CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 7 Crimes against humanity » Art. 7(1)(k) Inhumane acts » 5. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act.

5. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act.

5.1. Infliction of great suffering, or serious injury to body or to mental or physical health

5.1.1. Evidence of the bodily harm

P.1. Evidence of beating

P.2. Evidence of slahing the victims forearms with a knife

5.1.2. Evidence of confinement under inhumane conditions

P.3. Evidence of harassment

P.4. Evidence of humiliation and psychological abuse

P.4.1. Evidence of detainees being ordered to beat each other

P.4.2. Evidence of detainees being ordered to laugh while being beaten

P.4.3. Evidence of detainees being forced to eat his or her own excrement

P.4.4. Evidence of detainees being regularly insulted

P.4.5. Evidence of detainees being given lard to eat

P.4.6. Evidence of detainees being given food that they would normally not eat for religious reasons

P.4.7. Evidence of detainees being heard to be executed

P.4.8. Evidence that any attempt made by detainees to improve their living conditions (such as efforts to get additional food, access to warm water, and attempts to communicate with each other, the guards, or the outside world) were punished

P.4.9. Evidence of detainees being exposed to the sounds of torture and beatings over a period of months, which made them nervous and panicky

P.4.10. Evidence of the criteria for the selection for beatings etc not being identifiable, which made detainees fearful of being the next victim

P.4.11. Evidence of detainees wrting letters to their family fearing they would not survive

P.4.12. Evidence of detainees witnessing family members being taken out and beaten

P.5. Evidence of the creation of an atmosphere of fear through torture and other forms of physical and psychological abuse

P.6. Evidence of rape

P.7. Evidence of lack of space/facilities

P.7.1. Evidence of overcrowded cells

P.7.2. Evidence of not enough room to sit

P.7.3. Evidence of detainees having only cardboard to sleep on

P.8. Evidence of inadequate food and water

P.8.1. Evidence of an insufficient supply of food and water

P.8.2. Evidence of considerable weight loss

P.9. Evidence of unhygienic detention conditions

P.9.1. Evidence of the floors being bloody and very rarely cleaned

P.9.2. Evidence of absence/lack of toilet facilities

P.9.3. Evidence of detainees not being able to wash themselves

P.9.4. Evidence of detainees not being able to clean their clothes

P.9.5. Evidence of change of clothes not being supplied

P.9.6. Evidence of bed linen being never washed or changed

P.9.7. Evidence of only cold water being available

P.9.8. Evidence of regular baths or showers not being provided

P.9.9. Evidence of hygienic products or toiletries not being supplied

P.10. Evidence of an insufficient access to medical care

P.10.1. Evidence of insufficient medical care

P.10.2. Evidence of sporadic medical treatment

P.11. Evidence of denial of the most basic protection against freezing temperature during the winter

P.11.1. Evidence of the heating system at the detention centre being broken

P.11.2. Evidence that available measures were not taken to protect detainees/ prisoners from the cold

P.11.3. Evidence of available stocks of additional blankets not being provided to all detainees

P.11.4. Evidence of broken window panes not being repaired or covered, and open windows out of the reach of detainees were not closed

P.11.5. Evidence of attempts made by detainees to make winter clothes out of blankets were punished

5.1.3. Evidence of forced labour assignments when the conditions under which the labour is rendered are such as to create danger for the life or health of the victims, or may arouse in them feelings of fear, and humiliation

P.12. Evidence of type forced labour assignment

P.12.1. Evidence of military assignment on the frontline which exposed civilians to dangerous conditions and a high risk of being injured or killed

P.12.2. Evidence of the use of detainees to dig trenches at the front under dangerous circumstances

P.12.3. Evidence of humiliating assignments

P.12.4. Evidence of civilians being forced to loot

P.13. Evidence of working conditions

P.13.1. Evidence of payment and compensation

P.13.2. Evidence of dangerous conditions

5.1.4. Evidence of civilians being used as human shields

P.14. Evidence of taking civilians to a place targeted by enemy

P.15. Evidence of those civilians being told or made aware of their being used as human shields

P.16. Evidence of those civilians being watched over by soldiers

P.17. Evidence of those civilians being told that whoever moved would be instantly cut down

5.1.5. Evidence of conduct related to torture

P.18. Evidence of conduct which do not meet the severity requirement of torture

P.19. Evidence of conduct which do not meet the prohibited purpose requirement of torture

5.2. "by means of an inhumane act"

See mea ns of proof under 3.1. above.

Element

5. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act.

5.1.I nfliction of great suffering, or serious injury to body or to mental or physical health

5.1.1. Evidence of the bodily harm

P.1. Evidence of beating

A. Legal source/authority and evidence:

Prosecutor v. Siméon Nchamihigo, Case No. ICTR-01-63-T, Judgement (TC), 12 November 2008, para 350:

"350. The Chamber found that Nchamihigo ordered that Gakwandi be killed because of his political affiliations. Though Gakwandi was not killed, he was hunted down by a group of attackers, clubbed over the head, causing an injury so serious that his attackers left him unconscious, thinking he was dead. As a matter of law, the infliction of serious bodily injury could constitute an Inhumane Act.224 In the present case, the Chamber finds that the circumstances under which he was targeted and attacked are particularly grievous as well as the injury itself. The Chamber considers that Gakwandis attack was an Inhumane Act. [..]"

224 Blaskic Judgement (TC), 3 March 2000, para. 239.

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 732-736, 773, 775:

"C. Evidence related to confinement under inhumane conditions

[]

2. Humiliation and psychological abuse

732. During Hasan Bicics detention in the primary school, "Rade", a man from Novi Grad, ordered Muhamed Bicic to beat his brother Hasan, and vice versa, and other prisoners were also ordered to beat each other.¹⁶⁵⁹

733. During Muhamed Bicics detention in the TO building, "Laki" beat him and Hasan Bicic with a police truncheon and ordered them to laugh. Muhamed Bicic also stated that "Zuti" was forced to eat his own excrement after having been beaten in the gym of the primary school in summer 1992.¹⁶⁶⁰

734. The detainees were regularly insulted by their assailants in the detention facilities.¹⁶⁶¹

735. Several Prosecution witnesses gave evidence that they were given lard to eat. As they did not get sufficient food, they would eat it, although the Muslims would normally not eat lard for religious reasons.¹⁶⁶²

736. Witness O testified that on or about 4 July 1992, he and other prisoners in Bosanski Samac were told by Slobodan Jacimovic that they would be executed when they were being taken away to be exchanged.¹⁶⁶³"

"1659 - Hasan Bicic, T. 2745-47; see also Sulejman Tihic, T. 1399; Witness Q, T. 11779; Muhamed Bicic, T. 3010; Osman Jasarevic, Rule 92bis Statement, para. 112; Kemal Mehinovic, T. 7431-32, T. 7436.
1660 - Muhamed Bicic, T. 2942-43, T. 3005, T. 3011. See also Witness Q, T. 11779.
1661 - Witness G, T. 4054-55.
1662 - Ibrahim Salkic, T. 3338-39; Muhamed Bicic, T. 3025; Witness M, T. 5218-19; Kemal Mehinovic, T. 7442-43; Witness E, T. 7711; Witness P (Croat), T. 11558; Witness A (Croat), Rule 92bis Statement, para. 87; Witness O (Croat), Rule 92bis Statement, paras 32, 48. See also Osman Jasarevic, Rule 92bis Statement, para. 112.
1663 - Witness O, Rule 92bis Statement, paras 55-56."

"3. Findings

773. The Trial Chamber is also satisfied that the detainees who were imprisoned in the detention centres in Bosanski Samac were confined under inhumane conditions. The prisoners were subjected to humiliation and degradation. The forced singing of "Chetnik" songs and the verbal abuse of being called "ustasha" or "balija" were forms of such abuse and humiliation of the detainees. They did not have sufficient space, food or water. They suffered from unhygienic conditions, and they did not have appropriate access to medical care. These appalling detention conditions, the cruel and inhumane treatment through beatings and the acts of torture caused severe physical suffering, thus attacking the very fundamentals of human dignity. The Trial Chamber finds that this confinement under inhumane conditions constitutes cruel and inhumane treatment. This was done because of the non-Serb ethnicity of the detainees.

[]

775. The Trial Chamber is satisfied that during detention in the detention centres in Crkvina and Bijeljina, the prisoners did not have sufficient space and sufficient food and water supply. They were kept in unhygienic conditions and did not have access to sufficient medical care. Furthermore, detainees were subjected to beatings that constituted cruel and inhumane treatment and torture. For these reasons, the Trial Chamber finds that these prisoners were also confined under inhumane conditions that constituted cruel and inhumane treatment."

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 209, 215:

"209. The Trial Chamber is satisfied that this incident has been established. On 11 July 1992, FWS-71 was taken out of room 11 and was beaten for about 15 minutes by KP Dom guards Dragan Obrenovic and Zoran Matovic in the corridor in front of room 11 He was kicked in the chest, around the kidneys, and once slapped in the face. The guards were armed with semi-automatic rifles at the time, but it has not been established that they used them or any other object to beat FWS-71. Nor has it been established that FWS-71 fainted in the course of the beating. He started feeling pain in his lungs and above the right kidney from the beatings after a couple of days, which he said then lasted for about 10 to 15 days. The Trial Chamber is satisfied that the treatment of FWS-71 is serious enough as to amount to cruel treatment pursuant to Article 3 as well as inhumane acts pursuant to Article 5(i) of the Statute."

"589 - FWS-71 (T 2807).
590 - FWS-71 (T 2808-2809)."

"215. The Trial Chamber is satisfied that the allegations involving Kemo Kajgana (A 10) and Fikret Kovacevic (A 12) have been established. Fikret Kovacevic was taken out of the isolation cell, where he was being held together with Ahmet Duric (A 7), Ahmet Hadzimusic and Kemo Kajgana, and was beaten. Hadzimusic was in the room adjacent to where the beatings occurred and did not see but could hear the beatings taking place. At some point, the persons administering the beatings took the detainee Kajgana out of the cell and told him that his neighbour Kovacevic was asking for him. They instructed Kajgana to beat Kovacevic with the baton. Since Kajgana beat his fellow detainee only very gently, the baton was taken away from him and he was beaten himself to demonstrate how to administer real blows. Next, the baton was handed to Kovacevic who was also forced to beat Kajgana. The Trial Chamber is satisfied that the mistreatment inflicted upon both victims, Kajgana and Kovacevic, is sufficiently serious as to amount to cruel treatment pursuant to Article 3 and inhumane acts pursuant to Article 5(i)."

"602 - Ahmet Hadzimusic (T 1947, 1950).
603 - Ahmet Hadzimusic (T 1948-1949)."

P.2. Evidence of slahing the victims forearms with a knife

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 77-78, 770-771:

"(iii) Beatings

77. The Trial Chamber emphasises that the mere description of bodily assaults as "beatings" does not by itself establish that these beatings constitute the actus reus of cruel and inhumane treatment as persecutory acts. Instead, the beatings have to amount to a "gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5".

