her to leave. In the evening of 20 April 1994, during a search conducted in the home of victim V, a Hutu man, Akayesu directly threatened to kill the latter. Victim V was thereafter beaten with a stick and the butt of a rifle by a communal policeman called Mugenzi and one Francois, a member of the Interahamwe militia, in the presence of the accused. One of victim V's ribs was broken as a result of the beating."
[B. Evidentiary comment:]
P.15. Evidence inferred from a circumstance
P.15.1. Evidence inferred from the perpetrators presence during the commission of the offence.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 746:
"746. [ ]At the CSB building, Bosnian Muslims and Bosnian Croats were hit and kicked by policemen and by members of the Banja Luka Special Unit (aka "Specialists"), as they awaited their turn to be interrogated,1811 as well as during interrogation.1812 A Bosnian Muslim man suffered broken ribs and cuts to his face, whilst another broke a few teeth and still bears the marks of strangulation.1813 Samardzija, a commander of the Banja Luka CSB who was interrogating the latter, was present during the beatings.1814
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998 paras. 693, 705:
"693. The Tribunal finds, under Article 6(1) of its Statute, that the Accused aided and abetted the following acts of sexual violence, by allowing them to take place on or near the premises of the bureau communal, while he was present on the premises in respect of (i) and in his presence in respect of (ii) and (iii), and by facilitating the commission of these acts through his words of encouragement in other acts of sexual violence, which, by virtue of his authority, sent a clear signal of official tolerance for sexual violence, without which these acts would not have taken place: [ ]
"705. In the opinion of the Chamber, the said acts indeed incur the individual criminal responsibility of Akayesu for having ordered, committed, or otherwise aided and abetted in the preparation or execution of the killing of and causing serious bodily or mental harm to members of the Tutsi group. Indeed, the Chamber holds that the fact that Akayesu, as a local authority, failed to oppose such killings and serious bodily or mental harm constituted a form of tacit encouragement, which was compounded by being present to such criminal acts."
[B. Evidentiary comment:]
