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II) WAR CRIMES: VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR (Article 3)

a) Statute

Article 3:

“The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;

(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;

(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;

(e) plunder of public or private property.”

b) Generally

i) Article 3 of the Statute functions as a residual clause, covering any serious violation of humanitarian law not covered by other Articles of the Statute 

Tadic, (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 87, 91: “A literal interpretation of Article 3 shows that: (i) it refers to a broad category of offences, namely all ‘violations of the laws or customs of war’; and (ii) the enumeration of some of these violations provided in Article 3 is merely illustrative, not exhaustive.”  “Article 3 . . . confers on the International Tribunal jurisdiction over any serious offence against international humanitarian law not covered by Article 2, 4 or 5.  Article 3 is a fundamental provision laying down that any ‘serious violation of international humanitarian law’ must be prosecuted by the International Tribunal.  In other words, Article 3 functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal.”

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 68: “Article 3 of the Statute is a general and residual clause covering all serious violations of international humanitarian law not falling under Articles 2, 4 or 5 of the Statute.”

Prosecutor v. Jelisic, Case No. IT-95-10 (Trial Chamber), December 14, 1999, para. 33: “Article 3 of the Statute is a general, residual clause which applies to all violations of humanitarian law not covered under Articles 2, 4 and 5 of the Statute provided that the rules concerned are customary.”

Prosecutor v. Furundzija, Case No. IT-95-17/1 (Trial Chamber), December 10, 1998, para. 132-133: “Article 3 has a very broad scope.  It covers any serious violation of a rule of customary international humanitarian law entailing, under international customary or conventional law, the individual criminal responsibility of the person breaching the rule.”  “[M]ore than the other substantive provisions of the Statute, Article 3 constitutes an ‘umbrella rule.’  While the other provisions envisage classes of offences they indicate in terms, Article 3 makes an open-ended reference to all international rules of humanitarian law: pursuant to Article 3 serious violations of any international rule of humanitarian law may be regarded as crimes falling under this provision of the Statute, if the requisite conditions are met.” 

ii) Article 3 of the Statute covers acts committed in both internal and international armed conflict

Tadic, (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 137: “[U]nder Article 3, the International Tribunal has jurisdiction over the acts alleged in the indictment, regardless of whether they occurred within an internal or an international armed conflict.”

Blaskic, (Trial Chamber), March 3, 2000, para. 161: “Article 3 of the Statute applies to both internal and international conflicts.”

Furundzija, (Trial Chamber), December 10, 1998, para. 132: For purposes of Article 3 of the Statute, “[i]t is immaterial whether the breach occurs within the context of an international or internal armed conflict.” 

iii) conditions for determining which violations fall within Article 3

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 66: “Four conditions must be fulfilled before an offence may be prosecuted under Article 3 of the Statute: (i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met; (iii) the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; and (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.”  See also Prosecutor v. Kvocka et al., Case No. IT-98-30/1 (Trial Chamber), November 2, 2001, para. 123.

iv) violations of international humanitarian law that are covered

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 224: “Article 3 of the Statute has been interpreted as a general and residual clause covering all violations of humanitarian law not falling under Articles 2, 4 or 5 of the Statute, and more specifically: (i) violations of the Hague law on international conflicts; (ii) infringements of provisions of the Geneva Conventions other than those classified as ‘grave breaches’ by those Conventions; (iii) violations of common Article 3 of the Geneva Conventions (“[C]ommon Article 3”) and other customary rules on internal conflicts, and (iv) violations of agreements binding upon the parties to the conflict, considered qua treaty law, i.e., agreements which have not turned into customary international law.”  See also Tadic, (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 87, 89, 91. 

See also Mucic et al., (Appeals Chamber), February 20, 2001, para. 136 (violations of Common Article 3 are covered by Article 3 of the Statute); Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 68 (same); Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 228 (same); Blaskic, (Trial Chamber), March 3, 2000, para. 168 (same); Tadic, (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 89 (same).

v) rationale for why Common Article 3 violations are covered

(1) Common Article 3 is part of customary law

Tadic, (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 98: “[S]ome treaty rules have gradually become part of customary law.  This holds true for common Article 3 of the 1949 Geneva Conventions. . . .”

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 68: Common Article 3 “is indeed regarded as being part of customary international law.”

Blaskic, (Trial Chamber), March 3, 2000, para. 166: “Common Article 3 must be considered a rule of customary international law.”

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 228: “It is . . . well established that [C]ommon Article 3 has acquired the status of customary international law.”

(2) violations of Common Article 3 are serious

Blaskic, (Trial Chamber), March 3, 2000, para. 176: “[V]iolations of Article 3 of the Statute which include violations of the Regulations of The Hague and those of Common Article 3 are by definition serious violations of international humanitarian law within the meaning of the Statute.”