78. Taking into consideration the requirements of Article 5 (i) of the Statute as set out above, the Trial Chamber finds that beatings constitute cruel and inhumane treatment if the following elements can be proved:

(a) the beatings caused serious mental or physical suffering or injury or constituted a serious attack on human dignity, and

(b) the beatings were performed deliberately."

"135 - Cf.

Kupreskic Trial Judgement

, paras 621, 627;

Naletilic Trial Judgement

, para. 635."

"3. Findings

770. The Trial Chamber is convinced that on 17 April 1992 and in the following months, a large number of non-Serb civilians were repeatedly beaten in the detention facilities in Bosanski Samac and in Crkvina, Brcko, and Bijeljina. Some of the victims had already been beaten upon their arrest. During their imprisonment in the detention facilities, detainees were severely beaten with various objects, such as rifles, metal bars, baseball bats, metal chains, police batons, and chair legs. The detainees were beaten on all parts of their bodies, and many of them suffered serious injuries. Some prisoners were beaten while undergoing interrogation. The beatings were applied by paramilitary forces from Serbia, local policemen, and a few members of the JNA. The beatings took place on a daily basis, day and night. The Defence for all three accused did not contest that such beatings occurred as described by the witnesses .

771. The Trial Chamber is satisfied that these beatings caused severe pain and suffering, both physically and mentally, to the detainees. The Trial Chamber is also satisfied that the beatings were committed on discriminatory grounds. The evidence shows that practically all detainees who were beaten were non-Serbs. On one occasion, a victim was beaten in the crotch, and his assailants told him that Muslims should not propagate .¹⁷²⁸Prisoners were regularly insulted on the basis of their ethnicity.¹⁷²⁹For these reasons, the Trial Chamber finds that the beatings that were committed on discriminatory grounds constitute cruel and inhumane treatment as an underlying act of persecution."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 41-45:

"2. Cruel Treatment

41. This Trial Chamber shares the opinion of the Trial Chamber in the Celebici case which defined cruel treatment as "an intentional act or omission [...] which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity"Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 133:

"2. Findings

133. The Trial Chamber is satisfied that the brutal and deplorable living conditions imposed upon the non-Serb detainees at the KP Dom in the period from April 1992 to July 1993 (discussed below) constituted acts and omissions of a seriousness comparable to the other crimes enumerated under Article 5 and Article 3 of the Tribunals Statute, and thus warrants a finding that those acts and omissions constitute inhumane acts and cruel treatment under those Articles."

Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Lando, Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 545-558:

"(e) Cruel Treatment

545. The offences charged as cruel treatment in the Indictment are brought under Article 3 of the Statute, either in the alternative to charges of torture, or additional to charges of wilfully causing great suffering or serious injury or inhuman treatment, brought under Article 2 of the Statute.

(i) Arguments of the Parties

546. The Prosecution argues that cruel treatment has the same elements as the offence of inhuman treatment and encompasses situations where the accused mistreats the victim and subjects him or her to mental or physical pain or suffering, without thereby pursuing any of the purposes underlying the offence of tortureTadic Judgment of the meaning of "cruel treatment", in support of this propositionTadic Judgment, Trial Chamber II provided its view of the meaning of this offence, stating that, according to common article 3, "the prohibition against cruel treatment is a means to an end, the end being that of ensuring that persons taking no active part in hostilities shall in all circumstances be treated humanely.Tadic Judgment, paras. 723-726.
570.

Tadic Judgment

, para. 723.
571.

Tadic Judgment

, para. 725.
572. Motion to Dismiss, RP D5545.
573.

Tadic Judgment

, para. 723.
574. Prosecution Response to the Motion to Dismiss, RP D5764."

P.4. Evidence of harassment

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 97, 773, 775:

"The Trial Chamber finds that harassment, humiliation, the creation of an atmosphere of fear through torture and other forms of physical and psychological abuse, an insufficient supply of food and water, lack of space, unhygienic detention conditions, and an insufficient access to medical care are circumstances that may constitute confinement under inhumane conditions and meet the actus reus of cruel and inhumane treatment as a persecutory act."

"3. Findings

[]

P.5. Evidence of humiliation and psychological abuse

A. Legal source/authority and evidence:

The Prosecutor v. Dominic Ongwen, Decision on the confirmation of charges against Dominic Ongwen 23 March 2016

, para. 109-110:

"109. (P-99) testified on 10 November 2015 (ICC-02/04-01/15-T-14-CONF-ENG). According to her testimony, she was abducted in February 1998, when she was 15 years old. She later became a so-called "wife" to Dominic Ongwen, and she was forced to have sex with Dominic Ongwen the day that she joined his household. During the time relevant to the charges brought by the Prosecutor (July to September 2002), (P-99), while not physically with Dominic Ongwen, was still his so-called "wife" and was deprived of her liberty in the sickbay under coercive circumstances. She was not able to return home or escape until the opportunity arose in September 2002.

110. In light of the available evidence, the Chamber considers that there are substantial grounds to believe that Dominic Ongwen committed pursuant to article 25(3)(a) of the Statute against (P-99), between July 2002 and September 2002, the crime of other inhumane acts as a crime against humanity in the form of forced marriage pursuant to article 7(1)(k) of the Statute (charge 50); and the crime of enslavement as a crime against humanity pursuant to article 7(1)(c) of the Statute (charge 57)."

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 97:

"97. The Trial Chamber finds that harassment, humiliation, the creation of an atmosphere of fear through torture and other forms of physical and psychological abuse, an insufficient supply of food and water, lack of space, unhygienic detention conditions, and an insufficient access to medical care are circumstances that may constitute confinement under inhumane conditions and meet the actus reus of cruel and inhumane treatment as a persecutory act."

P.5.1. Evidence of detainees being ordered to beat each other

P.5.2. Evidence of detainees being ordered to laugh while being beaten

P.5.3. Evidence of detainees being forced to eat his or her own excrement

P.5.4. Evidence of detainees being regularly insulted

P.5.5. Evidence of detainees being given lard to eat

P.5.6. Evidence of detainees being given food that they would normally not eat for religious reasons

P.5.7. Evidence of detainees being heard to be executed

A. Legal source/authority and evidence:

Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-T, Judgement (TC), 24 June 2011, para. 6132:

"6132. The Chamber has found beyond a reasonable doubt that Ntahobali, soldiers and Interahamwe frequented the EER at night during the period from mid-May to the beginning June 1994, from where they abducted refugees and took them to a nearby forest where they were killed (). Considering that the Interahamwe told the refugees "it was over for the Tutsis" and that very few of the abducted refugees returned to the EER, the Chamber considers the regular nightly visits and abductions inflicted great fear and psychological trauma among the refugees. The Chamber further accepted that at least some of the abducted refugees had been killed with clubs and machetes while they were naked, and that some bodies were decapitated (). The Chamber finds this constituted serious bodily and mental harm."

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 732-736, 773, 775:

"C. Evidence related to confinement under inhumane conditions

[]

2. Humiliation and psychological abuse

734. The detainees were regularly insulted by their assailants in the detention facilities.¹⁶⁶¹

"3. Findings

[]

P.5.8. Evidence that any attempt made by detainees to improve their living conditions (such as efforts to get additional food, access to warm water, and attempts to communicate with each other, the guards, or the outside world) were punished

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 142:

"2. Findings

142. The Trial Chamber is satisfied that, in addition to the physically taxing conditions of detention, the non-Serb detainees were also subject to a psychologically exhausting regime while detained at the KP Dom. Any attempts made by non-Serb detainees to improve their living conditions in the camp were punished with solitary confinement. Acts which resulted in beatings or periods in the isolation cells included efforts to get additional food, or access to warm water, and attempts to communicate with each other, the guards, or the outside world."

"435 - FWS-182 (T 1611); Safet Avdic (T 460); Dzevad Lojo (T 660, 703).
436 - FWS-138 (T 2067).
437 - FWS-250 (T 5031-5032); FWS-172 (T 4571); FWS-249 (T 4412); FWS-115 (T 746-747).
438 - FWS-71 (T 2807); FWS-111(T 1224-1225); FWS-215 (T 875-877)
439 - Safet Avdic (Ex P 123, p 690).
440 - FWS-182 (T 1613-1614).
441 - FWS-182 (T 1613); Ekrem Zekovic (T 3447-3448); FWS-215 (T 877- 878); FWS-250 (T 5023)."

P.5.9. Evidence of detainees being exposed to the sounds of torture and beatings over a period of months, which made them nervous and panicky

P.5.10. Evidence of the criteria for the selection for beatings etc not being identifiable, which made detainees fearful of being the next victim

P.5.11. Evidence of detainees wrting letters to their family fearing they would not survive

P.5.12. Evidence of detainees witnessing family members being taken out and beaten

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 143:

"2. Findings

[]

143. The Trial Chamber is also satisfied that the non-Serb detainees were subjected to harrowing psychological abuse during their period of detention at the KP Dom. The detainees were exposed to the sounds of torture and beatings over a period of months, in particular in June and July 1992. They became nervous and panicky as a result of these sounds, and they could not sleep at night. They could not identify the criteria for the selection for beatings, and they constantly feared that they would be the next to be selected. Some wrote farewell letters to their family fearing they would not survive. Some witnessed family members being taken out and heard them being subjected to severe beatings."

"442 - Safet Avdic (T 537).
443 - FWS-66 (T 1111); FWS-111 (T 1259); FWS-162 (T 1392); FWS-215 (T 901); FWS-54 (T 773); Safet Avdic (T 489); FWS-139 (T 367); FWS-86 (T 1530); Rasim Taranin (T 1724); FWS-138 (T 2090); FWS-104 (T 2182); FWS-03 (T 2261); FWS-144 (T 2301); FWS-71 (T 2889); FWS-109 (T 2377); Dzevad S Lojo (T 2587); Dr Amir Berberkic (T 3931); Safet Avdic (T 494); FWS-86 (T 1520); FWS-144 (T 2301); FWS-71 (T 2889); FWS-198 (T 1013); FWS-215 (T 902).
444 - FWS-111 (T 1259); FWS-162 (T 1392); FWS-54 (T 773); FWS-109 (T 2377).
445 - Rasim Taranin (T 1724); FWS-104 (T 2182); Safet Avdic (T 537).
446 - FWS-66 (T 1111); FWS-198 (T 1023); FWS-215 (T 902); Rasim Taranin (T 1724); FWS-03 (T 2261); Dzevad S Lojo (T 2587-2588).
447 - Dr Amir Berberkic (T 3931- 3932); FWS-159 (T 2508); FWS-215 (T 902); FWS-65 (T 537).
448 - FWS-71 (T 865); Safet Avdic (T 537). Muharem Causevic was taken out and beating during the time his daughter was detained with him: FWS-215 (T 895); FWS-62 (T 1092)."

