Article 8(2)(c)(i)–4 War crime of torture
[Link] perpetrator inflicted severe physical or mental pain or suffering upon one
or more persons.
"Torture' means the intentional infliction of severe pain or suffering, whether physical or
mental, upon a person in the custody or under the control of the accused; except that
torture shall not include pain or suffering arising only from, inherent in or incidental to,
lawful sanctions "1An 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, 2
can be committed by an act or omission. 3 the crimes must not be committed by the
perpetrator for purely personal motives4 The 30 suspected FSP detainees were
subjected to prolonged solitary confinement, sleep deprivation, restricted diet, loud
music, stress positions, and lengthy interrogations, causing hallucinations, trauma, and
disorientation,5 constituted a violation of article 3 amounting to torture. 6 The ICTY Appeals
Chamber in Kunarac held that torture consists of the “intentional infliction, by act or
omission, of severe pain or suffering, whether physical or mental, upon a person under
custody or control.”7 Even if some detainees later described the treatment as
“bearable”,8 but the threshold of severity is objective that even temporary but severe
pain qualifies.9 The ICRC Commentary on Additional Protocol II confirms that “the
prohibition of torture covers both physical and mental suffering, irrespective of
duration.”10 Although a prolonged physical or mental harm particularly indicates torture, it
should be taken into account that torture may exist even if it did not result in any prolonged
adverse effects to the mental health11 or long-term damage to the health in general.12
Thus, the first element is satisfied.
2. The perpetrator inflicted the pain or suffering for such purposes as: obtaining
information or a confession, punishment, intimidation or coercion or for any
reason based on discrimination of any kind.
1
ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 459; Prosecutor v. Kunarac et al.,
IT-96-23 & IT-96-23/1-A, ICTY Appeals Judgment, 12 June 2002, para 142
2
ICTY, Judgment, The Prosecutor v. Zejnil Delalic and Others, IT-96-21-T, para. 473.
3
ICC, Prosecutor v. Ongwen, Trial Chamber IX, Trial Judgment, 4 February 2021, ICC-02/04-01/15-1762-Red, para.
2700
4
ICTR, Judgment, The Prosecutor v. Jean Paul Akayesu, ICTR-96-4-T, para. 636
5
Statement of Fact 24
6
Prosecutor v. Delalić et al. (“Čelebići case”, ICTY Trial Judgment, 16 November 1998) para 463; Northern Ireland
Case, para. 167
7
Prosecutor v. Kunarac et al., IT-96-23 & IT-96-23/1-A, Appeals Judgment, 12 June 2002, para 142, p.44
8
Statement of Fact 25
9
Furund`ija Appeal Judgement, para 111, 161 and 472; Akayesu Trial Judgement, para 593.
10
ICRC, Commentary on Additional Protocol II, 1987, p. 137
11
CAT, Concluding Observations: United States, CAT/C/USA/CO/2, 2006, item 13
12
Polonskiy v. Russia, application no. 30033/05, 2006, para. 124
The Court has held that severity implies an important degree of pain and suffering and
may be met by a single act or by a combination of acts when viewed as a whole. 13 The
State has the authority to determine what activities are deemed prejudicial to its
security14 but The language of common Article 3 clearly prohibits fundamental offences
such as murder and torture.15 "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 to be the predominant or sole purpose 16 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.17 The purpose requirement is fulfilled as President Smith expressed
dissatisfaction with detainees’ silence and demanded they reveal intelligence on FSP. 18
The ICTY in Kunarac emphasized that the prohibited purpose “need not be the sole or
predominant one.”19
Therefore, the second element is satisfied.
3. Such person or persons were either hors de combat, or were civilians, medical
personnel or religious personnel taking no active part in the hostilities.
The Prosecution submits that 30 FSP members as a civilian within the meaning of international
humanitarian law, thereby enjoying protection against direct attack. In the alternative, the
Prosecution contends that, even assuming arguendo that he was to be regarded as a fighter, he
nevertheless remained entitled to protection on the basis of his status as hors de combat.
