Table of contents:
P.16.1. Evidence of inflicting pain for the purpose of obtaining military information.
P.16.2. Evidence of infliction of pain for the purpose of obtaining denunciation.
P.16.3. Evidence of questions relating to political activity.
P.17.1. Evidence of beating as punishment for not beating another.
P.17.2. Evidence of severe pain and suffering inflicted for being unable to follow an order.
P.17.3. Evidence of rape for intimidation and coercion.
P.17.4. Evidence of beating following fierce fighting in prior battle.
P.18. Evidence of inflicting severe pain and suffering for discriminatory purposes.
P.18.1. Evidence of forcing someone to perform humiliating tasks to discriminate.
P.18.2. Evidence of rape for discriminatory purpose.
P.18.3. Evidence of infliction to detainees of a certain group only.
P.18.4. Evidence inferred from a plan to cause the physical or mental effect conveyed by letter.
P.18.5. Evidence that painful treatment had no value.
P.18.6. Evidence of treatment given to detainees of a concentration camp.
P.19.1. Not sufficient: Evidence of arbitrary actions.
P.19.2. Not sufficient: Evidence of inflicting suffering without purpose.
Element:
P.16.1. Evidence of inflicting pain for the purpose of obtaining military information.
A. Legal source/authority and evidence::
Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, paras. 486-487:
"486. The Chamber found, in relation to paragraph 3.18 of the Indictment, that on 13 April 1994, the Accused, in the presence of Bourgmestre Bisengimana, intentionally inflicted serious injuries on Victim C, Rusanganwa, during questioning. The Accused asked Rusanganwa when the Inkotanyi were going to arrive, and the victim responded that he did not know. The Accused then inflicted injuries upon Rusanganwa with a machete, resulting in his death. On this basis, the Chamber finds that the physical and mental pain and suffering were severe. The Chamber also finds that the Accused acted with the aim of obtaining information from the victim. The intentional nature of the Accused's conduct is demonstrated by his search for Rusanganwa in the crowd and the nature of his question concerning the RPF advance.
487. The Accused's torture of Rusanganwa occurred during the attack at Musha church, where a large number of Tutsis were killed and which has already been determined to have been part of the widespread attack. The Chamber finds that the torture of Rusanganwa to obtain information about the RPF advance similarly formed part of the widespread attack and that the Accused had such knowledge. Therefore, the Chamber finds that the Accused committed torture as a crime against humanity."
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 674:
"674. The Chamber has already found that Mladen Naletilić bears individual criminal responsibility for the torture of witnesses TT, B and Fikret Begic and for the cruel treatment and wilfully causing great suffering to witness Salko Osmic at the fishfarm in Doljani on 20 April 1993 (paragraph 46 of the Indictment).1661 It has also been established that he bears command responsibility for the beating of prisoners at the fishfarm by soldiers of the KB. The Chamber finds that it has not been established that any of the incidents were carried out on discriminatory grounds. The interrogations were conducted by Mladen Naletilić in the aftermath of the attack on Sovici. It is clear from the evidence that with regard to the interrogation of Fikret Begic and witness B, Mladen Naletilić tried to obtain information for military purposes. Regarding the torture of Fikret Begic and witness TT, the evidence proves that Mladen Naletilić intended to punish the two members of the ABiH in Sovici for their alleged participation in the killing of KB soldiers. With regard to the beating of other prisoners at the fishfarm by KB soldiers, the Chamber also finds that the evidence proves that they were conducted in revenge for the fierce fighting that went on in Sovici the days before. The incidents charged under paragraph 46 of the Indictment thus do not amount to persecution pursuant to Article 5(h) of the Statute."
[B. Evidentiary comment:]
1661. See supra paras 366-369.
P.16.2. Evidence of infliction of pain for the purpose of obtaining denunciation.
P.16.3. Evidence of questions relating to political activity.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 454:
"454. Other acts of torture or beatings took place during interrogations, often with the purpose of obtaining information or extracting confessions. The Trial Chamber has already found that FWS-03, Halim Dedovic and Hajro Sabanovic were tortured by military policeman at the KP Dom in order to obtain information or confessions (par 5.23). In the case of FWS-03, targeted because of his SDA affiliations,1370 the Trial Chamber is satisfied that he was tortured on the basis of politics and that this amounts to persecution. There is no evidence, however, that Halim Dedovic (also B 13) or Hajro Sabanovic were SDA supporters. The Trial Chamber is not satisfied that it is sufficient of itself that a detainee was merely asked about something political in order to establish persecution on political grounds.1371 Therefore the Chamber is not satisfied that either of these men were tortured on any listed discriminatory ground.1372"
1370. See pars 239-242, supra. FWS-03 was questioned whether he was an SDA activist. When he denied this, stating that he was merely a party member, the guards accused him of lying and beat him, later calling on Halim Dedovic to identify FWS-03 as an SDA activist; FWS-03 (T 2237).