P.6. Evidence of the creation of an atmosphere of fear through torture and other forms of physical and psychological abuse

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 97, 731, 773, 775:

"C. Evidence related to confinement under inhumane conditions

1. Creation of an atmosphere of fear through beatings, torture, and mistreatment

731. Prosecution witnesses Dragan Lukac, Hasan Bicic, Muhamed Bicic, Kemal Mehinovic, Witness M, Dragan Delic, and Witness Q testified that they were living in a constant atmosphere of fear and intimidation that resulted from their mistreatment and that of other detainees during their detention."

"3. Findings

[]

P.7. Evidence of rape

A. Legal source/authority and evidence:

The Prosecutor v. Dominic Ongwen, Decision on the confirmation of charges against Dominic Ongwen 23 March 2016

, para. 111-112, 136-139:

"111. (P-101) testified on 9 and 10 November 2015 (ICC-02/04-01/15-T-13-CONF-ENG and -T-14-CONF-ENG). She testified that she had been in captivity with the LRA for eight years from her abduction in August 1996 by Dominic Ongwen and other LRA fighters until her escape in July 2004. The day she was abducted, Dominic Ongwen forced her to become his so-called "wife" and continued to have sex with her by force repeatedly until her escape. She was beaten when she refused to have sex with him, and at no time was she able to escape. As his so-called "wife", Dominic Ongwen also made her perform domestic duties for him, including cooking and fetching and chopping wood. As a result of rapes by Dominic Ongwen, (P-101) became pregnant three times. The second and third of her pregnancies fall within the Courts temporal jurisdiction, and for the duration of both these pregnancies she remained confined to Dominic Ongwens household without the possibility of escape.

112. In light of the available evidence, the Chamber considers that there are substantial grounds to believe that Dominic Ongwen committed pursuant to article 25(3)(a) of the Statute against (P-101), between July 2002 and July 2004, the crime of other inhumane acts as a crime against humanity in the form of forced marriage pursuant to article 7(1)(k) of the Statute (charge 50); the crime of torture as a crime against humanity pursuant to article 7(1)(f) of the Statute (charge 51) and as a war crime pursuant to article 8(2)(c)(i) of the Statute (charge 52); the crime of rape as a crime against humanity pursuant to article 7(1)(g) of the Statute (charge 53) and as a war crime pursuant to article 8(2)(e)(iv) of the Statute (charge 54); the crime of sexual slavery as a crime against humanity pursuant to article 7(1)(g) of the Statute (charge 55) and as a war crime pursuant to article 8(2)(e)(vi) of the Statute (charge 56); the crime of enslavement as a crime against humanity pursuant to article 7(1)(c) of the Statute (charge 57); as well as the crime of forced pregnancy as a crime against humanity pursuant to article 7(1)(g) of the Statute (charge 58) and as a war crime pursuant to article 8(2)(e)(vi) of the Statute (charge 59) during her two pregnancies within the relevant time.

136. Under charges 61 to 68 the Prosecutor alleges Dominic Ongwens criminal responsibility for the abduction of girls and women to serve as domestic servants, forced exclusive conjugal partners and sexual slaves in the Sinia brigade. The LRA practice of abduction of women for the purpose of turning them into forced so-called "wives" of LRA fighters, involving the systemic commission of a series of sexual and gender based crimes, is well established in the evidence before the Chamber. It should be added that, in line with the charges, the factual analysis of the Chamber is confined to this practice as it occurred within the Sinia brigade between 1 July 2002 and 31 December 2005. For its conclusions, the Chamber has reviewed the transcripts of the testimonies of Dominic Ongwens so-called "wives" (P-99, P-101, P-214, P-226, P-227, P-235 and P-236), who observed the relevant facts within the group in which they were confined, as well as the statements of numerous other witnesses who were also present in the Sinia brigade and able to observe this practice and the conduct of Dominic Ongwen in relation to it (P-142, P-199, P-202, P-205, P-233 and P-250). The Chamber has also taken note of the records of intercepted LRA radio communications for the dates of 1 April 2003, 2 April 2003, 10 March 2004, 4 August 2004, 26 June 2005 and 10 July 2005.

137. This evidence demonstrates that there was a common plan between Joseph Kony and the senior leadership of the Sinia brigade, including Dominic Ongwen, to abduct women and girls in order for them to serve as forced "wives", domestic servants and sex slaves to male LRA fighters. Between 1 July 2002 and 31 December 2005, women and girls were systematically abducted in northern Uganda in line with this plan. They were distributed to LRA fighters as so-called "wives" with no choice on their part and were regularly raped by their so-called "husbands" for protracted periods of time. Also, their movement was confined and they were forced to perform various domestic duties. They lived under constant threat of death or severe physical punishment if they failed to respect the exclusivity of the socalled "marriage" imposed on them, if they did not submit to sexual intercourse, if they tried to escape, or if they failed to perform any other duty assigned to them. Indeed, they were regularly beaten as punishment, coercion or intimidation.

138. The evidence is clear as to the fact that this conduct was ordered by Joseph Kony. The execution of the order in the Sinia brigade depended, however, on the conduct of the brigades commanders. The Chamber finds that the practice described above was an inherent design feature of the LRA and that no leading role in the LRA could be obtained or sustained without knowledge of the practice and without an intent to perpetuate it. Indeed, according to the evidence, Dominic Ongwen issued specific orders for abduction of women and girls, regulated the distribution of victims to LRA fighters, and maintained, within his authority as commander of first the Oka battalion and later the Sinia brigade, a disciplinary system which created the coercive environment in which the conduct in question was possible.

139. In light of the available evidence, the Chamber considers that the objective elements of the following crimes are sufficiently established by the evidence: other inhumane acts as a crime against humanity in the form of forced marriage pursuant to article 7(1)(k) of the Statute (charge 61); torture as a crime against humanity pursuant to article 7(1)(f) of the Statute (charge 62) and as a war crime pursuant to article 8(2)(c)(i) of the Statute (charge 63); rape as a crime against humanity pursuant to article 7(1)(g) of the Statute (charge 64) and as a war crime pursuant to article 8(2)(e)(vi) of the Statute (charge 65); sexual slavery as a crime against humanity pursuant to article 7(1)(g) of the Statute (charge 66) and as a war crime pursuant to article 8(2)(e)(vi) of the Statute (charge 67); and enslavement as a crime against humanity pursuant to article 7(1)(c) of the Statute (charge 68)."

Prosecutor v. Tihomir Blaskic, Case No. It-95-14-T3, Judgement (TC), 3 March 2000, paras. 695, 700:

"695. Located in a municipal building near to Vitez railway station and just over two and a half kilometres from the Hotel Vitez, Dubravica primary school was the billet for the Vitezovi unit and the Ludwig Pavlovic Brigade. During the second half of April 1993, the school also served as an HVO detention centre. Two hundred Muslim men, women and children from the villages of Vitez municipality were detained there. They suffered from a lack of food and comfort. Furthermore, the women and children were terrorised and threatened by their guards. Women were raped by HVO soldiers and members of the Military Police.

[]

"700. In conclusion, the Trial Chamber adjudges that in the case in point the material element and mens rea of the crimes of inhuman treatment (count 15) and cruel treatment (count 16) as defined above have been satisfied. The Trial Chamber takes note of the following acts and omissions:

- inflicting physical and mental violence upon the detainees, at the various aforesaid detention sites and whilst they were forced to dig trenches;

- placing the detainees in a life-threatening situation by taking them to the front or nearby;

- the atmosphere of terror reigning in the detention facilities;

- the cases of long-term detention, in several camps under difficult circumstances.

Moreover, the Trial Chamber adds that the cruel or inhuman treatment was inflicted by HVO soldiers and the Military Police and that the victims were Bosnian Muslims. For the most part they were civilians - the remainder being hors de combat - and therefore were protected persons for the reasons explained earlier."

P.8. Evidence of lack of space/facilities

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 97:

P.8.1. Evidence of overcrowded cells

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 737, 773, 775:

"C. Evidence related to confinement under inhumane conditions

[]

3. Space and facilities

737. Several Prosecution witnesses gave evidence that after 17 April 1992, they were held in the SUP in overcrowded cells, sometimes with not enough room to sit.¹⁶⁶⁴Prisoners had often only cardboard to sleep on.¹⁶⁶⁵The situation in the TO and in the primary and secondary schools was similar.¹⁶⁶⁶In Crkvina¹⁶⁶⁷and Bijeljina,¹⁶⁶⁸the conditions were alike."

1665 - Dragan Lukac, T. 1746, 1769; Witness A, Rule 92bis Statement, para. 86. 1666 - Sulejman Tihic, T. 3641-42; Izet Izetbegovic, T. 2314-15; Hasan Bicic, T. 2669, T. 2714-15; Muhamed Bicic, T. 2937, T. 3026-27; Ibrahim Salkic, T. 3263-66, T. 3330; Kemal Mehinovic, T. 7443; Witness E, T. 7715-17; Hasan Subasic, T. 10944-45; Witness A, Rule 92bis Statement, paras 48, 52; Witness O, Rule 92bis Statement, para. 50; Witness P, T. 11554-55.

1667 - Witness O, Rule 92bis Statement, para. 25.

1668 - Hasan Bicic, T. 2706; Osman Jasarevic, Rule 92bis Statement, paras 100-102."

"3. Findings

[]

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 135:

"2. Findings

[]

135. The Trial Chamber is satisfied that the non-Serb detainees were deliberately housed in cramped conditions. The KP Dom had the capacity to house more than the maximum 500-700 non-Serbs detained, but the detainees were crowded into a small number of rooms. Solitary confinement cells designed to hold one person were packed with up to 18 people at a time, making it impossible for the detainees to move around the cell, or to sleep lying down."

"396 - FWS-138 (T 2021); FWS-12 (T 241); Miladin Matovic (T 6460); FWS-162 (T 1359); FWS-198 (T 952, 954); FWS-139 (T 327); FWS-182 (T 1590); FWS-86 (T 1461); FWS-104 (T 2162); FWS-73 (T 3212).
397 - FWS-198 (T 950); FWS-119 (T 1941-1942); FWS-159 (T 1078); FWS-12 (T 243).
398 - FWS-104 T 2162); FWS-54 (T 741); FWS-73 (T 3212).
399 - Safet Avdic (Ex P 121, p 685)."

