Table of contents:
3. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons.49
3.1. Humiliation and degradation by perpetrator.
P.1. Evidence of single acts as humiliating and degrading.
P.1.1. Evidence that the perpetrator forced a father and son to beat each other.
P.1.4. Evidence that the perpetrator forced captive women to dance naked on a table.
P.1.5. Evidence of the use of detainees as human shields or trench-diggers.
P.1.6. Evidence of forced incest.
P.1.7. Evidence that infants were left without care after their guardians had been killed.
P.1.8. Evidence that foetuses were removed from the womb.
P.2.1. Evidence of screams played over a loudspeaker.
P.2.2. Evidence of men entering prisoners cells at night
P.2.3. Evidence of creation of an atmosphere of terror in prison camps.
3.2. The perpetrator otherwise violated the dignity of the victim(s).
P.3. Evidence of mistreatment of victims.
P.3.2. Evidence of ill-treatment during interrogation in police custody.
P.3.3. Evidence of inappropriate strip-searches.
P.3.4. Evidence of submarino torture techniques
P.4. Evidence of the violation of dignity of a dead person.
P.4.1. Evidence of mutilation of the dead body of a soldier.
P.4.2. Evidence that corpses were buried in latrine pits.
P.5. Evidence of ill-treatment of prisoners of war
P.5.1. Evidence that the perpetrator forced Sikhs to perform acts prohibited by their religion.
Element:
3. The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons.49
3.1. Humiliation and degradation by perpetrator.
P.1. Evidence of single acts as humiliating and degrading.
P.1.1. Evidence that the perpetrator forced a father and son to beat each other.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 1067-1070:
"(b) Forcing a Father and Son to Slap Each Other Repeatedly
1067. The Prosecution alleges that, on one occasion, a father and son, Danilo and Miso Kuljanin, were forced to slap each other repeatedly. In order to establish the facts in relation to this count, the Prosecution relies on the testimony of Mirko Dordic.
1068. The Defence has made no submissions in relation to this factual allegation in the Indictment.
1069. The Trial Chamber finds the testimony of Mirko Dordic in relation to this count to be trustworthy. Accordingly, it finds that, on one occasion, Esad Landzo came into Hangar 6 and ordered a father and son, Danilo and Miso Kuljanin, to get up and start hitting each other. Esad Landzo then ordered them to hit each other harder and so, for a period of at least ten minutes, Mr. Kuljanin and his son were forced to beat each other.
1070. The Trial Chamber finds that, through being forced to administer a mutual beating to one another, Danilo and Miso Kuljanin were subjected to serious pain and indignity. Accordingly, the Trial Chamber finds that the deliberate act of forcing Danilo Kuljanin and Miso Kuljanin, father and son, to beat one another repeatedly over a period of at least ten minutes constitutes inhuman treatment under Article 2 of the Statute and cruel treatment under Article 3 of the Statute."
[B. Evidentiary comment]:
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 1058:
"1058. The Trial Chamber finds that Hazim Delic deliberately used an electric shock device on numerous prisoners in the Celebici prison-camp during the months of July and August 1992. The use of this device by Mr. Delic caused pain, burns, convulsions, twitching and scaring. Moreover, it frightened the victims and reduced them to begging for mercy from Mr. Delic, a man who derived sadistic pleasure from the suffering and humiliation that he caused. Accordingly, the Trial Chamber finds that Mr. Delic, by his acts, intentionally caused serious physical and mental suffering, which also constituted a clear attack upon the human dignity of his victims."
[B. Evidentiary comment]:
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 1066:
"1066. The Trial Chamber finds that the act of forcing Vaso Dordic and Veseljko Dordic to perform fellatio on one another constituted, at least, a fundamental attack on their human dignity. Accordingly, the Trial Chamber finds that this act constitutes the offence of inhuman treatment under Article 2 of the Statute, and cruel treatment under Article 3 of the Statute. The Trial Chamber notes that the aforementioned act could constitute rape for which liability could have been found if pleaded in the appropriate manner."
[B. Evidentiary comment]:
P.1.4. Evidence that the perpetrator forced captive women to dance naked on a table.