(3) Common Article 3 imposes individual criminal responsibility

Tadic, (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 128-129: “It is true that . . . common Article 3 of the Geneva Conventions contains no explicit reference to criminal liability for violation of its provisions.  [T]he International Military Tribunal at Nuremberg concluded that a finding of individual criminal responsibility is not barred by the absence of treaty provisions on punishment of breaches.  The Nuremberg Tribunal considered a number of factors relevant to its conclusion that the authors of particular prohibitions incur individual responsibility: the clear and unequivocal recognition of the rules of warfare in international law and State practice indicating an intention to criminalize the prohibition, including statements by government officials and international organizations, as well as punishment of violations by national courts and military tribunals.  Where these conditions are met, individuals must be held criminally responsible, because, as the Nuremberg Tribunal concluded: ‘[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.’”  “Applying the foregoing criteria to the violations at issue here, we have no doubt that they entail individual criminal responsibility, regardless of whether they are committed in internal or international armed conflicts. Principles and rules of humanitarian law reflect ‘elementary considerations of humanity’ widely recognized as the mandatory minimum for conduct in armed conflicts of any kind.  No one can doubt the gravity of the acts at issue, nor the interest of the international community in their prohibition.”

Mucic et al., (Appeals Chamber), February 20, 2001, para. 162, 171: “[T]he fact that common Article 3 does not contain an explicit reference to individual criminal liability does not necessarily bear the consequence that there is no possibility to sanction criminally a violation of this rule.  The IMT [International Military Tribunal at Nuremberg] indeed followed a similar approach, as recalled in the Tadic Jurisdiction Decision when the Appeals Chamber found that a finding of individual criminal responsibility is not barred by the absence of treaty provisions on punishment of breaches.  The Nuremberg Tribunal clearly established that individual acts prohibited by international law constitute criminal offences even though there was no provision regarding the jurisdiction to try violations.”  “The Appeals Chamber is unable to find any reason of principle why, once the application of rules of international humanitarian law came to be extended (albeit in an attenuated form) to the context of internal armed conflicts, their violation in that context could not be criminally enforced at the international level.”

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 228: “[I]t appears from the jurisprudence that [C]ommon Article 3 of the Statute entails individual criminal responsibility.”

Blaskic, (Trial Chamber), March 3, 2000, para. 176: Because violations of Article 3 of the Statute which include violations of the Regulations of The Hague and those of Common Article 3 are by definition serious violations, “[t]hey are thus likely to incur individual criminal responsibility in accordance with Article 7 of the Statute.”  “[C]ustomary international law imposes criminal responsibility for serious violations of Common Article 3.”

(4) Common Article 3 is applicable to international armed conflicts

Mucic et al., (Appeals Chamber), February 20, 2001, para. 140-150: “It is indisputable that [C]ommon Article 3, which sets forth a minimum core of mandatory rules, reflects the fundamental humanitarian principles which underlie international humanitarian law as a whole, and upon which the Geneva Conventions in their entirety are based.”  “It is both legally and morally untenable that the rules contained in [C]ommon Article 3, which constitute mandatory minimum rules applicable to internal conflicts, in which rules are less developed than in respect of international conflicts, would not be applicable to conflicts of an international character.  The rules of [C]ommon Article 3 are encompassed and further developed in the body of rules applicable to international conflicts.  It is logical that this minimum be applicable to international conflicts as the substance of these core rules is identical.  [S]omething which is prohibited in internal conflicts is necessarily outlawed in an international conflict where the scope of the rules is broader.”

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 228: Common Article 3 “applies regardless of the internal or international character of the conflict.”

c) General elements for Article 3 crimes

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 225: “For a crime to be adjudicated under Article 3 of the Statute, two preliminary requirements must be satisfied.  First, there must have been an armed conflict, whether internal or international in character, at the time the offences were allegedly committed.  Secondly, there must be a close nexus between the armed conflict and the alleged offence, meaning that the acts of the accused must be ‘closely related’ to the hostilities.”

See also “added element for Common Article 3 crimes,” Section (II)(c)(iii), ICTY Digest.

i) there must have been armed conflict, whether internal or international (element 1)

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 22: “Articles 2 and 3 of the Statute set forth provisions which reflect the laws of war; plainly a pre-condition to the applicability of these Articles is the existence of an armed conflict in the territory where the crimes are alleged to have occurred.”

Furundzija, (Trial Chamber), December 10, 1998, para. 258: “It is well established that for international humanitarian law to apply there must first be an armed conflict. . . . For the purposes of Article 3 of the Statute, the nature of this armed conflict is irrelevant.  [I]t does not matter whether the serious violation occurred in the context of an international or internal armed conflict, provided the following requirements are met: (i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met; (iii) the violation must be ‘serious,’ that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.”

ii) there must be a close nexus between the armed conflict and alleged offense (element 2)

(1) the acts of the accused must be closely related to the hostilities

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 32: “[I]n order for a particular crime to qualify as a violation of international humanitarian law under Articles 2 and 3 of the Statute, the Prosecution must . . . establish a sufficient link between that crime and the armed conflict.  In this regard, the Appeals Chamber has held that: ‘Even if substantial clashes were not occurring in the [specific region] at the time and place the crimes were allegedly committed . . . international humanitarian law applies.  It is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.’”

See also discussion of nexus between the crime and the armed conflict under Article 2, Section (I)(b)(ii), ICTY Digest.

(2) the armed conflict need not be causally linked to the crimes, but it must have played a substantial role

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 58-59: “The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.”  “In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account . . . the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.”

