Table of contents:
4.1. The conduct caused death; OR
P.9. Evidence of death as a result of the mutilation.
4.2. The conduct seriously endangered the physical or mental health of such person or persons.
P.10. Evidence of X-Ray poisoning.
P.11. Evidence of a person being injured to the extent that the person is left for dead.
Element:
A. Evidentiary comment:
The reference to "physical or mental health" is taken from article 11(4) of of Additional Protocol I, which prohibits the endangerment of the physical or mental health and integrity of people who are in the power of the adverse party. This aims to uphold the basic Hippocratic Oath of primum non nocere - never to do harm. The PrepCom decided to omit the term "integrity" in relation to mutilation, determining that it was only relevant to medical or scientific experiments.
While a deadly outcome of either a mutilation or an experiment is evident, the other alternative is less clear. The health must not necessarily have been affected but "seriously endangered". Such endangerment requires that the act or omission causes an objective danger which is accountable to the acting person and could have easily turned into a danger to the health of the victim. Thus, to know whether a persons health is seriously endangered is a matter of Judgment based on the individual circumstances of the situation, and a Tribunal would have to take the foreseeable consequences of the act or omission into account as well. The term "seriously" indicates both that the health was clearly endangered and that the danger involved was also of some magnitude.
The wording of material element 2 of this provision indicates that the mutilation is only prohibited on live persons, as the physical or mental health of a dead person can no longer be endangered, and death has already occurred. In the past, mutilation of dead bodies has been seen as a specific crime in itself, taken from the 1929 Geneva Convention. The Trial of Max Schmid deals with mutilation of dead bodies. Reference is made to four other cases of mutilation of dead bodies by Japanese soldiers. [Trial of Max Schmid, United States General Military Government Court at Dachau, German, 19 May 1947, Law Reports of Trials of War Criminals, UNWCC, Vol.XIII, 1949, pp.151-2.]
4.1. The conduct caused death; OR
P.9. Evidence of death as a result of the mutilation.
4.2. The conduct seriously endangered the physical or mental health of such person or persons.
A. Evidentiary comment:
While a deadly outcome of either a mutilation or an experiment is evident, the other alternative is less clear. The health must not necessarily have been affected but seriously endangered. Such endangerment requires that the act or omission causes an objective danger which is accountable to the acting person and could have easily turned into a danger to the health of the victim. Thus, to know whether a persons health is seriously endangered is a matter of Judgment based on the individual circumstances of the situation, and a Tribunal would have to take the foreseeable consequences of the act or omission into account as well. The term seriously indicates both that the health was clearly endangered and that the danger involved was also of some magnitude.
The wording of material element 2 of this provision indicates that the mutilation is only prohibited on live persons, as the physical or mental health of a dead person can no longer be endangered, and death has already occurred.
P.10. Evidence of X-Ray poisoning.
P.11. 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."