1371. See par 432, supra, requiring that the act of persecution be discriminatory in fact.
1372. See par 445, supra.
B. Evidentiary comment:
In this case, both versions are available. Mere questions without political affiliations are not sufficient. However, if the victim in the context is politically active and information could be gathered, the court may decide that the prerequisite purpose is present.
P.17.1. Evidence of beating as punishment for not beating another.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 215:
"215. The Trial Chamber is satisfied that the allegations involving Kemo Kajgana (A 10) and Fikret Kovacevic (A 12) have been established. Fikret Kovacevic was taken out of the isolation cell, where he was being held together with Ahmet Duric (A 7), Ahmet Hadzimusic and Kemo Kajgana, and was beaten. Hadzimusic was in the room adjacent to where the beatings occurred and did not see but could hear the beatings taking place.602 At some point, the persons administering the beatings took the detainee Kajgana out of the cell and told him that his neighbour Kovacevic was asking for him. They instructed Kajgana to beat Kovacevic with the baton. Since Kajgana beat his fellow detainee only very gently, the baton was taken away from him and he was beaten himself to demonstrate how to administer real blows. Next, the baton was handed to Kovacevic who was also forced to beat Kajgana.603 The Trial Chamber is satisfied that the mistreatment inflicted upon both victims, Kajgana and Kovacevic, is sufficiently serious as to amount to cruel treatment pursuant to Article 3 and inhumane acts pursuant to Article 5(i)."
"602 - Ahmet Hadzimusic (T 1947, 1950).
603 - Ahmet Hadzimusic (T 1948-1949)."
[B. Evidentiary comment:]
P.17.2. Evidence of severe pain and suffering inflicted for being unable to follow an order.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić et al, Case No. IT-96-21-Abis, Judgement on Sentence Appeal (AC), 8 April 2003, para. 34:
"34. [ ] (5) Wilfully causing great suffering or serious injury to three detainees (Count 38). One detainee was forced by Landzo to do push-ups whilst being kicked and hit with a baseball bat. Another detainee had a burning fuse cord placed against his genitals by Landzo. A third detainee was so seriously injured from beatings received before he arrived at the camp that he was unable to stand with his hands against a wall as ordered, and he was hit several times before being pulled away.91"
91 - Ibid, pars 1025-1026, 1030-1034, 1037-1040, 1047. There is an apparent inconsistency between the findings in pars 1026 and 1047, but no point has been taken in relation to that inconsistency.
[B. Evidentiary comment:]
P.17.3. Evidence of rape for intimidation and coercion.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić et al, Case No. IT-96-21-Abis, Judgement on Sentence Appeal (AC), 8 April 2003, para. 40:
"40. [ ] (3) [ ] The Trial Chamber found that Witness A was also raped by Delic, on three occasions: the first upon her arrival at the camp, after Delic had interrogated her and threatened to shoot her and to have her transferred to another camp if she did not comply with his orders; the second at the same place, where he was seated in uniform with a pistol and a rifle, when he had anal intercourse with her, causing her to bleed, and then he had vaginal intercourse with her; and the third at a time when Delic, armed with hand grenades, a pistol and a rifle, had vaginal intercourse with her. The Trial Chamber found that each of the rapes was committed in order to intimidate, coerce and punish Witness A, that the first was also to obtain information from her, and that each of the rapes caused Witness A severe mental and physical pain and suffering.117"
117. Ibid, pars 958-964.
[B. Evidentiary comment:]
P.17.4. Evidence of beating following fierce fighting in prior battle.
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. 674:
"674. The Chamber has already found that Mladen Naletilić bears individual criminal responsibility for the torture of witnesses TT, B and Fikret Begic and for the cruel treatment and wilfully causing great suffering to witness Salko Osmic at the fishfarm in Doljani on 20 April 1993 (paragraph 46 of the Indictment).1661 It has also been established that he bears command responsibility for the beating of prisoners at the fishfarm by soldiers of the KB. The Chamber finds that it has not been established that any of the incidents were carried out on discriminatory grounds. The interrogations were conducted by Mladen Naletilić in the aftermath of the attack on Sovici. It is clear from the evidence that with regard to the interrogation of Fikret Begic and witness B, Mladen Naletilić tried to obtain information for military purposes. Regarding the torture of Fikret Begic and witness TT, the evidence proves that Mladen Naletilić intended to punish the two members of the ABiH in Sovici for their alleged participation in the killing of KB soldiers. With regard to the beating of other prisoners at the fishfarm by KB soldiers, the Chamber also finds that the evidence proves that they were conducted in revenge for the fierce fighting that went on in Sovici the days before. The incidents charged under paragraph 46 of the Indictment thus do not amount to persecution pursuant to Article 5(h) of the Statute."
