5.The perpetrator inflicted severe physical or mental pain or suffering over one or more persons.

5.1.Infliction of severe pain or suffering.

5.1.1.Evidence of infliction, by act or omission, of physical pain or suffering.

5.1.2.Evidence of infliction, by act or omission, of mental pain or suffering.

5.1.3.Evidence of infliction, by act or omission, of both physical and mental pain or suffering.

5.1.4.The severity of the pain or suffering inflicted.

5. The perpetrator inflicted severe physical or mental pain or suffering over one or more persons.

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 506:

"506. Torture has been defined as follows: i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental; ii) the act or omission must be intentional; and iii) the act or omission must be aimed at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or third person."

5.1.I nfliction of severe pain or suffering.

ICTY

The Delalić Trial Chamber noted that:

"From the foregoing discussion it can be seen that the most characteristic cases of torture involve positive acts. However, omissions may also provide the requisite material element, provided that the mental or physical suffering caused meets the required level of severity and that the act or omission was intentional, that is an act which, judged objectively, is deliberate and not accidental.

"As evidenced by the jurisprudence set forth above, it is difficult to articulate with any degree of precision the threshold level of suffering at which other forms of mistreatment become torture. However, the existence of such a grey area should not be seen as an invitation to create an exhaustive list of acts constituting torture, in order to neatly categorise the prohibition."[1]

The Kunarac Appeals Chamber observed that:

""Torture is constituted by an act or an omission giving rise to 'severe pain or suffering, whether physical or mental', but there are no more specific requirements which allow an exhaustive classification and enumeration of acts which may constitute torture. Existing case-law has not determined the absolute degree of pain required for an act to amount to torture."[2]

Accordind to the Trial Chamber in Kvočka:

"Damage to physical or mental health will be taken into account in assessing the gravity of the harm inflicted. The Trial Chamber notes that abuse amounting to torture need not necessarily involve physical injury, as mental harm is a prevalent form of inflicting torture. For instance, the mental suffering caused to an individual who is forced to watch severe mistreatment inflicted on a relative would rise to the level of gravity required under the crime of torture. Similarly, the Furundjija Trial Chamber found that being forced to watch serious sexual attacks inflicted on a female acquaintance was torture for the forced observer. The presence of onlookers, particularly family members, also inflicts severe mental harm amounting to torture on the person being raped.""[3]

ICTR

In Akayesu, the Trial Chamber stated that:

"Torture may be defined as: .any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.

The Chamber defines the essential elements of torture as :

"(i) The perpetrator must intentionally inflict severe physical or mental pain or suffering upon the victim.""[4]

5.1.1. Evidence of infliction, by act or omission, of physical pain or suffering.

In Krnojelac the Trial Chamber noted that:

"[T]he Trial Chamber must take into account all the circumstances of the case, including the nature and context of the infliction of pain, the premeditation and institutionalisation of the ill-treatment, the physical condition of the victim, the manner and method used, and the position of inferiority of the victim.

"Solidarity confinement is not, in and itself, a form of torture. However, in view of its strictness, its duration, and the objected pursued, solitary confinement could cause great physical or mentalsuffering of the sort envisaged by this offence. [...] The same is true of the deliberate deprivation of sufficient food.""[5]

5.1.2. Evidence of infliction, by act or omission, of mental pain or suffering.

ICTY

In Kunarac, the Appeals Chamber observed that:

"A question of cumulativeness assumes the validity of each conviction standing independently; it asks only whether both convictions may be made where they relate to the same conduct. [...] Without being exhaustive and as already noted, an element of the crime of rape is penetration, whereas an element for the crime of torture is a prohibited purpose, neither element being found in the other crime. From this, it follows that cumulative convictions for rape and torture under Article 3 of the Statute are permissible though based on the same conduct."[6]

According to the Trial Chamber in Delalić

"[R]ape causes severe pain and suffering, both physical and psychological. The psychological suffering of persons upon whom rape is inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long lasting.

"[W]henever rape and other forms of sexual violence meet the aforementioned criteria, then they shall constitute torture, in the same manner as any other acts that meet this criteria."[7]

In Kunarac, the Trial Chamber stated that:

"[R]ape is one of the worst sufferings a human being can inflict upon another."[8]

In Kvočka, the Trial Chamber held that:

"[The] threat of rape or other forms of sexual violence undoubtedly caused severe pain and suffering [...] and thus the elements of torture are satisfied."[9]

In Kunarac, the Appeals Chamber stated that:

"[T]he crimes of rape and torture each contain one materially distinct element not contained in the other, making convictions under both crimes permissible. [...] That torture and rape each contain a materially distinct element not contained by the other disposes of this ground of appeal. That is, that an element of the crime of rape is penetration, whereas an element for the crime of torture is a prohibited purpose, neither element being found in the other crime."[10]

ICTR

In Akayesu, the Trial Chamber noted that:

"[R]ape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts.

[...]

[T]he following acts committed by the Accused or by others in the presence of the Accused, at his instigation or with his consent or acquiescence, constitute torture:

(i) the interrogation of Victim U, under threat to her life, by the Accused at the bureau communal, on 19 April 1994.

