6.b.ii. [Mental element for Element 5] [Consequence of inflicting severe physical or mental pain or suffering upon one or more persons:] The perpetrator was aware that severe physical or mental pain or suffering upon one or more persons will occur in the ordinary course of events.

P.29. Evidence of knowledge of the inhumane conditions of confinement

P.30. Evidence of knowledge of the effects of the inhumane conditions of confinement on the physical and psychological health of detainees

P.30.1. Evidence of the perpetrator being heard about the suffering of the detainees

P.31. Evidence of a deliberate policy of isolating detainees within a detention centre

P.31.1. Evidence of many of the detainees spenting their entire detention locked in their rooms

P.31.2. Evidence of only those detainess given work assignments being permitted to spend time outside of their rooms

P.31.3. Evidence of visits from family members being prohibited

P.31.4. Evidence of television sets and radios being taken away

P.31.5. Evidence of rooms being searched for personal transitor radios

P.31.6. Evidence of access to newspapers or other press being prohibited

P.31.7. Evidence of any form of information exchange and communication between detainees in different rooms and between detainees and guards being prohibited

P.31.8. Evidence of detainees being not allowed to look out of the windows

P.31.9. Evidence of detainees taken to work assignment outside of detention centre bing kept isolated in a separate room to prevent news about the "outside world" being spread

P.31.10. Evidnece of violations being punished

P.32. Evidence of a deliberate policy of housing detainees in cramped conditions

P.32.1. Evidence of extra space available in the detention centre not being used

P.32.2. Evidence of solitary confinement cells designed to hold one person being packed with up to dozens of people at a time, making it impossible for them to move around the cell, or to sleep lying down

P.33. Evidence of deliberate policy of denial of the most basic protection against freezing temperature during the winter

P.33.1. Evidence of available stocks of additional blankets not being provided to all detainees

P.33.2. Evidence of broken window panes not being repaired or covered, and open windows out of the reach of detainees were not closed

P.33.3. Evidence of attempts made by detainees to make winter clothes out of blankets were punished

P.34. Evidence of a deliberate policy to feed detainees barely enough for their survival

P.34.1. Evidence of the contrast between the weight loss of detainees from a group and those from a different racial or ethnic etc group

P.34.2. Evidence of detainees of different racial or ethnic etc group being supplied with food nutritious enough to prevent serious weight loss

P.34.3. Evidence of the food for all detainees was cooked in the same kitchen, but the nutritious ingredients, like meat, beans, vegetables and spcies, were added to enrich only the meals of members of a specific racial or ethnic etc group.

6.b.ii. [Mental element for Element 5] [Consequence of inflicting severe physical or mental pain or suffering upon one or more persons:] The perpetrator was aware that severe physical or mental pain or suffering upon one or more persons will occur in the ordinary course of events.

A. Legal source/authority and evidence:

Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005, para. 261:

"261. The crime of cruel treatment as a violation of the laws or customs of war pursuant to Article 3 of the Statute, is defined in the jurisprudence of the Tribunal as an intentional act or omission causing serious mental or physical suffering or injury, or constituting a serious attack on human dignity.⁸³⁶ As regards the mens rea for the crime of cruel treatment, the Chamber sees no reason to depart from the reasoning expounded above in relation to the crime of murder. Accordingly, the Chamber holds that indirect intent, i.e. knowledge that cruel treatment was a probable consequence of the perpetrator's act or omission, may also fulfil the intent requirement for this crime. In addition, in order to prove cruel treatment under Article 3 of the Statute, it must be shown that the victims were persons taking no active part in the hostilities.⁸³⁷

"836. Celebici Appeals Judgement, para 424; Vasiljevic Trial Judgement, para 234; Naletilic Trial Judgement, para 246.

837. Celebici Appeals Judgement, para 424."

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. 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."