(3) the crimes may be temporally and geographically remote from actual fighting

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 57: “There is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war.  The laws of war apply in the whole territory of the warring states or, in the case of internal armed conflicts, the whole territory under the control of a party to the conflict, whether or not actual combat takes place there, and continue to apply until a general conclusion of peace or, in the case of internal armed conflicts, until a peaceful settlement is achieved.  A violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place.  [T]he requirement that the acts of the accused must be closely related to the armed conflict would not be negated if the crimes were temporally and geographically remote from the actual fighting.”

Prosecutor v. Vasiljevic, Case No. IT-98-32-T (Trial Chamber), November 29, 2002, para. 25: “The requirement that the acts of the accused be closely related to the armed conflict does not require that the offence be committed whilst fighting is actually taking place, or at the scene of combat.”

iii) added element for Common Article 3 crimes: must be committed against civilians or civilian property

Prosecutor v. Kvocka et al., Case No. IT-98-30/1 (Trial Chamber), November 2, 2001, para. 124: “An additional requirement for Common Article 3 crimes under Article 3 of the Statute is that the violations must be committed against persons ‘taking no active part in the hostilities.’”

Jelisic, (Trial Chamber), December 14, 1999, para. 34: “Common Article 3 protects ‘[p]ersons taking no active part in the hostilities’ including persons ‘placed hors de combat by sickness, wounds, detention, or any other cause.’  Victims of murder, bodily harm and theft, all placed hors de combat by their detention, are clearly protected persons within the meaning of common Article 3.”

Blaskic, (Trial Chamber), March 3, 2000, para. 180: “Civilians within the meaning of Article 3 are persons who are not, or no longer, members of the armed forces.  Civilian property covers any property that could not be legitimately considered a military objective.”

iv) mental state (mens rea)

(1) generally

See discussion of mental state (mens rea) in underlying offenses, Section (II)(d)(i)(4) (torture); (II)(d)(ii) (rape); (II)(d)(iv)(1) (murder); (II)(d)(v) (violence to life and person); (II)(d)(vi)(5) (outrages upon personal dignity); (II)(d)(viii) (wanton destruction not justified by military necessity); (II)(d)(x) (destruction or willful damage to institutions dedicated to religion or education); (II)(d)(xi) (unlawful attacks on civilians and civilian objects); (II)(d)(xii)(2) (unlawful labor); (II)(d)(xiii) (slavery), ICTY Digest. 

(2) proof of discriminatory intent or motive not required

Aleksovski, (Appeals Chamber), March 24, 2000, para. 20: “There is nothing in the undoubtedly grave nature of the crimes falling within Article 3 of the Statute, nor in the Statute generally, which leads to a conclusion that those offences are punishable only if they are committed with discriminatory intent.  The general requirements which must be met for prosecution of offences under Article 3 . . . do not include a requirement of proof of a discriminatory intent or motivation.”

d) Underlying offenses

i) torture

(1) defined

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 142: The definition of torture has the following elements: “(i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental.  (ii) The act or omission must be intentional.  (iii) The act or omission must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.”  See also Prosecutor v. Krnojelac, Case No. IT-97-25 (Trial Chamber), March 15, 2002, para. 179.

Prosecutor v. Furundzija, Case No. IT-95-17/1 (Appeals Chamber), July 21, 2000, para. 111: “The Trial Chamber correctly identified the following elements of the crime of torture in a situation of armed conflict: (i) . . . the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition (ii) this act or omission must be intentional; (iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person; (iv) it must be linked to an armed conflict. . . .”2

(2) the prohibition against torture is jus cogens

Furundzija, (Trial Chamber), December 10, 1998, para. 139, 153: “It . . . seems incontrovertible that torture in time of armed conflict is prohibited by a general rule of international law.  In armed conflicts this rule may be applied both as part of international customary law and - if the requisite conditions are met - qua treaty law, the content of the prohibition being the same.”  “Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules.  The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.”

(3) severe pain and suffering must be inflicted (element 1)

Kvocka et al., (Trial Chamber), November 2, 2001, para. 142-143: “[T]he severity of the pain or suffering is a distinguishing characteristic of torture that sets it apart from similar offences.  A precise threshold for determining what degree of suffering is sufficient to meet the definition of torture has not been delineated.  In assessing the seriousness of any mistreatment, the Trial Chamber must first consider the objective severity of the harm inflicted.  Subjective criteria, such as the physical or mental effect of the treatment upon the particular victim and, in some cases, factors such as the victim’s age, sex, or state of health will also be relevant in assessing the gravity of the harm.”

Prosecutor v. Krnojelac, Case No. IT-97-25 (Trial Chamber), March 15, 2002, para. 182: “When assessing the seriousness of the acts charged as torture, the Trial Chamber must take into account all the circumstances of the case, including the nature and context of the infliction of pain, the premeditation and institutionalisation of the ill-treatment, the physical condition of the victim, the manner and method used, and the position of inferiority of the victim.  In particular, to the extent that an individual has been mistreated over a prolonged period of time, or that he or she has been subjected to repeated or various forms of mistreatment, the severity of the acts should be assessed as a whole to the extent that it can be shown that this lasting period or the repetition of acts are inter-related, follow a pattern or are directed towards the same prohibited goal.”

