Table of contents:
Element:
P.24.1. Evidence of ordering the forced labour
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 132:
"132. The required mens rea is met where the principal offender, at the time of the act or omission, had the intention to inflict serious physical or mental suffering or to commit a serious attack on the human dignity of the victim, or where he knew that his act or omission was likely to cause serious physical or mental suffering or a serious attack upon human dignity and was reckless as to whether such suffering or attack would result from his act or omission.385"
"385 - Kayishema and Ruzindana Trial Judgment, par 153; Aleksovski Trial Judgment, par 56."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT-96-23-T and IT-96-23/1-T, Judgement (TC), 22 February 2001, paras. 509-514:
"509. Because the distinction in the judgement between references to the views of the ICRC and expression of the Trial Chambers own understanding of the mens rea requirement is not always easy to identify, the precise scope of the relevant mens rea for the crime of outrages upon personal dignity is left somewhat open.1232 It is apparent from the Appeals Chambers judgement that it did not regard the mental element of the offence as involving any specific intent to humiliate, ridicule or degrade the victims .1233 It noted particularly that it did not interpret the ICRC Commentaries statement that the term "outrages upon personal dignity" refers to acts "aimed at humiliating and ridiculing" the victim 1234 as suggesting a requirement of a specific intent to humiliate, ridicule or degrade, but as seeking "simply to describe the conduct which the provision seeks to prevent".1235
510. The Appeals Chamber did not comment on the alternative indication in the Trial Chambers judgement that, as well as deliberately committing the relevant act or omission, the perpetrator must have "been able to perceive" that the humiliation or degradation of the victim was a foreseeable and reasonable consequence of his actions.1236 In its discussion of the facts of the case, the Appeals Chamber stated that it was "satisfied that the Trial Chamber found that the Appellant deliberately participated in or accepted the acts which gave rise to his liability under Articles 7(1) and 7(3) of the Statute for outrages upon personal dignity and was therefore guilty of those offences",1237 which leaves open the question of whether there is any requirement of knowledge of the foreseeable consequences.
511. In the discussion of the offence of inhuman treatment in the judgement of the Trial Chamber in the Delalić case, reference to the mental element is limited to the requirement that the relevant act or omission be intentional:
[...] inhuman treatment is an intentional act or omission, that is an act which , judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.1238
No reference is made to a requirement of specific intent or of knowledge of the effect on the victim of the intentional act.
512. The Trial Chamber has considered the jurisprudence referred to above in relation to the question of whether there must be, in addition to the intention to commit the particular act or omission, some knowledge of the consequences of that action . The Trial Chamber is of the view that the requirement of an intent to commit the specific act or omission which gives rise to criminal liability in this context involves a requirement that the perpetrator be aware of the objective character of the relevant act or omission. It is a necessary aspect of a true intention to undertake a particular action that there is an awareness of the nature of that act . As the relevant act or omission for an outrage upon personal dignity is an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, an accused must know that his act or omission is of that character ie, that it could cause serious humiliation , degradation or affront to human dignity. This is not the same as requiring that the accused knew of the actual consequences of the act.
513. In practice, the question of knowledge of the nature of the act is unlikely to be of great significance. When the objective threshold of the offence is met ie the acts or omissions would be generally considered to be seriously humiliating , degrading or otherwise a serious attack on human dignity it would be rare that a perpetrator would not also know that the acts could have that effect.
514. In the view of the Trial Chamber, the offence of outrages upon personal dignity requires
(i) that the accused intentionally committed or participated in an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, and
(ii) that he knew that the act or omission could have that effect."
"1232 - The Trial Chambers factual findings as to the mental state of the accused in relation to the relevant acts appear to support a finding of a specific intent to humiliate as well as of knowledge of the trauma and humiliation caused by the acts see pars 224 and 237 and Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgement, 24 Mar 2000, par 27.
1233 - "The Trial Chambers indication that the mens rea of the offence is the "intent to humiliate or ridicule" the victim may therefore impose a requirement that the Prosecution was not obliged to prove and the Appeals Chamber does not, by rejecting this ground of appeal, endorse that particular conclusion.": Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgement, 24 Mar 2000, par 27.
1234 - Sandoz and Others, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, par 3047. This statement was referred to by the Trial Chamber at pars 55 and 56.
1235 - Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgement, 24 Mar 2000, par 27.
1236 - Prosecutor v Aleksovski, Case IT-95-14/1-T, Judgement, 25 June 1999, par 56.
1237 - Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgement, 24 Mar 2000, par 27.
1238 - Prosecutor v Delalić and Others, Case No 96-21-T, Judgement, 16 Nov 1998, par 543. See also later in that par: "Thus, inhuman treatment is intentional treatment which does not conform with the fundamental principle of humanity [...]".
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 738:
"b. Trench digging
[ ] 738. With particular regard for the degree of organisation required, the Trial Chamber concludes that General Blakić ordered the use of detainees to dig trenches, including under dangerous conditions at the front. The Trial Chamber also adjudges that by ordering the forced labour Blakić knowingly took the risk that his soldiers might commit violent acts against vulnerable detainees, especially in a context of extreme tensions."
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 153:
"153. The Chamber is in no doubt that a third party could suffer serious mental harm by witnessing acts committed against others, particularly against family or friends. However, to find an accused responsible for such harm under crimes against humanity, it is incumbent on the Prosecution to prove the mens rea on the part of the accused. Indeed, as stated above, inhumane acts are, inter alia, those which deliberately cause serious mental suffering. The Chamber considers that an accused may be held liable under these circumstances only where, at the time of the act, the accused had the intention to inflict serious mental suffering on the third party, or where the accused knew that his act was likely to cause serious mental suffering and was reckless as to whether such suffering would result. Accordingly, if at the time of the act, the accused was unaware of the third party bearing witness to his act, then he cannot be held responsible for the mental suffering of the third party."
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 552:
"552. In light of the foregoing, the Trial Chamber finds that cruel treatment constitutes an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. As such, it carries an equivalent meaning and therefore the same residual function for the purposes of common article 3 of the Statute, as inhuman treatment does in relation to grave breaches of the Geneva Conventions. Accordingly, the offence of torture under common article 3 of the Geneva Conventions is also included within the concept of cruel treatment. Treatment that does not meet the purposive requirement for the offence of torture in common article 3, constitutes cruel treatment."
[B. Evidentiary comment:]
