Kunarac, Vukovic and Kovac - Judgement

IV. APPLICABLE LAW

A. Individual criminal responsibility and superior responsibility: Article 7(1) and Article 7(3) of the Statute

1. Individual criminal responsibility under Article 7(1) of the Statute

Article 7(1) of the Tribunal’s Statute provides that:

A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.
Because the Prosecution failed to identify the precise basis on which it wanted the Trial Chamber to convict the accused, the Trial Chamber has proceeded to make findings upon those parts of Article 7(1) which it considers to be relevant.¹⁰³³ The Trial Chamber has not discussed the law with regard to common purpose because it is not necessary do so in this case. Where it has found an accused not guilty of a particular charge, it has done so either because the witnesses could not recall the incident described in the Indictment or because it was not satisfied beyond a reasonable doubt that the accused had been reliably identified with respect to a specific incident.
Having reviewed the evidence, the Trial Chamber is of the view that the following heads of responsibility could apply to the acts charged in the Indictment: “committing ” as a form of perpetration and “aiding and abetting”. Those heads of responsibility will be reviewed in turn.
(a) Perpetration by “committing” the crime
An individual can be said to have “committed” a crime when he or she physically perpetrates the relevant criminal act or engenders a culpable omission in violation of a rule of criminal law.¹⁰³⁴ There can be several perpetrators in relation to the same crime where the conduct of each one of them fulfills the requisite elements of the definition of the substantive offence.
(b) Aiding and abetting
As opposed to the “commission” of a crime, aiding and abetting is a form of accessory liability. The contribution of an aider and abettor may take the form of practical assistance, encouragement or moral support which has a substantial effect on the perpetration of the crime.¹⁰³⁵ The act of assistance need not have caused the act of the principal.¹⁰³⁶ It may consist of an act or an omission and take place before, during or after the commission of the crime.¹⁰³⁷
The mens rea of aiding and abetting consists of the knowledge that the acts performed by the aider and abettor assist in the commission of a specific crime by the principal.¹⁰³⁸ The aider and abettor need not share the mens rea of the principal but he must know of the essential elements of the crime (including the perpetrator’s mens rea ) and take the conscious decision to act in the knowledge that he thereby supports the commission of the crime.¹⁰³⁹
Presence alone at the scene of the crime is not conclusive of aiding and abetting unless it is shown to have a significant legitimising or encouraging effect on the principal.¹⁰⁴⁰

2. Command responsibility under Article 7(3) of the Statute
Article 7(3) of the Tribunal’s Statute provides that:

The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
This Trial Chamber concurs with the Judgement in the Delalic case in respect of the constitutive elements of individual criminal responsibility under Article 7(3) of the Statute.¹⁰⁴¹ The following three conditions must be met before a commander can be held responsible for the acts of his or her subordinates:
(i) the existence of a superior-subordinate relationship;
(ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and
(iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.
Because of the findings of the Trial Chamber, it need only deal with the first of those elements. A superior-subordinate relationship must exist for the recognition of this kind of responsibility. However, such a relationship cannot be determined by reference to formal status alone.¹⁰⁴² Accordingly, formal designation as a commander is not necessary for establishing command responsibility, as such responsibility may be recognised by virtue of a person’s de facto, as well as de jure, position as a commander.¹⁰⁴³ What must be established is that the superior had effective control over subordinates .¹⁰⁴⁴ That means that he must have had the material ability to exercise his powers to prevent and punish the commission of the subordinates’ offences.¹⁰⁴⁵
The relationship between the commander and his subordinates need not have been formalized; a tacit or implicit understanding between them as to their positioning vis-à-vis one another is sufficient. The giving of orders or the exercise of powers generally attached to a military command are strong indications that an individual is indeed a commander. But these are not the sole relevant factors.
Depending on the circumstances, a commander with superior responsibility under Article 7(3) may be a colonel commanding a brigade, a corporal commanding a platoon or even a rankless individual commanding a small group of men. The Commentary to the two Additional Protocols of 1977 to the Geneva Conventions of 1949 states that :¹⁰⁴⁶

As there is no part of the army which is not subordinated to a military commander at whatever level, this [command] responsibility applies from the highest to the lowest level of the hierarchy, from the Commander-in-Chief down to the common soldier who takes over as head of the platoon.