1661. See supra paras 366-369
[B. Evidentiary comment:]
P.18. Evidence of inflicting severe pain and suffering for discriminatory purposes.
P.18.1. Evidence of forcing someone to perform humiliating tasks to discriminate.
A. Legal source/authority and evidence:
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgement (TC), 2 November 2001, para. 597:
"597. Consequently, the Trial Chamber finds that there is sufficient evidence to establish the physical and direct participation of the accused in the beating of Witness AK, AJ, and Asef Kapetanovic, with intent to discriminate against them as Muslims. Furthermore, the Trial Chamber finds that Zigic aided and abetted the beating of Abdulah Brkic. However, because Emir Beganovic did not testify that it was Zigic who beat him, the Trial Chamber finds that the accused is not liable for that beating. Nevertheless, the Trial Chamber does believe that Zigic made Emir Beganovic drink and wash himself from water in a puddle on the pista, with intent to cause humiliation. The Trial Chamber also considers that given the fact that only non-Serbs were detained in Omarska there is sufficient reason to conclude that Zigic attacked these men because they were of a different ethnic, religious, or political group and thus, they were targeted for abuse for discriminatory purposes. It further considers that the treatment was designed to humiliate the victims. In view of the clear intent to inflict severe pain and suffering on these detainees for prohibited purposes, torture was committed against Witness AK, AJ, and Asef Kapetanovic by Zigic".
[B. Evidentiary comment:]
P.18.2. Evidence of rape for discriminatory purpose.
A. Legal source/authority and evidence:
Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 483:
"483. The Chamber finds that the rape was committed on the basis of discrimination, targeting Victim A because she was a Tutsi woman. The Chamber recalls that severe suffering inflicted for the purposes of discrimination constitutes torture and, therefore, finds that the principal perpetrator tortured Victim A by raping her for a discriminatory purpose."
[B. Evidentiary comment:]
P.18.3. Evidence of infliction to detainees of a certain group only.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 137-138:
"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.18.4. Evidence inferred from a plan to cause the physical or mental effect conveyed by letter.
A. Legal source/authority and evidence:
United States of America v. Karl Brandt et al., Case No. 5, Judgement (Military Tribunal No. I), 20 August 1947, reproduced in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Proceedings, Vol. 2 (1949-53), p. 278:
"Among 10 millions of Jews in Europe, there are, I figure, at least 2-3 millions of men and women who are fit enough to work. Considering the extraordinary difficulties the labour problem presents us with I hold the view that those 2-3 millions should be specially selected and preserved. This can however only be done if at the same time they are rendered incapable to propagate. About a year ago I reported to you that agents of mine have completed the experiments necessary for this purpose. I would like to recall these facts once more. Sterilization, as normally performed on persons with hereditary diseases is here out of the question because it takes too long and is too expensive. Castration by X-ray is however not only relatively cheap, but can also be performed in many thousands on the shortest time. I think at this time that it is already irrelevant whether the people in question become aware of having been castrated after some weeks or months, once they feel the effects."
[B. Evidentiary comment:]
P.18.5. Evidence that painful treatment had no value.
A. Legal source/authority and evidence:
Trial of Öbersturmbannführer Rudolf Franz Ferdinand Hoess, Case No. 38, Judgement (Supreme National Tribunal of Poland), 11-29 March 1947, reported in United Nations War Crimes Commission, Law Reports of Trials of War Criminals, Vol 8 (1948), p. 15:
"According to one of the witnesses Professor Clauberg admitted that his experiments were of no scientific value. Identical results were previously obtained on animals and were and were well known in the medical profession."
[B. Evidentiary comment:]
P.18.6. Evidence of treatment given to detainees of a concentration camp.
A. Legal source/authority and evidence:
Trial of Milch, Law Reports of Trials of War Criminals, Selected and prepared by the United Nations War Crimes Commission, Vol. VII, p. 34:
"Another witness, who had been a nurse in the ward where the experiments were carried out, testified that from 180 to 200 concentration camp inmates were subject to the high-altitude experiments, and of these, 10 were volunteers."
[B. Evidentiary comment:]
P.19.1. Not sufficient: Evidence of arbitrary actions.