A. Legal source/authority and evidence:
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 772-774:
"772. The Trial Chamber therefore finds that, sometime between about 31 October 1992 and about 7 November 1992, while in Radomir Kovacs apartment, FWS-87, A.S. and A.B. were forced to strip and dance naked on a table while Kovac watched them from the sofa, pointing weapons at them .
773. The accused Radomir Kovac certainly knew that, having to stand naked on a table, while the accused watched them, was a painful and humiliating experience for the three women involved, even more so because of their young age. The Trial Chamber is satisfied that Kovac must have been aware of that fact, but he nevertheless ordered them to gratify him by dancing naked for him.
774. The Statute does not require that the perpetrator must intend to humiliate his victim, that is that he perpetrated the act for that very reason. It is sufficient that he knew that his act or omission could have that effect. This was certainly the case here."
[B. Evidentiary comment]:
P.1.5. Evidence of the use of detainees as human shields or trench-diggers.
A. Legal source/authority and evidence:
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para 229:
"229. Likewise and as seen above, the use of detainees as human shields or trench -diggers constitutes an outrage upon personal dignity protected by Article 3 of the Statute for which the accused must be held guilty under Article 7(1), that is, for aiding and abetting."
[B. Evidentiary comment]:
P.1.6. Evidence of forced incest.
A. Legal source/authority and evidence:
Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Motions for Judgement of Acquittal, 2 February 2005, paras. 39-40:
"11) Outrages Upon Personal Dignity (Count 12 of the Bagosora Indictment; Count
11 of the Nsengiyumva Indictment; Count 10 of the Kabiligi/Ntabakuze Indictment)
39. Article 4 (e) of the Statute criminalizes as a serious violation of Article 3 common to the 1949 Geneva Conventions, and of Additional Protocol II thereof, "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault". The Accused are charged only with superior responsibility for this crime. Outrages upon personal dignity has been described as acts which "cause serious humiliation, degradation or [are] otherwise [
] a serious attack on human dignity".84
40. In its Response, the Prosecution has identified the alleged acts which it considers relevant to this charge: forced incest, burying corpses in latrine pits; leaving infants without care after killing their guardians; and removing fetuses from the womb. The Defence has not specifically challenged the sufficiency of the evidence in relation to the different forms of the crime alleged. Having reviewed the evidence cited by the Prosecution, and in light of the foregoing discussions of the connection between each of the Accused and soldiers and the Interahamwe, the Chamber finds that a reasonable trier of fact could, if the evidence were to be believed, find the Accused guilty beyond a reasonable doubt of outrages upon personal dignity for one or more of the criminal acts described."
"84. Id., para. 161("[T]he humiliation of the victim must be so intense that any reasonable person would be outraged"). The crime has been found to have been committed for using detainees as human shields or trench-diggers; forcing detainees to relieve bodily functions in their clothing; and imposing conditions of constant fear of being subjected to physical, mental, or sexual violence on detainees. Aleksovski, Judgement (TC), 25 June 1999, para. 229; Kvocka et al., Judgement, (TC), 2 November 2001, para. 173."
[B. Evidentiary comment]:
P.1.7. Evidence that infants were left without care after their guardians had been killed.
A. Legal source/authority and evidence:
Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Motions for Judgement of Acquittal, 2 February 2005, paras. 39-40:
"11) Outrages Upon Personal Dignity (Count 12 of the Bagosora Indictment; Count
11 of the Nsengiyumva Indictment; Count 10 of the Kabiligi/Ntabakuze Indictment)
39. Article 4 (e) of the Statute criminalizes as a serious violation of Article 3 common to the 1949 Geneva Conventions, and of Additional Protocol II thereof, "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault". The Accused are charged only with superior responsibility for this crime. Outrages upon personal dignity has been described as acts which "cause serious humiliation, degradation or [are] otherwise [
] a serious attack on human dignity".84
40. In its Response, the Prosecution has identified the alleged acts which it considers relevant to this charge: forced incest, burying corpses in latrine pits; leaving infants without care after killing their guardians; and removing fetuses from the womb. The Defence has not specifically challenged the sufficiency of the evidence in relation to the different forms of the crime alleged. Having reviewed the evidence cited by the Prosecution, and in light of the foregoing discussions of the connection between each of the Accused and soldiers and the Interahamwe, the Chamber finds that a reasonable trier of fact could, if the evidence were to be believed, find the Accused guilty beyond a reasonable doubt of outrages upon personal dignity for one or more of the criminal acts described."