This conclusion is also supported by the legislation in force at the time in the relevant area, namely, the former SFRY and later the Republika Srpska.¹⁰⁴⁷
Both those permanently under an individual’s command and those who are so only temporarily or on an ad hoc basis can be regarded as being under the effective control of that particular individual.¹⁰⁴⁸ The temporary nature of a military unit is not, in itself, sufficient to exclude a relationship of subordination between the members of a unit and its commander. To be held liable for the acts of men who operated under him on an ad hoc or temporary basis, it must be shown that, at the time when the acts charged in the Indictment were committed, these persons were under the effective control of that particular individual.¹⁰⁴⁹

B. Crimes under Article 3 of the Statute: common elements

1. Background
The three accused are charged with certain offences under Article 3 of the Statute (“Article 3”),¹⁰⁵⁰ namely outrages upon personal dignity,¹⁰⁵¹ rape¹⁰⁵² and torture.¹⁰⁵³ In relation to the torture charges under Article 3, the Prosecutor, in the Indictments , expressly charged torture on the basis of common Article 3 of the four Geneva Conventions of 1949 (“common Article 3”).¹⁰⁵⁴ The outrages upon personal dignity charges under Article 3 are submitted by the Prosecutor to be based on common Article 3.¹⁰⁵⁵ The Prosecutor also submitted that the basis for the rape charges under Article 3 lies in both treaty and customary international law, including common Article 3.¹⁰⁵⁶ The Trial Chamber must ascertain what the general requirements are for both the application of common Article 3 and the specific offences charged under common Article 3 in the present case.

2. The law
(a) Scope of the law
On its face, Article 3 is based on the 1907 Hague Convention and the Regulations annexed to that Convention.¹⁰⁵⁷ However, the Appeals Chamber in the Tadic case, in the Jurisdiction Decision , interpreted Article 3 to encompass other violations of international humanitarian law as well:

[I]t can be held that Article 3 is a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5 [of the Statute of the Tribunal], 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] and other customary rules on internal conflicts ; (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 [...].¹⁰⁵⁸

In the view of the Appeals Chamber, Article 3 therefore “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.”¹⁰⁵⁹
(b) General requirements for the application of Article 3
The Appeals Chamber in the Jurisdiction Decision identified two preliminary requirements for the application of certain Articles of the Statute, including Article 3.¹⁰⁶⁰ That Chamber held, first , that for there to be a violation of Article 3, there must be an armed conflict .¹⁰⁶¹ An “armed conflict” was defined to “[exist] whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”¹⁰⁶² The Appeals Chamber held that Article 3 applies to both internal and international armed conflicts.¹⁰⁶³ The second preliminary requirement is that of a close nexus between the alleged offence and the armed conflict.¹⁰⁶⁴ The Appeals Chamber deemed the “required relationship” to be satisfied where the alleged crimes were “closely related to the hostilities”.¹⁰⁶⁵
The Appeals Chamber in the Jurisdiction Decision further identified four requirements specific to Article 3:¹⁰⁶⁶

