Judgment of the ICTY in the Case of Delalic et al: Applicable Law Part D

Source Document:http://www.un.org/icty/celebici/jugement/part3.htm
United Nations

Judgment of the International Criminal Tribunal for the Former Yugoslavia
in the case of

Delalic et al. (I.T-96-21) "Celebici" 16 November 1998

Part III D

Applicable law

H. Construction of Criminal Statutes

The principles nullum crimen sine lege and nulla poena sine lege are well recognised in the world’s major criminal justice systems as being fundamental principles of criminality. Another such fundamental principle is the prohibition against ex post facto criminal laws with its derivative rule of non-retroactive application of criminal laws and criminal sanctions. Associated with these principles are the requirement of specificity and the prohibition of ambiguity in criminal legislation. These considerations are the solid pillars on which the principle of legality stands. Without the satisfaction of these principles no criminalisation process can be accomplished and recognised.
The above principles of legality exist and are recognised in all the world’s major criminal justice systems. It is not certain to what extent they have been admitted as part of international legal practice, separate and apart from the existence of the national legal systems. This is essentially because of the different methods of criminalisation of conduct in national and international criminal justice systems.
Whereas the criminalisation process in a national criminal justice system depends upon legislation which dictates the time when conduct is prohibited and the content of such prohibition, the international criminal justice system attains the same objective through treaties or conventions, or after a customary practice of the unilateral enforcement of a prohibition by States.
It could be postulated, therefore, that the principles of legality in international criminal law are different from their related national legal systems with respect to their application and standards. They appear to be distinctive, in the obvious objective of maintaining a balance between the preservation of justice and fairness towards the accused and taking into account the preservation of world order. To this end, the affected State or States must take into account the following factors, inter alia: the nature of international law; the absence of international legislative policies and standards; the ad hoc processes of technical drafting; and the basic assumption that international criminal law norms will be embodied into the national criminal law of the various States.
The result of this difference has been well expressed by Professor Bassiouni, expressing the view that,

[i]t is a well established truism in international law that if a given conduct is permitted by general or particular international law, that permissibility deprives the conduct of its criminal character under international criminal law. But if a given conduct is prohibited by general or particular international law it does not mean that it is criminal ipso iure. The problem thus lies in distinguishing between prohibited conduct which falls within the legally defined criminal category and that which does not. ⁴²⁹
This exercise being one of interpretation generally, and of the criminal law in particular, we now turn to general principles to consider the interpretation of the criminal provisions of the Tribunal’s Statute and Rules.

1. Aids to Construction of Criminal Statutes

To put the meaning of the principle of legality beyond doubt, two important corollaries must be accepted. The first of these is that penal statutes must be strictly construed, this being a general rule which has stood the test of time. Secondly, they must not be given retroactive effect. This is in addition to the well-recognised paramount duty of the judicial interpreter, or judge, to read into the language of the legislature, honestly and faithfully, its plain and rational meaning and to promote its object. This rule would appear to have been founded on the firm principle that it is for the legislature and not the court or judge to define a crime and prescribe its punishment.
A criminal statute is one in which the legislature intends to have the final result of inflicting suffering upon, or encroaching upon the liberty of, the individual. It is undoubtedly expected that, in such a situation, the intention to do so shall be clearly expressed and without ambiguity. The legislature will not allow such intention to be gathered from doubtful inferences from the words used. It will also not leave its intention to be inferred from unexpressed words. The intention should be manifest.
The rule of strict construction requires that the language of a particular provision shall be construed such that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment. In the construction of a criminal statute no violence must be done to its language to include people within it who do not ordinarily fall within its express language. The accepted view is that if the legislature has not used words sufficiently comprehensive to include within its prohibition all the cases which should naturally fall within the mischief intended to be prevented, the interpreter is not competent to extend them. The interpreter of a provision can only determine whether the case is within the intention of a criminal statute by construction of the express language of the provision.
A strict construction requires that no case shall fall within a penal statute which does not comprise all the elements which, whether morally material or not, are in fact made to constitute the offence as defined by the statute. In other words, a strict construction requires that an offence is made out in accordance with the statute creating it only when all the essential ingredients, as prescribed by the statute, have been established.
It has always been the practice of courts not to fill omissions in legislation when this can be said to have been deliberate. It would seem, however, that where the omission was accidental, it is usual to supply the missing words to give the legislation the meaning intended. The paramount object in the construction of a criminal provision, or any other statute, is to ascertain the legislative intent. The rule of strict construction is not violated by giving the expression its full meaning or the alternative meaning which is more consonant with the legislative intent and best effectuates such intent.
The effect of strict construction of the provisions of a criminal statute is that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of construction fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself⁴³⁰. This is why ambiguous criminal statutes are to be construed contra proferentem.

2. Interpretation of the Statute and Rules

It is obvious that the subject matter jurisdiction of the Tribunal is constituted by provisions of international law⁴³¹. It follows, therefore, that recourse would be had to the various sources of international law as listed in Article 38 of the Statute of the ICJ, namely international conventions, custom, and general principles of law, as well as other subsidiary sources such as judicial decisions and the writings of jurists. Conversely, it is clear that the Tribunal is not mandated to apply the provisions of the national law of any particular legal system.
With respect to the content of the international humanitarian law to be applied by the Tribunal, the Secretary-General, in his Report, stated the position with unequivocal clarity, in paragraph 29, as follows:

It should be pointed out that, in assigning to the International Tribunal the task of prosecuting persons responsible for serious violations of international humanitarian law, the Security Council would not be creating or purporting to 'legislate' that law. Rather, the International Tribunal would have the task of applying existing international humanitarian law.

Further, at paragraph 34, explaining the application of the principle of nullum crimen sine lege, the Secretary-General stated:

In the view of the Secretary-General, the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise. This would appear to be particularly important in the context of an international tribunal prosecuting persons responsible for serious violations of international humanitarian law.
It is clear, therefore, that the Secretary-General was in these paragraphs referring to the application of existing customary international humanitarian law. This position avoids any misunderstanding that the absence of corresponding national legislation may cause. The Secretary-General went on, in paragraph 35 of the Report, to specify the customary law applicable as being,

the Geneva Conventions of 12 August 1949 for the Protection of War Victims; the Hague Convention (IV) Respecting the Laws and Customs of War on Land and the Regulations annexed thereto of 18 October 1907; the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948; and the Charter of the International Military Tribunal of 8 August 1945.
The implication of these explanations is that the Security Council, not being a legislative body, cannot create offences. It therefore vests in the Tribunal the exercise of jurisdiction in respect of offences already recognised in international humanitarian law. The Statute does not create substantive law, but provides a forum and framework for the enforcement of existing international humanitarian law.
It is with these considerations in mind that the Trial Chamber addresses the elements of the offences charged in the Indictment.

I. Elements of the Offences

The Trial Chamber must look to customary international law in order to arrive at a determination of the elements of the offences alleged in the present case as they stood during the time-period to which the Indictment relates. These offences are here categorised under the following headings: wilful killing and murder; offences of mistreatment; unlawful confinement of civilians; and plunder.

1. Wilful Killing and Murder

(a) Introduction

The Indictment alleges that each of the accused is responsible for the killing of several of the detainees in the Celebici prison-camp, on account of either their personal participation in such killings, or their superior authority over those directly involved. The Indictment has been formulated in such a way as to classify these acts as both "wilful killing" – punishable under Article 2 of the Statute - and "murder" – punishable under Article 3. Before analysing the evidence concerning these particular charges, the Trial Chamber must, therefore, establish the meaning to be attached to their classification in such a way.
The first question which arises is whether there is a qualitative difference between "wilful killing" and "murder" such as to render the elements constituting these offences materially different. The Trial Chamber notes that the term "wilful killing" has been incorporated directly from the four Geneva Conventions, in particular articles 50, 51, 130 and 147 thereof, which set out those acts that constitute "grave breaches" of the Conventions. In the French text of the Conventions, this terminology is translated as "l’homicide intentionnel". On the other hand, "murder", prohibited by common article 3 of the Conventions, is translated literally in the French text of the Conventions as "meurtre".
The Trial Chamber takes the view that it is the simple essence of these offences, derived from the ordinary meaning of their terms in the context of the Geneva Conventions, which must be outlined in the abstract before they are given concrete form and substance in relation to the facts alleged. With this in mind, there can be no line drawn between "wilful killing" and "murder" which affects their content.
In addition, it should not be forgotten that the primary purpose of common article 3 of the Geneva Conventions was to extend the "elementary considerations of humanity" to internal armed conflicts. Thus, as it is prohibited to kill protected persons during an international armed conflict, so it is prohibited to kill those taking no active part in hostilities which constitute an internal armed conflict. In this spirit of equality of protection, there can be no reason to attach meaning to the difference of terminology utilised in common article 3 and the articles referring to "grave breaches" of the Conventions.⁴³²
Having reached this conclusion, the remaining issue becomes the formulation of the elements of these crimes of "wilful killing" and "murder". It is apparent that it is a general principle of law that the establishment of criminal culpability requires an analysis of two aspects⁴³³. The first of these may be termed the actus reus – the physical act necessary for the offence. In relation to homicide of all natures, this actus reus is clearly the death of the victim as a result of the actions of the accused. The Trial Chamber finds it unnecessary to dwell on this issue, although it notes that omissions as well as concrete actions can satisfy the actus reus element⁴³⁴ and, further, that the conduct of the accused must be a substantial cause of the death of the victim.⁴³⁵
The second aspect of the analysis of any homicide offence relates to the necessary mental element, or mens rea. Often this debate centres around the question of "intent" and it is, indeed, this issue which is the subject of dispute between the parties in the present case. Thus, before proceeding further in its discussion, the Trial Chamber deems it necessary to set out the arguments raised by the parties in this regard.

(b) Arguments of the Parties

Simply stated, it is the position of the Prosecution that the mens rea element of wilful killing and murder is established where the accused possessed the intent to kill, or inflict grievous bodily harm on the victim. It argues that the word "wilful" must be interpreted to incorporate reckless acts as well as a specific desire to kill, whilst excluding mere negligence. More particularly, the Prosecution contends that, while the accused’s acts must be "intentional", the concept of intention can assume different forms, including both direct and indirect intention to commit the unlawful act. Such indirect intention incorporates the situation where the accused commits acts and is reckless to their consequences and where death is foreseeable⁴³⁶. In support of this argument, the Prosecution relies on the Commentary to article 85 of Additional Protocol I which defines ‘wilfully’ in the following terms:

wilfully: the accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing them (‘criminal intent’ or ‘malice aforethought’); this encompasses concepts of ‘wrongful intent’ or ‘recklessness’, viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences.⁴³⁷
The Defence⁴³⁸ seeks to rely on a narrower concept of intent and, in particular, would exclude from its scope any notion of recklessness. According to the Defence for Mr. Landzo and Mr. Delic, the mens rea element of the offence of wilful killing requires a showing by the Prosecution that the accused had the specific intent to cause death by his actions⁴³⁹. Expanding upon this, the Defence submits that the words "reckless" and "intent" are mutually exclusive, and that "in the common law tradition offences requiring intent are typically to be distinguished from those where mere recklessness will suffice⁴⁴⁰." In this regard, it cites the English case of R v Sheppard ⁴⁴¹and quotes the statement made by Lord Diplock therein, that "[t]he primary meaning of ‘wilfully’ is ‘deliberate’"⁴⁴². This, in the view of the Defence, is the preferable construction of the mens rea requirement for wilful killing or murder under the Geneva Conventions and Additional Protocol I.
The Defence further contends that this interpretation accords with the French text of article 130 of the Third Geneva Convention and article 147 of the Fourth Geneva Convention (dealing with grave breaches) which equates "l’homicide intentionnel" with "wilful killing". In its view there is a difference of meaning between the two translations of the Conventions, the term ‘intentional’ being a much stronger word in English than ‘wilful’. Thus, the French text should be preferred over the English on the basis that "where such differences exist, they should be decided in favour of the Defendant." ⁴⁴³
The Defence further finds there to be a contradiction between the definition of "wilful" in the Commentary to article 85 of Additional Protocol I and the provisions of article 32 of the Fourth Geneva Convention, which prohibits the High Contracting Parties,

from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishment, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.