"84. Id., para. 161("[T]he humiliation of the victim must be so intense that any reasonable person would be outraged"). The crime has been found to have been committed for using detainees as human shields or trench-diggers; forcing detainees to relieve bodily functions in their clothing; and imposing conditions of constant fear of being subjected to physical, mental, or sexual violence on detainees. Aleksovski, Judgement (TC), 25 June 1999, para. 229; Kvocka et al., Judgement, (TC), 2 November 2001, para. 173."
[B. Evidentiary comment]:
P.1.8. Evidence that foetuses were removed from the womb.
A. Legal source/authority and evidence:
Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Motions for Judgement of Acquittal, 2 February 2005, paras. 39-40:
"11) Outrages Upon Personal Dignity (Count 12 of the Bagosora Indictment; Count
11 of the Nsengiyumva Indictment; Count 10 of the Kabiligi/Ntabakuze Indictment)
39. Article 4 (e) of the Statute criminalizes as a serious violation of Article 3 common to the 1949 Geneva Conventions, and of Additional Protocol II thereof, "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault". The Accused are charged only with superior responsibility for this crime. Outrages upon personal dignity has been described as acts which "cause serious humiliation, degradation or [are] otherwise [
] a serious attack on human dignity".84
40. In its Response, the Prosecution has identified the alleged acts which it considers relevant to this charge: forced incest, burying corpses in latrine pits; leaving infants without care after killing their guardians; and removing fetuses from the womb. The Defence has not specifically challenged the sufficiency of the evidence in relation to the different forms of the crime alleged. Having reviewed the evidence cited by the Prosecution, and in light of the foregoing discussions of the connection between each of the Accused and soldiers and the Interahamwe, the Chamber finds that a reasonable trier of fact could, if the evidence were to be believed, find the Accused guilty beyond a reasonable doubt of outrages upon personal dignity for one or more of the criminal acts described."
"84. Id., para. 161("[T]he humiliation of the victim must be so intense that any reasonable person would be outraged"). The crime has been found to have been committed for using detainees as human shields or trench-diggers; forcing detainees to relieve bodily functions in their clothing; and imposing conditions of constant fear of being subjected to physical, mental, or sexual violence on detainees. Aleksovski, Judgement (TC), 25 June 1999, para. 229; Kvocka et al., Judgement, (TC), 2 November 2001, para. 173."
[B. Evidentiary comment]:
P.2.1. Evidence of screams played over a loudspeaker.
A. Legal source/authority and evidence:
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, paras. 226-228:
"226. The Trial Chamber notes that psychological violence included a direct threat (holders of military identity papers were threatened with death) or was repetitive (men entering cells at night, screams played over a loudspeaker). It is appropriate to add to this the uncertainty weighing on the minds of the detainees as to whether they would be dispatched to dig trenches, and, more generally as to whether they would be released.
227. The assessment of incidents of physical violence cannot be made without considering the context in which they occurred. In that connection, two conflicting points are at issue in the case in point, i.e. the precariousness of the detainees situation and the existence of an armed conflict. The unquestionable consequence of the armed conflict for Kaonik prison was that, although it may not have led to uncertainty about the chain of command, it did at least promote the coexistence of groups of men, soldiers and guards coming under different commands. The Trial Chamber notes in that regard that the Prosecution did not establish whether the accused was a civilian or a soldier. Conversely, the detainees were in a particularly precarious and weakened position, and the accused was well aware of this. In its written submissions, the Defence referred moreover to the case of persons of Japanese origin whom the United States Government decided to intern in camps during the Second World War. The argument regarding requests for compensation made by some of these former prisoners which are known to have proved, inter alia, the traumatic nature of such an experience. The Trial Chamber categorically rejects the idea that the existence of such situations justifies recourse to force as described by the former Kaonik prison detainees. Furthermore, the Trial Chamber considers that the commission of violent offences against vulnerable,458 helpless persons or those placed in a situation of inferiority459 constitutes an aggravating circumstance which, in this case, excludes the excuse which might derive from a situation of conflict which had itself led to unrest.
