Table of contents:
5.1. The perpetrator coerced or compelled one or more persons, by act or threat.
P.1. Evidence of threat of force.
P.2. Evidence of being beaten into submission.
P.4. Evidence of the perpetrator using narcotics on one or more or persons.
P.5. Evidence of the perpetrator using abduction.
P.6. Not sufficient: Evidence of recruitment of voluntary service.
P.7. Evidence of the perpetrator using one or more persons for combat.
P.8. Evidence of tasks designed for the tactical use of the military.
P.9. Evidence of the perpetrator using one or more persons in a support function linked to combat.
P.9.2. Evidence of the perpetrator using one or more persons as a porter.
P.9.4. Evidence of the perpetrator placing one or more persons on checkpoints.
P.10. Not sufficient: Evidence of digging a non-millitary irrigation or power line trench.
Element:
5.1. The perpetrator coerced or compelled one or more persons, by act or threat.
P.1. Evidence of threat of force.
A. Legal source/authority and evidence:
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, para. 174:
"174. . . [and act] accomplished by force or threats of force against the victim or a third person, such threats being express or implied [which] place the victim in reasonable fear that he, she or a third person will be subjected to violence, detention, duress or psychological oppression."
B. Evidentiary comment:
This report relates to children, not necessarily to serve in hostile forces. However, it can be used as an example of compulsion in general.
P.2. Evidence of being beaten into submission.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 160, 311:
"160. Prisoners of war may be compelled to do agricultural work, work connected with the camp administration and maintenance or work in some industries, but they cannot be forced to do work of military character. (Articles 50 and 52, Geneva Convention III, Naletilic Trial Judgement, paras 255 and 256)."
"311. The Prosecution adduced evidence with regard to another incident that took place around 7 July 1993. Witness SS testified that he was among the prisoners made to turn an abandoned house849 into the Vinko [krobo ATG's Headquarters.850 The Chamber is satisfied that compelling prisoners of war to turn a private property into a military headquarters does amount to unlawful labour as it falls under the category of labour, which is only authorised provided that it has no military character or purpose.851 In the present case, the setting up of a military headquarters clearly has a military purpose and would therefore only be lawful if the prisoners gave their consent. In this respect, witness SS testified that he acted on orders and that the prisoners were under guard while they were working. He also stated that earlier that day, a prisoner had been severely beaten.852 The Chamber is satisfied that in these circumstances, the witness was not in a position to refuse to perform the labour he was ordered to do."
849. Witness M confirmed that [tela's command was located in the house of the Kajtaz family, T 1680. See also Defence witness ML, T 14433.
850. Witness SS testified that "?t?hey probably intended to turn that apartment into his office. And we were ordered to throw out all the belongings that were in that apartment, and it was a very well-furnished apartment indeed. They told us not to touch one room only where they had some leather furniture. I entered that room two or three times on that day. And [tela stayed in that room, and he and a few of his soldiers had some alcoholic beverages in it. All the other belongings from that apartment, we had to take out, and we loaded it into a truck in front of the building, that same blue truck that we were brought in on. And that truck went in the direction of Siroki Brijeg. And about 5, 6 kilometres before Mostar, we threw all those things off the truck down a slope," witness SS, T 6556.
851. The issue as to whether this act also amounts to plunder is discussed in the relevant section. See infra, para 623.
852. See infra para 385.
P.4. Evidence of the perpetrator using narcotics on one or more or persons.
A. Legal source/authority and evidence:
"22. See Schuler, supra note 3, at 1 (explaining how RUF rebels spare childs life if child committed acts of violence). Rebels demanded an eight-year-old boy slit his fathers throat or face death along with his parents. Id. At his fathers request, the boy did as the rebels instructed. Id.
23. See Schuler, supra note 3, at 1. (explaining commanders belief that children make good soldiers because of impressionability). Olara Otunnu, the U.N. Special Representative for Children in Armed Conflicts, said that commanders desire children soldiers because rebels can easily "meld then into a ruthless, unquestioning instrument." Id. By getting a child to commit one horrid act, rebel leaders know such a child will obey subsequent orders. See id.
24. See Brutal Child Army Grows Up, BBC News, May 10, 2000 (calling drug abuse "key factor" in conduct of RUF), at news.bbc.co.uk/2/hi/africa/7436840.stm. (last visited Feb. 14, 2003). Evidencing the abuse, various reports stated thousands of syringes lay outside the abandoned home of RUF leader Sankoh. Id.
25. See Schuler, supra note 3, at 1 (detailing account of rebel whose leader cut his arm and inserted cocaine direct into bloodstream). One rebel stated the cocaine "gave [him] the will to fight". Id. With the drug-induced "hot temper", rebels raided towns and shot anything that moved. Id."
B. Evidentiary comment:
This report relates to children, not necessarily to serve in hostile forces. However, it can be used as an example of compulsion in general.
P.5. Evidence of the perpetrator using abduction.
A. Legal source/authority and evidence:
The Impact of Armed Conflict on Children, United Nations General Assembly, U.N. Doc. A/51/306.Add.1, 6 September 1996, p.6:
"This form of press ganging, know in Ethiopia as "afesa", was prevalent there in the 1980s, when armed militia, police or army cadres would roam the streets picking up anyone they encountered. [ ] In Myanmar, whole groups of children from 15 to 17 years old have been surrounded in their schools and forcibly conscripted".
P.6. Not sufficient: Evidence of recruitment of voluntary service.
A. Legal source/authority and evidence:
In re: Weizsaecker and Others, US Military Tribunal at Nuremberg, 14 April 1949 (1955) 16 Ann. Digest 344, at 357:
". . . it is not illegal to recruit prisoners of war who volunteer to fight against their own country, but pressure or coercion to compel such persons to enter into the armed forces obviously violates international law."