P.29. Evidence of knowledge of the inhumane conditions of confinement

P.30. Evidence of knowledge of the effects of the inhumane conditions of confinement on the physical and psychological health of detainees

P.30.1. Evidence of the perpetrator being heard about the suffering of the detainees

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 169:

"169. There is no evidence that the Accused personally initiated the living conditions imposed upon the non-Serb detainees, and no evidence that he issued any orders to the guards of the KP Dom with respect to the imposition of these living conditions. The Trial Chamber is nevertheless satisfied that the Accused had knowledge of the conditions under which the non-Serb detainees were being held and of the effects these conditions were having on the physical and psychological health of the non -Serb detainees.⁵²⁵ A number of detainees gave evidence that they met with the Accused and told him about their suffering.⁵²⁶ The Accused admitted that he habitually met with detainees, and he confirmed that, during these conversations, the detainees discussed the living conditions at the KP Dom.⁵²⁷"

"525 - Muhamed Lisica once approached the Accused and told him that it was hard to work and that he was going to faint. He told the Accused that the food was not sufficient and that he was hungry (T 4889, 4895); FWS-182 approached the Accused twice for medical help and expressed his fear of dying (T 1599, 1604). Safet Avdic asked the warden for soap and toiletries (T 479); RJ, a close friend of the Accused from before the war, was asked by the Accused at least twice during his detention to inform him about the treatment of the detainees. RJ told the Accused about the problems of the detainees, not only about the insufficient food, but also about the hygienic problems and the need to improve the medical care. RJ stressed that he was "honest" with the Accused and that he told him about the "bad things" that were happening to the detainees (T 3867, 3859-3860). He specifically told the Accused about the mistreatment of a disabled detainee in the yard and his subsequent internment in solitary confinement (T 3865).
526 - Safet Avdic (T 479, 482); FWS-182 (T 1599, 1602, 1604); RJ (T 3859, 3865); Muhamed Lisica (T 4889, 4895).
527 - T 8091-8092."

[B. Evidentiary comment:]

P.31. Evidence of a deliberate policy of isolating detainees within a detention centre

P.31.1. Evidence of many of the detainees spenting their entire detention locked in their rooms

P.31.2. Evidence of only those detainess given work assignments being permitted to spend time outside of their rooms

P.31.3. Evidence of visits from family members being prohibited

P.31.4. Evidence of television sets and radios being taken away

P.31.5. Evidence of rooms being searched for personal transitor radios

P.31.6. Evidence of access to newspapers or other press being prohibited

P.31.7. Evidence of any form of information exchange and communication between detainees in different rooms and between detainees and guards being prohibited

P.31.8. Evidence of detainees being not allowed to look out of the windows

P.31.9. Evidence of detainees taken to work assignment outside of detention centre bing kept isolated in a separate room to prevent news about the "outside world" being spread

P.31.10. Evidnece of violations being punished

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133-134:

"2. Findings

133. The Trial Chamber is satisfied that the brutal and deplorable living conditions imposed upon the non-Serb detainees at the KP Dom in the period from April 1992 to July 1993 (discussed below) constituted acts and omissions of a seriousness comparable to the other crimes enumerated under Article 5 and Article 3 of the Tribunal’s Statute, and thus warrants a finding that those acts and omissions constitute inhumane acts and cruel treatment under those Articles.

134. The Trial Chamber is satisfied that there was a deliberate policy of isolating detainees within the KP Dom. Many of the detainees spent their entire detention locked in their rooms,³⁸⁶ and were only taken out to the canteen for meals while others kept in solitary confinement cells were not taken out at all, receiving their meals in their cells.³⁸⁷ Only those detainees given work assignments were permitted to spend prolonged periods outside of their rooms.³⁸⁸ Visits from family members were prohibited after May 1992.³⁸⁹ Television sets and radios which had been left at the KP Dom by former convicts were taken away, and rooms were searched for personal transistor radios which were seized.³⁹⁰ Access to recent newspapers or other press was prohibited.³⁹¹ Any form of information exchange and communication between detainees in different rooms and between detainees and guards was prohibited.³⁹² Detainees were not allowed to look out of the windows, although some did so.³⁹³ Detainees who were taken to work assignments outside of the KP Dom were kept isolated in a separate room to prevent news about the "outside world" spreading among the other detainees.³⁹⁴ To ensure compliance with these unwritten "rules" on communication, violations were punished with solitary confinement and/or mistreatment, such as beatings.³⁹⁵"