P.8.2. Evidence of not enough room to sit

P.8.3. Evidence of detainees having only cardboard to sleep on

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 737, 773, 775:

"C. Evidence related to confinement under inhumane conditions

[]

3. Space and facilities

"1664 - Sulejman Tihic, T. 1411, T. 1414, T. 3641-42; Dragan Lukac, T. 1746-47, T. 1762, T. 1769; Witness A, Rule 92bis Statement, para. 86; Esad Dagovic, T 3964; Witness L, T. 4341-43; Witness M, T. 5218-19; Ibrahim Salkic, T. 3263-64, T. 3287; Witness C, T. 7919-21; Witness Q, T. 11728-29; Witness E, T. 7679-80, T. 7740-41, T. 7822-23; Kemal Bobic, T. 11403.
1665 - Dragan Lukac, T. 1746, 1769; Witness A, Rule 92bis Statement, para. 86.
1666 - Sulejman Tihic, T. 3641-42; Izet Izetbegovic, T. 2314-15; Hasan Bicic, T. 2669, T. 2714-15; Muhamed Bicic, T. 2937, T. 3026-27; Ibrahim Salkic, T. 3263-66, T. 3330; Kemal Mehinovic, T. 7443; Witness E, T. 7715-17; Hasan Subasic, T. 10944-45; Witness A, Rule 92bis Statement, paras 48, 52; Witness O, Rule 92bis Statement, para. 50; Witness P, T. 11554-55.
1667 - Witness O, Rule 92bis Statement, para. 25.
1668 - Hasan Bicic, T. 2706; Osman Jasarevic, Rule 92bis Statement, paras 100-102."

"3. Findings

[]

P.9. Evidence of inadequate food and water

P.9.1. Evidence of an insufficient supply of food and water

A. Legal source/authority and evidence:

Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-I, Judgement (TC), 13 December 2006

, para. 327:

" 327. The Chamber also finds that the order by Athanase Seromba prohibiting refugees from getting food from the banana plantation facilitated the perpetration of acts causing serious bodily harm to the refugees. Indeed, on 14 April 1994, the refugees lacked food and had very limited access to basic foodstuffs from the outside, due to the encirclement of the church. Under such circumstances, Serombas refusal to allow the refugees to get food from the banana plantation substantially contributed to their physical weakening, as they were deprived of food. The Chamber is satisfied that by his conduct, Seromba substantially contributed towards the commission of acts causing serious bodily harm to the Tutsi refugees in Nyange church."

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 738-739, 773, 775:

"C. Evidence related to confinement under inhumane conditions

[]

4. Adequacy of Food and Water

738. Prosecution witnesses testified that they had an insufficient supply of food and water during their detention in the SUP,¹⁶⁶⁹in the TO,¹⁶⁷⁰in the primary and secondary schools,¹⁶⁷¹in Crkvina,¹⁶⁷²and in Zasavica, ¹⁶⁷³and that the situation was better in Brcko¹⁶⁷⁴and Bijeljina.¹⁶⁷⁵

739. Muhamed Bicic testified that he lost about 60 kilos during his detention.¹⁶⁷⁶Defence witness Stoko Sekulic stated that Marko Filip, the head of the criminal investigations section, told him that two meals were being taken to each prisoner in the TO and in the primary school in May 1992, and that the food for the army was not better. Stoko Sekulic also stated that the bad prison conditions were due to the prevalent material conditions at that time.¹⁶⁷⁷Svetozar Vasovic testified that he brought food to the prisoners in the primary and secondary schools.¹⁶⁷⁸Dr. Ozren Stanimirovic testified that he was aware that prisoners in Bosanski Samac were deprived of food.¹⁶⁷⁹Mladen Borbeli testified that the provision of food in the secondary school was not enough, but no prisoner was famished. He said that he lost weight because he was upset that he was detained for no other reason than being a Croat.¹⁶⁸⁰Stanko Dujkovic testified that the people in Zasavica were able to have normal meals.¹⁶⁸¹Witness DW 3/3 stated the living conditions in Zasavica were excellent while he was there from late July 1992 until about mid-September 1992.¹⁶⁸²Milka Petkovic stated that the people in Zasavica had everything they needed.¹⁶⁸³"

"3. Findings

[]

P.9.2. Evidence of considerable weight loss

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 139:

2. Findings

"133. The Trial Chamber is satisfied that the brutal and deplorable living conditions imposed upon the non-Serb detainees at the KP Dom in the period from April 1992 to July 1993 (discussed below) constituted acts and omissions of a seriousness comparable to the other crimes enumerated under Article 5 and Article 3 of the Tribunals Statute, and thus warrants a finding that those acts and omissions constitute inhumane acts and cruel treatment under those Articles.

[]

139. The Trial Chamber accepts that there may have been a general shortage of food in the Foca region during the conflict, but it is satisfied that there was a deliberate policy to feed the non-Serb detainees barely enough for their survival. All non-Serb detainees suffered considerable weight loss ranging from 20 to 40 kilograms during their detention at the KP Dom. Their diet consisted of a cup of soup which was "little more than water", rice or macaroni and a piece of "really thin" bread three times a day. On occasion, they received a tin of pâté to be shared by two persons or eggs for breakfast. In contrast, Serb convicts and detainees received "regular army food", not very appetising but nutritious enough to prevent serious weight loss. The contrast between the weight loss of non-Serb detainees and the Serb prisoners makes it apparent that non-Serb detainees were fed much less than the Serb detainees. The Trial Chamber is satisfied that the food for all detainees at the KP Dom was cooked in the same cauldron, but that nutritious ingredients, like meat, beans, vegetables and spices, were added to enrich only the meals of Serb detainees and convicts and KP Dom staff, who ate after the non-Serb detainees had received their meals from the cauldron. In making these findings, the Trial Chamber rejects the Defence evidence that all the detainees received the same quality and quantity of food while detained at the KP Dom."

"419 - Slobodan Solaja (T 5498, 5500); Witness A (T 5522); Milomir Mihajlovic (T 5629); Radomir Dolas (T 5820); Miloslav Krsmanovic (T 6623); Witness B (T 6713); Zarko Vukovic (T 6759); Svetozar Bogdanovic (T 7084); Arsenije Krnojelac (T 7122-7124); Bozo Drakul (T 7191); Vitomir Drakul (T 5669); Dr Drago Vladicic (T 6307); Dr Milovan Dobrilovic (T 6366).
420 - Dr Amir Berberkic (T 3755, 3756); FWS-49 (T 4698); Dzevad Lojo (T 666); FWS-139 (T 343); FWS-86 (T 1507); FWS-49 (T 4698).
421 - FWS-66 (T 1084); FWS-111 (T 1312); FWS-162 (T 1361); FWS-198 (T 956); FWS-215 (T 874); FWS-54 (T 750); Dzevad Lojo (T 664); Safet Avdic (T 536); FWS-139 (T 343); FWS-86 (T 1506); FWS-182 (T 1618); Rasim Taranin (T 1729); FWS-08 (T 1772); FWS-71 (T 2805); FWS-109 (T 2371); FWS-159 (T 2464); Dr Amir Berberkic (T 3755); Safet Avdic (Ex P 123, p 686); FWS-78 (T 2113); FWS-96 (Ex P 186, p 2539).
422 - Rasim Taranin (T 1712-1715).
423 - FWS-162 (T 1361); FWS-198 (T 955); FWS-111 (T 1380); Dzevad Lojo (T 665); FWS-139 (T 341); Dr Amir Berberkic (T 4007); FWS-71 (T 2947); Juso Taranin (T 3027).
424 - FWS-172 (T 4607); FWS-250 (T 5116); FWS-89 (T 4725, 4674). At a later stage of their detention, and only for a period of 15 days, the detainees were given eggs, beans, rice, potatoes or pasta for breakfast: Rasim Taranin (T 1750).
425 - Lazar Stojanovic (T 5717, 5749); Vitomir Drakul (T 5673); Zoran Vukovic (T 5771, 5784-5785).
426 - FWS-08 (T 1804); FWS-138 (T 2063); FWS-71 (T 2952-2953); Rasim Taranin (T 1715); FWS-66 (T 1083); FWS-111 (T 1228-1229); FWS-162 (T 1360).
427 - Krsto Krnojelac (T 5903, 5914, 5916-5917, 5927, 5930); Risto Ivanovic (T 6092, 6094, 6193); Divljan Lazar (T 6043-6044); Miladin Matovic (T 6451-6452); Bozo Drakul (T 7189); The Accused (T 7665); Zoran Vukovic (T 5784-5785); Lazar Stojanovic (T 5717)."

P.10. Evidence of unhygienic detention conditions

P.10.1. Evidence of the floors being bloody and very rarely cleaned

P.10.2. Evidence of absence/lack of toilet facilities

P.10.3. Evidence of detainees not being able to wash themselves

P.10.4. Evidence of detainees not being able to clean their clothes

P.10.5. Evidence of change of clothes not being supplied

P.10.6. Evidence of bed linen being never washed or changed

P.10.7. Evidence of only cold water being available

P.10.8. Evidence of regular baths or showers not being provided

P.10.9. Evidence of hygienic products or toiletries not being supplied

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 97, 740, 773, 775:

"740. Prosecution witnesses testified that the conditions under which the detainees were imprisoned in the SUP,¹⁶⁸⁴the TO,¹⁶⁸⁵the primary and secondary schools,¹⁶⁸⁶in Crkvina,¹⁶⁸⁷in Brcko,¹⁶⁸⁸and in Bijeljina¹⁶⁸⁹were unhygienic. The floors were often bloody and very rarely cleaned. Prisoners were not able to wash themselves, or to clean their clothes. The toilet facilities were insufficient, and sometimes non existent."

"1684 - Dragan Lukac, T. 1806; Ibrahim Salkic, T. 3263-64, T. 3287; Hasan Bicic, T. 2653; Esad Dagovic, T. 3943, T. 4002-03; Witness E, T. 7710-11; Witness C, T. 7924; Witness Q, T. 11730-31; Witness L, T. 4341-43; Kemal Mehinovic, T. 7431; Witness A, Rule 92bis Statement, paras 87, 90; Witness P, T. 11558.
1685 - Hasan Subasic, T. 11015-17; Izet Izetbegovic, T. 2314; Sulejman Tihic, T. 1400; Hasan Bicic, T. 2669-71; Muhamed Bicic, T. 2962; Ibrahim Salkic, T. 3374; Kemal Mehinovic, T. 7445, T. 7457-58; Osman Jasarevic, Rule 92bis Statement, paras 67, 76; Witness P, T. 11556, 11558.
1686 - Muhamed Bicic, T. 3025; Hasan Bicic, T. 2722-24; Witness N, T. 6149-51; Witness O, Rule 92bis Statement, paras 32, 49.
1687 - Jelena Kapetanovic, T. 8952-54; Witness O, Rule 92bis Statement, para. 25.
1688 - Hasan Bicic, T. 2685, T. 2691-93; Muhamed Bicic, T. 2971; Osman Jasarevic, Rule 92bis Statement, para. 93; Dragan Delic, T. 6768.
1689 - Hasan Bicic, T. 2706-07; Muhamed Bicic, T. 2976."