(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.¹⁰⁶⁷
It is apparent from these requirements that the general requirements for the application of Article 3 will differ, depending on the specific basis of the relevant charges brought under Article 3. For example, a specific charge based on treaty law would not have the same requirements as customary law relevant to violations of common Article 3, Hague law or violations of the Geneva Conventions other than common Article 3 and the grave breaches provisions. Such a charge would necessitate that two additional requirements be met, namely, that the agreements (i) were unquestionably binding on the parties at the time of the alleged offence and (ii) are not in conflict with or derogate from peremptory norms of international law.¹⁰⁶⁸
(c) General requirements for the application of Article 3 based on common Article 3
As explained above, the Prosecutor has based the Article 3 charges of torture and outrages upon personal dignity on common Article 3, with the rape charges based in part on common Article 3. Common Article 3 of the Geneva Conventions provides in relevant part that:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention , or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth , or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above -mentioned persons: (a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) Taking of hostages; (c) Outrages upon personal dignity, in particular humiliating and degrading treatment; (d) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples. (2) The wounded and the sick shall be collected and cared for. [...].
It is well established in the jurisprudence of the Tribunal that common Article 3 as set out in the Geneva Conventions has acquired the status of customary international law.¹⁰⁶⁹ As the application of common Article 3 would be the same under treaty law as it is under customary international law, and as there are no binding agreements between the relevant parties which purport to vary common Article 3 for the purposes of this case, the Chamber considers it sufficient to focus on the general requirements for the application of common Article 3 under customary international law. The Chamber further considers that it is unnecessary to discuss any additional requirements for the application of rape charges based on treaty law, since common Article 3 alone is sufficient in principle to form the basis of these charges under Article 3, as is observed below.¹⁰⁷⁰
In summary, the general requirements for both the application of common Article 3 and the specific offences charged under common Article 3 are as follows:
(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.
(v) There must be a close nexus between the violations and the armed conflict.
(vi) The violations must be committed against persons taking no active part in the hostilities.¹⁰⁷¹
It would appear to the Trial Chamber that common Article 3 may also require some relationship to exist between a perpetrator and a party to the conflict. Since, in the present case, the three accused fought on behalf of one of the parties to the conflict, the Trial Chamber does not need to determine whether such a relationship is required, and if so, what the required relationship should be.¹⁰⁷²
The Trial Chamber is satisfied that common Article 3 and the specific offences charged on that basis comply with the first four general requirements set out above . In particular, with respect to the second general requirement, the Appeals Chamber in the Jurisdiction Decision held that common Article 3 is part of customary international law.¹⁰⁷³ As to the third general requirement, it is not clear from the Appeals Chamber’s Jurisdiction Decision in the Tadic case whether all violations of common Article 3 would be serious . It stated that “customary international law imposes criminal liability for serious violations of common Article 3 [...]”.¹⁰⁷⁴ However, there can be no doubt whatsoever that rape, torture and outrages upon personal dignity, as charged in the present case, are serious offences. As to the fourth general requirement, the Appeals Chamber in the Jurisdiction Decision in the Tadic case held that “customary international law imposes criminal liability for serious violations of common Article 3 [...]”.¹⁰⁷⁵ In particular, rape, torture and outrages upon personal dignity, no doubt constituting serious violations of common Article 3, entail criminal responsibility under customary international law.
The Trial Chamber considers whether the last three requirements have been met later in this judgement when the evidence is assessed.

C. Crimes under Article 5 of the Statute: common elements
Article 5 of the Tribunal’s Statute provides a list of offences which, if committed in the context of an armed conflict and as part of “an attack directed against any civilian population”, will amount to crimes against humanity. The expression “an attack directed against any civilian population” is commonly regarded as encompassing the following five sub-elements:
(i) There must be an attack.¹⁰⁷⁶
(ii) The acts of the perpetrator must be part of the attack.¹⁰⁷⁷
(iii) The attack must be “directed against any civilian population”.¹⁰⁷⁸
(iv) The attack must be “widespread or systematic”.¹⁰⁷⁹
(v) The perpetrator must know of the wider context in which his acts occur and know that his acts are part of the attack.¹⁰⁸⁰
In addition, the Statute provides that the crime must have been “committed in armed conflict” in order for the Tribunal to have jurisdiction under Article 5.¹⁰⁸¹

1. Existence of an armed conflict
An armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.¹⁰⁸²
The existence of an armed conflict with respect to crimes against humanity goes beyond the stipulations of customary international law. It has been interpreted by the Appeals Chamber as a general pre-requisite – peculiar to the Tribunal’s Statute – which supposes the existence of an armed conflict at the time and place relevant to the Indictment.¹⁰⁸³ The requirement that there exists an armed conflict does not necessitate any substantive relationship between the acts of the accused and the armed conflict whereby the accused should have intended to participate in the armed conflict.¹⁰⁸⁴ The Appeals Chamber has held that a nexus between the acts of the accused and the armed conflict is not required. The armed conflict requirement is satisfied by proof that there was an armed conflict at the relevant time and place.¹⁰⁸⁵
Once the existence of an armed conflict has been established, international humanitarian law, including the law on crimes against humanity, continues to apply beyond the cessation of hostilities.¹⁰⁸⁶