The Commentary to this article states:

"Purpose of the prohibition" – The Diplomatic Conference deliberately employed the words ‘of such a character as to cause’ instead of the formula ‘likely to cause’ which figured in the original draft. In thus substituting a causal criterion for one of intention, the Conference aimed at extending the scope of the Article; henceforth, it is not necessary that an act should be intentional for the person committing it to be answerable for it. The aim is to ensure that every protected person shall receive humane treatment from the civil and military authorities. In this respect, Article 32 is as general as possible and mentions only as examples the principal types of atrocity committed during the Second World War, which should be prohibited for ever. However, it should be noted that most of the acts listed in the second sentence of this Article can only be committed with intent.⁴⁴⁴

The Defence relies on the final sentence of this Commentary, stating that it "strongly suggests that murder requires ‘intent’".⁴⁴⁵
In response to these arguments, the Prosecution asserts that the Defence wrongly seeks to equate the concept of recklessness with simple negligence. In addition, the Prosecution takes issue with the Defence reading of R v Sheppard, and submits that the House of Lords held in that case that:

a man ‘wilfully’ fails to provide adequate medical attention for a child if he either (a) deliberately does so, knowing that there is some risk that the child’s health may suffer unless he receives such attention; or (b) does so because he does not care whether the child may be in need of medical treatment or not.⁴⁴⁶

(c) Discussion

Both the Prosecution and the Defence have focused upon the word "wilful" in their discussion of the necessary mens rea required to establish the offences of "wilful killing" and "murder". This has had the unfortunate result of drawing attention away from the nature and purpose of the prohibition contained in the Geneva Conventions, which is clearly to proscribe the deliberate taking of the lives of those defenceless and vulnerable persons who are the objects of the Conventions’ protections⁴⁴⁷. It is this nature and purpose which primarily guides the Trial Chamber’s consideration of the matter and its examination of the terminology utilised, for a simple semantic approach, or one which confines itself to the specificities of particular national jurisdictions, can only lead to confusion or a fruitless search for an elusive commonality. In any national legal system, terms are utilised in a specific legal context and are attributed their own specific connotations by the jurisprudence of that system. Such connotations may not necessarily be relevant when these terms are applied in an international jurisdiction.
Article 32 of the Fourth Geneva Convention contains the fundamental prohibition on acts which result in the death or physical suffering of protected civilians. The Commentary to this article notes that it is formulated in a manner which emphasises the link of causality between act and result, whilst recognising that the listed offences generally require an element of intent – that which we have here termed mens rea. The nature of this "intent" requirement is left unexplained. Guidance may, however, be found in the Commentary to Additional Protocol I. In relation to article 11 of that instrument, the commentary incorporates the concept of "recklessness" into that of "wilfulness", whilst excluding mere negligence from its scope. Likewise, in relation to article 85 of the Additional Protocol, the commentary seeks to distinguish ordinary negligence from wrongful intent or recklessness, and regards only the latter as encompassed by the term "wilful".
The Trial Chamber is further instructed by the plain, ordinary meaning of the word "wilful", as found in the Concise Oxford English Dictionary, which is "intentional, deliberate". There is, on this basis, no divergence of substance between the use of the term "wilful killing" and the French version, "l’homicide intentionnel". In Le Nouveau Petit Robert dictionary, "intentionnel" is defined as "ce qui est fait expr�s, avec intention, � dessein." The essence to be derived from the usage of this terminology in both languages is simply that death should not be an accidental consequence of the acts of the accused. The ordinary meaning of the English term "murder" is also understood as something more than manslaughter and thus, as stated above, no difference of consequence flows from the use of "wilful killing" in place of "murder".
At common law, the term "malice" is often utilised to describe the necessary additional element that transforms a homicide from a case of manslaughter to one of murder. Yet again, however, there is a strong danger of confusion if such terminology is transposed into the context of international law, without explanation of its exact meaning. Malice does not merely refer to ill-will on the part of the perpetrator of the killing, but extends to his intention to cause great bodily harm or to kill without legal justification or excuse and also "denotes a wicked and corrupt disregard of the lives and safety of others"⁴⁴⁸. In most common law jurisdictions, the mens rea requirement of murder is satisfied where the accused is aware of the likelihood or probability of causing death or is reckless as to the causing of death. In Australia, for example, knowledge that death or grievous bodily harm will probably result from the actions of the accused is the requisite test⁴⁴⁹. Under Canadian law, the accused is required to have a simultaneous awareness of the probability of death and the intention to inflict some form of serious harm⁴⁵⁰, and this is also the position in Pakistan.⁴⁵¹
The civil law concept of dolus describes the voluntariness of an act and incorporates both direct and indirect intention⁴⁵². Under the theory of indirect intention (dolus eventualis), should an accused engage in life-endangering behaviour, his killing is deemed intentional if he "makes peace" with the likelihood of death. In many civil law jurisdictions the foreseeability of death is relevant and the possibility that death will occur is generally sufficient to fulfil the requisite intention to kill.
The Trial Chamber is mindful of the benefits of an approach which analyses the amount of risk taken by an accused that his actions will result in death and considers whether that risk might be deemed excessive. Under this approach, all of the circumstances surrounding the infliction of harm and the resulting death of the victim are examined and the relevant question is whether it is apparent from these circumstances that the accused’s actions were committed in a manner "manifesting extreme indifference to the value of human life⁴⁵³." Such an approach enables the adjudicative body to take into account factors such as the use of weapons or other instruments, and the position of the accused in relation to the victim.

(d) Findings

While different legal systems utilise differing forms of classification of the mental element involved in the crime of murder, it is clear that some form of intention is required. However, this intention may be inferred from the circumstances, whether one approaches the issue from the perspective of the foreseeability of death as a consequence of the acts of the accused, or the taking of an excessive risk which demonstrates recklessness. As has been stated by the Prosecution, the Commentary to the Additional Protocols expressly includes the concept of "recklessness" within its discussion of the meaning of "wilful" as a qualifying term in both articles 11 and 85 of Additional Protocol I.
Bearing in mind our discussion of the relevant principles of interpretation above, it is in this context, and in that of the nature and purpose of the Geneva Conventions, that the Trial Chamber determines the meaning of the terms utilised in the Statute of the Tribunal. As stated by Fletcher;

[t]he method of analyzing ordinary usage invites us to consider what these terms mean as they are used, not what they "mean" when wrenched out of context and defined for the purposes of legal analysis.⁴⁵⁴
On the basis of this analysis alone, the Trial Chamber is in no doubt that the necessary intent, meaning mens rea, required to establish the crimes of wilful killing and murder, as recognised in the Geneva Conventions, is present where there is demonstrated an intention on the part of the accused to kill, or inflict serious injury in reckless disregard of human life. It is in this light that the evidence relating to each of the alleged acts of killing is assessed and the appropriate legal conclusion reached in Section IV below.

2. Offences of Mistreatment

(a) Introduction to Various Offences of Mistreatment

The Indictment alleges that each of the accused is responsible for various forms of mistreatment of the detainees in the Celebici prison-camp. Such mistreatment, not resulting in death, is variously categorised and alleged as: torture, a grave breach of the Geneva Conventions punishable under Article 2(b) of the Statute, and a violation of the laws or customs of war punishable under Article 3 of the Statute, as recognised by article 3(1)(a) of the Geneva Conventions; rape as torture, a grave breach of the Geneva Conventions punishable under Article 2(b) of the Statute, and a violation of the laws or customs of war punishable under Article 3 of the Statute, as recognised by article 3(1)(a) of the Geneva Conventions; wilfully causing great suffering or serious injury, a grave breach of the Geneva Conventions punishable under Article 2(c) of the Statute; inhuman treatment, a grave breach of the Geneva Conventions punishable under Article 2(b) of the Statute; and cruel treatment, a violation of the laws or customs of war punishable under Article 3 of the Statute and recognised by article 3(1)(a) of the Geneva Conventions.
The offences of torture, wilfully causing great suffering or serious injury to body or health and inhuman treatment are proscribed as grave breaches of the Geneva Conventions. The offences of torture and cruel treatment are prohibited under common article 3 of the Geneva Conventions. However, no definition or elaboration of these offences are provided in the Conventions themselves. Thus, the Trial Chamber must find the customary international law definitions of the elements of these offences as they stood at the time period to which the Indictment relates. A detailed explanation of the reasoning underlying this determination will be discussed in the following paragraphs.
The Trial Chamber finds that torture is the most specific of those offences of mistreatment constituting "grave breaches" and entails acts or omissions, by or at the instigation of, or with the consent or acquiescence of an official, which are committed for a particular prohibited purpose and cause a severe level of mental or physical pain or suffering. The offence of wilfully causing great suffering or serious injury to body or health is distinguished from torture primarily on the basis that the alleged acts or omissions need not be committed for a prohibited purpose such as is required for the offence of torture. Finally, within this framework of grave breach offences, inhuman treatment involves acts or omissions that cause serious mental or physical suffering or injury or constitute a serious attack on human dignity. Accordingly, all acts or omissions found to constitute torture or wilfully causing great suffering or serious injury to body or health would also constitute inhuman treatment. However, this third category of offence is not limited to those acts already incorporated in the foregoing two, and extends further to acts which violate the basic principle of humane treatment, particularly the respect for human dignity.
The offences of torture and cruel treatment, proscribed under common article 3, are also interrelated. The characteristics of the offence of torture under common article 3 and under the "grave breaches" provisions of the Geneva Conventions, do not differ. The offence of cruel treatment under common article 3 carries the same meaning as inhuman treatment in the context of the "grave breaches" provisions. Thus, for the purposes of common article 3, all torture is encapsulated in the offence of cruel treatment. However, this latter offence extends to all acts or omissions which cause serious mental or physical suffering or injury or constitute a serious attack on human dignity.
The general requirements for the application of Articles 1, 2 and 3 of the Statute have already been discussed above in Section III. Most importantly, it has been found that, in order for any of the acts to which the various charges of mistreatment refer to constitute violations of Article 2 or Article 3 of the Statute, the Trial Chamber must be satisfied that the precondition that there be a nexus between the acts of the accused and the armed conflict is met. The Trial Chamber has found that this nexus undoubtedly exists in relation to each of the acts alleged in the Indictment.
Having made these preliminary remarks about the interrelationship of the mistreatment offences, both under the "grave breaches" provisions of the Geneva Conventions and common article 3, and the general requirement of the nexus between the acts of the accused and the armed conflict as a precondition to the application of Articles 1, 2 and 3 of the Statute, the Trial Chamber proceeds with the following detailed consideration of definitions and criteria to be attached to each of these offences under customary international law.

(b) Torture

(i) Introduction

The torture of persons not taking an active part in hostilities is absolutely prohibited by the Geneva Conventions, both in internal and international armed conflicts. The commission of acts of torture is specifically enumerated in the Conventions as constituting a grave breach, as well as violating common article 3 and other provisions of the Conventions and Additional Protocols⁴⁵⁵. The requisite elements of this offence merit particular clarification as they form the basis upon which torture is differentiated from other offences of ill-treatment contained in the Geneva Conventions. Both the Prosecution and the Defence have made significant submissions on this issue and the Trial Chamber thus deems it useful to outline these before continuing with its discussion.