"3. Findings

[]

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 136:

"2. Findings

[]

136. The Trial Chamber is satisfied that the policy of overcrowding the detainees was aggravated by the poor hygienic conditions. Bedding was insufficient or non -existent. The only bed linen provided was that left over from former convicts, and these items were never washed or changed throughout 1992. While there were toilets and wash basins in the rooms, only cold water was available. Regular baths or showers were not provided, nor were hygienic products or toiletries supplied. Changes of clothes or facilities for washing clothes were not supplied. As a result of these conditions, chicken lice spread from the prison farm to the rooms of the detainees. "

"400 - FWS-85 (T 664); Safet Avdic (T 456); Ex P 123, p 685; FWS-159 (T 2450).
401 - FWS-250 (T 5117-5118); FWS-182 (T 1615); Dzevad S Lojo (T 2562).
402 - FWS-139 (T 341); FWS-182 (T 1615); FWS-73 (T 3422). A couple of detainees who worked had access to hot water. FWS-250 could heat water and wash because he worked where there were heating facilities: (T 5117). FWS-89 also had access to hot water because he worked in the kitchen (T 4661).
403 - FWS-172 (T 4607); FWS-69 (T 4066); FWS-139 (T 341); FWS-182 (T 1615).
404 - FWS-73 (T 3424); FWS-159 (T 2466); FWS-250 (T 5118); (Ex P 123, p 686); FWS-73 (T 3424). There were some items of clothing which had been left behind by former regular convicts.
405 - FWS-111 (T 1227); FWS-182 (T 1615); Dzevad S Lojo (T 2564); FWS-73 (T 3422)."

P.11. Evidence of an insufficient access to medical care

P.11.1. Evidence of insufficient medical care

P.11.2. Evidence of sporadic medical treatment

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 94-97, 741-742:

"(vi) Confinement under inhumane conditions

94. When discussing "confinement under inhumane conditions", the Kvocka Trial Chamber found that:

Confinement in camps under inhumane conditions can be included under sub-clauses (e) and (i) prohibiting "imprisonment" and "other inhumane acts" and also meets the definition of a persecutory act.

95. The Trial Chamber went on to examine harassment, humiliation and psychological abuse stating that "these acts are not explicitly listed under Article 5 nor do they appear as specific offences under other Articles of the Statute", and concluded that:

the horrendous conditions of detention and the demoralizing treatment of detainees in Omarska camp were sufficiently degrading and traumatizing to constitute per se an outrage upon personal dignity, which qualifies as persecution since it was clearly committed on discriminatory grounds.

In addition to the harassment, humiliation, and psychological trauma endured by the detainees as part of their daily life in the camp, psychological abuse was also inflicted upon them through having to see and hear torturous interrogations and random brutality perpetrated on fellow inmates. The Trial Chamber is satisfied that the harassment, humiliation, and psychological abuses fall under the actus reus of persecution.

96. The

Krnojelac Trial

Chamber further observed:

The establishment and perpetuation of inhumane conditions is separately charged as inhumane acts, a crime against humanity pursuant to Article 5(i) of the Statute, and as cruel treatment, a violation of the law or customs of war pursuant to Article 3 of the Statute, and as such is of sufficient gravity to constitute persecution.

The Trial Chamber is satisfied that the establishment and perpetuation of inhumane conditions, constituting inhumane acts and cruel treatment of the non-Serb detainees, was carried out with the intent to discriminate against the non-Serbs detainees because of their religious or political affiliations. Accordingly, the Trial Chamber is satisfied that the crime of persecution has been established.

97. The Trial Chamber finds that harassment, humiliation, the creation of an atmosphere of fear through torture and other forms of physical and psychological abuse, an insufficient supply of food and water, lack of space, unhygienic detention conditions, and an insufficient access to medical care are circumstances that may constitute confinement under inhumane conditions and meet the actus reus of cruel and inhumane treatment as a persecutory act."

"171 -

Kvocka Trial Judgement

, para. 189.
172 -

Kvocka Trial Judgement

, para. 190.
173 -

Kvocka Trial Judgement

, paras 191-192
174 -

Krnojelac Trial

Judgement, paras 439, 443."

"C. Evidence related to confinement under inhumane conditions

[]

6. Access to Medical Care

741. Witnesses for the Prosecution gave evidence that access to medical care in the various detention facilities was insufficient, as there was only sporadic medical treatment.¹⁶⁹⁰

742. Defence witness Mladen Borbeli testified that in the secondary school, there were regular visits of doctors and nurses who dispended mostly tranquilisers and sleeping pills.¹⁶⁹¹Defence witness Dr. Ozren Stanimirovic testified that he and other doctors were visiting prisoners in the various detention camps in Bosanski Samac. He stated that he had set up clinics at the SUP, the TO and at Zasavica, and that he treated some detainees with minor complaints, but did not see severely injured detainees. He also stated that prisoners told him of the poor sanitary conditions, inadequate food and lack of clean clothes, but that he did not go inside any of the detention places as his clinics were set up in different rooms.¹⁶⁹²"

"1690 - Dragan Lukac, T. 1701; Sulejman Tihic, T. 1452-53; Muhamed Bicic, T. 2948-52, T. 2954-55, T. 2987-92, T. 3057-58; Esad Dagovic, T. 3965-67; Witness M, T. 5241-47; Kemal Mehinovic, T. 7425-27, T. 7451-52; Witness E, T. 7686; T. 7706-09; T. 2954-55; Ibrahim Salkic, T. 3284-85, T. 3297-98, T. 3318; Witness N, T. 6074, T. 6094-95, T. 6125, T. 6143, T. 6164-66; Dragan Delic, T. 6768, T. 6692; Witness Q, T. 11760-62; Witness A, Rule 92bis Statement, para. 57; Osman Jasarevic, Rule 92bis Statement, paras 78, 90; Witness O, Rule 92bis Statement, para. 41; Jelena Kapetanovic, T. 8973-76, T. 10326-28.
1691 - Mladen Borbeli, T. 14726, T. 14748-49; Witness DW 2/3, T. 14482-83.
1692 - Ozren Stanimirovic, T. 13932-34."
Simic et al Trial Judgment, paras. 773 and 775:

"3. Findings

[]

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 140-141:

"2. Findings

[]

140. The Trial Chamber accepts that a basic medical service was provided to the non-Serb detainees. Gojko Jokanovic, a male nurse, was at the KP Dom on a daily basis and did whatever he could to help the non-Serb detainees. Doctors from Foca hospital also visited the KP Dom on a regular basis. The Trial Chamber also accepts that medicines may have been in short supply throughout Foca due to the war and therefore does not find that there was a deliberate policy of withholding available medical supplies from non-Serb detainees.

141. The Trial Chamber is satisfied, however, that some of the non-Serb detainees were not provided with medical help which was available, and in particular that emergency cases were not handled with proper care. Non-Serb detainees who arrived at the KP Dom with injuries sustained prior to or in the course of their arrest were not given access to medical treatment, nor were non-Serb detainees who were severely beaten during interrogations at the KP Dom. The injuries inflicted upon these non-Serb detainees were obviously in need of medical treatment. The Trial Chamber is further satisfied that detainees who were kept in isolation cells and solitary confinement were denied all access to medical care."

"428 - Lazar Stojanovic (T 5718); Risto Ivanovic (T 6097); Miladin Matovic (T 6457); The Accused (T 7666); FWS-86 (T 1551); Gojko Jokanovic (T 1146); FWS-71 (T 2950); FWS-109 (T 2422); Dzevad S Lojo (T 2511); (Dr Amir Berberkic (T 3738).
429 - Dr Drago Vladicic (T 6311); Dr Milovan Dobrilovic (T 6369-T 6299, 6297); Miladin Matovic (T 6457-6458); Lazar Stojanovic (T 5718); Risto Ivanovic (T 6097); Miladin Matovic (T 6457-6458); Dr Vladicic (T 6339-6340); Dr Milovan Dobrilovic (T 6343); The Accused (T 7666); FWS-182 (T 1840). Cedo Dragovic would give medicines to those with heart conditions: FWS-03 (T 2273); FWS-71 (T 2949); Dzevad S Lojo (T 2550). Dr Amir Berberkic (T 3741); FWS-69 (T 4063); FWS-172 (T 4595).
430 - FWS-71 T 2949); FWS-69 (T 4063); FWS-172 (T 4595). In other cases, however, detainees did receive sophisticated treatment, as, for instance, infusions or antibiotic injections: FWS-86 (T 1551); FWS-66 (T 1146); FWS-182 (T 1688); FWS-03 (T 2273); FWS-71 (T 2949-2950). Dr Drago Vladicic and Dr Milovan Dobrilovic both claimed that the infirmary was sufficiently equipped and that they could procure lacking medicine from Foca hospital. (T 6304-6306, 6344).
431 - See the case of Enes Hadzic par 145, infra.
432 - FWS-86 (T 1532-1533); FWS-182 (T 1586); FWS-159 (T 2442, 2448); Dzevad S Lojo (T 2539, 2350); Dr Amir Berberkic (T 3737). Dr Drago Vladicic never treated any injuries caused by maltreatment and never came across combat injuries such as wounds from firearms at the KP Dom (T 6324). Likewise, Dr Milovan Dobrilovic testified that he never noticed any traces of mistreatment on any Muslim patient (T 6345).
433 - As to the numerous victims of beatings and torture and the injuries observed by detainees, See pars 190-306 infra; FWS-109 (T 2167-2168); FWS-03 (T 2248); FWS-73 (T 3261); Dzevad S Lojo (T 2572); FWS-198 (T 1010); Dr Amir Berberkic (T 3782).
434 - FWS-159 (T 2470, 2507); Ekrem Zekovic (T 3588, 3595). The visiting doctors claimed that all detainees who were in need could receive medical help. However they never visited any detainee in his room and never went to the isolation cells: Dr Milovan Dobrilovic (T 6353); Dr Drago Vladicic (T 6328). Only those detainees who were brought to the infirmary received treatment: Dr Milovan Dobrilovic (T 653-654); Dr Drago Vladicic (T 6316, 6328)."

P.12. Evidence of denial of the most basic protection against freezing temperature during the winter

P.12.1. Evidence of the heating system at the detention centre being broken

P.12.2. Evidence that available measures were not taken to protect detainees/ prisoners from the cold

P.12.3. Evidence of available stocks of additional blankets not being provided to all detainees

P.12.4. Evidence of broken window panes not being repaired or covered, and open windows out of the reach of detainees were not closed

P.12.5. Evidence of attempts made by detainees to make winter clothes out of blankets were punished

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, paras. 133, 137-138:

"2. Findings

[]

137. The Trial Chamber is satisfied that detainees were denied the most basic protection against freezing temperatures during the winter of 1992-1993. Most of the non-Serb detainees had been arrested in the early summer of 1992. Due to the information given to them in the course of arrest, namely, that they would be taken for an interview and returned to their homes the same day, they left in what they happened to be wearing at the time. As a result, they were inadequately clothed for winter conditions. The Trial Chamber accepts that the heating system at the KP Dom was broken and that there were some attempts made by the administration to repair it, but it is equally satisfied that no other available measures were taken to protect the non-Serb detainees from the cold. Stoves and furnaces had been produced to heat the offices in the administration building, and there was sufficient raw material for such furnaces to have been produced for the non-Serb detainees. However, it was not until October 1993 that furnaces were finally provided to the non-Serb detainees, and then it was by the ICRC.