Protection Afforded under Civilian Status:
The Trial Chamber clarifies that “the definition of a ‘civilian’ is expansive and includes individuals
who at one time performed acts of resistance, as well as persons hors de combat when the
crime was perpetrated”.20 In international humanitarian law (IHL), the notion of an "organized
armed group" is narrowly defined exclusively referring to the armed or military wing of a non-
state party to an armed conflict, and not to its political leadership or civilian support base. 21
Individuals such as recruiters, trainers, financiers, or propagandists may continuously contribute
to the broader war effort of a non-state actor, yet they do not qualify as members of an
organized armed group unless their functions also encompass activities amounting to direct
13
ICC, Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Trial Chamber X, Public redacted
version of Trial Judgment, 26 June 2024, ICC-01/12-01/18-2594-Red, para. 1128
14
Prosecutor v Zejnil Delali Zdravko Muci, Hazim Delic (1998) ICTY IT-96-21-T Trial Chamber, [574]
15
ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 163
16
ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 470. See also ICTY Appeals
Chamber, Judgement, The Prosecutoru: Dragoljub Kunaracand others, IT-96-23 and IT-96-23/1-A, para. 155
17
ICTY, Mucić et al. ("Čelebići") Trial Judgment, 16 November 1998 para. 472
18
Statement of Fact 21
19
Prosecutor v. Kunarac et al., IT-96-23 & IT-96-23/1-A, Appeals Judgment, 12 June 2002, para 148
20
Prosecutor v. Stanilav Galic ,Trial Judgement, para. 143
21
Notion of DPH, pg. 34
participation in hostilities.22 Political leadership, in itself, does not render an individual a lawful
target, as such persons remain civilians unless, and only for such time as, they directly
participate in hostilities.23 The jurisprudence of the ICC reinforces this distinction. 24 For instance,
in Ntaganda, the Court considered the armed wing of the RCD-K/ML to constitute the
"organized armed group," while expressly excluding the political wing, the RCD-ML. 25
Accordingly, the decisive criterion for determining individual membership in an organized armed
group is whether the person assumes a continuous combat function (CCF), namely a
continuous role involving direct participation in hostilities.26 Yet it may also be identified on the
basis of conclusive conduct, such as repeated direct participation in hostilities in circumstances
indicating a continuous function rather than a spontaneous, sporadic, or temporary engagement
limited to a particular operation.27 It clarifies that the ‘term organized armed group, however,
refers exclusively to the armed or military wing of a non-State party: its armed forces in a
functional sense’.28 Therefore, In the present case, 30 arrested FSP members remained a
civilian protected under IHL against direct attack. There is no proof that those 30 fsp
members was a part of the hostilities. their role was never confined to that hostilities. Merely
sympathizing with the one belligerent party is not sufficient to satisfy DPH and does not civilians
the protection against the attacks.29 Thus, such activities cannot qualify as a continuous combat
function.
Secondary Arguments even if he was Combatant:
Horse De Combat:
Even if for the sack of argument we consider him as combatant he must be given the status of
Horse de combat. A persons who are hors de combat, meaning those who have laid down arms or are
otherwise incapable of fighting, as well as civilians, medical personnel, and religious personnel who
refrain from taking active part in hostilities, 30 are entitled to protected from violence to life and person,
cruel treatment, torture, and humiliating or degrading treatment. 31 This reflects the minimum core
humanitarian guarantees extended to all individuals not participating in hostilities in NIACs. 32The formal
status of “combatant” does not apply in non-international armed conflicts, but the term “fighter”
now seems to be the appropriate term to be used as the equivalent for “combatants” in NIAC,
This does not, however, mean that the principle of distinction, the cornerstone of international
humanitarian law, is not applicable to non-international armed Conflict. 33 For the purpose of the
22
Notion of DPH, pg. 34; ICTY, The Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgment (Trial Chamber), 3 March
2000, para. 180.
23
Study on DPH, pg. 32
24
ICC, Prosecutor v Thomas Lubanga Dyilo, 2014, AC, para. 474–484; Orić Trial Judgement, para. 254.