228. In sum, the violence inflicted on the Muslim detainees of Kaonik prison appears to be a reprehensible infringement of international human rights which would be absolutely unacceptable in times of peace. The Trial Chamber considers that the existence of an armed conflict does not render it tolerable and that it constitutes a grave violation of the principles of international humanitarian law arising from the Geneva Conventions. For the reasons set out above, the violence in question constitutes an outrage upon personal dignity and, in particular, degrading or humiliating treatment within the meaning of Common Article 3 of the Conventions and therefore constitutes a violation of the laws or customs of war within the meaning of Article 3 of the Statute for which the accused must be held responsible under Articles 7 (1) and 7(3) of the Tribunals Statute."
"458. On this point at least, national laws often have specific provisions, for example those relating to violence against a handicapped person.
459. Same observation as above, with reference to laws prohibiting violence committed over persons in a situation of inferiority or by a person in a position of authority."
[B. Evidentiary comment]:
P.2.2. Evidence of men entering prisoners cells at night
A. Legal source/authority and evidence:
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, paras. 226-228:
"226. The Trial Chamber notes that psychological violence included a direct threat (holders of military identity papers were threatened with death) or was repetitive (men entering cells at night, screams played over a loudspeaker). It is appropriate to add to this the uncertainty weighing on the minds of the detainees as to whether they would be dispatched to dig trenches, and, more generally as to whether they would be released.
227. The assessment of incidents of physical violence cannot be made without considering the context in which they occurred. In that connection, two conflicting points are at issue in the case in point, i.e. the precariousness of the detainees situation and the existence of an armed conflict. The unquestionable consequence of the armed conflict for Kaonik prison was that, although it may not have led to uncertainty about the chain of command, it did at least promote the coexistence of groups of men, soldiers and guards coming under different commands. The Trial Chamber notes in that regard that the Prosecution did not establish whether the accused was a civilian or a soldier. Conversely, the detainees were in a particularly precarious and weakened position, and the accused was well aware of this. In its written submissions , the Defence referred moreover to the case of persons of Japanese origin whom the United States Government decided to intern in camps during the Second World War. The argument regarding requests for compensation made by some of these former prisoners which are known to have proved, inter alia, the traumatic nature of such an experience. The Trial Chamber categorically rejects the idea that the existence of such situations justifies recourse to force as described by the former Kaonik prison detainees. Furthermore, the Trial Chamber considers that the commission of violent offences against vulnerable,458 helpless persons or those placed in a situation of inferiority459 constitutes an aggravating circumstance which, in this case, excludes the excuse which might derive from a situation of conflict which had itself led to unrest.
228. In sum, the violence inflicted on the Muslim detainees of Kaonik prison appears to be a reprehensible infringement of international human rights which would be absolutely unacceptable in times of peace. The Trial Chamber considers that the existence of an armed conflict does not render it tolerable and that it constitutes a grave violation of the principles of international humanitarian law arising from the Geneva Conventions. For the reasons set out above, the violence in question constitutes an outrage upon personal dignity and, in particular, degrading or humiliating treatment within the meaning of Common Article 3 of the Conventions and therefore constitutes a violation of the laws or customs of war within the meaning of Article 3 of the Statute for which the accused must be held responsible under Articles 7 (1) and 7(3) of the Tribunals Statute."
"458. On this point at least, national laws often have specific provisions, for example, those relating to violence against a handicapped person.
459. Same observation as above, with reference to laws prohibiting violence committed over persons in a situation of inferiority or by a person in a position of authority."
[B. Evidentiary comment]:
P.2.3. Evidence of creation of an atmosphere of terror in prison camps.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 1119:
"1119. The Trial Chamber finds that the chronic physical deprivation and the constant fear prevailing in the Celebici prison-camp caused serious mental and physical suffering to the detainees. Moreover, for the purposes of the offence of cruel treatment, exposure to these conditions clearly constituted an attack upon the human dignity of the detainees. Accordingly, on the basis of the foregoing evidence, the Trial Chamber finds that the creation and maintenance of an atmosphere of terror in the Celebici prison-camp, by itself and a fortiori, together with the deprivation of adequate food, water, sleeping and toilet facilites and medical care, constitutes the offence of cruel treatment under Article 3 of the Statute, and wilfully causing great suffering or serious injury to body or health under Article 2 of the Statute."