138. The Trial Chamber is further satisfied that the suffering of the non-Serb detainees during the winter of 1992 was the result of a deliberate policy on the part of those in charge of the KP Dom. There were available stocks of additional blankets, but they were not provided to all detainees. Broken window panes in the detainees cells were not repaired or covered, and open windows out of the reach of detainees were not closed. Attempts made by some of the non-Serb detainees to make winter clothes out of blankets were punished. The blankets were removed and those involved were sent to solitary confinement, where temperatures were lower."

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 84-93 :

"(v) Forced labour assignments

84. Forced labour assignments infringe upon a number of norms of international human rights and humanitarian law. In time of peace the international and regional human rights treaties provide for certain prohibitions against forced or compulsory labour. The discussion below focuses on the prohibition of unlawful labour during an armed conflict as defined by the norms of international humanitarian law.

85. Trial Chambers of the Tribunal have held that the charge of "forced labour assignments" may constitute the basis of the crime of enslavement as a crime against humanity under Article 5 (c), and the offence of slavery as a violation of the laws or customs of war under Article 3 of the Statute, and as such this offence is of sufficient gravity to support a charge of persecution.

86. The underlying acts of the charge of "forced labour assignments" infringe upon certain provisions of Geneva Conventions III and IV, and as such may constitute a violation of the laws or customs of war other than grave breaches of the Geneva Conventions, falling within the scope of Article 3 of the Statute. It is settled case-law of the Tribunal that the law of the Geneva Conventions is part of customary international law. As a crime against humanity under Article 5 of the Statute, the definition of forced labour is not restricted by the jurisdictional requirements applicable to grave breaches of the Geneva Conventions under Article 2 of the Statute, including the characterization of the conflict as international and the victims as "protected persons".

87. International humanitarian law generally prohibits forced or involuntary labour in international, as well as internal armed conflicts. As held in the

Krnojelac Trial

Judgement, the determination of whether protected persons laboured involuntary is a factual question, which has to be considered in light of all factual circumstances on a case by case basis.

88. Not all types of forced or compulsory labour are per se unlawful under international humanitarian law. Article 51 of Geneva Convention IV, applicable in international armed conflicts, sets out the circumstances under which civilians may be made to work. It allows persons above 18 years of age to be subjected to compulsory labour in two narrowly defined categories and only if strict conditions are met. Compulsory labour may be lawful only if required for the needs of the army of occupation for maintaining public services, and for the feeding, sheltering, clothing, transportation or health, for the benefit of the population of the occupied country. Civilians however cannot be requisitioned for such work as "the construction of fortifications, trenches, or aerial bases," nor can forced labour be performed for strategic or tactical interests of the army. It should be noted that international humanitarian law has endorsed the principle of narrow interpretation of this provision. A commentary noted that:

the stringent interpretation of the kinds of work permitted as compulsory labour is intended to protect individuals against abuse and injury. It proscribes all types of modern slavery for the benefit of the occupying power. It is also intended to prevent the assignment of inhabitants to locations that might be military objectives, since they would then be exposed to dangers associated with attacks against military targets.

89. Similarly, under Geneva Convention III, prisoners of war may be subjected to certain types of involuntary labour. The Convention however proscribes compelling prisoners of war to do dangerous or unhealthy work, or assigning a prisoner of war to "labour that would be looked upon as humiliating for a member of the detaining powers own forces." While the text of the Convention refers to the removal of mines as an example of dangerous work, the Commentary to the Convention notes that the ban on forced dangerous work is intended to cover labour done "in the vicinity either of key military objectives or c of the battlefield."

90. If persons protected under Geneva Conventions III and IV are made to work, international humanitarian law sets out the conditions under which this may be done. Under Geneva Convention III, prisoners of war are entitled to "suitable working conditions, especially as regards to accommodation and food." Geneva Convention IV requires that working conditions for civilians in occupied territories, such as payment, working hours, safety, and others, should comply with the legislation in force in the occupied country. In the context of a non-international armed conflict, civilians deprived of liberty, if made to work, shall have the benefit of working conditions and safeguards similar to those enjoyed by the local civilian population.

91. The Trial Chamber notes that certain types of forced labour may amount to cruel and inhumane treatment if the conditions under which the labour is rendered are such as to create danger for the life or health of the civilians, or may arouse in them feelings of fear, and humiliation. It should be noted here that the principle of humane treatment enshrined in the Geneva Conventions implies an obligation for the occupying powers to protect civilians against inhumane acts. Forcing protected persons to work in life-threatening circumstances fails to meet the obligation for protection against acts of violence and may result in inflicting upon these persons physical and mental suffering. It has been held that placing detainees in life-threatening situations constitutes cruel and inhuman treatment.

92. It is important to emphasize that inhumane treatment encompasses not only acts or omissions that cause serious mental or physical suffering, but also acts or omissions that constitute a serious attack on human dignity. Among the provisions prohibiting humiliating and degrading treatment, Article 52, paragraph 2 of Geneva Convention III explicitly proscribes compelling prisoners of war to do humiliating labour. The Commentary to Geneva Convention III notes that the prohibition is against making the prisoner "the laughing stock of those around him." An inquiry into the specific circumstances in each case will be necessary in order to determine whether the conditions under which civilians were forced to work constituted a serious attack on human dignity.

93. The Trial Chamber finds that forced labour assignments which require civilians to take part in military operations violate the fundamental norms of international humanitarian law as defined above. The Trial Chamber is also satisfied that forced labour assignments which result in exposing civilians to dangerous or humiliating conditions amount to cruel and inhumane treatment. These acts reach the same level of gravity as the other crimes against humanity and if performed with the requisite discriminatory intent may constitute persecution."

"144 - Most of the global and regional international human rights treaties explicitly outlaw forced or involuntary labour. Article 8, para. 3 (a) of the ICCPR, Article 4, para. 2 of the ECHR, Article 6, para. 2 of the American Convention on Human Rights. With respect to Article 8 of the ICCPR, it has been noted that "involuntariness is the fundamental definitional feature of forced or compulsory labour." (Bossuyt, Guide to the "Traveaux Preparatoires" of the International Covenant on Civil and Political Rights, 1987, p. 167) cited in

Krnojelac Trial

Judgement, para. 359.
145 -

Krnojelac Trial

Judgement, para. 471.
146 -

Krnojelac Trial

Judgement, para. 356.
147 - The Tribunal has established that the offence of slavery under Article 3 of the Statute is the same as the offence of enslavement under Article 5. Both offences require proof of the same elements and both terms can be used interchangeably. (

Kunarac Trial Judgement

, para. 523; endorsed in

Krnojelac Trial

Judgement, para. 356).
148 - Article 51, Geneva Convention IV and Articles 49, 50 and 52, Geneva Convention III. Geneva Convention IV generally prohibits civilians to be compelled to work unless certain conditions are met. (See para. 88 below). Article 51, para. 2, Geneva Convention IV reads:

The Occupying Power may not compel protected persons to work unless they are over eighteen years of age, and then only on work which is necessary either for the needs of the army of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country. Protected persons may not be compelled to undertake any work which would involve them in the obligation of taking part in the military operations. The Occupying Power may not compel protected persons to employ forcible means to ensure the security of the installations where they are performing compulsory labour.

149 - The

Naletilic Trial Judgement

held that alleged violations of this provision clearly infringe upon a rule of international humanitarian law serious enough to fall within the scope of Article 3 of the Statute. (para. 250).
150 -

Krnojelac Appeal Judgement

, para. 220;

Celebici Appeal Judgement

, paras 112 and 113;

Naletilic Trial Judgement

, para. 250.
151 - Article 51 Geneva Convention IV; Articles 49, 50 and 52 Geneva Convention III.
152 - Additional Protocol II contains further prohibitions of forced or involuntary labour in internal armed conflicts. (Article 4, para. 2).
153 -

Krnojelac Trial

Judgement, para. 359; Affirmed by

Krnojelac Appeal Judgement

, para. 191.
154 -

Kunarac Trial Judgement

, para. 530 in fine, and para. 542; see also

Naletilic Trial Judgement

, para. 253.
155 - Article 51, para. 2, Geneva Convention IV.
156 - The Commentary to Geneva Convention IV defines these needs as inter alia "those connected with billeting and the provision of fodder", see Commentary to Geneva Convention IV, p. 294.
157 - The Commentary to Geneva Convention IV notes that the expression "public utility services" referred to in Article 51, para. 2 should be understood as including water, gas and electricity services, transport, health and similar services. (Commentary to Geneva Convention IV, p. 295)
158 - Article 51, para. 2, Geneva Convention IV; see also Commentary to Geneva Convention IV, p. 294, and Dieter Fleck, Ed., Humanitarian Law in Armed Conflicts, The Handbook of, Oxford University Press, New York, 2d Edition, 1999; section 564, para. 3, p. 264.
159 - Dieter Fleck, Ed., Humanitarian Law in Armed Conflicts, The Handbook of, Oxford University Press, New York, 2d Edition, 1999, section 564, para. 1, p. 264.
160 - Prisoners of war may be compelled to do agricultural work, work connected with the camp administration and maintenance or work in some industries, but they cannot be forced to do work of military character. (Articles 50 and 52, Geneva Convention III,

Naletilic Trial Judgement

, paras 255 and 256).
161 - Article 52, Geneva Convention III.
162 - Commentary to Geneva Convention III, pp. 274-275, endorsed in

Naletilic Trial Judgement

, para. 257.
163 - Article 51, para. 1, Geneva Convention III.
164 - Article 51, para. 3, Geneva Convention IV:

Every such person shall, so far as possible, be kept in his usual place of employment. Workers shall be paid a fair wage and the work shall be proportionate to their physical and intellectual capacities. The legislation in force concerning working conditions, and safeguards as regards, in particular, such matters as wages, hours of work, equipment, preliminary training, and compensation for occupational accidents and diseases, shall be applicable to the protected persons assigned to the work referred to in this Article.