25
ICC, Prosecutor v Ntaganda, TC IV, para. 285–320 & 713; Prosecutor v Bemba Gombo, TC III, para. 706, 385.
26
Israel HCJ, PCATI v. Israel, § 39; Kai Ambos, Commentary to Rome statute, 3 rd ed., 2015, para. 881 Pg. 548
27
Notion of DPH, pg. 35; See Also, ICRC, Jean Pictet (ed.), Commentary on GC IV, 1956, p. 40
28
Prosecutor v Boškoski and Tarčulovski (Trial Judgment) IT-04-82-T, 2008, para. 285–320 & fn. 48
29
ICC, Katanga and Chui case, P.T.C I, 2008, para 148;
30
Delalic et al. Appeal Judgement, para. 420; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public
Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 444;
Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 870
31
GC, Common Article 3; ICRC, CIHL, Rule 1
32
ICRC, Commentary on Common Article 3 (2016), paras 67–71
33
ICTY, Prosecutor v. Mrksic et al., Trial Judgment, 2007, para. 457
conduct of hostilities, however, the effect and requirements of being ‘hors de combat’ are
defined in Additional Protocol I, A person who is recognized or who, in the circumstances,
should be recognized to be hors de combat shall not be made the object of attack. 34 A person
is hors de combat if: (a) he is in the power of an adverse Party; (b) he clearly expresses an
intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by
wounds or sickness, and therefore is incapable of defending himself; 35 provided that in any of
these cases he abstains from any hostile act and does not attempt to escape. 36 Hostile act
requires a threshold of Harm which may reasonably be expected to result from an act in the
prevailing circumstances.37 Since the FSP members had already been arrested, they posed no
immediate threat and was under the power of adverse party. Accordingly, firing upon him was
unlawful and violates Common Article 3 and Article 8(2)(c)(i) ICC Statute (violence to life). 38
When fighters are rendered hors de combat they must be treated humanely under
international law.39
Thus, the third element is established.
4. The perpetrator was aware of the factual circumstances that established this
status.
Intent may be proven when the accused meant to provoke or induce the commission of
the crime, or was aware of the substantial likelihood that the crime occurred as a
consequence.40 ‘Knowledge’ means awareness that a circumstance exists or a
consequence will occur in the ordinary course of events. 41 However the crime of torture,
as defined by customary international law, does not require that the perpetrator
committed the act in question with the intent to inflict severe physical or mental
suffering, but rather that the perpetrator committed an intentional act for the purpose of
obtaining information or a confession, or to punish, intimidate or coerce the victim or a
third person, or to discriminate on any ground whatsoever, and that, as a consequence,
the victim suffered. There is thus no need to establish that perpetrator committed such
acts with the knowledge or intention that those acts would cause severe pain or
suffering.42 President Smith was aware of the detainees’ protected status, having been
briefed on their custody, and Attorney-General Sinder, who authorized the interrogation
methods, also had full knowledge.43
Thus, the fourth element is met.
34
Rule 47 CIHL; Article 41 API
35
1949 Geneva Conventions, common Article 3; Tadić Jurisdiction Decision, paras 89, 98, 134; Čelebići Appeal
Judgement, para. 136, 143; Kunarac Appeal Judgement, para. 68.
36
Tadić Trial Judgement, para. 616.
37
The notion of DPH, pg. 47.