(ii) Arguments of the Parties

The Prosecution consistently maintains that the Trial Chamber ought to apply the customary law definition of torture as expressed in the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter "Torture Convention"). In its Response to the Motion to Dismiss, and its Closing Brief, the Prosecution further submits that the Trial Chamber should rely on the customary law definition of torture. It notes that this definition is broader than that suggested in the Commentary to the Fourth Geneva Convention⁴⁵⁶. It cites Professor Bassiouni in this regard, who suggests that torture requires a secondary purpose behind the acts of injury, which inhuman treatment does not. In his view, this secondary purpose must be to obtain a confession, or for any other purpose. Further, Bassiouni suggests that what constitutes this secondary purpose has changed over time, noting the provisions of Additional Protocol I and the 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter "Declaration on Torture"). ⁴⁵⁷
In support of the contention that torture can be employed for a variety of purposes beyond that of illiciting information, the Prosecution notes Bassiouni’s comment, when considering the issue of rape as torture, that the commission of mass rape was employed during the conflicts in the former Yugoslavia in order to punish the victims and/or to intimidate them or their communities.
The Defence argues that the customary and conventional definition of torture, in the context of international humanitarian law, is narrower than that posited by the Prosecution. It submits that, under the Geneva Conventions, torture must have as its motive the obtaining of information. Accordingly, in the view of the Defence, the Prosecution’s proposed definition seeks to broaden the customary definition of torture for the purposes of international humanitarian law, contrary to the intent of the Secretary-General and Security Council that the Tribunal only apply settled customary international law so as to avoid violating the principle of nullum crimen sine lege.
In support of this argument, the Defence relies upon the commentary to article 147 of the Fourth Geneva Convention. It further emphasises that the distinguishing feature of the offence of torture is the purpose for which it is inflicted. In its view, it is clear that the "prohibited purpose" is that of obtaining "from that person or another person, confessions or information" and it is unclear whether it could also include any other purpose. The Defence also refers to Bassiouni in support of this proposition. It submits that Bassiouni is unclear whether the required motive can serve a purpose other than the obtaining of a confession or information and that the other motives in the Prosecution’s proposed definition are overly broad, that is, they do not reflect what is beyond any doubt part of customary law. Accordingly, the Defence submits that the Trial Chamber should construe the "prohibited purpose" requirement of torture narrowly and in favour of the defendant, so as to comply with the Report of the Secretary-General and with the general principle of criminal law that ambiguous statutes should be construed narrowly, in favour of the defendant.
During closing oral submissions, Mr. Michael Greaves, on behalf of the Defence, stated that torture and rape were included within the meaning of "other inhumane acts" contained in article 6(c) of the Charter of the International Military Tribunal⁴⁵⁸. However, in his view, the elements of these offences remain to be identified. He further suggested that the Trial Chamber could rely on the applicable criminal law of the former republics of the SFRY in the construction of these elements, as this would be in accordance with the principle of legality. In addition, he argued that the definition contained in the Torture Convention does not reflect settled customary international law. In support of this proposition, counsel referred to article 1 of the Torture Convention, which provides that the definition contained therein is "for the purposes of this Convention". Further, counsel submitted that the definition of torture differs in various other jurisdictions, quoting the decision of the European Court of Human Rights (hereafter "European Court") in the case of Republic of Ireland v. United Kingdom⁴⁵⁹, although he did not offer his view on the definition of torture proposed in that case.

(iii) Discussion

a. The Definition of Torture Under Customary International Law

There can be no doubt that torture is prohibited by both conventional and customary international law. In addition to the proscriptions of international humanitarian law, which are pleaded in the Indictment, there are also a number of international human rights instruments that express the prohibition. Both the Universal Declaration of Human Rights⁴⁶⁰ and the ICCPR contain such provisions⁴⁶¹. Torture is also prohibited by a number of regional human rights treaties, including the European Convention on Human Rights ⁴⁶²(hereafter "European Convention"), the American Convention on Human Rights⁴⁶³, the Inter-American Convention to Prevent and Punish Torture⁴⁶⁴ (hereafter "Inter-American Convention"), and the African Charter on Human and Peoples’ Rights.⁴⁶⁵
In addition, there are two international instruments that are solely concerned with the prohibition of torture, the most significant of which is the Torture Convention⁴⁶⁶. This Convention was adopted by the General Assembly on 10 December 1984 and has been ratified or acceded to by 109 States, including the SFRY, representing more than half of the membership of the United Nations. It was preceded by the Declaration on the Protection from Torture, which was adopted by the United Nations General Assembly on 9 December 1975 without a vote.⁴⁶⁸
Based on the foregoing, it can be said that the prohibition on torture is a norm of customary law. It further constitutes a norm of jus cogens⁴⁶⁹, as has been confirmed by the United Nations Special Rapporteur for Torture⁴⁷⁰. It should additionally be noted that the prohibition contained in the aforementioned international instruments is absolute and non-derogable in any circumstances. ⁴⁷¹
Despite the clear international consensus that the infliction of acts of torture is prohibited conduct, few attempts have been made to articulate a legal definition of torture. In fact, of the instruments prohibiting torture, only three provide any definition. The first such instrument is the Declaration on Torture, article 1 of which states:

torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. . . . Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading punishment.
This definition was used as the basis for the one subsequently articulated in the Torture Convention⁴⁷², which states, in article 1 that,

the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
This differs from the formulation utilised in the Declaration on Torture in two ways. First, there is no reference to torture as an aggravated form of ill-treatment in the Torture Convention. However, this quantitative element is implicit in the requisite level of severity of suffering. Secondly, the examples of prohibited purposes in the Torture Convention explicitly include "any reason based on discrimination of any kind", whereas this is not the case in the Declaration on Torture.
The third such instrument, the Inter-American Convention, was signed on 9 December 1985⁴⁷³. The definition of torture contained in Article 2 thereof incorporates, but is arguably broader than, that contained in the Torture Convention, as it refrains from specifying a threshold level of pain or suffering which is necessary for ill treatment to constitute torture. ⁴⁷⁴
It may, therefore, be said that the definition of torture contained in the Torture Convention includes the definitions contained in both the Declaration on Torture and the Inter-American Convention and thus reflects a consensus which the Trial Chamber considers to be representative of customary international law.
Having reached this conclusion, the Trial Chamber now considers in more depth the requisite level of severity of pain or suffering, the existence of a prohibited purpose, and the extent of the official involvement that are required in order for the offence of torture to be proven.

b. Severity of Pain or Suffering

Although the Human Rights Committee, a body established by the ICCPR to monitor its implementation, has had occasion to consider the nature of ill-treatment prohibited under article 7 of the ICCPR, the Committee’s decisions have generally not drawn a distinction between the various prohibited forms of ill-treatment. However, in certain cases, the Committee has made a specific finding of torture, based upon the following conduct: beating, electric shocks and mock executions⁴⁷⁵; plantones, beatings and lack of food⁴⁷⁶; being held incommunicado for more than three months whilst being kept blindfolded with hands tied together, resulting in limb paralysis, leg injuries, substantial weight loss and eye infection.⁴⁷⁷
The European Court and the European Commission of Human Rights have also developed a body of jurisprudence that deals with conduct constituting torture, prohibited by article 3 of the European Convention. As with the findings of the Human Rights Committee, it is difficult to obtain a precise picture of the material elements of torture from the decisions of these bodies, although they are useful in providing some examples of prohibited conduct. The most notable findings from this jurisdiction are the Greek Case ⁴⁷⁸and the Northern Ireland Case. The Greek Case was the first extensively reasoned decision on the conventional prohibition of torture, in which the practice of administering severe beatings to all parts of the body, known as falanga, as practised by the Athens Security Police, was held by the European Commission of Human Rights to constitute torture and ill-treatment. ⁴⁷⁹
The Northern Ireland Case best illustrates the inherent difficulties in determining a threshold level of severity beyond which inhuman treatment becomes torture. Whereas the European Commission of Human Rights considered that the combined use of wall-standing, hooding, subjection to noise, sleep deprivation and food and drink deprivation constituted a violation of article 3 amounting to torture, in this case, the European Court concluded that such acts did not amount to torture as they "did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood"⁴⁸⁰. Instead, the European Court found that the relevant acts constituted inhuman and degrading treatment in breach of article 3 of the European Convention.
In its decision in the Northern Ireland Case, the European Court found that the offence of torture was confined to ill-treatment resulting in "very serious and cruel suffering"⁴⁸¹. In doing so, it relied in part upon that section of the definition articulated in the Declaration of Torture that describes torture as "an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment." The Trial Chamber notes that the European Court expressly acknowledged that the use of the five techniques of interrogation in question had caused "intense physical and mental suffering" but then, nonetheless, concluded that the intensity of the suffering inflicted was insufficient to warrant a finding of torture, without further explanation. Indeed, this aspect of the decision has been the subject of criticism in human rights literature⁴⁸². Furthermore, in later cases, forms of ill-treatment analogous to those considered by the European Court in the Northern Ireland Case have been found by other human rights bodies to constitute torture.⁴⁸³
In two other cases, the European Court has found breaches of article 3 amounting to torture. In Aksoy v. Turkey,⁴⁸⁴ the Court held that the applicant had been subjected to torture contrary to article 3 where he had been stripped naked and suspended by his arms which had been tied together behind his back. It took the view that,

this treatment could only have been deliberately inflicted: indeed a certain amount of preparation and exertion would have been required to carry it out. It would appear to have been administered with the aim of obtaining admissions or information from the applicant. In addition to the severe pain which it must have caused at the time, the medical evidence shows that it led to paralysis of both arms which lasted for some time. The Court considers that this treatment was of such a serious and cruel nature that it can only be described as torture.⁴⁸⁵
Similarly, in Aydin v. Turkey⁴⁸⁶, the European Court made a specific finding of a breach of article 3 amounting to torture, on two separate grounds. First, the rape of the applicant during her detention was held to constitute torture - this is discussed in further detail below. Secondly, the European Court found that the following acts constituted independent grounds for a finding of torture:

[The applicant] was detained over a period of three days during which she must have been bewildered and disorientated by being kept blindfolded, and in a constant state of physical pain and mental anguish brought on by the beatings administered to her during questioning and by the apprehension of what would happen to her next. She was also paraded naked in humiliating circumstances thus adding to her overall sense of vulnerability and on one occasion she was pummelled with high-pressure water while being spun around in a tyre.⁴⁸⁷
Finally, it should also be noted that the Special Rapporteur on Torture, in his 1986 report, provided a detailed, although not exhaustive, catalogue of those acts which involve the infliction of suffering severe enough to constitute the offence of torture, including: beating; extraction of nails, teeth, etc.; burns; electric shocks; suspension; suffocation; exposure to excessive light or noise; sexual aggression; administration of drugs in detention or psychiatric institutions; prolonged denial of rest or sleep; prolonged denial of food; prolonged denial of sufficient hygiene; prolonged denial of medical assistance; total isolation and sensory deprivation; being kept in constant uncertainty in terms of space and time; threats to torture or kill relatives; total abandonment; and simulated executions. ⁴⁸⁸
From the foregoing discussion it can be seen that the most characteristic cases of torture involve positive acts. However, omissions may also provide the requisite material element, provided that the mental or physical suffering caused meets the required level of severity and that the act or omission was intentional, that is an act which, judged objectively, is deliberate and not accidental. Mistreatment that does not rise to the threshold level of severity necessary to be characterised as torture may constitute another offence.
As evidenced by the jurisprudence set forth above, it is difficult to articulate with any degree of precision the threshold level of suffering at which other forms of mistreatment become torture. However, the existence of such a grey area should not be seen as an invitation to create an exhaustive list of acts constituting torture, in order to neatly categorise the prohibition. As stated by Rodley, "… a juridical definition cannot depend upon a catalogue of horrific practices; for it to do so would simply provide a challenge to the ingenuity of the torturers, not a viable legal prohibition."⁴⁸⁹

c. Prohibited Purpose

Another critical element of the offence of torture is the presence of a prohibited purpose. As previously stated, the list of such prohibited purposes in the Torture Convention expands upon those enumerated in the Declaration on Torture by adding "discrimination of any kind". The use of the words "for such purposes" in the customary definition of torture, indicate that the various listed purposes do not constitute an exhaustive list, and should be regarded as merely representative. Further, there is no requirement that the conduct must be solely perpetrated for a prohibited purpose. Thus, in order for this requirement to be met, the prohibited purpose must simply be part of the motivation behind the conduct and need not be the predominating or sole purpose.
A fundamental distinction regarding the purpose for which torture is inflicted is that between a "prohibited purpose" and one which is purely private. The rationale behind this distinction is that the prohibition on torture is not concerned with private conduct, which is ordinarily sanctioned under national law⁴⁹⁰. In particular, rape and other sexual assaults have often been labelled as "private", thus precluding them from being punished under national or international law. However, such conduct could meet the purposive requirements of torture as, during armed conflicts, the purposive elements of intimidation, coercion, punishment or discrimination can often be integral components of behaviour, thus bringing the relevant conduct within the definition. Accordingly,

[o]nly in exceptional cases should it therefore be possible to conclude that the infliction of severe pain or suffering by a public official would not constitute torture … on the ground that he acted for purely private reasons. ⁴⁹¹
As noted above, the Defence argues that an act can only constitute torture if it is committed for a limited set of purposes, enumerated in the Commentary to article 147 of the Fourth Geneva Convention. This proposition does not reflect the position at customary law as discussed above, which clearly envisages prohibited purposes additional to those suggested by the Commentary.

d. Official Sanction

Traditionally, an act of torture must be committed by, or at the instigation of, or with the consent or acquiescence of, a public official or person acting in an official capacity. In the context of international humanitarian law, this requirement must be interpreted to include officials of non-State parties to a conflict, in order for the prohibition to retain significance in situations of internal armed conflicts or international conflicts involving some non-State entities.
The incorporation of this element into the definition of torture contained in the Torture Convention again follows the Declaration on Torture and develops it further by adding the phrases "or with the consent or acquiescence of" and "or other person acting in an official capacity". It is thus stated in very broad terms and extends to officials who take a passive attitude or turn a blind eye to torture, most obviously by failing to prevent or punish torture under national penal or military law, when it occurs.