"386 - FWS-08 (T 1762); FWS-66 (T 1088); FWS-54 (T 751); FWS-65 (T 546); FWS-139 (T 345).
387 - FWS-159 (T 2457, 2460, 2463, 2467); Ekrem Tulek FWS-182 T 1611).
388 - Ibid.
389 - FWS-66 (T 1090); FWS-215 (T 873); FWS-54 (T 751); FWS-65 (T 473); FWS-139 (345).
390 - Ekrem Zekovic (T 3543); FWS-215 (T 875).
391 - FWS-65 (T 467); FWS-159 (T 2463).
392 - FWS-65 (T 460, 535); FWS-172 (T 4605).
393 - FWS-65 (T 535); FWS-250 (T 5068); FWS-172 (T 690).
394 - FWS-172 (T 4605); Ekrem Zekovic (T 3442).
395 - Dzevad S Lojo (T 2553); FWS-182 (T 1611); Ekrem Zekovic (T 3543-3544); FWS–215 (T 875); FWS- 182 (T 1612-1613); FWS-65 (T 460). FWS-172 (T 690); Lazaro Stojanovic (T 5726 T 5750 T 5757); Zoran Vukovic (T 5769, T 5800, 5794); Risto Ivanovic (T 6166); Milan Pavlovic T 6891); Zoran Mijovic (T 6235). This was disputed by guards Risto Ivanovic (T 6106); Miladin Matovic (T 6446, 6450) and the KP Dom Clerk Divljan Lazar (T 6047) who claimed that the detainees could talk freely with the guards. Risto Ivanovic conceded however that the non-Serb detainees were afraid of the guards (T 6194)."

[B. Evidentiary comment:]

P.32. Evidence of a deliberate policy of housing detainees in cramped conditions

P.32.1. Evidence of extra space available in the detention centre not being used

P.32.2. Evidence of solitary confinement cells designed to hold one person being packed with up to dozens of people at a time, making it impossible for them to move around the cell, or to sleep lying down

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 135:

"2. Findings

133. The Trial Chamber is satisfied that the brutal and deplorable living conditions imposed upon the non-Serb detainees at the KP Dom in the period from April 1992 to July 1993 (discussed below) constituted acts and omissions of a seriousness comparable to the other crimes enumerated under Article 5 and Article 3 of the Tribunal’s Statute, and thus warrants a finding that those acts and omissions constitute inhumane acts and cruel treatment under those Articles.

135. The Trial Chamber is satisfied that the non-Serb detainees were deliberately housed in cramped conditions. The KP Dom had the capacity to house more than the maximum 500-700 non-Serbs detained, but the detainees were crowded into a small number of rooms.³⁹⁶ Solitary confinement cells designed to hold one person were packed with up to 18 people at a time,³⁹⁷ making it impossible for the detainees to move around the cell,³⁹⁸ or to sleep lying down.³⁹⁹"

"396 - FWS-138 (T 2021); FWS-12 (T 241); Miladin Matovic (T 6460); FWS-162 (T 1359); FWS-198 (T 952, 954); FWS-139 (T 327); FWS-182 (T 1590); FWS-86 (T 1461); FWS-104 (T 2162); FWS-73 (T 3212).
397 - FWS-198 (T 950); FWS-119 (T 1941-1942); FWS-159 (T 1078); FWS-12 (T 243).
398 - FWS-104 T 2162); FWS-54 (T 741); FWS-73 (T 3212).
399 - Safet Avdic (Ex P 121, p 685)."