38
ICC, Prosecutor v. Katanga, ICC-01/04-01/07, Judgment, para. 803
39
Prosecutor v. Stanilav Galic (Appeal Judgement), 2006, para. 144
40
Prosecutor v. Naletilić and Martinović, (2003), IT-98-34-T, Trial Judgement, (“Naletilić”), [60]
41
Article 30(3), Rome Statute
42
Prosecutor v. Kunarac et al., IT-96-23 & IT-96-23/1-A, Appeals Judgment, 12 June 2002, para 140, p.43
43
Statement of Fact 21
Alternatively
ii. Mental element:
The Bemba Pre-Trial Chamber set out the mental element of this crime as the
perpetrator (1) must have committed the crime of torture with intent and knowledge
pursuant to Article 30 of the ICC Statute; (2) must have inflicted the pain or suffering for
such purposes as obtaining information or a confession, punishment, intimidation or
coercion or for any reason based on discrimination of any kind; (3) must have been
aware of the factual circumstances that established the status of the persons
concerned.44 The perpetrator’s intent to inflict the pain or suffering for the purposes set
out in the Elements of Crimes constitutes a specific intent which has to be proven by the
Prosecutor.45 This specific purpose must be part of the motivation behind the conduct
but it need not be the "predominant or sole purpose" The Prosecutor is only required to
show that the perpetrator was aware of the factual circumstances that establish the
protected status of the persons or objects that are the subject of these crime. It is
therefore not possible to raise mistake of law regarding the victim’s status, as the
suspect is not required to have made a legal evaluation of the status of the victims
raised.46
5. The conduct took place in the context of and was associated with an armed
conflict not of an international character.
An armed conflict exists whenever there is a resort to armed force between States or
protracted violence between governmental authorities and organized armed groups or
between such groups within a State. 47 For the purpose of the Rome Statute, an
existence of a protracted violence48 depends on the:
i) Sufficient degree of the organizations involved in the conflicts; and
ii) The intensity of the conflict.
The following non-exhaustive factors help to determine whether an organization has a
sufficient degree of organisation49.
a) The force’s internal hierarchy;
b) The command structure and rule;
44
ICC, Prosecutor v. Bemba, Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute
on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, ICC-01/05-01/08-424, para.
293
45
ICC, Prosecutor v. Bemba, Pre-Trial Chamber II, 15 June 2009, ICC-01/05-01/08-424, para. 294
46
ICC, Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman ("Ali Kushayb"), Pre-Trial Chamber II, Corrected version of
‘Decision on the confirmation of charges against Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’)’, 9 July 2021, 23
November 2021, ICC-02/05-01/20-433-Corr, para. 76
47
The Prosecutor v. Thomas Lubanga Dyilo (2012), ICC-01/04-01/06, Trial Chamber I, (Judgement pursuant to
Article 74 of the Statute), [533]; Prosecutor v. Tadić (1997), ICC IT-94-1-T, Trial Chamber, [561]
48
The Prosecutor v Germain Katanga (2014), ICC-01/04-01/07, Trial Chamber II, [1185] (French
49
The Prosecutor v. Thomas Lubanga Dyilo (2012), ICC, ICC-01/04-01/06, Trial Chamber I, (Judgement pursuant to
Article 74 of the Statute), [537]; Milosevic Trial Chamber Decision, para.23, Limaj Trial Judgement, para.94-134
c) The extent to which military equipment is available;
d) The force’s ability to plan military operations and put them into effect;
e) And the extent, seriousness, and intensity of any military involvement
In ICTY cases, “the length of the conflict”, “the existence of casualties”, “the displacement of
local population” and “the concerted nature of the hostile acts undertaken by the attackers”
demonstrates intensity.50 It is however, not required to prove an established responsible
command over the organisations,51 nor a control over a part of the territory by that
organisation.52 The violence between Manustan and FSP involved protracted hostilities,
including the Victoria Barracks attack, bombings in Vala City, and assassinations of
ministers.53 Therefore, the conduct occurred in and was associated with a NIAC,
fulfilling the chapeau requirement.