(iv) Rape as Torture

The crime of rape is not itself expressly mentioned in the provisions of the Geneva Conventions relating to grave breaches, nor in common article 3, and hence its classification as torture and cruel treatment. It is the purpose of this section to consider the issue of whether rape constitutes torture, under the above mentioned provisions of the Geneva Conventions. In order to properly consider this issue, the Trial Chamber first discusses the prohibition of rape and sexual assault in international law, then provides a definition of rape and finally turns its attention to whether rape, a form of sexual assault, can be considered as torture.

a. Prohibition of Rape and Sexual Assault Under International Humanitarian Law

There can be no doubt that rape and other forms of sexual assault are expressly prohibited under international humanitarian law. The terms of article 27 of the Fourth Geneva Convention specifically prohibit rape, any form of indecent assault and the enforced prostitution of women. A prohibition on rape, enforced prostitution and any form of indecent assault is further found in article 4(2) of Additional Protocol II, concerning internal armed conflicts. This Protocol also implicitly prohibits rape and sexual assault in article 4(1) which states that all persons are entitled to respect for their person and honour. Moreover, article 76(1) of Additional Protocol I expressly requires that women be protected from rape, forced prostitution and any other form of indecent assault. An implicit prohibition on rape and sexual assault can also be found in article 46 of the 1907 Hague Convention (IV) that provides for the protection of family honour and rights. Finally, rape is prohibited as a crime against humanity under article 6(c) of the N�rnberg Charter and expressed as such in Article 5 of the Statute.
There is on the basis of these provisions alone, a clear prohibition on rape and sexual assault under international humanitarian law. However the relevant provisions do not define rape. Thus, the task of the Trial Chamber is to determine the definition of rape in this context.

b. Definition of Rape

Although the prohibition on rape under international humanitarian law is readily apparent, there is no convention or other international instrument containing a definition of the term itself. The Trial Chamber draws guidance on this question from the discussion in the recent judgement of the ICTR, in the case of the Prosecutor v. Jean-Paul Akayesu ⁴⁹²(hereafter "Akayesu Judgement") which has considered the definition of rape in the context of crimes against humanity. The Trial Chamber deciding this case found that there was no commonly accepted definition of the term in international law and acknowledged that, while "rape has been defined in certain national jurisdictions as non-consensual intercourse", there are differing definitions of the variations of such an act. It concluded,

that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts. The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment does not catalogue specific acts in its definition of torture, focusing rather on the conceptual framework of state sanctioned violence.This approach is more useful in international law. […]

The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which includes rape, is considered to be any act of a sexual nature which is committed under circumstances which are coercive.[…] ⁴⁹³
This Trial Chamber agrees with the above reasoning, and sees no reason to depart from the conclusion of the ICTR in the Akayesu Judgement on this issue. Thus, the Trial Chamber considers rape to constitute a physical invasion of a sexual nature, committed on a person under circumstances that are coercive. Having reached this conclusion, the Trial Chamber turns to a brief discussion of the jurisprudence of other international judicial bodies concerning rape as torture.

c. Decisions of International and Regional Judicial Bodies

In order for rape to be included within the offence of torture it must meet each of the elements of this offence, as discussed above. In considering this issue, the Trial Chamber finds it useful to examine the relevant findings of other international judicial and quasi-judicial bodies as well as some relevant United Nations reports.
Both the Inter-American Commission on Human Rights (hereafter "Inter-American Commission") and the European Court of Human Rights have recently issued decisions on the question of whether rape constitutes torture. On 1 March 1996, the Inter-American Commission handed down a decision in the case of Fernando and Raquel Mejia v. Peru⁴⁹⁴, which concerned the rape, on two occasions, of a schoolteacher by members of the Peruvian Army. The facts of the case are as follows.
On the evening of 15 June 1989, Peruvian military personnel, armed with submachine guns and with their faces covered, entered the Mejia home. They abducted Fernando Mejia, a lawyer, journalist and political activist, on suspicion of being a subversive and a member of the Tupac Amaru Revolutionary Movement. Shortly thereafter, one of these military personnel re-entered the home, apparently looking for identity documents belonging to Mr. Mejia. While his wife, Raquel Mejia, was searching for these documents, she was told that she was also considered a subversive, which she denied. The soldier involved then raped her. About 20 minutes later the same soldier returned, dragged her into her room and raped her again. Raquel Mejia spent the rest of the night in a state of terror. Her husband’s body, which showed clear signs of torture, was subsequently found on the banks of the Santa Clara River.
The Inter-American Commission found that the rape of Raquel Mejia constituted torture in breach of article 5 of the American Convention of Human Rights⁴⁹⁵. In reaching this conclusion, the Inter-American Commission found that torture under article 5 has three constituent elements. First, there must be an intentional act through which physical or mental pain and suffering is inflicted on a person; secondly, such suffering must be inflicted for a purpose; and, thirdly, it must be inflicted by a public official or by a private person acting at the instigation of a public official. ⁴⁹⁶
In considering the application of these principles to the facts, the Inter-American Commission found that the first of these elements was satisfied on the basis that:

[r]ape causes physical and mental suffering in the victim. In addition to the violence suffered at the time it is committed, the victims are commonly hurt or, in some cases, are even made pregnant. The fact of being made the subject of abuse of this nature also causes a psychological trauma that results, on the one hand, from having been humiliated and victimised, and on the other, from suffering the condemnation of the members of their community if they report what has been done to them. ⁴⁹⁷
In finding that the second element of torture had also been met, the Inter-American Commission found that Raquel Mejia was raped with the aim of punishing her personally and intimidating her. Finally, it was held that the third requirement of the definition of torture was met as the man who raped Raquel Meija was a member of the security forces.⁴⁹⁸
Two important observations may be made about this decision. First, in considering whether rape gives rise to pain and suffering, one must not only look at the physical consequences, but also at the psychological and social consequences of the rape. Secondly, in its definition of the requisite elements of torture, the Inter-American Commission did not refer to the customary law requirement that the physical and psychological pain and suffering be severe. However, this level of suffering may be implied from the Inter-American Commission’s finding that the rape, in the instant case, was "an act of violence" occasioning physical and psychological pain and suffering that caused the victim: a state of shock; a fear of public ostracism; feelings of humiliation; fear of how her husband would react; a feeling that family integrity was at stake and an apprehension that her children might feel humiliated if they knew what had happened to their mother.⁴⁹⁹
The European Court has also recently considered the issue of rape as torture, as prohibited by article 3 of the European Convention, in the case of Aydin v. Turkey. In this case, a majority of the Court referred to the previous finding of the European Commission for Human Rights, when it stated that, after being detained, the applicant was taken to a police station where she was:

blindfolded, beaten, stripped, placed inside a tyre and sprayed with high pressure water, and raped. It would appear probable that the applicant was subject to such treatment on the basis of suspicion of collaboration by herself or members of her family with members of the PKK, the purpose being to gain information and/or deter her family and other villagers from becoming implicated in terrorist activities. ⁵⁰⁰
The European Court held that the distinction between torture and inhuman or degrading treatment in article 3 of the European Convention was embodied therein to allow the special stigma of torture to attach only to deliberate inhuman treatment causing very serious and cruel suffering. ⁵⁰¹It went on to state that:

[w]hile being held in detention the applicant was raped by a person whose identity has still to be determined. Rape of a detainee by an official of the State must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of his victim. Furthermore, rape leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as other forms of physical and mental violence. The applicant also experienced the acute physical pain of forced penetration, which must have left her feeling debased and violated both physically and emotionally.

[…]

Against this background the Court is satisfied that the accumulation of acts of physical and mental violence inflicted on the applicant and the especially cruel act of rape to which she was subjected amounted to torture in breach of article 3 of the Convention. Indeed the court would have reached this conclusion on either of these grounds taken separately. ⁵⁰²
By stating that it would have found a breach of article 3 even if each of the grounds had been considered separately, the European Court, on the basis of the facts before it, specifically affirmed the view that rape involves the infliction of suffering at a requisite level of severity to place it in the category of torture. A majority of the Court (14 votes to 7) thus found that there had been a breach of article 3 of the European Convention and, while those judges who disagreed with this finding were not convinced that the events alleged actually took place, they did not otherwise disagree with the reasoning of the majority on the application of article 3⁵⁰³. Indeed, two of the dissenting judges explicitly stated that, had they found the acts alleged proven, they would constitute an extremely serious violation of article 3. ⁵⁰⁴
In addition, the Akayesu Judgement referred to above expresses a view on the issue of rape as torture most emphatically, in the following terms:

Like torture rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment control or destruction of a person. Like torture rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.⁵⁰⁵
The view that rape constitutes torture, is further shared by the United Nations Special Rapporteur on Torture. In an oral introduction to his 1992 Report to the Commission on Human Rights, the Special Rapporteur stated that:

since it was clear that rape or other forms of sexual assault against women in detention were a particularly ignominious violation of the inherent dignity and the right to physical integrity of the human being, they accordingly constituted an act of torture. ⁵⁰⁶

In his first report he also listed various forms of sexual aggression as methods of torture, which included rape and the insertion of objects into the orifices of the body. ⁵⁰⁷
The profound effects of rape and other forms of sexual assault were specifically addressed in the Report of the Commission of Experts thus:

Rape and other forms of sexual assault harm not only the body of the victim. The more significant harm is the feeling of total loss of control over the most intimate and personal decisions and bodily functions. This loss of control infringes on the victim’s human dignity and is what makes rape and sexual assault such an effective means of ethnic cleansing. ⁵⁰⁸
Finally, in a recent report, the United Nations Special Rapporteur on Contemporary Forms of Slavery, Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict, has considered the issue of rape as torture with particular regard to the prohibited purpose of discrimination. The United Nations Special Rapporteur referred to the fact that the Committee on the Elimination of Discrimination against Women has recognised that violence directed against a woman because she is a woman, including acts that inflict physical, mental or sexual harm or suffering, represent a form of discrimination that seriously inhibits the ability of women to enjoy human rights and freedoms. Upon this basis, the United Nations Special Rapporteur opined that, "in many cases the discrimination prong of the definition of torture in the Torture Convention provides an additional basis for prosecuting rape and sexual violence as torture." ⁵⁰⁹

(v) Findings

In view of the above discussion, the Trial Chamber therefore finds that the elements of torture, for the purposes of applying Articles 2 and 3 of the Statute, may be enumerated as follows:

(i) There must be an act or omission that causes severe pain or suffering, whether mental or physical,

(ii) which is inflicted intentionally,

(iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed or is suspected of having committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind,

(iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity.
The Trial Chamber considers the rape of any person to be a despicable act which strikes at the very core of human dignity and physical integrity. The condemnation and punishment of rape becomes all the more urgent where it is committed by, or at the instigation of, a public official, or with the consent or acquiescence of such an official. Rape causes severe pain and suffering, both physical and psychological. The psychological suffering of persons upon whom rape is inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long lasting. Furthermore, it is difficult to envisage circumstances in which rape, by, or at the instigation of a public official, or with the consent or acquiescence of an official, could be considered as occurring for a purpose that does not, in some way, involve punishment, coercion, discrimination or intimidation. In the view of this Trial Chamber this is inherent in situations of armed conflict.
Accordingly, whenever rape and other forms of sexual violence meet the aforementioned criteria, then they shall constitute torture, in the same manner as any other acts that meet this criteria.
It is in the light of these findings that the evidence relating to the charges of torture contained in the Indictment is considered in Section IV below.