[B. Evidentiary comment]:
3.2. The perpetrator otherwise violated the dignity of the victim(s).
P.3. Evidence of mistreatment of victims.
A. Legal source/authority and evidence:
Tyrer v. United Kingdom, Application No. 5856/72, Judgement (European Court of Human Rights), 25 April 1978, paras. 30-33, 35:
"30. The Court notes first of all that a person may be humiliated by the mere fact of being criminally convicted. However, what is relevant for the purposes of Article 3 (art. 3) is that he should be humiliated not simply by his conviction but by the execution of the punishment which is imposed on him. In fact, in most if not all cases this may be one of the effects of judicial punishment, involving as it does unwilling subjection to the demands of the penal system.
However, as the Court pointed out in its judgment of 18 January 1978 in the case of Ireland v. the United Kingdom (Series A no. 25, p. 65, para. 163), the prohibition contained in Article 3 (art. 3) of the Convention is absolute: no provision is made for exceptions and, under Article 15 (2) (art. 15-2) there can be no derogation from Article 3 (art. 3). It would be absurd to hold that judicial punishment generally, by reason of its usual and perhaps almost inevitable element of humiliation, is "degrading" within the meaning of Article 3 (art. 3). Some further criterion must be read into the text. Indeed, Article 3 (art. 3), by expressly prohibiting "inhuman" and "degrading" punishment, implies that there is a distinction between such punishment and punishment in general.
In the Court's view, in order for a punishment to be "degrading" and in breach of Article 3 (art. 3), the humiliation or debasement involved must attain a particular level and must in any event be other than that usual element of humiliation referred to in the preceding subparagraph. The assessment is, in the nature of things, relative: it depends on all the circumstances of the case and, in particular, on the nature and context of the punishment itself and the manner and method of its execution.
31. The Attorney-General for the Isle of Man argued that the judicial corporal punishment at issue in this case was not in breach of the Convention since it did not outrage public opinion in the Island. However, even assuming that local public opinion can have an incidence on the interpretation of the concept of "degrading punishment" appearing in Article 3 (art. 3), the Court does not regard it as established that judicial corporal punishment is not considered degrading by those members of the Manx population who favour its retention: it might well be that one of the reasons why they view the penalty as an effective deterrent is precisely the element of degradation which it involves. As regards their belief that judicial corporal punishment deters criminals, it must be pointed out that a punishment does not lose its degrading character just because it is believed to be, or actually is, an effective deterrent or aid to crime control. Above all, as the Court must emphasise, it is never permissible to have recourse to punishments which are contrary to Article 3 (art. 3), whatever their deterrent effect may be.
32. [ ]
Publicity may be a relevant factor in assessing whether a punishment is "degrading" within the meaning of Article 3 (art. 3), but the Court does not consider that absence of publicity will necessarily prevent a given punishment from falling into that category: it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others. [ ]
33. Nevertheless, the Court must consider whether the other circumstances of the applicant's punishment were such as to make it "degrading" within the meaning of Article 3 (art. 3).
The very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human being. Furthermore, it is institutionalised violence, that is in the present case violence permitted by the law, ordered by the judicial authorities of the State and carried out by the police authorities of the State (see paragraph 10 above). Thus, although the applicant did not suffer any severe or long-lasting physical effects, his punishment - whereby he was treated as an object in the power of the authorities - constituted an assault on precisely that which it is one of the main purposes of Article 3 (art. 3) to protect, namely a person's dignity and physical integrity. Neither can it be excluded that the punishment may have had adverse psychological effects.
The institutionalised character of this violence is further compounded by the whole aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender. [ ]
35. Accordingly, viewing these circumstances as a whole, the Court finds that the applicant was subjected to a punishment in which the element of humiliation attained the level inherent in the notion of "degrading punishment" as explained at paragraph 30 above. The indignity of having the punishment administered over the bare posterior aggravated to some extent the degrading character of the applicant's punishment but it was not the only or determining factor.