6. The perpetrator was aware of factual circumstances that established the
existence of an armed conflict
The conduct of torture must be closely related to the armed conflict. The nexus
requirement ensures that the act is not of a purely private nature but is linked to the
conflict environment. It is sufficient that they were aware of the factual circumstances showing
sustained armed violence between governmental forces and an organised armed group. 54 Such awareness
may be proven by circumstantial evidence and inferred from the accused’s role, position, or access to
information.55 The victims were detained explicitly for suspected membership in FSP. 56
The interrogation aimed at gathering intelligence on FSP operations. 57 Their detention
and treatment were directly connected to the armed conflict between the Manustan
government and the FSP. The ICTY in Kunarac clarified that the nexus requirement is
satisfied when “the perpetrator acted in furtherance of or under the guise of the armed
conflict”.58 Similarly, in Čelebići, the Tribunal held that mistreatment of detainees in a
camp established specifically for persons connected with the conflict met the nexus
requirement.59 The ICC in Lubanga reaffirmed that the war nexus requires a “close and
direct link between the conduct and the armed conflict” 60 Since the victims were
50
Milosevic Rule 98bis Decision, para.28, Limaj Trial Judgement, para.134-167
51
Prosecutor v Jean Pierre Bemba Gombo (2009) ICC PT. ICC-01/05-01/08, Pre-Trial Chamber II, (Decision pursuant
to Article 61(7)(a) and (b) of the Rome Statute on the charge of the Prosecutor against Jean-Pierre Bemba Gombo),
[234]
52
Prosecutor v Jean Pierre Bemba Gombo (2009) ICC PT. ICC-01/05-01/08, Pre-Trial Chamber II, (Decision pursuant
to Article 61(7)(a) and (b) of the Rome Statute on the charge of the Prosecutor against Jean-Pierre Bemba Gombo),
[236]
53
Statement of Fact 12, 15 & 18
54
ICC, Elements of Crimes, Art. 8(2)(c)
55
ICC, Lubanga, T.C I, Judgment, 2012, paras. 1356–1357; ICC, Mbarushimana, P.T.C I, 2011, para. 281
56
Statement of Fact 23
57
Statement of Fact 21 & 22
58
Prosecutor v. Kunarac et al., IT-96-23 & IT-96-23/1-A, Appeals Judgment, 12 June 2002, para 58
59
Prosecutor v. Delalić et al. (Čelebići), IT-96-21, Trial Judgment, 16 Nov. 1998, para 193
60
Prosecutor v. Lubanga, ICC-01/04-01/06, Judgment, 14 March 2012, para 536
detained as part of State counter-insurgency operations, and interrogation aimed at
extracting information about FSP activities, the nexus to the NIAC is clearly satisfied.
Thus, the sixth element is fully met.
Responsibility of commanders and other superiors
With respect to superior and subordinate relationships not described in paragraph (a), a
superior shall be criminally responsible for crimes within the jurisdiction of the Court
committed by subordinates under his or her effective authority and control, as a result of
his or her failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which
clearly indicated, that the subordinates were committing or about to
commit such crimes;
Article 28(2)(i) requires that the superior either knew or consciously disregarded
information clearly indicating that crimes were being committed or were about to be
committed. Intent may be proven when the accused meant to provoke or induce the commission of
the crime, or was aware of the substantial likelihood that the crime occurred as a consequence. 61 The
ICTY in Čelebići held that commanders are responsible not only when they have actual
knowledge, but also where they “had information available to put them on notice of
possible unlawful acts.62 the Hostage Case held that the commander of an occupied territory ‘is
charged with notice of occurrences taking place within that territory 63 President Smith personally
instructed the intelligence services to extract information from 30 detainees who were
silent under interrogation.64 The strict liability test adopted in the Yamashita Case 65, holding that a
superior shall be criminally responsible for acts committed by his subordinates, without it being
necessary to prove his criminal intent 66 Attorney-General Sinder formally authorized
interrogation methods, including stress positions and sensory deprivation. 67 Reports
later documented hallucinations and severe trauma among the detainees . 68 These
circumstances demonstrate that both leaders were aware, or at the very least
deliberately disregarded information that made it clear that torture was being carried
out. The ICC in Bemba clarified that the standard includes situations where the
superior “consciously disregarded information which clearly indicated” the crimes69
(ii) The crimes concerned activities that were within the effective
responsibility and control of the superior; and
Article 28(2)(ii) requires that the crimes concerned activities that were within the
effective responsibility and control of the superior. In Čelebići, the Tribunal clarified that
the superior & subordinate relationship exists when the accused has “the power to issue
61
Prosecutor v. Naletilić and Martinović, (2003), IT-98-34-T, Trial Judgement, (“Naletilić”), [60]
62
Prosecutor v. Delalić et al. (Čelebići), IT-96-21, Trial Judgment, 16 Nov. 1998, para.383
63
Trial of Wilhelm List et al. (Hostages Trial) UNWCC, VII LRTWC, Part IV, p. 71
64
Statement of Fact 21
65
Yamashita, UNWCC, XXI LRTWC (1948) Part II, p. 29
66
Prosecutor v. Akayesu, ICTR-96-4-T, Judgement, Trial Chamber, 2 Sep. 1998, para. 488.
