6. The perpetrator threatened to kill, injure or continue to detain such person or persons.

6.1. The perpetrator threatened to kill such person or persons;OR .

P.5. Evidence of threat of death.

6.2. The perpetrator threatened to injure such person or persons; OR .

P.6. Evidence of force or threat of force.

6.3. The perpetrator threatened to continue to detain such person or persons.

P.7. Evidence of a threat of continued detention.

6. The perpetrator threatened to kill, injure or continue to detain such person or persons.

6.1. The perpetrator threatened to kill such person or persons;OR .

P.5. Evidence of threat of death.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, para. 639:

"639. The Appeals Chamber agrees that the essential element in the crime of hostage-taking is the use of a threat concerning detainees so as to obtain a concession or gain an advantage; a situation of hostage-taking exists when a person seizes or detains and threatens to kill, injure or continue to detain another person in order to compel a third party to do or to abstain from doing something as a condition for the release of that person¹³³²."

"1332. See also Article 1 of the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979."

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 311, 313-314, 788:

"311. This crime is listed as one of the grave breaches in Article 147 of Geneva Convention IV. The ICRC Commentary thereto provides:

The taking of hostages: Hostages might be considered as persons illegally deprived of their liberty, a crime which most penal codes take cognizance of and punish. However, there is an additional feature, i.e. the threat either to prolong the hostage’s detention or to put him to death. The taking of hostages should therefore be treated as a special offence. Certainly, the most serious crime would be to execute hostages which, as we have seen, constitutes wilful killing. However, the fact of taking hostages, by its arbitrary character, especially when accompanied by a threat of death, is in itself a very serious crime; it causes in the hostage and among his family a mortal anguish which nothing can justify.³³"

"33. ICRC Commentary (GC IV), pp. 600-601."

"313. The additional element that must be proved to establish the crime of unlawfully taking civilians hostage is the issuance of a conditional threat in respect of the physical and mental well-being of civilians who are unlawfully detained. The ICRC Commentary defines this additional element as a "threat either to prolong the hostage’s detention or to put him to death".

314. Consequently, the Chamber finds that an individual commits the offence of taking civilians as hostages when he threatens to subject civilians, who are unlawfully detained, to inhuman treatment or death as a means of achieving the fulfilment of a condition."

"788. (viii) On 19 April 1993, according to Dr. Mujezinovic, Mario Cerkez told him that the ABiH had broken through the front line at Dubravica: the witness had to ring the 3^rd Corps Commander and say that there were 2,223 prisoners and that if the Muslim advance continued on Vitez he would order the killing of the prisoners. The witness did so and the Commander agreed to halt the advance.⁷⁴ He was cross-examined about his witness statement of 1995, in which he said that Ivica Santic and Pero Skopljak threatened that, if the ABiH attacked, they would kill the people in the basement plus 2,323 prisoners."

"74. T. 2199-2000."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, paras. 158, 703, 706, 708:

"158. Within the meaning of Article 2 of the Statute, civilian hostages are persons unlawfully deprived of their freedom, often arbitrarily and sometimes under threat of death."

"703. The Prosecution contended that the large number of detainees (2,223) to whom death threats were allegedly made on 19 and 20 April led to the unavoidable conclusion that all the Bosnian Muslim detainees in the hands of the Croatian forces in the region at all the detention facilities must be considered as HVO hostages. […] Lastly, the Prosecution alleged that a death threat hung over the lives of the hostages¹¹."

"706. On 19 April 1993, Dr. Mujezinovic was taken off by two HVO soldiers to Vitez cultural centre. In an office were Mario Cerkez and five other persons all wearing HVO uniforms. Mario Cerkez said that the ABiH troops were advancing into town and that the witness had to obey his orders. He told the witness:

"708. In light of the foregoing, the Trial Chamber is of the view that all the Muslims in the hands of the Croatian forces interned at the aforesaid detention facilities on 19 and 20 April 1993 were threatened with death. This is incontestably so at least for those detained at Vitez cultural centre. […]"

"11. Prosecutor’s Brief, book 6, IX, 8.

14. Witness Muhamed Mujezinovic, PT of 20 August 1997, p. 1707."

6.2. The perpetrator threatened to injure such person or persons; OR .

P.6. Evidence of force or threat of force.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, para. 639:

"639. The Appeals Chamber agrees that the essential element in the crime of hostage-taking is the use of a threat concerning detainees so as to obtain a concession or gain an advantage; a situation of hostage-taking exists when a person seizes or detains and threatens to kill, injure or continue to detain another person in order to compel a third party to do or to abstain from doing something as a condition for the release of that person¹³³²."

"1332. See also Article 1 of the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979."

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 311, 313-314:

"311. This crime is listed as one of the grave breaches in Article 147 of Geneva Convention IV. The ICRC Commentary thereto provides:

"33. ICRC Commentary (GC IV), pp. 600-601."

"313. The additional element that must be proved to establish the crime of unlawfully taking civilians hostage is the issuance of a conditional threat in respect of the physical and mental well-being of civilians who are unlawfully detained. The ICRC Commentary defines this additional element as a "threat either to prolong the hostage’s detention or to put him to death".

314. Consequently, the Chamber finds that an individual commits the offence of taking civilians as hostages when he threatens to subject civilians, who are unlawfully detained, to inhuman treatment or death as a means of achieving the fulfilment of a condition."

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 158:

"158. Within the meaning of Article 2 of the Statute, civilian hostages are persons unlawfully deprived of their freedom, often arbitrarily and sometimes under threat of death."

6.3. The perpetrator threatened to continue to detain such person or persons.

P.7. Evidence of a threat of continued detention.

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004, para. 639:

"639. The Appeals Chamber agrees that the essential element in the crime of hostage-taking is the use of a threat concerning detainees so as to obtain a concession or gain an advantage; a situation of hostage-taking exists when a person seizes or detains and threatens to kill, injure or continue to detain another person in order to compel a third party to do or to abstain from doing something as a condition for the release of that person¹³³²."

"1332. See also Article 1 of the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979."

Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, paras. 311, 313:

"311. This crime is listed as one of the grave breaches in Article 147 of Geneva Convention IV. The ICRC Commentary thereto provides:

The taking of hostages: Hostages might be considered as persons illegally deprived of their liberty, a crime which most penal codes take cognizance of and punish. However, there is an additional feature, i.e. the threat either to prolong the hostage’s detention or to put him to death. The taking of hostages should therefore be treated as a special offence. Certainly, the most serious crime would be to execute hostages which, as we have seen, constitutes wilful killing. However, the fact of taking hostages, by its arbitrary character, especially when accompanied by a threat of death, is in itself a very serious crime; it causes in the hostage and among his family a mortal anguish which nothing can justify.³³"

"33. ICRC Commentary (GC IV), pp. 600-601."

"313. The additional element that must be proved to establish the crime of unlawfully taking civilians hostage is the issuance of a conditional threat in respect of the physical and mental well-being of civilians who are unlawfully detained. The ICRC Commentary defines this additional element as a "threat either to prolong the hostage’s detention or to put him to death"."

B. Evidentiary comment:

Note that it must be established that the perpetrator has individual criminal responsibility for the threat, pursuant to either Article 25 or 28 of the ICC Statute. In the Kordic and Cerkez Appeals Judgement, Cerkez was acquitted under both Articles 7(1) and 7(3) of the ICTY Statute for taking civilians as hostages as the Appeals Chamber considered "that no reasonable trier of fact could find beyond reasonable doubt that it was Cerkez who threatened" (para 938; see paras 932-939).