Table of contents:
5. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.
5.1. Infliction of physical or mental pain or suffering
5.1.1. Evidence of the bodily harm
5.1.2. Evidence of confinement under inhumane conditions
5.1.4. Evidence of civilians being used as human shields
5.1.5. Evidence of conduct related to torture
Element:
5. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.
Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 115-120:
"The offence of inhuman treatment is punishable under Article 2(b) of the Statute and is one of the grave breaches under the Geneva Conventions. Inhuman treatment comprises (1) intentional acts or omissions which, when judged objectively, are deliberate, not accidental, and which cause serious physical or mental harm or suffering or constitute a serious attack on human dignity, and (2) are committed against a protected person within the meaning of Article 2 of the Statute.
The Geneva Conventions stipulate that protected persons must be treated humanely and provide non-exhaustive examples, of actions contrary to the principle of humane treatment, in particular, physical mutilation, medical or scientific experiments, acts of violence or intimidation, insults, or even the act of wilfully leaving wounded prisoners of war without medical assistance and care. In addition, they contain provisions relative to the conditions of confinement of civilian internees and prisoners of war, and protect women "against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault". In the language of the ICRC Commentary regarding Article 147 of the Fourth Geneva Convention, humane treatment comprises that which involves physical integrity, health and human dignity.
Under Article 2(b) of the Statute, the following have been characterised as inhuman treatment: repeated beatings and outrages inflicted on protected persons, certain conditions of confinement, the use of detainees as human shields, sexual assault and being compelled to perform forced labour along the front lines under dangerous conditions.
In keeping with the case-law of the Tribunal, any sexual violence inflicted on the physical and moral integrity of a person by means of threat, intimidation or force, in such as a way as to degrade or humiliate the victim, may constitute inhuman treatment under Article 2(b) of the Statute. Rape is thereby prohibited, as well as all forms of sexual violence not including penetration.
The severity of an act must be assessed in light of the circumstances of the case, specifically taking into account "the nature of the act or omission, the context in which it occurs, its duration and/or repetition, the physical, mental and moral effects of the act on the victim and the personal circumstances of the victim, including age, sex and health".
In respect of the mental element, at the moment of the act or omission, the direct perpetrator must have "had the intention to inflict serious physical or mental suffering or to commit a serious attack on the human dignity of the victim, or where he knew that his act or omission was likely to cause serious physical or mental suffering or a serious attack upon human dignity and was reckless as to whether such suffering or attack would result from his act or omission".[1]
5.1.Infliction of physical or mental pain or suffering
5.1.1. Evidence of the bodily harm
"¡¤ "mutilation and other types of severe bodily harm"[2]
"¡¤ "beatings and other acts of violence"[3]
"Sexual violence falls within the scope of "other inhumane acts""[4]
5.1.2. Evidence of confinement under inhumane conditions
"The phrase "inhumane conditions" is a factual description relating to the nature of the general environment in which detained persons are kept and the treatment which they receive. Accordingly, the Trial Chamber is bound to apply the legal standards found for the offences of wilfully causing great suffering or serious injury to body or health and cruel treatment to this factual category. These legal standards are absolute and not relative. Thus, when considering the factual allegation of inhumane conditions with respect to these legal offences, no reference should be made to the conditions prevailing in the area of detention in order to determine what the standard of treatment should have been. The legal standard in each of the mistreatment offences discussed above delineates a minimum standard of treatment which also applies to conditions of detention. During an armed conflict, persons should not be detained in conditions where this minimum standard cannot be met and maintained."[5]
"In the view of the Chamber, there is also sufficient evidence to establish substantial grounds to believe that severe physical and mental pain and suffering as a result of their imprisonment with their hands tied for many hours in a classroom filled with dead bodies was inflicted on these civilians."[6]
5.1.4. Evidence of civilians being used as human shields
5.1.5. Evidence of conduct related to torture
5.2. The severity/seriousness of the conduct
"[A]s a minimum [...] 'other inhumane acts', must consist of acts inflicted upon a human being and must be of a serious nature."[7]
"[T]he acts that rise to the level of inhumane acts should be determined on a case-by-case basis."[8]
Footnotes:
[1] ICTY, The Prosecutor v. Jadranko Prlić et al., Trial Judgement 29 May 2013 , para. 113-116, 119-120.
[2] ICTY, Tadić Trial Judgement 14 July 1997, para. 729.
[3] ICTY, Tadić Trial Judgement 14 July 1997, para. 730.
[4] ICTR, Akayesu Trial Judgment 2 September 1998, para. 688.
[5] ICTY Mucić et al. ("Čelebići") Trial Judgment 16 November 1998, paras 556, 557.
[7] ICTY Tadić Trial Judgement 14 July 1997, para. 728.
[8] ICTR, Kayishema and Ruzindana Trial Judgment 21 May 1999, para. 151.