(a) permanent injury not required

Kvocka et al., (Trial Chamber), November 2, 2001, para. 148: “[T]orture practices often cause permanent damage to the health of the victims, [but] permanent injury is not a requirement for torture.”

(b) mental suffering can qualify

Kvocka et al., (Trial Chamber), November 2, 2001, para. 149: “Damage to physical or mental health will be taken into account in assessing the gravity of the harm inflicted.  [A]buse amounting to torture need not necessarily involve physical injury, as mental harm is a prevalent form of inflicting torture.  For instance, the mental suffering caused to an individual who is forced to watch severe mistreatment inflicted on a relative would rise to the level of gravity required under the crime of torture.  [B]eing forced to watch serious sexual attacks inflicted on a female acquaintance was torture for the forced observer.  The presence of onlookers, particularly family members, also inflicts severe mental harm amounting to torture on the person being raped.”

(4) mental state (mens rea): the act or omission must be intentional (element 2)

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 153-156: The Appeals Chamber explained the distinction between “intent” and “motivation.”  The Appeals Chamber held that “even if the perpetrator’s motivation is entirely sexual, it does not follow that the perpetrator does not have the intent to commit an act of torture or that his conduct does not cause severe pain or suffering, whether physical or mental, since such pain or suffering is a likely and logical consequence of his conduct.  In view of the definition, it is important to establish whether a perpetrator intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental, to his victims.”  “[A]cts need not have been perpetrated solely for one of the purposes prohibited by international law.  If one prohibited purpose is fulfilled by the conduct, the fact that such conduct was also intended to achieve a non-listed purpose (even one of a sexual nature) is immaterial.”

(5) prohibited purpose or goal required (element 3)

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 142: The third element of torture is that “[t]he act or omission must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.”

Krnojelac, (Trial Chamber), March 15, 2002, para. 180: “‘Torture’ constitutes one of the most serious attacks upon a person’s mental or physical integrity.  The purpose and the seriousness of the attack upon the victim sets torture apart from other forms of mistreatment.  Torture as a criminal offence is not a gratuitous act of violence; it aims, through the infliction of severe mental or physical pain, to attain a certain result or purpose.  Thus, in the absence of such purpose or goal, even very severe infliction of pain would not qualify as torture pursuant to Article 3 or Article 5.”

Krnojelac, (Trial Chamber), March 15, 2002, para. 188: “The infliction of severe pain in pursuance of a given prohibited purpose must be established beyond reasonable doubt….”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 140: “[T]he prohibited purposes listed in the Torture Convention as reflected by customary international law ‘do not constitute an exhaustive list, and should be regarded as merely representative.’”  “[H]umiliating the victim or a third person constitutes a prohibited purpose for torture under international humanitarian law.”

(a) prohibited purpose need not be predominating or sole purpose

Kvocka et al., (Trial Chamber), November 2, 2001, para. 153: “[T]he prohibited purpose need be neither the sole nor the main purpose of inflicting the severe pain or suffering.”

Prosecutor v. Kunarac, Kovac and Vukovic, Case No. IT-96-23 and IT-96-23/11 (Trial Chamber), February 22, 2001, para. 486: “There is no requirement under customary international law that the conduct must be solely perpetrated for one of the prohibited purposes.  [T]he prohibited purpose must simply be part of the motivation behind the conduct and need not be the predominating or sole purpose.”

(6) whether role of public official is necessary

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 148: “[T]he public official requirement is not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention.”

Krnojelac, (Trial Chamber), March 15, 2002, para. 188: “Under international humanitarian law in general, and under Articles 3 and 5 of the Statute in particular, the presence or involvement of a state official or of any other authority-wielding person in the process of torture is not necessary for the offence to be regarded as ‘torture.’”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 139: “[T]he state actor requirement imposed by international human rights law is inconsistent with the application of individual criminal responsibility for international crimes found in international humanitarian law and international criminal law.”

But see Furundzija, (Appeals Chamber), July 21, 2000, para. 111: The fifth element of the crime of torture in a situation of armed conflict is “at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g., as a de facto organ of a State or any other authority-wielding entity.”

But see Prosecutor v. Mucic et al., Case No. IT-96-21, (Trial Chamber), November 16, 1998, para. 494-496: Torture requires the act or omission to be “committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity.”

(7) application

(a) examples of acts constituting torture

Kvocka et al., (Trial Chamber), November 2, 2001, para. 144: “Beating, sexual violence, prolonged denial of sleep, food, hygiene, and medical assistance, as well as threats to torture, rape, or kill relatives were among the acts most commonly mentioned as those likely to constitute torture.  Mutilation of body parts would be an example of acts per se constituting torture.”

(b) rape and other forms of sexual violence as torture

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 149-151: “[S]ome acts establish per se the suffering of those upon whom they were inflicted.  Rape is . . . such an act. . . . Sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture.  Severe pain or suffering, as required by the definition of the crime of torture, can thus be said to be established once rape has been proved, since the act of rape necessarily implies such pain or suffering.”

