Table of contents:
P.6. Evidence of serious suffering or humiliation required.
P.6.1. Evidence that the perpetrator forced victims to administer mutual beatings.
P.6.3. Evidence of exposure to chronic physical deprivation and constant fear.
P.7. Evidence of the young age as constituting an aggravating circumstance.
P.9. Evidence of ill-treatment of victims by police officers while in police custody.
P.10. Evidence that the perpetrator forced victims to perform acts prohibited by their religion.
P.11. Not required: Evidence of direct harm to the victims physical or mental well-being.
Element:
A. Evidentiary comment:
A recent decision of the ICTY Appeals Chamber casts some light on the distinction between the overall gravity of the offence and the aggravating factors considered in sentencing. In a Sentencing Appeal to the ICTY Appeals Chamber, Deronjić, the appellant, asserted that the Trial Chamber erred in considering certain aggravating factors in the sentencing judgment, because those factors are "either subsumed in the overall gravity of the offence for which he was convicted, or are incorporated as constitutive elements of the crime." (para.104) While agreeing with the appellant that the gravity of the crime cannot also be considered as an aggravating factor, the Appeals Chamber rejected the ground of appeal as it found that the Trial Chamber had in fact made a proper distinction between aggravating circumstances and the gravity of the offence.
For example, the appellant contended that the vulnerability and defenselessness of the victims cannot be considered an aggravating circumstance since it was already subsumed in the gravity of the offence. Rejecting this argument, the Appeals Chamber held that the issue before it was not whether the intrinsic vulnerability of civilians can be taken into account, but rather whether there were additional elements amounting to particular circumstances showing that the victims were subjected to a special vulnerability. In the present case, not only had the civilians been disarmed and denied any warning about their fate, but moreover had been deceived by a statement on the appellants behalf into believing they were safe. The Appeals Chamber therefore found that the Trial Chamber could reasonably come to the conclusion that it was not only their status as civilians which rendered the victims especially vulnerable, and accepted the finding of the Trial Chamber that the exacerbated vulnerability and defenselessness of the victims was an aggravating circumstance.
The judgment of the ICTY Appeals Chamber in the Deronjić Sentencing Appeal made clear that double-counting of factors simultaneously as aggravating, and as constitutive of the gravity of the offence, is impermissible.
P.6. Evidence of serious suffering or humiliation required.
A. Legal source/authority and evidence:
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para 56:
"56. An outrage upon personal dignity is an act which is animated by contempt for the human dignity of another person. The corollary is that the act must cause serious humiliation or degradation to the victim. It is not necessary for the act to directly harm the physical or mental well-being of the victim. It is enough that the act causes real and lasting suffering to the individual arising from the humiliation or ridicule. The degree of suffering which the victim endures will obviously depend on his/her temperament. Sensitive individuals tend to be more prone to perceive their treatment by others to be humiliating and, in addition, they tend to suffer from the effects thereof more grievously. On the other hand, the perpetrator would be hard-pressed to cause serious distress to individuals with nonchalant dispositions because such persons are not as preoccupied with their treatment by others and, even should they find that treatment to be humiliating, they tend to be able to cope better by shrugging it off. Thus, the same act by a perpetrator may cause intense suffering to the former, but inconsequential discomfort to the latter. This difference in result is occasioned by the subjective element. In the prosecution of an accused for a criminal offence, the subjective element must be tempered by objective factors; otherwise, unfairness to the accused would result because his /her culpability would depend not on the gravity of the act but wholly on the sensitivity of the victim. Consequently, an objective component to the actus reus is apposite: the humiliation to the victim must be so intense that the reasonable person would be outraged. As for the requisite degree of mens rea, the Commentary indicates that the accused must have committed the act with the intent to humiliate or ridicule the victim. The ICRC, in proposing the mental element for the offence of "inhuman treatment" accepted a lower degree of mens rea, requiring the perpetrator to act wilfully. Recklessness cannot suffice; the perpetrator must have acted deliberately or deliberately omitted to act but deliberation alone is insufficient. While the perpetrator need not have had the specific intent to humiliate or degrade the victim, he must have been able to perceive this to be the foreseeable and reasonable consequence of his actions."
