Table of contents:
P.12. Evidence inferred from an utterance, a document, or a deed.
P.12.1. Evidence that the perpetrator ordered the humiliating act.
P.12.2. Evidence that the perpetrator extensively participated in the outrage upon personal dignity.
P.12.3. Evidence that the perpetrator ordered a father and son to slap each other repeatedly.
P.12.4. Evidence that the perpetrator ordered two brothers to perform fellatio on each other.
P.13. Evidence inferred from a circumstance.
P.14. Not required: Evidence of specific, discriminatory intent or motive.
Element:
P.12. Evidence inferred from an utterance, a document, or a deed.
P.12.1. Evidence that the perpetrator ordered the humiliating act.
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.
[B. Evidentiary comment:]
P.12.2. Evidence that the perpetrator extensively participated in the outrage upon personal dignity.
A. Legal source/authority and evidence
Prosecutor v. Anto Furundija, Case No. IT-95-17/1-T, Judgement (TC), 10 December 1998, paras. 270-274
"2. Count 14: A VIOLATION OF THE LAWS OR CUSTOMS OF WAR (outrages upon personal dignity including rape) recognised by Article 3 of the Statute
270. The rapes committed by Accused B on Witness A were not disputed in any of the details described by the victim and Witness D. What was contested was the presence of the accused, and, to some extent, whether he played any part in their commission. The Trial Chamber has found that Witness A was subjected to rape and serious sexual assaults by Accused B in the course of the interrogation by the accused.
271. The elements of rape, as discussed in paragraph 185 of this Judgement, were met when Accused B penetrated Witness A's mouth, vagina and anus with his penis. Consent was not raised by the Defence, and in any case, Witness A was in captivity. Further, it is the position of the Trial Chamber that any form of captivity vitiates consent. Under Rule 96 of the Rules, it is clear that no corroboration of the evidence of Witness A is required. The Trial Chamber notes that in any case, the evidence of Witness D does confirm the evidence of Witness A in this regard.
272. The Trial Chamber is satisfied that all the elements of rape were met. Again, the rapes and sexual assaults were committed publicly; members of the Jokers were watching and milling around the open door of the pantry. They laughed at what was going on. The Trial Chamber finds that Witness A suffered severe physical and mental pain, along with public humiliation, at the hands of Accused B in what amounted to outrages upon her personal dignity and sexual integrity.
273. The position of the accused has already been discussed. He did not personally rape Witness A, nor can he be considered, under the circumstances of this case, to be a co- perpetrator. The accused's presence and continued interrogation of Witness A encouraged Accused B and substantially contributed to the criminal acts committed by him.
274. On the evidence on record, the Trial Chamber is satisfied that the Prosecution has proved its case against the accused beyond reasonable doubt. In accordance with Article 7(1) and the findings of the Trial Chamber that the actus reus of aiding and abetting consists of assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime and that the mens rea required is the knowledge that these acts assist the commission of the offence, the Trial Chamber holds that the presence of the accused and his continued interrogation aided and abetted the crimes committed by Accused B. He is individually responsible for outrages upon personal dignity including rape, a violation of the laws or customs of war under Article 3 of the Statute."
[B. Evidentiary comment:]
P.12.3. Evidence that the perpetrator ordered a father and son to slap each other repeatedly.
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:
"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:]
P.12.4. Evidence that the perpetrator ordered two brothers to perform fellatio on 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. 1064-1066:
"1064. The Trial Chamber finds the testimony of the victim and the supporting evidence of Witness F, Witness N, Dragan Kuljanin, Witness B, Risto Vukalo, Rajko Draganic, Witness R and Mirko Dordic to be trustworthy as regards the act of forcing two brothers to commit fellatio as alleged in these counts. This incident is alleged to have taken place insider Hangar 6, and as such, many of the former detainees who testified were able to observe the incident from their vantage point inside the Hangar. Further, Esad Landzo, provided a full confession as to his participation in this incident in his testimony before this Trial Chamber. The Trial Chamber has previously stated that it finds the testimony of Esad Landzo to be generally unreliable. However, in relation to the present count, where his testimony is consistent with that of so many additional witnesses, the Trial Chamber accepts Mr. Landzos admission.
1065. Accordingly, on the basis of the foregoing evidence, the Trial Chamber finds that, on one occasion, Esad Landzo ordered Vaso Dordic and his brother, Veseljko Dordic, to remove their trousers in front of the other detainees in Hangar 6. He then forced first one brother and then the other to kneel down and take the other ones penis into his mouth for a period of about two to three minutes. This act of fellatio was performed in full view of the other detainees in the Hangar.
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.13. Evidence inferred from a circumstance.
P.14. Not required: Evidence of specific, discriminatory intent or motive.
A. Legal source/authority and evidence:
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement (AC), 24 March 2000, para. 28:
"28. [ ] the Appeals Chamber finds that it is not an element of offences under Article 3 of the Statute, nor of the offence of outrages upon personal dignity, that the perpetrator had a discriminatory intent or motive."