[B. Evidentiary comment:]

P.33. Evidence of deliberate policy of denial of the most basic protection against freezing temperature during the winter

P.33.1. Evidence of available stocks of additional blankets not being provided to all detainees

P.33.2. Evidence of broken window panes not being repaired or covered, and open windows out of the reach of detainees were not closed

P.33.3. Evidence of attempts made by detainees to make winter clothes out of blankets were punished

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 137-138:

"2. Findings

133. The Trial Chamber is satisfied that the brutal and deplorable living conditions imposed upon the non-Serb detainees at the KP Dom in the period from April 1992 to July 1993 (discussed below) constituted acts and omissions of a seriousness comparable to the other crimes enumerated under Article 5 and Article 3 of the Tribunal’s Statute, and thus warrants a finding that those acts and omissions constitute inhumane acts and cruel treatment under those Articles.

"137. The Trial Chamber is satisfied that detainees were denied the most basic protection against freezing temperatures during the winter of 1992-1993.⁴⁰⁶ Most of the non-Serb detainees had been arrested in the early summer of 1992. Due to the information given to them in the course of arrest, namely, that they would be taken for an interview and returned to their homes the same day, they left in what they happened to be wearing at the time.⁴⁰⁷ As a result, they were inadequately clothed for winter conditions. The Trial Chamber accepts that the heating system at the KP Dom was broken and that there were some attempts made by the administration to repair it,⁴⁰⁸ but it is equally satisfied that no other available measures were taken to protect the non-Serb detainees from the cold.⁴⁰⁹ Stoves and furnaces had been produced to heat the offices in the administration building,⁴¹⁰ and there was sufficient raw material for such furnaces to have been produced for the non-Serb detainees.⁴¹¹ However, it was not until October 1993 that furnaces were finally provided to the non-Serb detainees, and then it was by the ICRC.⁴¹²

138. The Trial Chamber is further satisfied that the suffering of the non-Serb detainees during the winter of 1992 was the result of a deliberate policy on the part of those in charge of the KP Dom. There were available stocks of additional blankets,⁴¹³ but they were not provided to all detainees.⁴¹⁴ Broken window panes in the detainees cells were not repaired or covered,⁴¹⁵ and open windows out of the reach of detainees were not closed.⁴¹⁶ Attempts made by some of the non-Serb detainees to make winter clothes out of blankets were punished.⁴¹⁷ The blankets were removed and those involved were sent to solitary confinement, where temperatures were lower.⁴¹⁸"

[B. Evidentiary comment:]

P.34. Evidence of a deliberate policy to feed detainees barely enough for their survival

P.34.1. Evidence of the contrast between the weight loss of detainees from a group and those from a different racial or ethnic etc group

P.34.2. Evidence of detainees of different racial or ethnic etc group being supplied with food nutritious enough to prevent serious weight loss

P.34.3. Evidence of the food for all detainees was cooked in the same kitchen, but the nutritious ingredients, like meat, beans, vegetables and spcies, were added to enrich only the meals of members of a specific racial or ethnic etc group.

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 139:

"2. Findings

133. The Trial Chamber is satisfied that the brutal and deplorable living conditions imposed upon the non-Serb detainees at the KP Dom in the period from April 1992 to July 1993 (discussed below) constituted acts and omissions of a seriousness comparable to the other crimes enumerated under Article 5 and Article 3 of the Tribunal’s Statute, and thus warrants a finding that those acts and omissions constitute inhumane acts and cruel treatment under those Articles.