165 - Article 5, para. 1(e), Additional Protocol II. The Trial Chamber in Krnojelac has held that, "while working conditions and safeguards need not be exactly the same as those enjoyed by the local civilian population", and "such persons need not necessarily be remunerated by wages for all work they are made to do," it will be necessary to "determine on a case by case basis whether labour performed should have been compensated in some way." (

Krnojelac Trial

Judgement, para. 360)
166 -

Celebici Trial Judgement

, para. 528.
167 -

Blaskic Trial Judgement

, para. 700.
168 -

Celebici Trial Judgement

, para. 543.
169 - Common Article 3 of the Geneva Conventions provides that protected persons in an armed conflict not of international character shall in all circumstances be treated humanely and prohibits outrages upon personal dignity, in particular humiliating and degrading treatment. Article 27 of Geneva Convention IV requires that protected persons are treated humanely at all times and protects them against insults and public curiosity. The Commentary to Geneva Convention IV notes that "the aim of the Convention is certainly to grant civilians in enemy hands a protection which will preserve their human dignity and prevent them from being brought down to the level of animals." (Commentary to Article 147, Geneva Convention IV, p. 598) Similarly, Article 13 of Geneva Convention III, providing for humane treatment of prisoners of war, explicitly requires that the prisoners of war be protected, among others, against insults and public curiosity.
170 - Commentary to Geneva Convention III, p. 277.
171 -

Kvocka Trial Judgement

, para. 189."

P.13. Evidence of type forced labour assignment

P.13.1. Evidence of military assignment on the frontline which exposed civilians to dangerous conditions and a high risk of being injured or killed

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 834-835:

"2. Findings

834. The Trial Chamber is satisfied that civilians who had to report every day in front of the Pensioners Home as well as civilians who were detainedwere forced to dig trenches,build bunkers,carry sandbags or railway sleepers for the construction of trenches, and build other fortificationson the frontline. It has been established that this work was not rendered voluntarily. Civilians were compelled to work under the supervision of armed guards,who beat, or fired at those who tried to escape.The Trial Chamber also accepts that the civilians who were forced to dig trenches, and to work on the frontline were not paid for their work.

835. The Trial Chamber is satisfied that civilians working on military assignments on the frontline were exposed to dangerous conditions and were under a high risk of being injured or killed.The Trial Chamber accepts that the acts of forcing civilians to work in life-threatening circumstances where they could be exposed to physical and mental suffering fail to meet the obligation for humane treatment of civilians enshrined in the Geneva Conventions and amount to cruel and inhumane treatment. The Trial Chamber is satisfied that these assignments were made on a discriminatory basis and that they reach the level of seriousness required for persecution."

"1938 - Osman Jasarevic, Rule 92bis Statement, para. 108.
1939 - Esad Dagovic, T. 3923; Witness L, T. 4281; Witness M, T. 5042-43; Nusret Hadzijusufovic, T. 6876, T. 6881-83, Safet Dagovic, T. 7190-91, T. 7193, T. 7200, T. 7216; Kemal Mehinovic, T. 7399-00, Exhibit P9J.
1940 - Nusret Hadzijusufovic, T. 6875; Kemal Mehinovic, T. 7400.
1941 - Esad Dagovic, T. 5914; Witness C, T. 7909.
1942 - Safet Dagovic, T. 7190-91.
1943 - Esad Dagovic, T. 3925; Witness L, T. 4282; Nusret Hadzijusufovic, T. 6876, T. 6881, T. 6886; Safet Dagovic, T. 7201; Kemal Mehinovic, T. 7398-99.
1944 - Witness G, T. 4091-92.
1945 - Esad Dagovic, T. 3923; Witness L, T. 4294; Nusret Hadzijusufovic, T. 6926; Safet Dagovic, T. 7198; Kemal Mehinovic, T. 7402; Witness C, T. 7913.
1946 - Safet Dagovic, T. 7192, T. 7194; Nusret Hadzijusufovic, T. 6884; Kemal Mehinovic, T. 7401-03; Witness C, T. 7910-12."

Prosecutor v. Tihomir Blaskic, Case No. It-95-14-T3, Judgement (TC), 3 March 2000, para. 700:

- inflicting physical and mental violence upon the detainees, at the various aforesaid detention sites and whilst they were forced to dig trenches;

- placing the detainees in a life-threatening situation by taking them to the front or nearby;

- the atmosphere of terror reigning in the detention facilities;

- the cases of long-term detention, in several camps under difficult circumstances.

"1611 - In general the maximum stay in detention within a single facility does not seem to have been extremely long: Kaonik 2 months; Kiseljak barracks 2 months; Rotilj 2 months; veterinary station 4 days; Dubravica school 20 days; cultural centre - 2 weeks; Gacice 16 days; and, finally, the SDK building a few days.
1612 - For example, after the HVO attack in April, witness DD was forced to remain in his village. He was interned in Rotilj village from 6 September to 20 September and then in the Kiseljak barracks until 30 September. He then dug trenches for a month at Kresevo before again being interned at the Kiseljak barracks until 15 November. In the end, he was interned in Rotilj village until he was exchanged on 14 January 1994, witness DD, PT pp. 7035-7060. Likewise, between April and 6 November 1993, witness JJ was interned in his village, in Rotilj and at the Kiseljak barracks. Witness JJ, PT p. 7399, p. 7405, pp. 7410-7411, p. 7421. Lastly, witness TT was detained from June 1993 until March 1994 in various locations, including the Kiseljak barracks. Witness TT, PT pp. 9328-9335."

P.13.2. Evidence of the use of detainees to dig trenches at the front under dangerous circumstances

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaskic, Case No. It-95-14-T3, Judgement (TC), 3 March 2000, para. 713:

"b) Conclusions

713. To start with, the Trial Chamber reiterates its conclusion that the use of detainees to dig trenches at the front under dangerous circumstances must be characterised as inhuman or cruel treatment. The motive of their guards is of little significance."

P.13.3. Evidence of humiliating assignments

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 837:

"2. Findings

[]

837. The Trial Chamber is satisfied that non-Serb civilians were subjected to humiliating forced labour. Sulejman Tihic was forced to sweep the street outside the municipality building and the SUP building, while people walked by.Dragan Lukac had to clean a room in front of two Bosnian women and felt humiliated.Ahmet Hadzialijagic had to sweep the streets in front of the bank, which he used to manage. The director of a textile company had to sweep the compounds of the Samac textile industry.The Trial Chamber is satisfied that these assignments were such as to arouse feelings of fear and subordination, capable of causing the said persons psychological suffering, and of debasing them and the group to which they belonged, and as such constitute cruel and inhumane treatment. While single incidences of humiliating assignments may not reach the level of gravity required for persecution, the Trial Chamber accepts that these assignments were part of a pattern targeting the Bosnian Muslim and Bosnian Croat political and economic leadership. The Trial Chamber is satisfied that the humiliating assignments reach the level of gravity to amount to persecution."

"1948 - Sulejman Tihic, T. 1414.
1949 - Dragan Lukac, T. 1755-57.
1950 - Hajrija Drljacic, T. 8053-54."

P.13.4. Evidence of civilians being forced to loot

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, para. 838:

"2. Findings

[]

838. The Trial Chamber accepts that the Bosnian Muslims and Bosnian Croats who were forced to loot the houses of people from their town, who sometimes they knew well and highly respected, were subjected to humiliating treatment. The Trial Chamber is satisfied that the debasement and the psychological pain to which the non-Serb civilians forced to steal were subjected attain the level of severity required for the treatment to be considered humiliating. The Trial Chamber however is not satisfied that the evidence presented proves beyond reasonable doubt the Crisis Staffs participation in forcing civilians to loot through the forced labour programme."

"1951 - Nusret Hadzijusufovic, T. 6923; Witness K, T. 4634; Witness M, T. 5056."

P.14. Evidence of working conditions

P.14.1. Evidence of payment and compensation

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 834-835:

"2. Findings

P.14.2. Evidence of dangerous conditions

A. Legal source/authority and evidence:

Prosecutor v. Blagoje Simić et al., Case No. IT-95-17/1-T, Judgement (TC), 17 October 2003, paras. 834-835:

"2. Findings

5.1.4. Evidence of civilians being used as human shields

P.15. Evidence of taking civilians to a place targeted by enemy

P.16. Evidence of those civilians being told or made aware of their being used as human shields

P.17. Evidence of those civilians being watched over by soldiers

P.18. Evidence of those civilians being told that whoever moved would be instantly cut down

A. Legal source/authority and evidence:

Prosecutor v. Tihomir Blaskic, Case No. It-95-14-T3, Judgement (TC), 3 March 2000, paras. 709-716:

"3. Inhuman and cruel treatment: human shields

709. According to the indictment, Bosnian Muslim civilians were used as human shields to prevent the Bosnian army from firing on HVO positions or to force Bosnian Muslim combatants to surrender. The HVO allegedly used human shields in January or February 1993 in the village of Merdani and on 16 and 20 April 1993 in Vitez.

710. Thus, the accused allegedly committed a grave breach covered by Article 2(b ) of the Tribunals Statute (inhuman treatment - count 19) and a violation of the laws or customs of war covered by Article 3 of the Statute and recognised by Article 3(1)(a) of the Geneva Conventions (cruel treatment - count 20).

a) The arguments of the parties

711. The Prosecution submitted that the HVOs use of Bosnian Muslim detainees as human shields was based on three events or distinct types of action. First, on 19 and 20 April 1993, the Bosnian Muslims detained at Vitez cinema were allegedly used as human shields in an attempt to halt the ABiH shelling the CBOZ and Vitez Brigade headquarters. Then, on 20 April 1993, the HVO purportedly placed 250 Muslim men, women and children around the Hotel Vitez for about three hours in order to try and halt the ABiH shelling of that zone. Last, the HVO was allegedly engaged in a widespread practice consisting of using the detainees forced to dig trenches on the front-line positions as human shields. The detainees thus placed in a dangerous situation around (or in) buildings constituting military objectives were allegedly victims of great physical and mental suffering or of serious attacks upon their human dignity.

712. On this point, the Defence did not prefer any other arguments than those used more generally in respect of detention issues.

b) Conclusions

714. Around 20 April 1993, Vitez and in particular the HVO headquarters at the Hotel Vitez were shelled. That same day, following the attack on Gacice village by Croatian forces, a column of 247 Muslim men, women and children was directed to a spot just in front of the Hotel Vitez. Once there, the men were led off elsewhere. Witness Hrusti c was seated in a shell crater opposite the Hotel:

One of the soldiers said, while we were standing there, "you are going to sit here now and let your people shell you, because they have been shelling us up to now, and you better sit down and wait".

The persons assembled were watched over by soldiers inside the Hotel Vitez. They told them that whoever moved would be instantly cut down. After about two and a half to three hours, the persons were taken back to their village.

715. Moreover, the Trial Chamber recalls that on 19 and 20 April 1993, many Muslim civilians were detained at Dubravica school, also the billet of the Vitezovi, and at Vitez cultural centre, the headquarters of Mario Cerkez. Nonetheless, although it is conceivable that a military force might seek to protect its headquarters unlawfully by detaining members of the enemy there, the Prosecution did not prove beyond all reasonable doubt that the detainees in question were aware of a potential attack against which they were allegedly used as protection. Unlike for the Hotel Vitez , it was not established that the detainees at Dubravica school and Vitez cultural centre suffered as a result of being used as human shields.