Prosecutor v. Mucic et al., Case No. IT-96-21, (Trial Chamber), November 16, 1998, para. 494-496: The Trial Chamber held that “whenever rape and other forms of sexual violence meet the [following] criteria, then they shall constitute torture.”  The criteria for “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.”3

Mucic et al., (Trial Chamber), November 16, 1998, para. 495: “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.  [I]t 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.  [T]his is inherent in situations of armed conflict.”4

Kvocka et al., (Trial Chamber), November 2, 2001, para. 145: “[R]ape may constitute severe pain and suffering amounting to torture, provided that the other elements of torture, such as a prohibited purpose, are met.”

Furundzija, (Trial Chamber), December 10, 1998, para. 163-164: “Rape is resorted to either by the interrogator himself or by other persons associated with the interrogation of a detainee, as a means of punishing, intimidating, coercing or humiliating the victim, or obtaining information, or a confession, from the victim or a third person.  In human rights law, in such situations the rape may amount to torture.”  “Depending upon the circumstances, under international criminal law rape may acquire the status of a crime distinct from torture.”

See also discussion of torture under Article 5, Section (IV)(c)(v), ICTY Digest.

ii) rape

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 127-132: “[T]he actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim.  Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances.  The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.”  “Resistance” is not a requirement.  “Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape.”  “[T]here are ‘factors [other than force] which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim.’  A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force.”

See also discussion of rape under Article 5, Section (IV)(c)(vi), ICTY Digest.

iii) cruel treatment

(1) defined

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 265: “[T]he Celebici Trial Chamber found 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.  ‘[C]ruel treatment’ is ‘equivalent to the offence of inhuman treatment in the framework of the grave breaches provisions of the Geneva Conventions.’”

Blaskic, (Trial Chamber), March 3, 2000, para. 186: “[C]ruel treatment constitutes an intentional act or omission ‘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 Convention.’”  See also Jelisic, (Trial Chamber), December 14, 1999, para. 34, 41.

(2) mental suffering requirement lower than for torture

Kvocka et al., (Trial Chamber), November 2, 2001, para. 161: “[T]he degree of physical or mental suffering required to prove cruel treatment is lower than the one required for torture, though it must be at the same level as ‘wilfully causing great suffering or serious injury to body or health.’  [T]he degree of suffering required to prove cruel or inhuman treatment was not as high as that required to sustain a charge of torture.”

(3) prohibited purpose not required

Kvocka et al., (Trial Chamber), November 2, 2001, para. 226: “The requirement of a prohibited purpose which is characteristic of the offence of torture, is a materially distinct element that is not required in the offences of cruel treatment.”

(4) examples

Kvocka et al., (Trial Chamber), November 2, 2001, para. 161: “[T]he use of human shields constitutes cruel treatment under Article 3 of the Statute.”

See also discussion of cruel and inhuman treatment under Article 2, Section (I)(d)(ii)(2), ICTY Digest.

iv) murder

(1) defined

Prosecutor v. Krstic, Case No. IT-98-33 (Trial Chamber), August 2, 2001, para. 485: “Murder has consistently been defined . . . as the death of the victim resulting from an act or omission of the accused committed with the intention to kill or to cause serious bodily harm which he/she should reasonably have known might lead to death.”

Vasiljevic, (Trial Chamber), November 29, 2002, para. 205: “The elements of the definition of ‘murder’ under customary international law are as follows: 1. The victim is dead.  2. The death was caused by an act or omission of the accused, or of person or persons for whose acts or omissions the accused bears criminal responsibility.  3. That act was done, or that omission was made, by the accused, or a person or persons for whose acts or omissions he bears criminal responsibility, with an intention: to kill, or to inflict grievous bodily harm, or to inflict serious injury, in the reasonable knowledge that such act or omission was likely to cause death.”  See also Krnojelac, (Trial Chamber), March 15, 2002, para. 324 (same).

Jelisic, (Trial Chamber), December 14, 1999, para. 35: “Murder is defined as homicide committed with the intention to cause death.  The legal ingredients of the offence as generally recognised in national law may be characterised as follows: [a] the victim is dead, [b] as a result of an act of the accused, [c] committed with the intention to cause death.”

(2) comparison between murder under Article 3 and willful killing under Article 2

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 233: “[T]he elements of the offence of ‘murder’ under Article 3 of the Statute are similar to those which define a ‘wilful killing’ under Article 2 of the Statute, with the exception that under Article 3 of the Statute the offence need not have been directed against a ‘protected person’ but against a person ‘taking no active part in the hostilities.’”  See also Blaskic, (Trial Chamber), March 3, 2000, para. 181.

See also discussion of willful killing under Article 2, Section (I)(d)(i), and murder under Article 5, Section (IV)(c)(i), ICTY Digest.

(3) proof of dead body not required

Krnojelac, (Trial Chamber), March 15, 2002, para. 326: “Proof beyond reasonable doubt that a person was murdered does not necessarily require proof that the dead body of that person has been recovered.  [T]he fact of a victim’s death can be inferred circumstantially from all of the evidence presented to the Trial Chamber.”