"139. The Trial Chamber accepts that there may have been a general shortage of food in the Foca region during the conflict,⁴¹⁹ but it is satisfied that there was a deliberate policy to feed the non-Serb detainees barely enough for their survival.⁴²⁰ All non-Serb detainees suffered considerable weight loss ranging from 20 to 40 kilograms during their detention at the KP Dom.⁴²¹ Their diet consisted of a cup of soup which was "little more than water",⁴²² rice or macaroni and a piece of "really thin" bread three times a day.⁴²³ On occasion, they received a tin of pâté to be shared by two persons or eggs for breakfast.⁴²⁴ In contrast, Serb convicts and detainees received "regular army food", not very appetising but nutritious enough to prevent serious weight loss.⁴²⁵ The contrast between the weight loss of non-Serb detainees and the Serb prisoners makes it apparent that non-Serb detainees were fed much less than the Serb detainees. The Trial Chamber is satisfied that the food for all detainees at the KP Dom was cooked in the same cauldron, but that nutritious ingredients, like meat, beans, vegetables and spices, were added to enrich only the meals of Serb detainees and convicts and KP Dom staff, who ate after the non-Serb detainees had received their meals from the cauldron.⁴²⁶ In making these findings, the Trial Chamber rejects the Defence evidence that all the detainees received the same quality and quantity of food while detained at the KP Dom.⁴²⁷"

"419 - Slobodan Solaja (T 5498, 5500); Witness A (T 5522); Milomir Mihajlovic (T 5629); Radomir Dolas (T 5820); Miloslav Krsmanovic (T 6623); Witness B (T 6713); Zarko Vukovic (T 6759); Svetozar Bogdanovic (T 7084); Arsenije Krnojelac (T 7122-7124); Bozo Drakul (T 7191); Vitomir Drakul (T 5669); Dr Drago Vladicic (T 6307); Dr Milovan Dobrilovic (T 6366).
420 - Dr Amir Berberkic (T 3755, 3756); FWS-49 (T 4698); Dzevad Lojo (T 666); FWS-139 (T 343); FWS-86 (T 1507); FWS-49 (T 4698).
421 - FWS-66 (T 1084); FWS-111 (T 1312); FWS-162 (T 1361); FWS-198 (T 956); FWS-215 (T 874); FWS-54 (T 750); Dzevad Lojo (T 664); Safet Avdic (T 536); FWS-139 (T 343); FWS-86 (T 1506); FWS-182 (T 1618); Rasim Taranin (T 1729); FWS-08 (T 1772); FWS-71 (T 2805); FWS-109 (T 2371); FWS-159 (T 2464); Dr Amir Berberkic (T 3755); Safet Avdic (Ex P 123, p 686); FWS-78 (T 2113); FWS-96 (Ex P 186, p 2539).
422 - Rasim Taranin (T 1712-1715).
423 - FWS-162 (T 1361); FWS-198 (T 955); FWS-111 (T 1380); Dzevad Lojo (T 665); FWS-139 (T 341); Dr Amir Berberkic (T 4007); FWS-71 (T 2947); Juso Taranin (T 3027).
424 - FWS-172 (T 4607); FWS-250 (T 5116); FWS-89 (T 4725, 4674). At a later stage of their detention, and only for a period of 15 days, the detainees were given eggs, beans, rice, potatoes or pasta for breakfast: Rasim Taranin (T 1750).
425 - Lazar Stojanovic (T 5717, 5749); Vitomir Drakul (T 5673); Zoran Vukovic (T 5771, 5784-5785).
426 - FWS-08 (T 1804); FWS-138 (T 2063); FWS-71 (T 2952-2953); Rasim Taranin (T 1715); FWS-66 (T 1083); FWS-111 (T 1228-1229); FWS-162 (T 1360).
427 - Krsto Krnojelac (T 5903, 5914, 5916-5917, 5927, 5930); Risto Ivanovic (T 6092, 6094, 6193); Divljan Lazar (T 6043-6044); Miladin Matovic (T 6451-6452); Bozo Drakul (T 7189); The Accused (T 7665); Zoran Vukovic (T 5784-5785); Lazar Stojanovic (T 5717)."

[B. Evidentiary comment:]