2. Existence of an attack and the requirement that the acts be part of the attack
An “attack” can be described as a course of conduct involving the commission of acts of violence. The Trial Chamber in the Tadic case stated that:¹⁰⁸⁷

The very nature of the criminal acts in respect of which competence is conferred upon the International Tribunal by Article 5, that they be “directed against any civilian population”, ensures that what is to be alleged will not be one particular act but, instead, a course of conduct.
The term “attack” in the context of a crime against humanity carries a slightly different meaning than in the laws of war.¹⁰⁸⁸ In the context of a crime against humanity, “attack” is not limited to the conduct of hostilities. It may also encompass situations of mistreatment of persons taking no active part in hostilities, such as someone in detention. However, both terms are based on a similar assumption, namely that war should be a matter between armed forces or armed groups and that the civilian population cannot be a legitimate target .
The underlying offence does not need to constitute the attack but only to form a part of the attack or, as it was put by the Appeals Chamber, to “comprise[s] part of a pattern of widespread and systematic crimes directed against a civilian population .”¹⁰⁸⁹ As was stated in the Mrksic proceedings:¹⁰⁹⁰

Crimes against humanity […] must be widespread or demonstrate a systematic character . However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity . As such, an individual committing a crime against a single victim or a limited number of victims might be recognised as guilty of a crime against humanity if his acts were part of the specific context [of an attack against a civilian population].
There must exist a nexus between the acts of the accused and the attack, which consists of:
(i) the commission of an act which, by its nature or consequences, is objectively part of the attack; coupled with
(ii) knowledge on the part of the accused that there is an attack on the civilian population and that his act is part of the attack.¹⁰⁹¹
It is sufficient to show that the act took place in the context of an accumulation of acts of violence which, individually, may vary greatly in nature and gravity.
Finally, the Trial Chamber notes that, although the attack must be part of the armed conflict, it can also outlast it.¹⁰⁹²

3. The attack must be “directed against any civilian population”
The expression “directed against” specifies that in the context of a crime against humanity the civilian population is the primary object of the attack.
The desire to exclude isolated or random acts from the scope of crimes against humanity led to the inclusion of the requirement that the acts be directed against a civilian “population”.¹⁰⁹³ In the words of the Trial Chamber in the Tadic case, the expression “directed against any civilian population” ensures that generally, the attack will not consist of one particular act but of a course of conduct.¹⁰⁹⁴
The protection of Article 5 extends to “any” civilian population including, if a state takes part in the attack, that state’s population.¹⁰⁹⁵ It is therefore unnecessary to demonstrate that the victims are linked to any particular side of the conflict.¹⁰⁹⁶
The expression “population” does not mean that the entire population of the geographical entity in which the attack is taking place (a state, a municipality or another circumscribed area) must be subject to the attack.¹⁰⁹⁷
The “civilian population” comprises, as suggested by the Commentary to the two Additional Protocols of 1977 to the Geneva Conventions of 1949, all persons who are civilians as opposed to members of the armed forces and other legitimate combatants.¹⁰⁹⁸ The targeted population must be of a predominantly civilian nature.¹⁰⁹⁹ However, the presence of certain non-civilians in its midst does not change the character of the population.¹¹⁰⁰
Individually, a person shall be considered to be a civilian for as long as there is a doubt as to his or her status.¹¹⁰¹ As a group, the civilian population shall never be attacked as such.¹¹⁰² Additionally, customary international law obliges parties to the conflict to distinguish at all times between the civilian population and combatants, and obliges them not to attack a military objective if the attack is likely to cause civilian casualties or damage which would be excessive in relation to the military advantage anticipated .¹¹⁰³
The attack must be either “widespread” or “systematic”, thereby excluding isolated and random acts.¹¹⁰⁴
The adjective “widespread” connotes the large-scale nature of the attack and the number of its victims.¹¹⁰⁵ The Commentary of the International Law Commission in its Draft Code of Crimes against Peace and Security of Mankind describes this as follows:¹¹⁰⁶