A. Legal source/authority and evidence:
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003, para. 159:
"159. [ ] The Trial Chamber is not satisfied, however, that the Accused knew that the other beatings were inflicted for one of the purposes provided for in the prohibition against torture, rather than being meted out purely arbitrarily. The fact that the Accused witnessed the beating of Zekovic, ostensibly for the prohibited purpose of punishing him for his failed escape is not sufficient, in itself, to conclude that the Accused knew or that he had reason to know that, other than in that particular instance, beatings were inflicted for any of the prohibited purposes. Having personally observed Burilo torturing Zekovic, the Accused was obliged to punish Burilo, but that isolated fact did not oblige him to investigate the incident in such a way as would have put him on notice that others were being tortured in the KP Dom. The Accused is therefore not responsible as a superior for the torture charged in the Indictment."
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 180, 252:
"180. [ ] [t]orture as a criminal offence is not a gratuitous act of violence; it aims, through the infliction of severe mental or physical pain, to attain a certain result or purpose." "in the absence of such purpose or goal, even very severe infliction of pain would not qualify as torture pursuant to Article 3 or Article 5 of the Tribunals Statute."
"252. The Trial Chamber is satisfied that, while he was detained at the KP Dom, Salem Bico, another Muslim detainee, was taken out and beaten by guards of the KP Dom, or policemen from outside the KP Dom, on repeated occasions.673 Like Zulfo Veiz, he was taken out of his room sometime in June or July 1992, and he never came back.674 Screams and moans and finally shots were heard coming from the administrative building on the night he was taken.675 Although the Trial Chamber is satisfied that the beatings were of a very severe nature,676 there is no evidence that the beating was pursued for any of the listed prohibited purposes rather than being purely arbitrary. Consequently, the Trial Chamber is not satisfied that the mistreatment of Salem Bico amounted to torture pursuant to Article 3 and Article 5(f) of the Statute. The abuse was, however, of such a nature as to qualify as inhumane acts under Article 5(i) as well as cruel treatment under Article 3 of the Statute, and the Trial Chamber is accordingly satisfied that all the elements of those two offences have been established."
"673 - FWS-111 (T 1237-1239); FWS-215 (T 901); Dr Amir Berberkic (T 3793).
674 - FWS-111 (T 1237-1238); FWS-138 (T 2081); FWS-54 (769); FWS-08 (T 1783); Dr Amir Berberkic (T 3793); FWS-172 (T 4560-4561). The Trial Chamber is satisfied that the pattern demonstrated by the evidence establishes that Bico was beaten. See pars 326-327, infra, the reference to pattern evidence in the section on murder.
675 - FWS-198 (T 1018); FWS-109 (2377 2380); FWS-109 (T 2430-2431); FWS-71 (T 2864); FWS-69 (T 4122).
676 - See also par 263, infra, findings in respect of incidents No 5 in Schedule B."
[B. Evidentiary comment:]
P.19.2. Not sufficient: Evidence of inflicting suffering without purpose.
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. 412:
"412. The Chamber is satisfied that witnesses L and VV were repeatedly mistreated while detained in the Tobacco Station from September 1993 until November 1993. The beatings and other mistreatment were severe enough to amount to cruel treatment and causing severe physical suffering but as no specific purpose was shown, do not amount to torture. 1100 The Chamber is satisfied that Mladen Naletilić knew about the beatings and mistreatment of the ABiH soldiers who were detained in the cells at his headquarters. He personally saw witness VV and asked the visibly injured man who had beaten him. Moreover, he promised him that he would no longer be mistreated. In the following 12 days, however, the soldiers continued to beat witness VV on a daily basis. The Chamber is thus satisfied beyond reasonable doubt that Mladen Naletilić, despite his false promise, failed to take the necessary measures to punish the perpetrators who had beaten witness VV and witness L and to prevent his other subordinates, in particular Roba, from committing further mistreatment of prisoners at the Tobacco Station. Witness VV further testified that the soldiers once stopped with administering electric-shocks to him because they were warned that "the old man" was coming. The Chamber is satisfied that the reference concerned Mladen Naletilić. It is further satisfied that this evidence shows that his subordinates respected and feared him and that Mladen Naletilić thus had the material ability to prevent mistreatment of prisoners at his headquarters had he only cared to do so. The Chamber finds that Mladen Naletilić bears command responsibility for the cruel treatment and the causing of great suffering of witnesses VV and L at the Tobacco Station pursuant to Articles 2(c), 3 and 7(3) of the Statute (Counts 11 and 12)."
1100. The Chamber notes that the witnesses have testified about having been interrogated. However, the evidence remained unclear as to which information the perpetrators tried to obtain. In addition, the evidence established does not allow the Chamber to clearly distinguish between such beatings, which were inflicted with a specific purpose and others that may have been administered for reasons of pure cruelty. In dubio pro reo, the Chamber therefore finds that the specific purpose that needs to be proven for the crime of torture has not been established beyond reasonable doubt.Not sufficient: Evidene of humiliation.
[B. Evidentiary comment:]