(c) Wilfully Causing Great Suffering or Serious Injury to Body or Health

The offence of wilfully causing great suffering or serious injury to body or health is expressly prohibited as a grave breach in each of the four Geneva Conventions. However, in order to attach meaning to the prohibition, it is necessary to analyse the circumstances in which particular actions may constitute the causing of such suffering or serious injury. This very issue is indeed the subject of contention between the parties in the present case.

(i) Arguments of the Parties

It is clear from the submissions of the Prosecution that it takes the position that there are two separate offences, one being "wilfully causing great suffering" and the second being "wilfully causing serious injury to body or health". In its view, the elements of the first of these are as follows, first, the accused intended to inflict great suffering without the underlying intention and purposes of torture, with recklessness constituting a sufficient form of intention. Secondly, great suffering was in fact inflicted upon the victim, which need not be limited to physical suffering, but can also include mental or moral suffering.
The Prosecution further submits that the second offence of "wilfully causing serious injury to body or health" has two main elements. First, the accused intended to cause injury to the body or health of the victim, including his mental health, with recklessness constituting a sufficient form of such intention. Secondly, serious injury to body or health was in fact inflicted upon the victim.
The Prosecution argues that the elements of these offences are clearly set out by their terms and refers to the Commentary to article 147 of the Fourth Geneva Convention. This suggests that suffering may be inflicted without a contemplated purpose, such as is required for torture, and that "wilfully causing great suffering" does not necessarily imply injury to body or health. The Prosecution further submits that while "wilfully causing injury to body or health" does require the actual infliction of such injury, it need not be a permanent injury.
In its Response to the Motion to Dismiss, the Prosecution submits that there is no support for the adoption of additional requirements in relation to both offences, such as, that the victim must have been maimed and lost the use of a bodily member or organ, or that injury to health may only encompass bodily damage. In its view, such requirements are wholly unsupportable and contrary to the definitions of the crimes. ⁵¹⁰
The Defence makes two main submissions. First, it argues that the offence of causing "great suffering or injury" has two sources, the first being common article 3 to the Geneva Conventions that prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture." The second is the prohibition of "wilfully causing great suffering or serious injury to body or health" contained in article 130 of the Third Geneva Convention and article 147 of the Fourth Geneva Convention. It contends, however, that these terms lack the specificity required of criminal statutes and they cannot, therefore, form the basis of a criminal prosecution, as this would violate the principle of nullum crimen sine lege.⁵¹¹
In the alternative, should the above argument fail, the Defence argues that the elements of this offence are that:

1. the violation was wilful; and

2. it caused great suffering; or

3. serious injury to body or health.
The Defence maintains that the term "wilful" carries the same meaning as it does for the purposes of the offence of wilful killing and, accordingly, this means that it must have been the specific intent of the perpetrator of the mistreatment to cause the actual result, being either great suffering or serious injury to body or health. The Defence submits that it is insufficient to show simply that the perpetrator intended to commit an act and that the act caused the result. The Defence also submits that the suffering must be both real and great, by objective standards. It rejects the discussion in the Commentary of the meaning of the term "serious injury to body or health" and maintains that a serious injury is one that causes a protracted loss of use of a bodily member or organ. The use of the word "protracted" is suggested in order to avoid the "incapacity to work" standard suggested by the Commentary, while at the same time recognising that some injuries are serious while others are not.

(ii) Discussion

Article 2(c) of the Statute enumerates the offence of wilfully causing great suffering or serious injury to body or health as a grave breach of the Geneva Conventions. This terminology is utilised in the same manner in each of the four Geneva Conventions⁵¹². The construction of the phrase "wilfully causing great suffering or serious injury to body or health" indicates that this is one offence, the elements of which are framed in the alternative and apparent on its face.
The Commentary to the Fourth Geneva Convention, which is identical to the Commentaries to the Second and Third Geneva Conventions in this regard⁵¹³, makes a number of useful observations on the meaning of the phrase "wilfully causing great suffering or serious injury to body or health".

Wilfully causing great suffering - this refers to suffering inflicted with the ends in view for which torture is inflicted or biological experiments carried out. It would therefore be inflicted as a punishment, in revenge or for some other motive, perhaps out of pure sadism. In view of the fact that suffering in this case does not seem, to judge by the phrase which follows, to imply injury to body or health, it may be wondered if this is not a special offence not dealt with by national legislation. Since the Conventions do not specify that only physical suffering is meant, it can quite legitimately be held to cover moral suffering also.

Serious injury to body or health – this is a concept quite normally encountered in penal codes, which usually use as a criterion of seriousness the length of time the victim is incapacitated for work.⁵¹⁴
Thus, the Commentary first draws a distinction between this offence and the offence of torture, on the basis that the prohibited purpose required in order for an act to constitute the latter is not required for the former. While the Trial Chamber is in accord with this fundamental distinction, the presence of the prohibited purpose of punishment may raise the causing of great suffering or serious injury to the level of torture as defined above.
Secondly, the Commentary suggests that "causing great suffering" encompasses more than mere physical suffering, and includes moral suffering. This view is supported by the plain, ordinary meaning of the words "wilfully causing great suffering", which are not qualified by the words "to body or health", as is the case with "causing injury". Thus, the suffering incurred can be mental or physical.
Thirdly, the Commentary posits a possible criterion for judging the seriousness of the injury, being an incapacity to work. While this may well be the case in some situations, when ascertaining the meaning of the term "serious" in the absence of other interpretive material, the Trial Chamber must look to the plain ordinary meaning of the word. The Oxford English Dictionary defines this word as "not slight or negligible". Similarly, the term "great" is defined as "much above average in size, amount or intensity". The Trial Chamber therefore views these quantitative expressions as providing for the basic requirement that a particular act of mistreatment results in a requisite level of serious suffering or injury.

(iii) Findings

The Trial Chamber thus finds that the offence of wilfully causing great suffering or serious injury to body or health constitutes an act or omission that is intentional, being an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury. It covers those acts that do not meet the purposive requirements for the offence of torture, although clearly all acts constituting torture could also fall within the ambit of this offence.

(d) Inhuman Treatment

There are several counts of the Indictment which charge the accused with inhuman treatment, punishable under Article 2(b) of the Statute. The following discussion seeks to establish the content of the prohibition on inhuman (or inhumane) treatment.

(i) Arguments of the Parties

The Prosecution takes the position that:

1. Inhuman treatment is any act or omission that causes the physical, intellectual, or moral integrity of the victim to be impaired, or causes the victim to suffer indignity, pain or suffering.

2. the accused must have intended to unlawfully impair the physical, intellectual or moral integrity of the victim, otherwise subject the victim to indignities, pain or suffering out of proportion to the treatment expected of one human being by another. Recklessness would constitute a sufficient form of such intention. ⁵¹⁵
The Prosecution further states that it is unnecessary to prove that the act in question had grave consequences for the victim⁵¹⁶.In addition, it refers to the discussion in the Tadic Judgment of the meaning of "cruel treatment" as prohibited by common article 3(1) of the Geneva Conventions, where Trial Chamber II did not find such an element to be required⁵¹⁷. In that case it was held that the prohibition on cruel treatment is a means to an end, being that of "ensuring that persons taking no active part in the hostilities shall in all circumstances be treated humanely". ⁵¹⁸
The Defence submits, in its Motion to Dismiss⁵¹⁹, that the offence of inhumane treatment lacks sufficient specificity to form the basis of a criminal prosecution except in the clearest cases. The Defence, in its closing oral arguments⁵²⁰, further adds that, due to this lack of specificity, it potentially violates the principle of nullum crimen sine lege.

(ii) Discussion
The offence of inhuman treatment - or traitements inhumains in the French text - appears in each of the four Geneva Conventions as a grave breach⁵²¹. In addition, article 119 of the Fourth Geneva Convention provides that any disciplinary penalties inflicted upon detained civilians must not be "inhuman, brutal or dangerous for the health of internees". An equivalent prohibition with respect to prisoners of war is contained in article 89 of the Third Geneva Convention.
As with torture, there can be no doubt that inhuman treatment is prohibited under conventional and customary international law. The same international human rights and United Nations instruments that contain the prohibitions against torture, also proscribe inhuman treatment⁵²². On the strength of this almost universal condemnation of the practice of inhuman treatment, it can be said that its prohibition is a norm of customary international law. However, unlike the offence of torture, none of the aforementioned instruments have attempted to fashion a definition of inhuman treatment. It thus falls to this Trial Chamber to identify the essential meaning of the offence.
The Oxford English Dictionary defines treatment as inhuman when it is "brutal, lacking in normal human qualities of kindness, pity etc." The noun "inhumane" is simply defined as "not humane", which denotes "kind-hearted, compassionate, merciful". Similarly, in relation to the French version, the Le Nouveau Petit Robert dictionary defines "inhumain" as "qui manque d’ humanit�", "barbare, cruel, dur, impitoyable, insensible". It is therefore apparent from the plain ordinary meaning of the adjective "inhuman(e)", that the term "inhuman treatment" is defined by reference to its antonym, humane treatment.
This accords with the approach taken by the ICRC in its Commentary to article 147 of the Fourth Geneva Convention. In seeking to explain this term, the Commentary refers to article 27 of the same Convention, and states that "the sort of treatment covered by this article, therefore, would be one which ceased to be humane⁵²³." Further support is lent to this view by the Commentary to article 119, which states "[t]hat this paragraph … reaffirms the humanitarian ideas contained in Articles 27 and 32, and thus underlines the need never to lose sight of these essential principles"⁵²⁴. The Commentary to inhuman treatment as a grave breach under article 51 of the Second Geneva Convention also defines this offence by reference to article 12 of that Convention, which provides that protected persons must be treated with humanity. Accordingly, the Commentary to article 51 states that the "sort of treatment covered here would therefore be whatever is contrary to that general rule". ⁵²⁵
Having identified the basic premise that inhuman treatment is treatment which is not humane, and which is thus in breach of a fundamental principle of the Geneva Conventions, the Trial Chamber now turns to a more detailed discussion of the meaning of the terms "inhuman treatment" and "humane treatment". While the dictionary meanings referred to above are obviously important to this consideration, in order to determine the essence of the offence of inhuman treatment, the terminology must be placed within the context of the relevant provisions of the Geneva Conventions and Additional Protocols.
The Commentary to article 147 of the Fourth Geneva Convention opines that inhuman treatment,

could not mean, it seems, solely treatment constituting an attack on physical integrity or health; 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. That leads to the conclusion that by "inhuman treatment" the Convention does not mean only physical injury or injury to health. Certain measures, for example, which might cut the civilian internees off completely from the outside world and in particular from their families, or which caused grave injury to their human dignity, could conceivably be considered as inhuman treatment. ⁵²⁶
This language is repeated in relation to article 51 of the Second Geneva Convention in the commentary to that Convention⁵²⁷, and also in that concerning article 130 of the Third Geneva Convention⁵²⁸. The only difference is that the words "could conceivably be" in the last sentence of the quotation above are replaced in the Commentary to the Second and Third Geneva Conventions by the words "should be". This difference in terminology would seem to indicate that the drafters of the commentaries to the Second and Third Geneva Conventions took a stronger position on the issue of whether acts causing grave injury to human dignity are also encompassed in the concept of inhuman treatment.
As has been previously stated in this Judgement, the concept of humane treatment permeates all four of the Geneva Conventions and the Additional Protocols, and is encapsulated in the Hague Regulations and the two Geneva Conventions of 1929⁵²⁹. The key provision of the Fourth Geneva Convention containing the obligation to treat protected persons humanely is contained in article 27, the first two paragraphs of which state that:

[p]rotected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all attacks of violence and threats thereof and against insults and public curiosity.Women shall be especially protected against any attack of their honour, in particular against rape, enforced prostitution, or any form of indecent assault.
This article is the ‘basis of the Convention, proclaiming … the principles upon which the whole of the "Geneva Law’ is founded" being the "principle of respect for the human person and the inviolable character of the basic rights of individual men and women.⁵³⁰" The Commentary makes the fundamental significance of humane treatment clear by stating that it is "in truth the leitmotiv of the four Geneva Conventions"⁵³¹. It goes on to state that the word "treatment",

must be understood here in its most general sense as applying to all aspects of man’s life … The purpose of this Convention is simply to define the correct way to behave towards a human being, who himself wishes to receive humane treatment and who may, therefore, also give it to his fellow human beings. ⁵³²

