Table of contents:
4.1. The conduct caused death; OR
P.9. Evidence of death as a result of the mutilation.
4.2. The conduct seriously endangered the physical or mental health of such person or persons.
P.10. Evidence of X-Ray poisoning.
P.11. Evidence of a person being injured to the extent that the person is left for dead.
Element:
4.The conduct caused death or seriously endangered the physical or mental health of such person or persons.
A. Evidentiary comment:
The reference to physical or mental health is taken from article 11(4) of Additional Protocol I, which prohibits the endangerment of the physical or mental health and integrity of people who are in the power of the adverse party. This aims to uphold the basic Hippocratic Oath of primum non nocere - never to do harm. The PrepCom decided to omit the term integrity in relation to mutilation, determining that it was only relevant to medical or scientific experiments.
While a deadly outcome of either a mutilation or an experiment is evident, the other alternative is less clear. The health must not necessarily have been affected but seriously endangered. Such endangerment requires that the act or omission causes an objective danger which is accountable to the acting person and could have easily turned into a danger to the health of the victim. Thus, to know whether a persons health is seriously endangered is a matter of Judgment based on the individual circumstances of the situation, and a Tribunal would have to take the foreseeable consequences of the act or omission into account as well. The term seriously indicates both that the health was clearly endangered and that the danger involved was also of some magnitude.
The wording of material element 2 of this provision indicates that the mutilation is only prohibited on live persons, as the physical or mental health of a dead person can no longer be endangered, and death has already occurred. In the past, mutilation of dead bodies has been seen as a specific crime in itself, taken from the 1929 Geneva Convention. The Trial of Max Schmid deals with mutilation of dead bodies. Reference is made to four other cases of mutilation of dead bodies by Japanese soldiers. See the MPMD on ooutrages upon human dignity, articles 8(2)(b)(xxi) in which footnote 49 of the Elements of crimes document specifies that persons can include dead persons for the purposes of this crime. [Trial of Max Schmid, United States General Military Government Court at Dachau, German, 19 May 1947, Law Reports of Trials of War Criminals, UNWCC, Vol.XIII, 1949, pp.151-2.]
4.1. The conduct caused death; OR
P.9. Evidence of death as a result of the mutilation.
4.2. The conduct seriously endangered the physical or mental health of such person or persons.
A. Evidentiary comment:
While a deadly outcome of either a mutilation or an experiment is evident, the other alternative is less clear. The health must not necessarily have been affected but seriously endangered. Such endangerment requires that the act or omission causes an objective danger which is accountable to the acting person and could have easily turned into a danger to the health of the victim. Thus, to know whether a persons health is seriously endangered is a matter of Judgment based on the individual circumstances of the situation, and a Tribunal would have to take the foreseeable consequences of the act or omission into account as well. The term seriously indicates both that the health was clearly endangered and that the danger involved was also of some magnitude.
The wording of material element 2 of this provision indicates that the mutilation is only prohibited on live persons, as the physical or mental health of a dead person can no longer be endangered, and death has already occurred.
P.10. Evidence of X-Ray poisoning.
A. Legal source/authority and evidence:
Trial of Karl Brandt et al., United States Military Tribunal, Judgment of 20 August 1947, in Nuremberg Military Tribunals, Trials of War Criminals Volume II, pp. 277-279:
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.
[ ] A Polish Jew testified before the Tribunal that while confined in Auschwitz concentration camp he was marched to Birkenau and forcibly subjected to severe X-ray exposure and was castrated later in order that the effects of the X-ray could be studied.
P.11. Evidence of a person being injured to the extent that the person is left for dead.
A. Legal source/authority and evidence:
Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, para. 163:
163. [ ] There is no doubt that by these words, the Accused was ordering the murder of each of the 15 Tutsi survivors, given that once these words were uttered, the attackers attacked the survivors with machetes, with two of them mutilating Witness TAX, despite her pleas, leaving her for dead.