The Court therefore concludes that the judicial corporal punishment inflicted on the applicant amounted to degrading punishment within the meaning of Article 3 (art. 3) of the Convention."
[B. Evidentiary comment]:
P.3.2. Evidence of ill-treatment during interrogation in police custody.
A. Legal source/authority and evidence:
Tomasi v. France, Application No. 12850/87, Judgement (European Court of Human Rights), 27 August 1992, paras. 108, 113, 115:
"108. According to the applicant, the observation made on 25 March 1983 by the Bastia investigating judge and the reports drawn up by various doctors at the end of his police custody (see paragraphs 45, 47, 48 and 50 above) confirmed his statements [ ].His body had borne marks which had only one origin, the ill-treatment inflicted on him for a period of forty odd hours by some of the police-officers responsible for his interrogation: he had been slapped, kicked, punched and given forearm blows, made to stand for long periods and without support, hands handcuffed behind the back; he had been spat upon, made to stand naked in front of an open window, deprived of food, threatened with a firearm and so on."
"113. The Commission stressed the vulnerability of a person held in police custody and expressed its surprise at the times chosen to interrogate the applicant. Although the injuries observed might appear to be relatively slight, they nevertheless constituted outward signs of the use of physical force on an individual deprived of his liberty and therefore in a state of inferiority. The treatment had therefore been both inhuman and degrading."
"115. The Court [ ] finds it sufficient to observe that the medical certificates and reports, drawn up in total independence by medical practitioners, attest to the large number of blows inflicted on Mr Tomasi and their intensity; these are two elements which are sufficiently serious to render such treatment inhuman and degrading. The requirements of the investigation and the undeniable difficulties inherent in the fight against crime, particularly with regard to terrorism, cannot result in limits being placed on the protection to be afforded in respect of the physical integrity of individuals."
[B. Evidentiary comment]:
P.3.3. Evidence of inappropriate strip-searches.
A. Legal source/authority and evidence:
Valasinas v. Lithuania, Application No. 44558/98, Judgement (European Court of Human Rights), 24 July 2001, para. 117:
"117. The Court considers that, while strip-searches may be necessary on occasions to ensure prison security or prevent disorder or crime, they must be conducted in an appropriate manner. Obliging the applicant to strip naked in the presence of a woman, and then touching his sexual organs and food with bare hands showed a clear lack of respect for the applicant, and diminished in effect his human dignity. It must have left him with feelings of anguish and inferiority capable of humiliating and debasing him. The Court concludes, therefore, that the search of 7 May 1998 amounted to degrading treatment within the meaning of Article 3 of the Convention."
[B. Evidentiary comment]:
P.3.4. Evidence of submarino torture techniques
A. Legal source/authority and evidence:
Hiber Conteris v. Uruguay, Communication No. 139/1983, Views (Human Rights Committee), 17 July 1985, U.N. Doc. Supp. No. 40 (A/40/40) at 196 (1985), paras. 1.4, 9.2, 10:
"1.4 During this three-month period of detention, incommunicado, Mr. Conteris was allegedly tortured. He was hanged by the wrists for 10 days and was subjected to burnings and repeated "submarino" - immersing the head of the victim in water fouled by blood, urine and vomit almost to the point of drowning. Under these conditions of extreme ill-treatment Mr. Conteris was forced to sign a confession that he had been an active guerrilla, taking part in kidnapping and/or murder. Approximately four months after his arrest, Mr. Conteris was taken to Libertad Prison."