(ii) [...];

"(iii) the interrogation of Victim Y, under threat to her life, by the Accused, and the beating of Victim Y under interrogation by Mugenzi, in the presence of the Accused, at a mine at Buguli on 20 April 1994.""[11]

In Semanza, the Trial Chamber stated that:

"[S]evere 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." "[12]

In Semanza, the Trial Chamber noted that:

"[T]he rape [of Victim A] constitutes torture because the assailant raped her because she was a Tutsi, wich is a discriminatory purpose."[13]

The Akayesu Trial Chamber observed that:

"[R]ape is a form of aggression and [...] the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts. The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment does not catalogue specific acts in its definition of torture, focussing rather on the conceptual frame work of state sanctioned violence. This approach is more useful in international law. Like torture rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."[14]

5.1.3. Evidence of infliction, by act or omission, of both physical and mental pain or suffering.

The Semanza Trial Chamber found that:

"Noting, in particular, the extreme level of fear occasioned by the circumstances surrounding the event and the nature of the rape of Victim A, the Chamber finds that the perpetrator inflicted severe mental suffering sufficient to form the material element of torture. It is therefore unnecessary to determine whether this rape also inflicted severe physical pain or suffering, for which the Prosecutor only adduced evidence of the fact that non-consensual intercourse occurred."[15]

5.1.4. The severity of the pain or suffering inflicted.

The Kvočka Trial Chamber stated that:

"A precise threshold for determining what degree of suffering is sufficient to meet the definition of torture has not been delineated. In assessing the seriousness of any mistreatment, the Trial Chamber must first consider the objective severity of the harm inflicted. Subjective criteria, such as the physical or mental effect of the treatment upon the particular victim and, in some cases, factors such as the victim's age, sex, or state of health will also be relevant in assessing the gravity of the harm."[16]

In Kunarac, the Appeals Chamber noted that:

"Torture is constituted by an act or an omission giving rise to 'severe pain or suffering, whether physical or mental', but there are no more specific requirements which allow an exhaustive classification and enumeration of acts which may constitute torture. Existing case-law has not determined the absolute degree of pain required for an act to amount to torture."[17]

According to the Trial Chamber in Delalić

"[I]t is difficult to articulate with any degree of precision the threshold level of suffering at which other forms of mistreatment become torture.

[...]

"Treatment that does not meet the purposive requirement for the offence of torture in common article 3, constitutes cruel treatment."[18]

The Furundžija Trial Chamber observed that:

"[T]he use of rape in the course of detention and interrogation as a means of torture and, therefore, as a violation of international law.

[...]

"No international human rights instrument specifically prohibits rape or other serious sexual assaults. Nevertheless, these offences are implicitly prohibited by the provisions safeguarding physical integrity, which are contained in all of the relevant international treaties."[19]

In Kvočka, the Trial Chamber stated that:

"[T]he degree of physical or mental suffering required to prove cruel treatment is lower than the one required for torture, though it must be at the same level as 'willfully causing great suffering or serious injury to body or health'."[20]

In Krstić, the Trial Chamber found that:

"Cruel and inhumane treatment has been defined in the jurisprudence of the Tribunal as 'an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity' and includes such offences as torture."[21]

In Kunarac, the Appeals Chamber noted that:

"[S]ome acts exhibit per se severity and can be classified as constituting torture. Rape is viewed as an "obvious" per se act of torture.

"Severe pain or suffering, as required by the definition of the crime of torture, can thus be said to be established once rape has been proved, since the act of rape necessarily implies such pain or suffering."[22]

According to the Appeals Chamber in Kunarac:

"[S]ome acts establish per se the suffering of those upon whom they were inflicted. Rape is obviously such an act."[23]

In Kvočka, the Trial Chamber held that:

"Subjective criteria, such as the physical or mental effect of the treatment upon the particular victim and, in some cases, factors such as the victim's age, sex, or state of health will also be relevant in assessing the gravity of the harm.

[...]

Damage to physical or mental health will be taken into account in assessing the gravity of the harm inflicted.

[...]

"[I]n evaluating the perpetrator's actions, took into account the general atmosphere and conditions of detention prevailing in the camps, the absence of any medical care after abuse, and the repetitive, systematic character of the mistreatment of detainees."[24]

According to the Appeals Chamber in Kunarac:

"[T]he assumption of the Appellants that suffering must be visible, even long after the commission of the crimes in question, is erroneous. Generally speaking, some acts establish per se the suffering of those upon whom they were inflicted. Rape is obviously such an act."[25]

In Krnojelac, the Trial Chamber stated that:

"[T]he Trial Chamber must take into account all the circumstances of the case, including the nature and context of the infliction of pain, the premeditation and institutionalisation of the ill-treatment, the physical condition of the victim, the manner and method used, and the position of inferiority of the victim.

"[I]n view of strictness, its duration, and the object pursued", it could "cause great physical or mental suffering of the sort envisaged by this offence. To the extent that the confinement of the victim can be shown to pursue one of the prohibited purposes of torture and to have caused the victim severe pain or suffering, the act of putting or keeping someone in solitary confinement may amount to torture. The same is true of the deliberate deprivation of sufficient food."[26]

In Kvočka, the Trial Chamber noted that:

"[The] abuse amounting to torture need not necessarily involve physical injury, as mental harm is a prevalent form of inflicting torture."[27]

According to the Trial Chamber in Kvočka:

"Althought such torture practices often cause permanent damage to the health of the victims, permanent injury is not a requirement for torture."[28]