716. In conclusion, the Trial Chamber is of the view that on 20 April 1993, the villagers of Gacice served as human shields for the accuseds headquarters in Vitez . Quite evidently, this inflicted considerable mental suffering upon the persons involved. As they were Muslim civilians or Muslims no longer taking part in combat operations, the Trial Chamber adjudges that, by this act, they suffered inhuman treatment (count 19) and, consequently, cruel treatment (count 20)."

5.1.5. Evidence of conduct related to torture

P.19. Evidence of conduct which do not meet the severity requirement of torture

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 219:

"219. The Trial Chamber is satisfied that, on 8 August 1992, FWS-54 was beaten by a KP Dom guard named Pilica Blagojevic as punishment for giving a fellow detainee an extra slice of bread contrary to orders. As a result of the beating, FWS-54 was seriously bruised and lost a few teeth. After the beating, he was locked up in solitary confinement for three or four days. Despite the degree of seriousness of the physical abuse, the condition of the victim prior to his beating and isolation, the consequences of the beating upon the victim and the fact that punishment was meted out for a minor breach of the prison regulations, the Trial Chamber is not satisfied that the acts in question should be regarded as torture pursuant to the definition given above. Although the losing of teeth and the bruising of the body constitute a serious infringement upon the victims well-being, they do not, in the circumstances of this case, reach the degree of severity implicit in the definition of torture. Torture is among the most serious abuses upon physical or mental integrity. Further, and crucially, in case of doubt as to whether or not the act is serious enough to amount to torture, the Accused should have the benefit of that doubt, and the acts for which he is charged should be considered under the heading of the less serious offence, namely cruel treatment under Article 3 or inhumane acts under Article 5(i)."

"605 - FWS-54 (T 747); Rasim Taranin (T 1716).
606 - FWS-54 (T 749).
607 - See par 180, supra."

P.20. Evidence of conduct which do not meet the prohibited purpose requirement of torture

A. Legal source/authority and evidence:

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement (TC), 15 March 2002, para. 252:

"252. The Trial Chamber is satisfied that, while he was detained at the KP Dom, Salem Bico, another Muslim detainee, was taken out and beaten by guards of the KP Dom, or policemen from outside the KP Dom, on repeated occasions. Like Zulfo Veiz, he was taken out of his room sometime in June or July 1992, and he never came back. Screams and moans and finally shots were heard coming from the administrative building on the night he was taken. Although the Trial Chamber is satisfied that the beatings were of a very severe nature, there is no evidence that the beating was pursued for any of the listed prohibited purposes rather than being purely arbitrary. Consequently, the Trial Chamber is not satisfied that the mistreatment of Salem Bico amounted to torture pursuant to Article 3 and Article 5(f) of the Statute. The abuse was, however, of such a nature as to qualify as inhumane acts under Article 5(i) as well as cruel treatment under Article 3 of the Statute, and the Trial Chamber is accordingly satisfied that all the elements of those two offences have been established."

Prosecutor v. Vlastimir Dor&#273ević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 741:

"741. Contrary to Dor&#273evićs contention, the Trial Chamber took into account ample evidence of the circumstances in Nosalje/Nosalje when concluding that the crime of other inhumane acts (forcible transfer) was established. The Trial Chamber found that VJ, MUP, and paramilitary forces "took part in operations that displaced Kosovo Albanian residents" from a number of villages in Gnjilane/Gjilan municipality, including Nosalje/Nosalje between March and early May 1999 and that many persons were killed by Serbian forces.2216 In particular, it considered that on or about 6 April 1999, Serbian forces attacked Nosalje/Nosalje and the surrounding villages2217 in Vitina/Viti municipality and Vladovo/Lladove in Gnjilane/Gjilan municipality, causing approximately 20,000 inhabitants to flee to Donja Stubla/Stubell-e-Poshtme. 2218 It further considered that 1,500 of those displaced to Donja Stubla/Stubell-e-Poshtm returned to the villages in Vitina/Viti municipality, while groups of approximately 500 to 1,000 of the remaining Kosovo Albanians fled to FYROM each day out of fear of being further attacked by Serbian forces.2219 It was on this basis that the Trial Chamber expressly found "that the inhabitants of these villages were forcibly displaced from their homes by the attacks of the Serbian forces"."2220

2216 Trial Judgement, para. 2046.

2217 The villages of Rimnik/Ribnik, Gornja Budrika/Burrke-e-Eperme and Mogila/Mogille (Trial Judgement, paras 1042, 1662).

2218 Trial Judgement, paras 1042, 1662.

2219 Trial Judgement, para. 1662.

2220 Trial Judgement, para. 1662. See Trial Judgement, para. 1042.

Prosecutor v. Momćilo Krajinik, Case No. IT-00-39-A, Judgement (AC), 17 March 2009, paras. 330-331:

330. The Appeals Chamber has held that "acts of forcible transfer may be sufficiently serious as to amount to other inhumane acts".774 Accordingly, a Trial Chamber should examine if the specific instances of forcible transfer in the case before it were sufficiently serious to amount to "other inhumane acts" under Article 5(i) of the Statute. The Trial Chamber did not do so in the present case; rather, it seemed to have assumed that the acts of forcible transfer amounted to "otherinhumane acts" under Article 5(i) of the Statute.775 The Appeals Chamber finds that this was in error, but is not convinced that this error invalidates the Appellants conviction for other inhumane acts (forcible transfer).

331. When finding that specific acts of forcible transfer amount to "other inhumane acts" under Article 5(i) of the Statute, a Trial Chamber has to be convinced that the forcible transfer is of a similar seriousness to other enumerated crimes against humanity.776 This condition is satisfied in the present case. The acts of forcible transfer777 were of similar seriousness to the instances of deportation,778 as they involved a forced departure from the residence and the community, without guarantees concerning the possibility to return in the future, with the victims of such forced transfers invariably suffering serious mental harm.779

774 Stakić Appeal Judgement, para. 317 (emphasis added).

775 Trial Judgement, paras 722-726.

776

Blagojevic and Jokic Trial Judgement

, para. 626; Galić Trial Judgement, para. 152; Vasiljević Trial Judgement, para. 234;

Krnojelac Trial

Judgement, para. 130. See also Kupreskc} Trial Judgement, para. 566, and Kayishema and Ruzindana Trial Judgement, paras 151, 154 (stating that the acts or omissions must be as serious as the other crimes against humanity).

777 See Trial Judgement paras 309 (Bijeljina), 402 (Bosanska Krupa), 314 (Bratunac), 533 (Sanski Most), 693 (Sokolac), 593 (Trnovo) and 365 (Zvornik).

778 See Trial Chamber Judgement paras 380 (Banja Luka), 611 (Bileća), 419 (Bosanski Novi), 621 (^ajniče), 637 (Foča), 658-659 (Gacko), 507 (Prnjavor) and 366 (Zvornik).

779 In this connection, see Blagojevc} and Jokic Trial Judgement, para. 629; Krstic Trial Judgement, para. 523; Kupreskij et al. Trial Judgement, para. 566.

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 936-937:

"936. The Trial Chamber finds that the elements of the crime of forcible transfer with regard to the Bosnian Muslim women, children and the elderly who were transported out of Potocari have been met and that the crime of forcible transfer was committed against them. Further, the Trial Chamber, by majority, Judge Kwon dissenting, finds that the elements of the crime with regard to the civilians in the column have also been met, and that the crime of forcible transfer was similarly committed against them.

937. Furthermore, the Trial Chamber finds that the forcible transfer of the Bosnian Muslim women, children and the elderly and, by majority, Judge Kwon dissenting, the forcible transfer of the civilians in the column were of similar seriousness to other acts enumerated in Article 5, as they involved a mass transfer under duress and in terror. In the case of the women, children and the elderly, the mass transfer was also systematic. This happened in the context of an indiscriminate attack against the civilian population, under a cloud of great uncertainty, and with no guarantees of when and where they would be re-united with their families, with the consequent serious mental harm this caused. For the women, children and the elderly, this also happened in the context of the painful separations from their male family members. The Trial Chamber finds that these acts of forcible transfer are sufficiently serious to amount to "other inhumane acts" under Article 5(i) of the Statute."

Prosecutor v. Dragomir Miloević, Case No. IT-98-29/1-T, Judgement (TC), 12 December 2007, paras. 936-938:

"936. The extensive evidence presented of the numerous acts of sniping and shelling of civilians and civilian areas within the confrontation lines by the SRK includes evidence from witnesses, BiH police reports, UNPROFOR and UNMO reports, such as daily situation reports, and SRK orders and reports.3128 That evidence shows that, although there were areas that were understood to be more dangerous than others, civilians in all areas of Sarajevo were susceptible to being shot or falling victim to an attack by mortars, other artillery weapons and modified air bombs.3129 The location of the city within hills and mountains enabled the SRK to shell it without restriction.3130 And, in the words of Martin Bell, the "burden of the bombardment fell on the civilians trapped in the city."3131

937. For a period of almost 15 months, civilians, including women, and boys and girls, of varying ages, were targeted by SRK snipers while at home, while gathering food, water or firewood necessary for survival, while going to work and while driving trams.3132 Witnesses also described being at home, involved in daily activities such as talking with neighbours or drinking coffee, at the moment a shell or bomb exploded on, or in the vicinity of, their houses.3133 Market places, tram lines and water collection points were targeted with shells.3134 As described in the findings on Count 1, the victims sustained serious injuries, which had serious physical and psychological impacts on them.3135

938. On the basis of the evidence it has examined, the Trial Chamber is satisfied that the acts of sniping and shelling of civilians by the SRK troops caused serious mental or physical suffering to civilians within the confrontation lines and that they were acts of similar gravity to the other acts enumerated in Article 5 of the Statute. The Trial Chamber finds that, on the basis of the above factors, at the time of the acts of sniping and shelling, the members of the SRK who carried out those acts had the intent to inflict serious physical or mental suffering or to commit a serious attack upon the human dignity of the victims, or they knew that their acts were likely to cause serious physical or mental suffering or a serious attack upon human dignity."

3128 See supra Section II.E. Evidence Pertaining to Alleged "Campaign" in the Indictment Period.

3129 See, e.g., supra, paras. 196 - 498, 211, 217, 227.

3130 See supra paras 417, 138 - 140.

3131 See supra, paras 417, 420, 422; Martin Bell, 27 Apr 2007, T. 5279.

3132 See supra, Section II.E.4 in general, and in particular, paras 208 -211, 214 - 217, 225 - 228, 247 - 250.

3133 See supra, e.g., Sections. II.E.6(b)(iii), (iv), (vi) and (xii)

3134 See supra, Sections II.E.6(b)(ii), (xv) and para 423.

3135 See supra paras 905, 907, 910, 913; Section II.E.7(b), (c).

5.2. "by means of an inhumane act"