P.6.1. Evidence that the perpetrator forced victims to administer mutual beatings.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para.1070:
"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:]
P.6.3. Evidence of exposure to chronic physical deprivation and constant fear.
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:
"119. 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:]
P.7. Evidence of the young age as constituting an aggravating circumstance.
A. Legal source/authority and evidence:
"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."
A. Legal source/authority and evidence:
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para 227:
"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."
"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."
P.9. Evidence of ill-treatment of victims by police officers while in police custody.
A. Legal source/authority and evidence:
"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."
P.10. Evidence that the perpetrator forced victims 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.62-3
"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."
P.11. Not required: Evidence of direct harm to the victims physical or mental well-being.
A. Legal source/authority and evidence:
"501. Insofar as this definition provides that an outrage upon personal dignity is an act which "cause[s] serious humiliation or degradation to the victim", the Trial Chamber agrees with it. However, the Trial Chamber would not agree with any indication from the passage above that this humiliation or degradation must cause "lasting suffering" to the victim. So long as the humiliation or degradation is real and serious, the Trial Chamber can see no reason why it would also have to be "lasting". In the view of the Trial Chamber, it is not open to regard the fact that a victim has recovered or is overcoming the effects of such an offence as indicating of itself that the relevant acts did not constitute an outrage upon personal dignity. Obviously, if the humiliation and suffering caused is only fleeting in nature, it may be difficult to accept that it is real and serious. However this does not suggest that any sort of minimum temporal requirement of the effects of an outrage upon personal dignity is an element of the offence."
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999, para. 56:
"56. An outrage upon personal dignity is an act which is animated by contempt for the human dignity of another person. The corollary is that the act must cause serious humiliation or degradation to the victim. It is not necessary for the act to directly harm the physical or mental well-being of the victim. It is enough that the act causes real and lasting suffering to the individual arising from the humiliation or ridicule. The degree of suffering which the victim endures will obviously depend on his/her temperament. Sensitive individuals tend to be more prone to perceive their treatment by others to be humiliating and, in addition, they tend to suffer from the effects thereof more grievously. On the other hand, the perpetrator would be hard-pressed to cause serious distress to individuals with nonchalant dispositions because such persons are not as preoccupied with their treatment by others and, even should they find that treatment to be humiliating, they tend to be able to cope better by shrugging it off. Thus, the same act by a perpetrator may cause intense suffering to the former, but inconsequential discomfort to the latter. This difference in result is occasioned by the subjective element. In the prosecution of an accused for a criminal offence, the subjective element must be tempered by objective factors; otherwise, unfairness to the accused would result because his /her culpability would depend not on the gravity of the act but wholly on the sensitivity of the victim. Consequently, an objective component to the actus reus is apposite: the humiliation to the victim must be so intense that the reasonable person would be outraged."
B. Evidentiary comment:
The case law of the ICTY is inconsistent with respect to whether a minimum temporal element of the offence is required. The Aleksovski Trial Chamber stated that "the act must cause serious humiliation or degradation to the victim. It is not necessary for the act to directly harm the physical or mental well-being of the victim. It is enough that the act causes real and lasting suffering to the individual arising from the humiliation or ridicule."(Aleksovski Trial Judgment, para. 56; cf. also Kunarac Trial Judgment, para. 507)
In contrast, the Kunarac Trial Chamber held that the seriousness of the act was a necessary and descriptive criterion, but the seriousness of an act did not require that the act must cause "lasting suffering", and that the fact that a victim recovered from the offence does not negate the humiliation or degradation experienced when the acts were committed.(Kunarac Trial Judgment, para. 501) The Kvocka Trial Chamber agreed with the Kunarac Trial Chamber rationale that outrages upon personal dignity need not consist of acts that cause lasting suffering. (Kvocka Trial Judgment, para. 168; The Kunarac Trial Chamber referred to the Aleksovski Trial Judgment and stated that "the Trial Chamber will not agree with any indication from the passage above that this humiliation or degradation must cause lasting suffering", Kunarac Trial Judgment, para. 501.)
The better view is that a minimum temporal element should not be considered a requirement of the offence.