P.7. Evidence of the perpetrator using one or more persons for combat.
A. Legal source/authority and evidence:
Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONE 183/2/Add.1 (14 April 1998), p. 21:
B. Evidentiary comment:
This report relates to children, not necessarily to serve in hostile forces. However, it can be used as an example of compulsion in general.
P.8. Evidence of tasks designed for the tactical use of the military.
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. 88:
"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:
154 - Kunarac Trial Judgement, para. 530 in fine, and para. 542; see also Naletilic Trial Judgement, para. 253.
155 - Article 51, para. 2, Geneva Convention IV.
156 - The Commentary to Geneva Convention IV defines these needs as inter alia "those connected with billeting and the provision of fodder", see Commentary to Geneva Convention IV, p. 294.
157 - The Commentary to Geneva Convention IV notes that the expression "public utility services" referred to in Article 51, para. 2 should be understood as including water, gas and electricity services, transport, health and similar services. (Commentary to Geneva Convention IV, p. 295)
158 - Article 51, para. 2, Geneva Convention IV; see also Commentary to Geneva Convention IV, p. 294, and Dieter Fleck, Ed., Humanitarian Law in Armed Conflicts, The Handbook of, Oxford University Press, New York, 2d Edition, 1999; section 564, para. 3, p. 264.
159 - Dieter Fleck, Ed., Humanitarian Law in Armed Conflicts, The Handbook of, Oxford University Press, New York, 2d Edition, 1999, section 564, para. 1, p. 264.
P.9. Evidence of the perpetrator using one or more persons in a support function linked to combat.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 160, 311:
"160. Prisoners of war may be compelled to do agricultural work, work connected with the camp administration and maintenance or work in some industries, but they cannot be forced to do work of military character. (Articles 50 and 52, Geneva Convention III, Naletilic Trial Judgement, paras 255 and 256)."
"311. The Prosecution adduced evidence with regard to another incident that took place around 7 July 1993. Witness SS testified that he was among the prisoners made to turn an abandoned house849 into the Vinko [krobo ATG's Headquarters.850 The Chamber is satisfied that compelling prisoners of war to turn a private property into a military headquarters does amount to unlawful labour as it falls under the category of labour, which is only authorised provided that it has no military character or purpose.851 In the present case, the setting up of a military headquarters clearly has a military purpose and would therefore only be lawful if the prisoners gave their consent. In this respect, witness SS testified that he acted on orders and that the prisoners were under guard while they were working. He also stated that earlier that day, a prisoner had been severely beaten.852 The Chamber is satisfied that in these circumstances, the witness was not in a position to refuse to perform the labour he was ordered to do."
849. Witness M confirmed that [tela's command was located in the house of the Kajtaz family, T 1680. See also Defence witness ML, T 14433.
850. Witness SS testified that "?t?hey probably intended to turn that apartment into his office. And we were ordered to throw out all the belongings that were in that apartment, and it was a very well-furnished apartment indeed. They told us not to touch one room only where they had some leather furniture. I entered that room two or three times on that day. And [tela stayed in that room, and he and a few of his soldiers had some alcoholic beverages in it. All the other belongings from that apartment, we had to take out, and we loaded it into a truck in front of the building, that same blue truck that we were brought in on. And that truck went in the direction of Siroki Brijeg. And about 5, 6 kilometres before Mostar, we threw all those things off the truck down a slope," witness SS, T 6556.
851. The issue as to whether this act also amounts to plunder is discussed in the relevant section. See infra, para 623.
852. See infra para 385.
[Evidentiary comment:]
P.9.2. Evidence of the perpetrator using one or more persons as a porter.
A. Legal source/authority and evidence:
The Impact of Armed Conflict on Children, United Nations General Assembly, U.N. Doc. A/51/306.Add.1, 6 September 1996, p.7:
Human Rights Watch, "Sierra Leone Rebels Forcefully Recruit Child Soldiers," May 31, 2000:
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August, para. 4557:
"53 See, in particular, O.R. XV, pp. 65-69, CDDH/III/SR.45, paras. 11-31."
B. Evidentiary comment:
These documents relate to children, not necessarily to serve in hostile forces. However, it can be used as an example of compulsion in general.
A. Legal source/authority and evidence:
C. Pilloud and J. S. Pictet, Art. 75 in Commentary on the Additional Protocols, no. 3187:
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August, para. 4557:
"53 See, in particular, O.R. XV, pp. 65-69, CDDH/III/SR.45, paras. 11-31."
B. Evidentiary comment:
These documents relate to children, not necessarily to serve in hostile forces. However, it can be used as an example of compulsion in general.
P.9.4. Evidence of the perpetrator placing one or more persons on checkpoints.
A. Legal source/authority and evidence:
Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONE 183/2/Add.1 (14 April 1998), p.21:
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August, para. 4557:
"53 See, in particular, O.R. XV, pp. 65-69, CDDH/III/SR.45, paras. 11-31."
B. Evidentiary comment:
This report relates to children, not necessarily to serve in hostile forces. However, it can be used as an example of compulsion in general.
P.10. Not sufficient: Evidence of digging a non-millitary irrigation or power line trench.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 322:
"322. In light of this contradicting evidence, the Chamber is not satisfied that the digging of the trench was for a private purpose, namely the construction of a water pipe to supply the villa. The digging of a trench constitutes labour that prisoners of war may be compelled to perform under Article 50 of Geneva Convention III, if it has no military character or purpose.872 The Chamber finds that the digging of the trench, whether it was for the purpose of power supply or for an irrigation canal, had no military character or purpose."
872. Even if the Chamber found that the trench had been dug in order to supply the private villa of Mladen Naletilic with water, this labour would have fallen under the "domestic services" category, which prisoners of war may be compelled to perform. See supra para 256.