(4) suicide as murder

Krnojelac, (Trial Chamber), March 15, 2002, para. 329: “The crucial issues [as to whether causing a person to commit suicide can be viewed as murder] are causation and intent.  The relevant act or omission by the Accused or by those for whose acts or omissions the Accused bears criminal responsibility must have caused the suicide of the victim and the Accused, or those for whom he bears criminal responsibility, must have intended by that act or omission to cause the suicide of the victim, or have known that the suicide of the victim was a likely and foreseeable result of the act or omission.  The Accused cannot be held criminally liable unless the acts or omissions for which he bears criminal responsibility induced the victim to take action which resulted in his death, and that his suicide was either intended, or was an action of a type which a reasonable person could have foreseen as a consequence of the conduct of the Accused, or of those for whom he bears criminal responsibility.”

v) violence to life and person

Blaskic, (Trial Chamber), March 3, 2000, para. 182: Violence to life and person “is a broad offence which, at first glance, encompasses murder, mutilation, cruel treatment and torture and which is accordingly defined by the cumulation of the elements of these specific offences.  The offence is to be linked to those of Article 2(a) (wilful killing), Article 2(b) (inhuman treatment) and Article 2(c) (causing serious injury to body) of the Statute.”  “[T]he mens rea is characterised once it has been established that the accused intended to commit violence to the life or person of the victims deliberately or through recklessness.”

But see Vasiljevic, (Trial Chamber), November 29, 2002, para. 203: “In the absence of any clear indication in the practice of states as to what the definition of the offence of ‘violence to life and person’ identified in the Statute may be under customary law, the Trial Chamber is not satisfied that such an offence giving rise to individual criminal responsibility exists under that body of law.”

vi) outrages upon personal dignity

(1) defined

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 161: “[T]he crime of outrages upon personal dignity requires: (i) that the accused intentionally committed or participated in an act or an omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, and (ii) that he knew that the act or omission could have that effect.”

(2) requires humiliation so intense any reasonable person would be outraged

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 162: “[T]he humiliation of the victim must be so intense that any reasonable person would be outraged.”  The Appeals Chamber held that the Trial Chamber correctly relied not only “on the victim’s purely subjective evaluation of the act to establish whether there had been an outrage upon personal dignity, but used objective criteria to determine when an act constitutes a crime of outrages upon personal dignity.”

Prosecutor v. Aleksovski, Case No. IT-95-14/1 (Trial Chamber), June 25, 1999, para. 56-57: With respect to the actus reus of “outrages upon personal dignity,” “the humiliation to the victim must be so intense that the reasonable person would be outraged.”  “The form, severity and duration of the violence, the intensity and duration of the physical or mental suffering, shall serve as a basis for assessing whether crimes were committed.”

(3) humiliation must be real and serious

Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 501: “So long as the humiliation or degradation is real and serious, the Trial Chamber can see no reason why it would also have to be ‘lasting’; it is not open to regard the fact that a victim has recovered or is overcoming the effects of such an offence as indicating of itself that the relevant acts did not constitute an outrage upon personal dignity.  Obviously, if the humiliation and suffering caused is only fleeting in nature, it may be difficult to accept that it is real and serious.  However this does not suggest that any sort of minimum temporal requirement of the effects of an outrage upon personal dignity is an element of the offence.” 

Compare Aleksovski, (Trial Chamber), June 25, 1999, para. 54-56: “An outrage upon personal dignity within Article 3 of the Statute is a species of inhuman treatment that is deplorable, occasioning more serious suffering than most prohibited acts falling within the genus.”  “An outrage upon personal dignity is an act which is animated by contempt for the human dignity of another person.  The corollary is that the act must cause serious humiliation or degradation to the victim.  It is not necessary for the act to directly harm the physical or mental well-being of the victim.  It is enough that the act causes real and lasting suffering to the individual arising from the humiliation or ridicule.  The degree of suffering which the victim endures will obviously depend on his/her temperament.”

(4) murder is not an outrage upon personal dignity

Kvocka et al., (Trial Chamber), November 2, 2001, para. 172: “[M]urder in and of itself cannot be characterized as an outrage upon personal dignity.  Murder causes death, which is different from concepts of serious humiliation, degradation or attacks on human dignity.  The focus of violations of dignity is primarily on acts, omission, or words that do not necessarily involve long-term physical harm, but which nevertheless are serious offences deserving of punishment.”

(5) mental state (mens rea)

Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 164-166: “[T]he crime of outrages upon personal dignity requires that the accused knew that his act or omission could cause serious humiliation, degradation or otherwise be a serious attack on human dignity.  [T]he crime . . . requires only a knowledge of the ‘possible’ consequences of the charged act or omission.”

Aleksovski, (Trial Chamber), June 25, 1999, para. 56: “As for the requisite degree of mens rea . . . the perpetrator must have acted deliberately or deliberately omitted to act but deliberation alone is insufficient.  While the perpetrator need not have had the specific intent to humiliate or degrade the victim, he must have been able to perceive this to be the foreseeable and reasonable consequence of his actions.”

(6) prohibited purpose not required

Kvocka et al., (Trial Chamber), November 2, 2001, para. 226: “The requirement of a prohibited purpose which is characteristic of the offence of torture, is a materially distinct element that is not required in the offence of outrages upon personal dignity.”