67
Statement of Fact 22
68
Statement of Fact 24
69
Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Appeals Judgment, 8 June 2018, para 170
orders and ensure compliance70 In determining the degree of control required by the
superior over the subordinate for command responsibility to be applicable, the Appeals
Chamber endorsed the concept of “effective control”, which it defined as “the material
ability to prevent and punish criminal conduct”. 71 In this respect, factors indicative of an
accused’s position of authority and effective control may include the official position held
by the accused, his capacity to issue orders, whether de jure or de facto, the procedure
for appointment, the position of the accused within the military or political structure and
the actual tasks that he performed.72 ‘If he fails to require and obtain complete informa tion,
the dereliction of duty rests upon him and he is in no position to plead his own dereliction as a
defence73 The Appeals Chamber in Blaškić held that “the indicators of effective control
are more a matter of evidence than of substantive law, and those indicators are limited
to showing that the accused had the power to prevent, punish, or initiate measures
leading to proceedings against the alleged perpetrators where appropriate”. 74The crimes
took place in official detention facilities of Manustan, which were under the authority of
the intelligence services and approved interrogation directives. 75 President Smith, as
Commander-in-Chief, had overall operational control of the counter-insurgency
campaign,76 he ICTY in Halilović emphasized that “effective control” is defined as the
“material ability to prevent or punish” the commission of crimes 77 while Attorney-General
Sinder exercised direct civilian authority by authorizing methods used during
interrogations.78 Both were therefore in positions of effective authority and control. The
ICC in Bemba confirmed that civilian superiors, not just military commanders, may incur
responsibility, provided they exercise effective authority over the perpetrators79
(iii) The superior failed to take all necessary and reasonable measures within
his or her power to prevent or repress their commission or to submit the
matter to the competent authorities for investigation and prosecution.
Article 28(2)(iii) requires proof that the superior failed to take all necessary and
reasonable measures within his or her power to prevent or repress the crimes, or to
submit the matter to competent authorities. In the trial against Admiral Toyoda, the
tribunal declared that the principle of command responsibility applies to the commander
who “knew, or should have known, by use of reasonable diligence” of the commission of
atrocities by his subordinates.80 Similarly, the tribunal in the Pohl case, describing
Mummenthey’s position as one of an “assumed or criminal naivete”, 81 held that the
70
Prosecutor v. Delalić et al. (Čelebići), IT-96-21, Trial Judgment, 16 Nov. 1998, para.370
71
Čelebići Appeal Judgement, para. 256
72
See Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001(“Kordi}
and Čerkez Trial Judgement”), paras 418-424.