In its conclusion, the Commentary characterises humane treatment, and the prohibition of certain acts which are incompatible with it, as general and absolute in character, valid in all circumstances and at all times. ⁵³³
After proclaiming the general principle of humane treatment, article 27 of Geneva Convention IV gives examples of acts that are incompatible with it, such as acts of violence or intimidation "inspired not by military requirements or a legitimate desire for security, but by a systematic scorn for human values", including insult and exposing people to public curiosity⁵³⁴. This list has been supplemented by article 32 of the same Convention, which prohibits all acts causing physical suffering or extermination including murder, torture, corporal punishment, mutilation, medical or scientific experiments not necessitated by the medical treatment of the person concerned, and any other measures of brutality⁵³⁵. This article is not exhaustive, it is as general as possible and only gives examples of the principal types of atrocities committed during the Second World War. ⁵³⁶
Article 13 of the Third Geneva Convention similarly contains the principles and prohibitions of articles 27 and 32 of the Fourth Geneva Convention. It provides that prisoners of war must be treated humanely at all times. Again, the principle is stated by reference to behaviour that is inconsistent with it. After setting out the general principle that all prisoners shall be treated humanely, the article states that unlawful acts or omissions causing death or endangering the health of a prisoner of war are considered as serious breaches:

In particular no prisoner of war may be subjected to physical mutilation, or to medical or scientific experiments of any kind which are not justified … [l]ikewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation, and against insults and public curiosity.
The Commentary to the Third Geneva Convention, in relation to this provision, directly addresses the application of the principle of humane treatment, and the prohibition of acts which are inconsistent with it, in the situation where protected persons are legitimately detained. It states that:

[t]he requirement of humane treatment and the prohibition of certain acts inconsistent with it are general and absolute in character. They are valid at all times, and apply, for example, to cases where the repressive measures are legitimately imposed on a protected person, since the dictates of humanity must be respected even if measures of security or repression are being applied. The obligation remains fully valid in relation to persons in prison or interned, whether in the territory of a party to the conflict or in occupied territory. It is in such situations, when human values appear to be in greatest peril, that the provision assumes its full importance".⁵³⁷
This Commentary goes on to state that the concept of humane treatment implies, in the first place, an absence of any type of corporal punishment, but that it does not only have this negative aspect. It also involves a notion of protection of a prisoner of war, which means "to stand up for him, to give him assistance and support and also to defend or guard him from injury or danger." ⁵³⁸Thus, a positive obligation of protection flows from the requirement of humane treatment, which "extends to moral values, such as the independence of the prisoner (protection against acts of intimidation) and his honour (protection against insults and public curiosity)." ⁵³⁹
The principle of humane treatment is also enunciated in the second, third and fourth paragraphs of article 12 of both the First and Second Geneva Conventions, dealing with the wounded and sick on land and sea. The commentaries to these Conventions make the point that the purpose of these paragraphs was to develop and define the concept of humane care and treatment⁵⁴⁰. After setting out the general obligation of humane treatment, article 12 provides that it is to be applied without discrimination, and prohibits any attempts upon life or violence to the person, in particular, murder, extermination, torture, biological experiments, wilfully being left without medical assistance or care, or the creation of conditions which expose persons to contagion or infection. The Commentary to the First Geneva Convention provides that treatment in this context is to be understood in its most general sense as applying to all aspects of a man’s existence.⁵⁴¹
The Third Geneva Convention also includes two further provisions that enshrine the fundamental principle of humane treatment. Article 20 provides that prisoners of war must be evacuated humanely, which includes being supplied with sufficient food, potable water, clothing and medical attention. The Commentary to the Third Geneva Convention recognises that there may be different physical and living conditions between prisoners of war and the troops of the detaining power. Moreover, "treatment which may be bearable for the captors might cause indescribable suffering for their prisoners. Account must be taken of varying habits with regard to climate, food, comfort, clothing, etc"⁵⁴². The determining factor is humane treatment - life or health must not be endangered and serious hardship and suffering must be avoided⁵⁴³. In addition, article 46 of the Third Geneva Convention provides similar safeguards with respect to the transfer of prisoners of war. Indeed, it goes further than article 20 by expressly stating that account must be taken of climatic conditions to which the prisoners of war are accustomed. Accordingly, the prohibition on inhumane treatment also extends to the living conditions of protected persons and would be violated if adequate food, water, clothing, medical care and shelter, were not provided in light of the protected persons’ varying habits and health.
Article 75 of Additional Protocol I and articles 4 and 7 of Additional Protocol II also enshrine the basic principle of humane treatment. Indeed, the Commentary to Additional Protocol II, states that the "right of protected persons to respect for their honour, convictions and religious practices is an element of humane treatment", with reference to article 27 of the Fourth Geneva Convention. ⁵⁴⁴
Finally, and importantly, the principle of humane treatment constitutes the fundamental basis underlying common article 3 of the Geneva Conventions. This article prohibits a number of acts, including violence to life and to the person, such as murder, mutilation, cruel treatment, torture and outrages on personal dignity, and humiliating and degrading treatment. The Commentary to the First Geneva Convention, in relation to common article 3, addresses the issue of the definition of the concept of humane treatment, and hence inhumane treatment, thus:

It would therefore be pointless and even dangerous to try to enumerate things with which a human being must be provided for his normal maintenance as distinct from that of an animal, or to lay down in detail the manner in which one must behave towards him in order to show that one is treating him ‘humanely’, that is as a fellow human being and not as a beast or a thing. The details of such treatment may, moreover vary according to circumstances – particularly the climate - and to what is feasible. On the other hand, there is less difficulty in enumerating things which are incompatible with human treatment. That is the method followed in the Convention when it proclaims four absolute prohibitions … No possible loophole is left; there can be no excuse, no attenuating circumstances.⁵⁴⁵

In relation to the enumeration of prohibited behaviour, it continues that,

[h]owever much care were taken in establishing a list of all the various forms of infliction, one would never be able to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, the more restrictive it becomes.⁵⁴⁶

It is this Commentary which best explains the general approach of the Geneva Conventions to the concept of humane and inhuman treatment. As has been emphasised throughout this Judgement, humane treatment is the cornerstone of all four Conventions, and is defined in the negative in relation to a general, non-exhaustive catalogue of deplorable acts which are inconsistent with it, these constituting inhuman treatment.
The foregoing discussion with regard to inhuman treatment is also consistent with the concept of "inhumane acts", in the context of crimes against humanity. These acts are prohibited and punishable under Article 5 of the Statute and include murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political, racial and religious grounds and other inhumane acts. This list is in accord with article 6(c) of the N�rnberg Charter and article II 1(c) of Control Council Law No. 10, which was the first time such acts were expressly recognised as crimes against humanity. Article 18(k) of the ILC Draft Code contains a more extensive list of acts which may constitute crimes against humanity than that contained in the foregoing provisions. It also provides that "other inhumane acts" are acts that, in fact, severely damage the physical or mental integrity of the victim, or his health or human dignity. The ILC also recognises that it is impossible to establish an exhaustive list of inhumane acts that may constitute crimes against humanity. ⁵⁴⁷
Having considered the meaning of inhuman treatment in the context of the Geneva Conventions, as well as in relation to the category of crimes against humanity, the Trial Chamber now turns to a consideration of how the prohibition has been interpreted by other international adjudicative bodies. As has been noted above, the European Court and the European Commission of Human Rights have developed a substantial body of jurisprudence addressing the various forms of ill-treatment prohibited under article 3 of the European Convention. Insofar as these bodies have sought to distinguish the various offences prohibited under article 3 of the European Convention, they have done so by reference to a sliding scale of severity⁵⁴⁸. Using this approach, the European Court has found that the special stigma of torture attaches only to deliberate inhuman treatment causing very serious and cruel suffering⁵⁴⁹. The Trial Chamber has already discussed the finding of the European Court in the Northern Ireland Case that this distinction between the notion of torture and that of inhuman or degrading treatment "derives principally from a difference in the intensity of the suffering inflicted." ⁵⁵⁰
The European Court has also used the purpose for which the ill-treatment was inflicted to distinguish torture from other inhuman or degrading treatment. Two recent opinions of the European Court finding violations of article 3 amounting to torture have been discussed above, but are also relevant in this regard. In Aydin v. Turkey, the European Court noted that the suffering inflicted on the applicant that amounted to torture was calculated to enable the security forces to elicit information⁵⁵¹. Similarly, in Aksoy v. Turkey, the European Court noted that the ill-treatment found to constitute torture "would appear to have been administered with the aim of obtaining admissions or information from the applicant."⁵⁵²
At the other end of the scale, the European Court has held that, in order for ill-treatment to fall within the scope of the prohibition contained in article 3, it must;

. . . attain a minimum level of severity. [...] The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim.⁵⁵³
In Tomasi v. France, where the European Court made an explicit finding of inhuman treatment amounting to a violation of article 3, the applicant alleged that, during a police interrogation he had been slapped, kicked, punched, given forearm blows, made to stand for long periods without support, had his hands handcuffed behind his back, been spat upon, made to stand naked in front of an open window, deprived of food and threatened with a firearm. The court held that the "large number of blows inflicted on Mr. Tomasi and their intensity . . . are two elements which are sufficiently serious to render such treatment inhuman and degrading⁵⁵⁴." In Ribitsch v. Austria⁵⁵⁵, the European Court found that the applicant had been subjected to inhuman and degrading treatment in violation of article 3 when he had been beaten while in police custody, and he and his wife, who was detained with him, had been threatened and insulted. The European Court went even further to find that:

[i]n respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in article 3 of the Convention.⁵⁵⁶
More recently, the European Court has found ill-treatment amounting to a violation of article 3 where a boy of nine years had been beaten with considerable force on more than one occasion with a garden cane⁵⁵⁷. In the most coherent framing of the concept, the European Commission of Human Rights has described inhuman treatment as that which "deliberately causes serious mental and physical suffering."⁵⁵⁸
Article 7 of the ICCPR provides that:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

The Human Rights Committee has adopted a comprehensive approach to the application of article 7 in its General Comment to this provision, choosing not to "establish sharp distinctions between the different kinds of punishment or treatment⁵⁵⁹."The Committee has noted, however, that any distinction between the terms would depend on the "nature, purpose and severity of the treatment applied." ⁵⁶⁰
In a few cases, the Human Rights Committee has made specific findings of inhuman treatment in violation of article 7 of the ICCPR. In Portorreal v. Dominican Republic⁵⁶¹, the applicant had been arrested and taken to a cell measuring 20 by 5 metres, where approximately 125 persons accused of various crimes were held, and where, owing to lack of space, some detainees had to sit on excrement. The applicant received no food and water until the following day and he was finally released after 50 hours in detention. The Committee found that this constituted inhuman and degrading treatment amounting to a violation of article 7 of the ICCPR. In Tshisekedi v. Zaire⁵⁶², the Committee also found there to have been a violation of article 7 amounting to inhuman treatment where the applicant had been "deprived of food and drink for four days after his arrest . . . and was subsequently kept interned under unacceptable sanitary conditions.⁵⁶³" Again, in Bouton v. Uruguay, the Committee found that being forced to stand blindfolded and bound for 35 hours, while listening to the cries of other detainees being tortured, being threatened with punishment, and being forced to sit blindfolded and motionless on a mattress for many days, constituted inhuman treatment.⁵⁶⁴
Based on the Human Rights Committee’s enumeration of the distinctions between torture and inhuman and degrading treatment, Nowak has remarked that inhuman treatment must include "all forms of imposition of severe suffering that are unable to be qualified as torture for lack of one of its essential elements."⁵⁶⁵ Furthermore, in his view, inhuman treatment also includes ill-treatment that does not reach the requisite level of severity to qualify as torture.⁵⁶⁶
Clearly, the international adjudicative bodies that have considered the application of this offence of inhuman(e) treatment have tended to define it in relative terms. That is, inhuman treatment is treatment which deliberately causes serious mental and physical suffering that falls short of the severe mental and physical suffering required for the offence of torture. Furthermore, the offence need not have a prohibited purpose or be committed under official sanction as required by torture.