"9.2 Hiber Conteris was arrested without a warrant by the Security Police on 2 December 1976, at the Carrasco airport, Montevideo, and taken to the intelligence service headquarters in the city. He was later transferred to different military establishments, including the establishment known as "El Infierno" and the Sixth Cavalry Headquarters. From 2 December 1976 to 4 March 1977, he was held incommunicado, and his relatives were not informed of his place of detention. During this period Mr. Conteris was subjected to extreme ill-treatment and forced to sign a confession. On 4 March 1977, when his daughter was allowed to see him for the first time after his arrest, she witnessed that his physical condition was very poor and that he had lost 20 kilos of weight. Since that time he was kept at Libertad Prison under harsh and, at times, degrading conditions, including repeated solitary confinements. The remedy of habeas corpus was not available to Hiber Conteris. He was never brought before a judge and was kept uninformed of the charges against him for over two years. He was not granted a public hearing at which he could defend himself and he had no opportunity to consult with his court appointed lawyer in preparation for his defence. He was tried and sentenced by a military court of first instance to 15 years' imprisonment and, it appears, to one to five years of precautionary detention. His own statements to the military court of first instance were ignored and not entered into the court records. Without the assistance of legal counsel, he appealed to the Supreme Military Tribunal in August 1980, which upheld the conviction and sentenced him to 15 years' imprisonment and 5 to 8 years' of precautionary detention for "criminal conspiracy", "conspiracy to undermine the Constitution followed by criminal preparations", "usurpation of functions" and "theft and co-perpetration of kidnapping, with a combination of principal and secondary offences". After the change of Government in Uruguay Mr. Conteris was released on 10 March 1985 pursuant to the Law of Amnesty of 8 March 1985.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee disclose violations of the Covenant, in particular:
- of article 7 (which prohibits torture or cruel, inhuman or degrading treatment or punishment) because of the severe ill-treatment which Hiber Conteris suffered during the first three months of detention and the harsh and, at times, degrading conditions of his detention since then."
[B. Evidentiary comment]:
P.4. Evidence of the violation of dignity of a dead person.
P.4.1. Evidence of mutilation of the dead body of a soldier.
A. Legal source/authority and evidence:
Trial of Max Schmid, United States General Military Government Court, Dachau Germany, 19 May 1947, UNWCC, Law Reports of Trials of War Criminals, Vol. XIII, pp.151-152:
"[ ] the third charge against the accused was that he did "wilfully, deliberately and wrongfully encourage, aid, abet and participate in the maltreatment of a dead unknown member of the United States Army."
The accused was the medical officer in charge of a German dispensary at Marquise in France. The evidence showed [ ] that the body of a dead U.S airman was brought to his dispensary [ ]. The accused severed the head from the body, boiled it and removed the skin and the flesh and bleached the skull which he kept on his desk for several months [ ].
3. Findings and sentence
The accused was found guilty of the third charge and sentenced to 10 years imprisonment. The sentence was confirmed by higher military authority."
[B. Evidentiary comment]:
P.4.2. Evidence that corpses were buried in latrine pits.
Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Motions for Judgement of Acquittal, 2 February 2005, paras. 39-40:
"11) Outrages Upon Personal Dignity (Count 12 of the Bagosora Indictment; Count
11 of the Nsengiyumva Indictment; Count 10 of the Kabiligi/Ntabakuze Indictment)
39. Article 4 (e) of the Statute criminalizes as a serious violation of Article 3 common to the 1949 Geneva Conventions, and of Additional Protocol II thereof, "outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault". The Accused are charged only with superior responsibility for this crime. Outrages upon personal dignity has been described as acts which "cause serious humiliation, degradation or [are] otherwise [
] a serious attack on human dignity".84
40. In its Response, the Prosecution has identified the alleged acts which it considers relevant to this charge: forced incest, burying corpses in latrine pits; leaving infants without care after killing their guardians; and removing fetuses from the womb. The Defence has not specifically challenged the sufficiency of the evidence in relation to the different forms of the crime alleged. Having reviewed the evidence cited by the Prosecution, and in light of the foregoing discussions of the connection between each of the Accused and soldiers and the Interahamwe, the Chamber finds that a reasonable trier of fact could, if the evidence were to be believed, find the Accused guilty beyond a reasonable doubt of outrages upon personal dignity for one or more of the criminal acts described."
"84. Id., para. 161("[T]he humiliation of the victim must be so intense that any reasonable person would be outraged"). The crime has been found to have been committed for using detainees as human shields or trench-diggers; forcing detainees to relieve bodily functions in their clothing; and imposing conditions of constant fear of being subjected to physical, mental, or sexual violence on detainees. Aleksovski, Judgement (TC), 25 June 1999, para. 229; Kvocka et al., Judgement, (TC), 2 November 2001, para. 173."
[B. Evidentiary comment]:
P.5. Evidence of ill-treatment of prisoners of war
P.5.1. Evidence that the perpetrator forced Sikhs to perform acts prohibited by their religion.