73
Cˇelebic´i (Trial Chamber Judgement), note 3, para. 389
74
Blaškić Appeal Judgement, para. 69
75
Statement of fact 23
76
Statement of fact 21
77
Prosecutor v. Halilović, IT-01-48-T, Trial Judgment, 16 Nov. 2005, para 53
78
Statement of fact 22
79
Bemba, Appeals Judgment, para 167
80
United States v. Soemu Toyoda [Official Transcript of Record of Trial], p. 5006
81
United States v. Oswald Pohl et al, Vol. V, TWC, 958, 1054
latter’s assertions that he did not know what was happening in the labour camps and
enterprises under his jurisdiction did not exonerate him, adding that “it was his duty to
know”.82 Again, in the Roechling case, the court, under the heading of “The defence of
lack of knowledge”, declared that: no superior may prefer this defence indefinitely; for it
is his duty to know what occurs in his organization, and lack of knowledge, therefore,
can only be the result of criminal negligence.83 Despite clear knowledge of abusive
techniques, neither Smith nor Sinder took steps to halt the conduct, issue corrective
orders, or initiate investigations.84 Instead, their authorizations facilitated the
continuation of unlawful treatment. No referral was made to competent authorities, and
detainees remained in abusive conditions. The ICC and ICTY held that liability arises
where a commander “failed to use the means at his disposal to prevent or punish the
perpetrators of crimes.85 The Trial Chamber continued; “[t]hat military commanders and
other persons occupying positions of superior authority may be held criminally
responsible for the unlawful conduct of their subordinates is a well-established norm of
customary and conventional international law.”86
those facts and to prove, beyond a reasonable doubt, that such a nexus exists 87 Rebuttal to
Defense
The defense may argue the techniques were monitored by doctors and caused no permanent harm
(Fact 26). However, permanent injury is not a requirement; temporary but severe pain
suffices (Furundžija, ICTY, para. 163). Military necessity is irrelevant, as torture is prohibited
absolutely and is a jus cogens norm (ICJ, Questions relating to the Obligation to Prosecute or
Extradite (Belgium v. Senegal), para. 99). Furthermore, Article 31(1)(d) Rome Statute does not
recognize “necessity” as a ground for excluding criminal responsibility in torture cases.
1. Therefore, there has to be a link between the conduct and the armed conflict, or in the terms of
the ICTY the alleged offences must be committed within the context of that armed conflict 88
2. 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. 89
3. the term ‘nexus’ should not be understood as something vague and indefinite It is incumbent
upon the Prosecution to present
4. it is unnecessary to define exactly the line dividing those taking an active part in hostilities and
those who are not so involved. It is sufficient to examine the relevant facts of each victim and to
82
United States v. Oswald Pohl et al, Vol. V, TWC, 958, 1055
83
The Government Commissioner of the General Tribunal of the Military Government for the French Zone of
Occupation in Germany v. Herman Roechling and Others, Judgment on Appeal to the Superior Military
Government Court of the French Occupation Zone in Germany, Vol. XIV, TWC, Appendix B, 1097, 1106.
84
Statement of fact 22-24
85
See Čelebići Trial Judgment, paras 394-395; Aleksovski Trial Judgment, para. 78; Blaškić Trial Judgment, para.
302; Halilović Trial Judgment, para. 73; Karadžić Trial Judgment, para. 587
86
Čelebići Trial Judgement, para. 333.
87
ICTR,Judgment,The Prosecutor v. Clement Kayishema and Obed Ruzindana,ICTR-95-1-T,paras. 185–8.
88
ICTY, Judgment, The Prosecutor v. Dusko Tadic, IT-94-1-T, paras. 572, 617; 112 ILR 1 at 183, 203
89
ICTY, Judgment, The Prosecutor v. Zejnil Delalic and Others, IT-96-21-T, para. 193
ascertain whether, in each individual’s circumstances, that person was actively involved in
hostilities at the relevant time Whatever their involvement in hostilities prior to that time, each
of these classes of persons cannot be said to have been taking an active part in the hostilities.