(iii) Findings
In sum, the Trial Chamber finds that inhuman treatment is an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. The plain, ordinary meaning of the term inhuman treatment in the context of the Geneva Conventions confirms this approach and clarifies the meaning of the offence. Thus, inhuman treatment is intentional treatment which does not conform with the fundamental principle of humanity, and forms the umbrella under which the remainder of the listed "grave breaches" in the Conventions fall. Hence, acts characterised in the Conventions and Commentaries as inhuman, or which are inconsistent with the principle of humanity, constitute examples of actions that can be characterised as inhuman treatment.
In this framework of offences, all acts found to constitute torture or wilfully causing great suffering or serious injury to body or health would also constitute inhuman treatment. However, this third category of offence is not limited to those acts already incorporated into the other two and extends further to other acts which violate the basic principle of humane treatment, particularly the respect for human dignity. Ultimately, the question of whether any particular act which does not fall within the categories of the core group is inconsistent with the principle of humane treatment, and thus constitutes inhuman(e) treatment, is a question of fact to be judged in all the circumstances of the particular case.

(e) Cruel Treatment

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

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 torture⁵⁶⁷. In its Response to the Motion to Dismiss⁵⁶⁸, the Prosecution refers to the discussion in the Tadic Judgment of the meaning of "cruel treatment", in support of this proposition⁵⁶⁹. In that case, Trial Chamber II held that the prohibition on cruel treatment is a means to an end, being that of "ensuring that persons taking no active part in the hostilities shall in all circumstances be treated humanely"⁵⁷⁰. The Judgement further refers to article 4 of Additional Protocol II, wherein the prohibition refers to "violence to the life, health, and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment." ⁵⁷¹
The Defence has not made specific submissions with respect to the definition of the offence of cruel treatment. However, in its discussion of "great suffering or serious injury" in the Motion to Dismiss, the Defence stated that the "the drafters of Common Article 3 deliberately kept prohibited acts poorly defined". ⁵⁷²

(ii) Discussion

The basis of the inclusion of cruel treatment within Article 3 of the Statute is its prohibition by common article 3(1) of the Geneva Conventions, which proscribes, "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture". In addition to its prohibition in common article 3, cruel treatment or cruelty is proscribed by article 87 of the Third Geneva Convention, which deals with penalties for prisoners of war, and article 4 of Additional Protocol II, which provides that the following behaviour is prohibited:

violence to life, health and physical and or mental well being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment.

As with the offence of inhuman treatment, no international instrument defines this offence, although it is specifically prohibited by article 5 of the Universal Declaration of Human Rights, article 7 of the ICCPR, article 5, paragraph 2, of the Inter-American Convention of Human Rights and article 5 of the African Charter of Human and Peoples’ Rights. In each of these instruments, it is mentioned in the same category of offence as inhuman treatment.
In the Tadic 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.⁵⁷³" Thus, that Trial Chamber acknowledged that cruel treatment is treatment that is inhuman.
Viewed in the context of common article 3, article 4 of Additional Protocol II, the various human rights instruments mentioned above, and the plain ordinary meaning, the Trial Chamber is of the view that cruel treatment is treatment which causes serious mental or physical suffering or constitutes a serious attack upon human dignity, which is equivalent to the offence of inhuman treatment in the framework of the grave breaches provisions of the Geneva Conventions.

(iii) Findings

In light of the foregoing, the Trial Chamber finds that cruel treatment constitutes an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. As such, it carries an equivalent meaning and therefore the same residual function for the purposes of common article 3 of the Statute, as inhuman treatment does in relation to grave breaches of the Geneva Conventions. Accordingly, the offence of torture under common article 3 of the Geneva Conventions is also included within the concept of cruel treatment. Treatment that does not meet the purposive requirement for the offence of torture in common article 3, constitutes cruel treatment.
Having considered in detail the meaning of the foregoing offences, the Trial Chamber shall now address inhumane conditions, which have been alleged in the Indictment as wilfully causing great suffering and cruel treatment.

(f) Inhumane Conditions

Counts 46 and 47 of the Indictment allege the existence of inhumane conditions in the Celebici prison-camp and these are charged as wilfully causing great suffering, under Article 2(c), and cruel treatment, under Article 3 of the Statute. While there is no offence of "inhumane conditions" recognised as such in international humanitarian law, it is necessary to determine whether this concept can be considered as being incorporated into the offences of wilfully causing great suffering or serious injury to body or health or cruel treatment.
In its Response to the Motion to Dismiss, the Prosecution addresses the issue of inhumane conditions⁵⁷⁴.It rejects an argument made by the Defence that, if conditions at a detention facility are inadequate but are nonetheless all that could be provided in the circumstances prevailing at the relevant time, they are not inhumane. In support of its position, the Prosecution argues that, as a matter of law, a detaining authority is not allowed to starve or otherwise keep prisoners in clearly inhumane and life threatening conditions.
The phrase "inhumane conditions" is a factual description relating to the nature of the general environment in which detained persons are kept and the treatment which they receive. Accordingly, the Trial Chamber is bound to apply the legal standards found for the offences of wilfully causing great suffering or serious injury to body or health and cruel treatment to this factual category.
These legal standards are absolute and not relative. Thus, when considering the factual allegation of inhumane conditions with respect to these legal offences, no reference should be made to the conditions prevailing in the area of detention in order to determine what the standard of treatment should have been. The legal standard in each of the mistreatment offences discussed above delineates a minimum standard of treatment which also applies to conditions of detention. During an armed conflict, persons should not be detained in conditions where this minimum standard cannot be met and maintained.
Given that, in the context of Article 3 of the Statute, cruel treatment carries the same meaning as inhuman treatment in the context of Article 2, this allegation of inhumane conditions is appropriately charged as cruel treatment. However, in light of the above discussion of these offences, the Trial Chamber is of the view that, while it is possible to categorise inhumane conditions within the offence of wilfully causing great suffering or serious injury to body or health under Article 2, it is more appropriately placed within the offence of inhuman treatment.

3. Unlawful Confinement of Civilians

The Indictment charges three of the accused, namely Hazim Delic, Zdravko Mucic and Zejnil Delalic, with direct participation in, as well as superior responsibility for, the unlawful confinement of numerous civilians in the Celebici prison-camp. It is the purpose of this section of our discussion of the applicable law to determine the parameters of this offence as a grave breach of the Geneva Conventions.

(a) Arguments of the Parties

According to the Prosecution, the Fourth Geneva Convention only permits the confinement or internment of "protected persons" in the territory of a party to a conflict if the security of the detaining power makes it absolutely necessary and, in occupied territory, for imperative reasons of security⁵⁷⁵. Thus, in the view of the Prosecution, confinement should always be considered as an exceptional measure and can only be lawful in the event of a real threat to security. Furthermore, such determinations have to be made on an individual basis and the mere fact that a civilian is a subject of an enemy power cannot justify his or her confinement.
The Prosecution argues, moreover, that certain procedural protections for such detained civilians must exist, including the right to appeal against the confinement and have it periodically reviewed. It maintains that, in the absence of these procedural guarantees, an otherwise lawful internment is rendered unlawful. In addition, the Prosecution argues that, even if a confinement can initially be considered lawful, some basic procedural rights have to be upheld during the period of the confinement. In particular, the confinement has to be reviewed by a competent tribunal.
In response, the Defence relies on the Commentary to the Fourth Geneva Convention in this regard⁵⁷⁶. The Commentary describes the prohibition on the unlawful confinement of protected civilians in the following terms:

Unlawful confinement: Most national legal systems punish unlawful deprivation of liberty and this breach could therefore be dealt with as an offence against ordinary law. The offence, however, would probably be very difficult to prove. Indeed, the belligerent Powers can intern any enemy citizens or aliens on their territory if they consider it absolutely necessary for their security. In the same way, Occupying Powers can intern some of the inhabitants of the occupied territories. The illegal nature of the confinement would therefore be very difficult to prove in view of the extended powers granted in this matter to States. Obviously, however, internment for no particular reason, especially in occupied territories, could come within the definition of this breach.⁵⁷⁷

(b) Discussion

The offence of unlawful confinement of civilians is punishable under Article 2(g) of the Statute as a grave breach of the Geneva Conventions, as recognised in article 147 of Geneva Convention IV. The first issue to be addressed in analysing this offence is the circumstances in which civilians can be confined and, secondly, what requirements have to be fulfilled to render a confinement in a given case lawful. These two questions are dealt with here in turn.

(i) Legality of Confinement

The Trial Chamber has already determined that the persons detained in the Celebici prison-camp were persons protected under the Fourth Geneva Convention and can, therefore, be regarded as civilians. Hence, it is only deemed necessary to decide whether the confinement of the persons concerned in the given case was in violation of international humanitarian law.
The protection of civilians from harm during armed conflict is a fundamental aim of international humanitarian law. However, the freedom of movement of "enemy" civilians during armed conflict may be restricted, or even temporarily suppressed, if circumstances so require. Thus there is no absolute right in the Geneva Conventions to freedom of movement. However, this does not mean that there is a general suspension of this right during armed conflict either. To the contrary, the regulations concerning civilians in the territory of a party to an armed conflict are based on the concept that the individual freedom of civilians should remain unimpaired. The right in question is therefore a relative one, which may be restricted.⁵⁷⁸
When the ICRC draft text for the Fourth Geneva Convention was presented to the 1949 Diplomatic Conference, several delegations stated that, in cases involving spies, saboteurs or other unprivileged combatants, there should be some derogation permitted from the rights normally accorded to protected persons. Otherwise, those rights could be used to the disadvantage of a party to an armed conflict⁵⁷⁹. Therefore, the confinement of civilians is permitted in certain limited situations. The general rule providing for the limitation of the rights of civilians is contained in article 5 of the Fourth Geneva Convention, which provides as follows:

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where, in occupied territory, an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
The language of article 5 is very broad and its provisions may be applicable in a wide variety of situations⁵⁸⁰. The concept of "activities prejudicial or hostile to the security of the State" is difficult to define. What appears to be included is, above all, espionage, sabotage and intelligence activities for the enemy forces or enemy nationals. The clause cannot simply refer to an individual’s political attitude towards the State⁵⁸¹. However, no further guidance as to the kinds of action envisaged is given in the text of article 5.
While there is no requirement that the particular activity in question must be judged as criminal under national law before a State can derogate from the rights of protected civilians under article 5, it is almost certain that the condemned activity will in most cases be the subject of criminal punishment under national law⁵⁸². However, the instances of such action that might be deemed prejudicial or hostile to State security must be judged as such under international law, both for cases arising in occupied and unoccupied territory. Clearly, a civilian cannot shoot a passing enemy soldier, secrete a bomb in the enemy encampment, or otherwise directly and intentionally harm his enemy and hope to retain all the protections of the Fourth Geneva Convention⁵⁸³. However, all of these acts involve material, direct harm to the adversary, rather than merely granting support to the forces of the party with which the civilian is aligned.
There can be no doubt that the confinement of civilians can fall under those "measures of control and security" which parties to a conflict may take according to article 27 of Geneva Convention IV. This article provides that,

[p]rotected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.

Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.

However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.
However, these security measures which States are entitled to take are not specified. Once again, the Convention merely lays down a general provision and a great deal is thus left to the discretion of the parties to the conflict as regards the choice of means. It appears that these would include, for example, a mild restriction such as the duty of registering and also more stringent measures like assigned residence or internment. What is essential is that the measures of constraint adopted should not affect the fundamental right of the persons concerned to be treated with humanity⁵⁸⁴. The right to respect for the human person covers all the rights of the individual, that is, those rights and qualities which are inseparable from a person by the very fact of his or her existence, in particular, the right to physical, moral and intellectual integrity.⁵⁸⁵
Although the fundamental human rights of the persons concerned are not, generally speaking, in any danger as a result of some of the administrative measures which might be taken in relation to them, this is not necessarily so in the case of assigned residence or internment. The experience of the Second World War has shown in tragic fashion that under such conditions there is a particularly great danger of offences against the human person. Furthermore, all too often in situations of armed conflict, the mere fact of being an enemy subject has been regarded as a justification for internment. For these reasons, the relevant norms of international humanitarian law have been developed such that only absolute necessity, based on the requirements of State security, can justify recourse to these measures, and only then if security cannot be safeguarded by other, less severe means.⁵⁸⁶
The drafters of the Fourth Geneva Convention, conscious of these dangers, only permitted internment and assigned residence as a last resort, and makes them subject to strict rules (articles 41 to 43 and article 78).
Article 41 of Geneva Convention IV provides as follows:

Should the Power in whose hands protected persons may be consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43.