(7) discriminatory intent or motive not required

Aleksovski, (Appeals Chamber), March 24, 2000, para. 28: “[I]t is not an element of offences under Article 3 of the Statute, nor of the offence of outrages upon personal dignity, that the perpetrator had a discriminatory intent or motive.”

(8) examples

Aleksovski, (Trial Chamber), June 25, 1999, para. 229: “[T]he use of detainees as human shields or trench-diggers constitutes an outrage upon personal dignity.”

Kvocka et al., (Trial Chamber), November 2, 2001, para. 173: “[I]nappropriate conditions of confinement,” “perform[ing] subservient acts,” being “forced to relieve bodily functions in their clothing,” and “endur[ing] the constant fear of being subjected to physical, mental, or sexual violence” in camps were held to be outrages upon personal dignity.

Furundzija, (Trial Chamber), December 10, 1998, para. 172-173: “Rape may . . . amount to . . . a violation of the laws or customs of war” and “Article 3 of the Statute covers outrages upon personal dignity including rape.”

vii) taking of hostages

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 319-320: “[T]he elements of the offence of taking of hostages under Article 3 of the Statute are essentially the same as those of the offence of taking civilians as hostage as described by Article 2(h).” 

Blaskic, (Trial Chamber), March 3, 2000, para. 187: “The definition of hostages must be understood as being similar to that of civilians taken as hostages within the meaning of grave breaches under Article 2 of the Statute, that is - persons unlawfully deprived of their freedom, often wantonly and sometimes under threat of death.  [T]o be characterised as hostages the detainees must have been used to obtain some advantage or to ensure that a belligerent, other person or other group of persons enter into some undertaking.”

See also discussion of “taking of hostages” under Article 2, Section (I)(d)(viii), ICTY Digest.

viii) wanton destruction not justified by military necessity

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 346-347: “[T]he elements for the crime of wanton destruction not justified by military necessity charged under Article 3(b) of the Statute are satisfied where: (i) the destruction of property occurs on a large scale; (ii) the destruction is not justified by military necessity; and (iii) the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction.  [W]hile property situated on enemy territory is not protected under the Geneva Conventions, and is therefore not included in the crime of extensive destruction of property listed as a grave breach of the Geneva Conventions, the destruction of such property is criminalised under Article 3 of the Statute.”

Blaskic, (Trial Chamber), March 3, 2000, para. 183: “Similar to the grave breach constituting part of Article 2(d) of the Statute, the devastation of property is prohibited except where it may be justified by military necessity.  So as to be punishable, the devastation must have been perpetrated intentionally or have been the foreseeable consequence of the acts of the accused.”

See also discussion of “extensive destruction of property not justified by military necessity” under Article 2, Section (I)(d)(v), ICTY Digest.

ix) plunder

(1) defined

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 612: “This crime has been defined as ‘willful and unlawful appropriation of property,’ and, as enshrined in Article 3(e) of the Statute, it may affect both private and public property.”

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 617: “Plunder as a crime under Article 3(e) of the Statute has been committed when: i) the general requirements of Article 3 of the Statute, including the seriousness of the violation, are fulfilled; ii) private or public property was appropriated unlawfully and willfully.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 352: “The essence of the offence [of plunder] is defined by Celebici as ‘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.”’”

Jelisic, (Trial Chamber), December 14, 1999, para. 48: “Plunder is defined as the fraudulent appropriation of public or private funds belonging to the enemy or the opposing party perpetrated during an armed conflict and related thereto.”

(2) includes both large-scale seizures and appropriation by individual soldiers

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 612-613: “The term [plunder] is general in scope, comprising not only large-scale seizures of property within the framework of systematic economic exploitations of occupied territory but also acts of appropriation committed by individual soldiers for their private gain. . . . [P]lunder does not require the appropriation to be extensive or to involve a large economic value.”  Kunarac “held that the word ‘plunder’ . . . would require a theft at least committed by at least one person.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 352: “Such acts of appropriation include both widespread and systematized acts of dispossession and acquisition of property in violation of the rights of the owners and isolated acts of theft or plunder by individuals for their private gain.”

Jelisic, (Trial Chamber), December 14, 1999, para. 48: “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.’  [T]he individual acts of plunder perpetrated by people motivated by greed might entail individual criminal responsibility on the part of its perpetrators.”

Blaskic, (Trial Chamber), March 3, 2000, para. 184: “The prohibition on the wanton appropriation of enemy public or private property extends to both isolated acts of plunder for private interest and to the ‘organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory.’”

(3) plunder must involve grave consequences for the victims/sufficient monetary value

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 613-614: “[P]lunder must involve grave consequences for the victims, thus amounting to a ‘serious violation.’”  Celebici held that “in order for the dispossession to involve grave consequences for the victim(s), the property has to be of ‘sufficient monetary value.’”  “Plunder may be a serious violation not only when one victim suffers severe economic consequences because of the appropriation, but also, for example, when property is appropriated from a large number of people.”

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 352: “‘[T]he prohibition against unjustified appropriation of private or public property constitutes a rule protecting important values.’  To measure that importance, Celebici refers to ‘sufficient monetary value’ of the property so appropriated as to involve ‘grave consequences for the victims.’” 