A. Legal source/authority and evidence:
Trial of Tanaka Chuichi and Two Others, Australian Military Court at Rabaul, 12 July 1946, UNWCC, Law Reports of Trials of War Criminals, Vol. XI, pp.62-63:
"1. The Charge
The three accused were charged with the ill-treatment of prisoners of war. They were convicted and sentenced to terms of imprisonment varying from 6 months to 2 years.
2. The Evidence
[ ] the accused, who were non-commissioned officers of the Japanese forces guarding the prisoners, had on two occasions severely ill-treated them by tying them to a post and beating them until they lost consciousness. [ ] In each case the beatings were aggravated by the fact that the accused, after beating the prisoners, cut off their hair and beards and in one instance forced a prisoner to smoke a cigarette. The prisoners were Indians, of the Sikh religion, which forbids them to have their hair or beards removed or to handle tobacco."
[B. Evidentiary comment]:
A. Legal source/authority and evidence:
Trial of Lieutenant General Kurt Maelzer, United States Military Commission, Italy, 9-14 September 1946, UNWCC, Law Reports of Trials of War Crminals, Vol. XI, pp. 53-55:
"(1) The Charge
The accused was charged with " exposing prisoners of war in his custody to acts of violence, insults and public curiosity."
(2) The Evidence
[ ] The accused ordered the parade which took place on 2nd February, 1944. 200 American prisoners of war were marched from the Coliseum, through the main streets of Rome under armed German escort. [ ] According to the Prosecution witnesses [ ] the population threw stones and sticks at the prisoners, but, according to the defence witnesses, they threw cigarettes and flowers. [ ]
(3) Findings and Sentence
The accused was found guilty and sentenced to 10 years imprisonment. The sentence was reduced to three years imprisonment by higher military authority."
B. Evidentiary comment:
The ICTY statute does not explicitly include rape or sexual violence as war crimes under Article 3. However, the ICTY has in numerous cases, charged rape and other forms of sexual violence as war crimes under other articles of its Statute, and affirmed that rape and other forms of sexual violence may amount to grave breaches or serious violations of the laws and customs of war. The Kunarac Trial Chamber stated that the ICTY jurisdiction to prosecute rape as an outrage upon personal dignity based upon Common Article 3 is clearly established. (Kunarac Trial Judgment, para. 436, quoting Furundzija Trial Judgment, para. 173). The Trial Chamber in Kunarac found that the victims sale and sexual exploitation constituted a particularly degrading attack on their dignity. (Kunarac Trial Judgment, para. 756). The Furundzija Appeals judgment held that " the international community has long recognised rape as a war crime" (Furundzija Appeals Judgment, para. 210). However, the Kunarac Appeals Chamber concluded that because rape is not explicitly enumerated under Common Article 3s provisions of outrages upon personal dignity, technically it cannot belie a cumulative conviction. (Kunarac Appeals Judgment, paras. 191, 197). In essence, the Appeals Chamber held that rape and outrages upon personal dignity contain their own specific constitutive elements. Although an actus reus identical to the act of rape can constitute the actus reus of an outrage upon personal dignity, the crime is ostensibly an outrage upon personal dignity manifested by an actus reus of sexual penetration, with the requisite mens rea. The crime of rape shares the same actus reus, but has its own mens rea.
Article 4(e) of the ICTR Statute confers the Tribunal jurisdiction over outrages upon personal dignity, in particular rape, enforced prostitution and any form of indecent assault. The Akayesu Trial Judgment held that outrages upon personal dignity includes sexual violence. (Akayesu Trial Judgment, para. 688).
Since the Rome Statute explicitly categorises as a war crime in article 8 (2) (b) (xxii) the commission of "rape, sexual slavery, enforced prostitution, forced pregnancy as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions" it would appear that the ICTY jurisprudence characterising rape as an outrage upon personal dignity is not of direct relevance, particularly in view of the Kunarac Appeals Chambers view that "each offence must be hanged, as it were, on its own statutory hook" (Kunarac Appeals Judgment, para. 191). Under the Rome Statute, it would be appropriate to use article 8(2) (b) (xxii) instead of article 8(2) (b) (xxi) to cover sexual offences.