Even if they were members of the armed forces...or otherwise engaging in hostile acts prior to
capture, such persons would be considered ‘members of armed forces’ who are ‘placed hors de
combat by detention’90
5. In the Akayesu case the Appeals Chamber found that the Trial Chamber25 required,irrespective
of what had been quoted before, that the perpetrator was either a member of the armed forces
under the military command of either of the belligerent parties, or that he was legitimately
mandated and expected, as a public official or agent or person otherwise holding public
authority or de facto representing the Government, to support or fulfil the warefforts. 91
6. Even if those with weapons for self-defence could be characterised as combatants, their possible
presence within groups of refugees does not deprive those who are non-combatants of their
protected status."92
7. Torture is constituted by an act or an omission giving rise to “severe pain or suffering, whether
physical or mental”, but there are no more specific requirements which allow an exhaustive
classification and enumeration of acts which may constitute torture. Existing case-law has not
determined the absolute degree of pain required for an act to amount to torture 93 however The
Appeals Chamber holds that the assumption of the Appellants that suffering must be visible,
even long after the commission of the crimes in question, is erroneous. Generally speaking,
some acts establish per se the suffering of those upon whom they were inflicted 94
8. Requirement of niac
For the purpose of the Rome Statute, an existence of a protracted violence 95 depends
on the:
i) Sufficient degree of the organizations involved in the conflicts; and
In deciding the organisation of parties to an NIAC, ICTY Trial Chambers have considered the
“joint command structure”, “general staff as the main governing body”, “ability to recruit new
members”, “possession of weapons” and “issuance of political statements96
ii) The intensity of the conflict;
In ICTY cases, “the length of the conflict”, “the existence of casualties”, “the displacement of
local population” and “the concerted nature of the hostile acts undertaken by the attackers”
demonstrates intensity.97
The following non-exhaustive factors help to determine whether an organization has a
sufficient degree of organisation98.
90
ICTY, Judgment, The Prosecutor v. Dusko Tadic, IT-94-1-T, para. 616; 112 ILR 1 at 203
91
ICTR, Appeals Chamber, Judgment, The Prosecutor v. Jean Paul Akayesu, ICTR-96-4-A, para. 432.
92
Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement (TC), 18 December 2008,
paras. 2238
93
Prosecutor v. Kunarac et al., IT-96-23 & IT-96-23/1-A, Appeals Judgment, 12 June 2002, para 149
94
Prosecutor v. Kunarac et al., IT-96-23 & IT-96-23/1-A, Appeals Judgment, 12 June 2002, para 150
95
The Prosecutor v Germain Katanga (2014), ICC-01/04-01/07, Trial Chamber II, [1185] (French
96
Milosevic Trial Chamber Decision, para.23, Limaj Trial Judgement, para.94-134.
97
Milosevic Rule 98bis Decision, para.28, Limaj Trial Judgement, para.134-167
98
The Prosecutor v. Thomas Lubanga Dyilo (2012), ICC, ICC-01/04-01/06, Trial Chamber I, (Judgement pursuant to
Article 74 of the Statute), [537]
a) The force’s internal hierarchy;
b) The command structure and rule;
c) The extent to which military equipment is available;
d) The force’s ability to plan military operations and put them into effect;
e) And the extent, seriousness, and intensity of any military involvement
Ans for uniform
The Prosecution submits that the 30 detained FSP members were unquestionably protected under
International Humanitarian Law as hors de combat at the time of their detention, irrespective of
their prior conduct. Fact 20 establishes that these individuals were captured and held in custody,
thereby rendering them incapable of further participation in hostilities. Under Common Article 3
of the Geneva Conventions, persons who are not actively participating in hostilities shall be
treated humanely without any adverse distinction. This principle is reaffirmed in Additional
Protocol I, Article 75, which provides fundamental guarantees prohibiting torture and cruel
treatment for all persons in the power of a party to the conflict, regardless of combatant status.
The ICTY has clarified in Furundžija that torture is absolutely prohibited against all detainees,
even those accused of serious violations, since protection flows from their inability to participate
in hostilities (ICTY, Furundžija, Trial Judgment, ¶162). Furthermore, the ICTY in Čelebići
emphasized that knowledge of detention status suffices to trigger obligations of humane
treatment (ICTY, Čelebići, Trial Judgment, ¶383–384). Therefore, even if the FSP members had
previously disguised themselves in civilian clothing (Fact 15), such conduct does not remove the
protection afforded under IHL once they were captured and placed under the control of State
agents. Consequently, Elements 3 and 4 of Article 8(2)(c)(i) are fully satisfied: the victims were
hors de combat by virtue of detention, and the perpetrators were aware of this factual status. Any
infliction of torture upon these detainees thus amounts to a grave breach and constitutes a war
crime under the Rome Statute.