(4) where applies

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 615: “Article 3(e) of the Statute proscribes plunder committed on the entire territory of the parties to a conflict…. [T]he prohibition of pillage is not limited to acts committed in occupied territories. . . .”

(5) plunder includes “pillage”

Blaskic, (Trial Chamber), March 3, 2000, para. 184: “Plunder ‘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.”’”

(6) application

Jelisic, (Trial Chamber), December 14, 1999, para. 49: “[T]he accused stole money, watches, jewellery and other valuables from the detainees upon their arrival at Luka camp by threatening those who did not hand over all their possessions with death.  The accused was sometimes accompanied by guards . . . but he mostly acted alone.  The Trial Chamber holds that these elements are sufficient to confirm the guilt of the accused on the charge of plunder.”

x) destruction or willful damage to institutions dedicated to religion or education

Blaskic, (Trial Chamber), March 3, 2000, para. 185: To show the destruction or willful damage to institutions dedicated to religion or education, “the damage or destruction must have been committed intentionally to institutions which may clearly be identified as dedicated to religion or education and which were not being used for military purposes at the time of the acts.  In addition, the institutions must not have been in the immediate vicinity of military objectives.”

But see Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 603-605: “The Chamber respectfully rejects that protected institutions ‘must not have been in the vicinity of military objectives,’” and “does not concur with the view that the mere fact that an institution is in the ‘immediate vicinity of military objective’ justifies its destruction.”  “[A] crime under Article 3(d) of the Statute has been committed when: i) the general requirements of Article 3 of the Statute are fulfilled; ii) the destruction regards an institution dedicated to religion; iii) the property was not used for military purposes; iv) the perpetrator acted with the intent to destroy the property.”

xi) unlawful attacks on civilians and civilian objects

Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 326-328: “[P]rohibited attacks are those launched deliberately against civilians or civilian objects in the course of an armed conflict and are not justified by military necessity.  They must have caused deaths and/or serious bodily injuries within the civilian population or extensive damage to civilian objects.”

Blaskic, (Trial Chamber), March 3, 2000, para. 180: “[T]he attack must have caused deaths and/or serious bodily injury within the civilian population or damage to civilian property.  Targeting civilians or civilian property is an offence when not justified by military necessity.”  “Such an attack must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted not through military necessity.”

xii) unlawful labor

(1) defined

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 250-261: “[T]he offence of unlawful labour against prisoners of war may be defined as an intentional act or omission by which a prisoner of war is forced to perform labour prohibited under Articles 49, 50, 51 or 52 of Geneva Convention III” and which “fall[s] under Article 3 of the Statute.”  “[N]ot all labour is prohibited during times of armed conflict. . . . Article 49 of Geneva Convention III establishes a principle of compulsory labour for prisoners of war.  The basic principle stated in Paragraph 1 of this provision [Article 49 of Geneva Convention III] ‘is the right of the Detaining Power to require prisoners of war to work.’  Nevertheless, this principle is subject to two fundamental conditions, the first one relating to the prisoner himself, and the second one to the nature of the work required.  Thus, prisoners of war may be required to work provided that this is done in their own interest, and those considerations relating to their age and sex, physical aptitude and rank are taken into account.  Articles 50 and 52 of Geneva Convention III define which type of labour might be required and which might not.  It is emphasised in the Commentary that: ‘[t]he core of the question is still the distinction to be made between activities considered as being connected with war operations and those which are not.’”

(2) mental state (mens rea)

Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 260: “In order to establish the mens rea requirement for the crime of unlawful labour, the Prosecution must prove that the perpetrator had the intent that the victim would be performing prohibited work.  The intent can be demonstrated by direct explicit evidence, or, in the absence of such evidence, can be inferred from the circumstances in which the labour was performed.”

For discussion of occupation as relevant to unlawful labor, see Section (I)(e), ICTY Digest.

xiii) slavery

Krnojelac, (Trial Chamber), March 15, 2002, para. 350-351, 356, 359: “Enslavement under Article 5 . . . has been defined by the Tribunal as the exercise of any or all of the powers attaching to the right of ownership over a person.  The actus reus of enslavement is the exercise of those powers, and the mens rea is the intentional exercise of such powers.  Although not enumerated under Article 3, slavery may still be punishable under that Article if the four requirements specific to Article 3 . . . are met.”  “The Trial Chamber is satisfied that the offence of slavery under Article 3 . . . is the same as the offence of enslavement under Article 5.  As such, slavery under Article 3 requires proof of the same elements as constitute enslavement under Article 5.”  “‘[T]he exaction of forced or compulsory labour or service’ is an ‘indication of enslavement,’ and a ‘factor to be taken into consideration in determining whether enslavement was committed.’”

See also discussion of enslavement under Article 5, Section (IV)(c)(iii), ICTY Digest.



2 Furundzija goes on to require a fifth element that “at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g., as a de facto organ of a State or any other authority-wielding entity.”  However, more recent decisions suggest that this is not a requirement.  See Section (II)(d)(i)(6), ICTY Digest.

3 As to whether the involvement of a public official is required, see Section (II)(d)(i)(6), ICTY Digest.

4 Id.


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February 2004