In applying the provisions of Article 39, second paragraph, to the cases of persons required to leave their usual places of residence by virtue of a decision placing them in assigned residence elsewhere, the Detaining Power shall be guided as closely as possible by the standards of welfare set forth in Part III, Section IV of this Convention.
Article 41 thus points out that the internment of civilians is admissible only in limited cases and is, in any case, subject to strict rules. These rules are contained primarily in articles 42 and 43, which are based on the general reservation of article 27, paragraph 4, permitting "such measures of control and security as may be necessary as a result of the war". Articles 42 and 43 return to the term "security", itself a somewhat broad criterion, as justification for the restrictions upon liberty that they permit. "Security" remains as vague here as in earlier articles, and the expression does not appear susceptible to more concrete definition. The measure of activity deemed prejudicial to the internal or external security of the State which justifies internment or assigned residence is left largely to the authorities of that State itself.
Article 42 of Geneva Convention IV provides as follows:

The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.
Clearly, internment is only permitted when absolutely necessary. Subversive activity carried on inside the territory of a party to the conflict, or actions which are of direct assistance to an opposing party, may threaten the security of the former, which may, therefore, intern people or place them in assigned residence if it has serious and legitimate reasons to think that they may seriously prejudice its security by means such as sabotage or espionage.
On the other hand, the mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living and is not, therefore, a valid reason for interning him or placing him in assigned residence. To justify recourse to such measures, the party must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security. The fact that an individual is male and of military age should not necessarily be considered as justifying the application of these measures.
In relation to occupied territory, specific provisions of the Geneva Conventions apply. Although the present case does not relate to a situation of occupation, it is useful to briefly consider these provisions insofar as they are relevant to the unlawful confinement of civilians. Article 78 of Geneva Convention IV sets up a rule similar to article 41 in situations of occupation, allowing Occupying Powers to intern protected persons under certain conditions⁵⁸⁷. However, internment and assigned residence, whether in the occupying power’s national territory or in the occupied territory, are exceptional measures to be taken only after careful consideration of each individual case⁵⁸⁸.Such measures are never to be taken on a collective basis.

(ii) Procedural Safeguards

In case the internment of civilian persons can be justified according to articles 5, 27 or 42 of Geneva Convention IV, the persons so detained must still be granted some basic procedural rights. These rights are entrenched in article 43 of Geneva Convention IV which provides as follows:

Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.

Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or who have been released from internment or assigned residence. The decisions of the courts or boards mentioned in the first paragraph of the present article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.
Article 43 supplements articles 41 and 42 by laying down a procedure which is designed to ensure that the parties to an armed conflict, which resort to measures of internment, respect the basic procedural rights of the persons concerned. As Geneva Convention IV leaves a great deal to the discretion of the detaining party in the matter of the original internment or placing in assigned residence of an individual, the party’s decision that such measures of detention are required must be "reconsidered as soon as possible by an appropriate court or administrative board".
The judicial or administrative body reviewing the decision of a party to a conflict to detain an individual must bear in mind that such measures of detention should only be taken if absolutely necessary for reasons of security. Thus, if these measures were inspired by other considerations, the reviewing body would be bound to vacate them. Clearly, the procedures established in Geneva Convention IV itself are a minimum and the fundamental consideration must be that no civilian should be kept in assigned residence or in an internment camp for a longer time than the security of the detaining party absolutely demands.⁵⁸⁹
It need only be mentioned briefly that article 78, relative to the confinement of civilians in occupied territory, also safeguards the basic procedural rights of the persons concerned. It can therefore be concluded that respect for these procedural rights is a fundamental principle of the Convention as a whole.

(c) Findings

For the reasons set out above, it is the opinion of this Trial Chamber that the confinement of civilians during armed conflict may be permissible in limited cases, but has in any event to be in compliance with the provisions of articles 42 and 43 of Geneva Convention IV. The security of the State concerned might require the internment of civilians and, furthermore, the decision of whether a civilian constitutes a threat to the security of the State is largely left to its discretion. However, it must be borne in mind that the measure of internment for reasons of security is an exceptional one and can never be taken on a collective basis. An initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in article 43 of Geneva Convention IV.

4. Plunder

(a) Introduction

Count 49 of the Indictment alleges that the accused Zdravko Mucic and Hazim Delic are responsible, both as direct participants and by virtue of their alleged positions as superiors, for the plunder of money, watches, and other valuable property belonging to persons detained in the Celebici prison-camp. The two accused are, on this count, charged with a violation of the laws or customs of war punishable under Article 3(e) of the Statute – "plunder of public or private property". Before proceeding to consider the merits of the charge, the Trial Chamber must here establish the meaning to be attached to the offence of "plunder" under international law.

(b) Arguments of the Parties

According to the Prosecution, the prohibition of "plunder" or "pillage" is a well-established principle in international law, which is found, inter alia, in articles 28 and 47 of the Regulations annexed to the 1907 Hague Convention IV and article 33 of Geneva Convention IV. In its view, in addition to the requirement that the accused be linked to one side of an armed conflict, the elements of this offence are as follows:

a) The accused unlawfully destroyed, took, or obtained any public or private property belonging to institutions or persons linked to the other side of the armed conflict.

b) The destruction, taking, or obtaining by the accused of such property was committed with the intent to deprive the owner or any other person of the use or benefit of the property, or to appropriate the property for the use of any person other than the owner.⁵⁹⁰
While declining to offer any alternative definition of the offence of plunder, the Defence for the accused Hazim Delic and Zdravko Mucic contend that the prerequisites for its application to the present case have not been met. With reference to Article 1 of the Statute, the Defence asserts that any theft of money, watches and other valuable property as alleged in the Indictment cannot constitute such serious violations of international humanitarian law as to give the International Tribunal subject matter jurisdiction over the alleged offences⁵⁹¹. In addition to this argument, based on the jurisdictional limits placed upon the International Tribunal by its Statute, the Defence further appears to contend that the acts alleged in the Indictment do not in law constitute the offence of plunder. In its submissions in the Defence Motion to Dismiss, the Defence for Mr. Delic thus maintains that "the Hague Regulations forbidding plunder were designed to prevent abuses such as those of the Nazis during the Second World War in taking valuable property such as artworks from occupied nations. They were not designed to punish under international law private soldiers who steal property of little value from civilians."⁵⁹² Similarly, it was contended by the Defence during closing oral arguments that,

"[s]tealing watches and coins is not what plunder is about. It is not a serious grave breach of the Geneva Conventions [sic]. Plunder is what Herman Goering did with the art of Eastern Europe. That’s what grave breaches are. Or, for example, emptying entire houses of their quality furniture".⁵⁹³

(c) Discussion and Findings
In considering the elements of the offence of plunder, the Trial Chamber must take as its point of departure the basic fact that international humanitarian law not only proscribes certain conduct harmful to the human person, but also contains rules aimed at protecting property rights in times of armed conflict. Thus, whereas historically enemy property was subject to arbitrary appropriation during war, international law today imposes strict limitations on the measures which a party to an armed conflict may lawfully take in relation to the private and public property of an opposing party. The basic norms in this respect, which form part of customary international law, are contained in the Hague Regulations, articles 46 to 56 which are broadly aimed at preserving the inviolability of public and private property during military occupation. In relation to private property, the fundamental principle is contained in article 46, which provides that private property must be respected and cannot be confiscated⁵⁹⁴. While subject to a number of well-defined restrictions⁵⁹⁵, such as the right of an occupying power to levy contributions and make requisitions, this rule is reinforced by article 47, which unequivocally establishes that "[p]illage is formally forbidden". Similarly, article 28 of the Regulations provides that "[t]he pillage of a town or place, even when taken by assault, is prohibited".
The principle of respect for private property is further reflected in the four Geneva Conventions of 1949. Thus, while article 18 of Geneva Convention III protects the personal property of prisoners of war from arbitrary appropriation, article 15 of Convention I and article 18 of Convention II expressly provide that parties to a conflict must take all possible measures to protect the shipwrecked, wounded and sick against pillage, and prevent their being despoiled. Likewise, article 33 of Convention IV categorically affirms that "[p]illage is prohibited". It will be noted that this prohibition is of general application, extending to the entire territories of the parties to a conflict, and is thus not limited to acts committed in occupied territories. ⁵⁹⁶
The basic principle that violations of the rules protecting property rights in armed conflict can constitute war crimes, for which individual criminal liability may be imposed, has not been questioned in the present case⁵⁹⁷. Instead, the Defence would seem to challenge the Prosecution’s assertions regarding the type, and level, of violations for which criminal responsibility may arise. Intimately connected with this matter is the essentially terminological question of whether the acts alleged in the Indictment, if at all criminal under international law, constitute the specific offence of "plunder". It is to these issues that the Trial Chamber must now turn.
In this connection, it is to be observed that the prohibition against the unjustified appropriation of public and private enemy property is general in scope, and extends both to acts of looting committed by individual soldiers for their private gain, and to the organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory. Contrary to the submissions of the Defence, the fact that it was acts of the latter category which were made the subject of prosecutions before the International Military Tribunal at N�rnberg and in the subsequent proceedings before the N�rnberg Military Tribunals⁵⁹⁸ does not demonstrate the absence of individual criminal liability under international law for individual acts of pillage committed by perpetrators motivated by personal greed. In contrast, when seen in a historical perspective, it is clear that the prohibition against pillage was directed precisely against violations of the latter kind. Consistent with this view, isolated instances of theft of personal property of modest value were treated as war crimes in a number of trials before French Military Tribunals following the Second World War⁵⁹⁹. Commenting upon this fact, the United Nations War Crimes Commission correctly described such offences as "war crimes of the more traditional type". ⁶⁰⁰
While the Trial Chamber, therefore, must reject any contention made by the Defence that the offences against private property alleged in the Indictment, if proven, could not entail individual criminal responsibility under international law, it must also consider the more specific assertion that the acts thus alleged do not amount to the crime of "plunder". In this context, it must be observed that the offence of the unlawful appropriation of public and private property in armed conflict has varyingly been termed "pillage", "plunder" and "spoliation". Thus, whereas article 47 of the Hague Regulations and article 33 of Geneva Convention IV by their terms prohibit the act of "pillage", the N�rnberg Charter⁶⁰¹, Control Council Law No. 10⁶⁰² and the Statute of the International Tribunal⁶⁰³ all make reference to the war crime of "plunder of public and private property". While it may be noted that the concept of pillage in the traditional sense implied an element of violence⁶⁰⁴ not necessarily present in the offence of plunder⁶⁰⁵, it is for the present purposes not necessary to determine whether, under current international law, these terms are entirely synonymous. The Trial Chamber reaches this conclusion on the basis of its view that the latter term, as incorporated in the Statute of the International Tribunal, should be understood to embrace all forms of unlawful appropriation of property in armed conflict for which individual criminal responsibility attaches under international law, including those acts traditionally described as "pillage". It will be noted that it is not possible, absent a complete analysis of the existing legal framework for the protection of public and private property under international humanitarian law, to here set out a more comprehensive description of the circumstances under which such criminal responsibility arises.
character as to provide the International Tribunal with subject-matter jurisdiction overAs indicated above, the Defence further contends that facts alleged in the Indictment do not display a violation of international law of a sufficient serious the alleged offence. As this is a matter more closely related to the particular charge made in the Indictment than to an analysis of the offence of plunder considered in abstracto, it will be considered by the Trial Chamber in Section IV following.

_______________________________

This concludes the Trial Chamber’s discussion of the law applicable to the present case and the Trial Chamber is thus now in a position to analyse the evidence brought by both the Prosecution and the Defence, in order to make the appropriate findings of the innocence or guilt of the accused as to the charges contained in the Indictment.