Inhumane acts [must] be committed on a large scale meaning that the acts are directed against a multiplicity of victims. This requirement excludes an isolated inhumane act committed by a perpetrator acting on his own initiative and directed against a single victim.
The adjective “systematic” signifies the organised nature of the acts of violence and the improbability of their random occurrence.¹¹⁰⁷ Patterns of crimes – that is the non-accidental repetition of similar criminal conduct on a regular basis – are a common expression of such systematic occurrence.
The widespread or systematic nature of the attack is essentially a relative notion. The Trial Chamber must first identify the population which is the object of the attack and, in light of the means, methods, resources and result of the attack upon this population, ascertain whether the attack was indeed widespread or systematic .
Only the attack, not the individual acts of the accused, must be “widespread or systematic”. A single act could therefore be regarded as a crime against humanity if it takes place in the relevant context:¹¹⁰⁸

For example, the act of denouncing a Jewish neighbour to the Nazi authorities – if committed against a background of widespread persecution – has been regarded as amounting to a crime against humanity. An isolated act, however, - i. e. an atrocity which did not occur within such a context – cannot.
The Trial Chamber notes that there has been some difference of approach in the jurisprudence of the ICTY and ICTR, and in that of other courts, as well as in the history of the drafting of international instruments, as to whether a policy element is required under existing customary law.¹¹⁰⁹ The Trial Chamber does not have to decide that point because even if there is such a requirement, it has been fulfilled in this case.

4. The mental element: the perpetrator knows of the broader criminal context in which his acts occur
The Appeals Chamber in the Tadic case made it clear that the motives of the accused for taking part in the attack are irrelevant and that a crime against humanity may be committed for purely personal reasons.¹¹¹⁰
In addition to the intent to commit the underlying offence, the perpetrator needs to know that there is an attack on the civilian population and that his acts comprise part of the attack,¹¹¹¹ or at least to take the risk that his act is part of the attack.¹¹¹² This, however, does not entail knowledge of the details of the attack.
Finally, as the Trial Chamber pointed out above, Article 5 of the Statute protects civilians as opposed to members of the armed forces and other legitimate combatants ,¹¹¹³ but the Prosecution does not need to prove that the accused chose his victims for their civilian status. However , and as a minimum, the perpetrator must have known or considered the possibility that the victim of his crime was a civilian. The Trial Chamber stresses that, in case of doubt as to whether a person is a civilian, that person shall be considered to be civilian. The Prosecution must show that the perpetrator could not reasonably have believed that the victim was a member of the armed forces.

D. Rape
Rape has been charged against the three accused as a violation of the laws or customs of war under Article 3 and as a crime against humanity under Article 5 of the Statute. The Statute refers explicitly to rape as a crime against humanity within the Tribunal’s jurisdiction in Article 5(g). The jurisdiction to prosecute rape as an outrage against personal dignity, in violation of the laws or customs of war pursuant to Article 3 of the Statute, including upon the basis of common Article 3 to the 1949 Geneva Conventions, is also clearly established.¹¹¹⁴ The elements common to each of those Articles are set out above.
The specific elements of the crime of rape, which are neither set out in the Statute nor in international humanitarian law or human rights instruments, were the subject of consideration by the Trial Chamber in the Furundžija case.¹¹¹⁵ There the Trial Chamber noted that in the International Criminal Tribunal for Rwanda judgement in the Akayesu proceedings the Trial Chamber had defined rape as “a physical invasion of a sexual nature, committed under circumstances which are coercive”.¹¹¹⁶ It then reviewed the various sources of international law and found that it was not possible to discern the elements of the crime of rape from international treaty or customary law, nor from the “general principles of international criminal law or [...] general principles of international law”. It concluded that “to arrive at an accurate definition of rape based on the criminal law principle of specificity (“Bestimmtheitsgrundsatz ”, also referred to by the maxim “nullem crimen sine lege stricta”), it is necessary to look for principles of criminal law common to the major legal systems of the world. These principles may be derived, with all due caution, from national laws”.¹¹¹⁷ The Trial Chamber found that, based on its review of the national legislation of a number of states , the actus reus of the crime of rape is:

(i) 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) of the mouth of the victim by the penis of the perpetrator;

(ii) by coercion or force or threat of force against the victim or a third person .¹¹¹⁸
This Trial Chamber agrees that these elements, if proved, constitute the actus reus of the crime of rape in international law. However, in the circumstances of the present case the Trial Chamber considers that it is necessary to clarify its understanding of the element in paragraph (ii) of the Furundžija definition . The Trial Chamber considers that the Furundžija definition, although appropriate to the circumstances of that case, is in one respect more narrowly stated than is required by international law. In stating that the relevant act of sexual penetration will constitute rape only if accompanied by coercion or force or threat of force against the victim or a third person, the Furundžija definition does not refer to other factors which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim,¹¹¹⁹ which, as foreshadowed in the hearing¹¹²⁰ and as discussed below, is in the opinion of this Trial Chamber the accurate scope of this aspect of the definition in international law.
As observed in the Furundžija case, the identification of the relevant international law on the nature of the circumstances in which the defined acts of sexual penetration will constitute rape is assisted, in the absence of customary or conventional international law on the subject, by reference to the general principles of law common to the major national legal systems of the world.¹¹²¹ The value of these sources is that they may disclose “general concepts and legal institutions” which, if common to a broad spectrum of national legal systems, disclose an international approach to a legal question which may be considered as an appropriate indicator of the international law on the subject. In considering these national legal systems the Trial Chamber does not conduct a survey of the major legal systems of the world in order to identify a specific legal provision which is adopted by a majority of legal systems but to consider, from an examination of national systems generally, whether it is possible to identify certain basic principles, or in the words of the Furundžija judgement, “common denominators”,¹¹²² in those legal systems which embody the principles which must be adopted in the international context.
As noted above, the Trial Chamber in the Furundžija case considered a range of national legal systems for assistance in relation to the elements of rape. In the view of the present Trial Chamber, the legal systems there surveyed , looked at as a whole, indicated that the basic underlying principle common to them was that sexual penetration will constitute rape if it is not truly voluntary or consensual on the part of the victim. The matters identified in the Furundžija definition – force, threat of force or coercion – are certainly the relevant considerations in many legal systems but the full range of provisions referred to in that judgement suggest that the true common denominator which unifies the various systems may be a wider or more basic principle of penalising violations of sexual autonomy. The relevance not only of force, threat of force, and coercion but also of absence of consent or voluntary participation is suggested in the Furundžija judgement itself where it is observed that:

[...] all jurisdictions surveyed by the Trial Chamber require an element of force, coercion, threat, or acting without the consent of the victim: force is given a broad interpretation and includes rendering the victim helpless.¹¹²³
A further consideration of the legal systems surveyed in the Furundžija judgement and of the relevant provisions of a number of other jurisdictions indicates that the interpretation suggested above, which focuses on serious violations of sexual autonomy, is correct.
In general, domestic statutes and judicial decisions which define the crime of rape specify the nature of the sexual acts which potentially constitute rape, and the circumstances which will render those sexual acts criminal. The relevant law in force in different jurisdictions at the time relevant to these proceedings identifies a large range of different factors which will classify the relevant sexual acts as the crime of rape. These factors for the most part can be considered as falling within three broad categories:
(i) the sexual activity is accompanied by force or threat of force to the victim or a third party;
(ii) the sexual activity is accompanied by force or a variety of other specified circumstances which made the victim particularly vulnerable or negated her ability to make an informed refusal; or
(iii) the sexual activity occurs without the consent of the victim.

1. Force or threat of force
The definition of rape in a number of jurisdictions requires that the sexual act occurs by force or is accompanied by force or threat of force. Typical provisions of this nature include the Penal Code of Bosnia and Herzegovina, which provided relevantly:

[…w]hoever coerces a female not his wife into sexual intercourse by force or threat of imminent attack upon her life or body or the life or body of a person close to her, shall be sentenced to a prison term of one to ten years.¹¹²⁴

In Germany, the Criminal Code in force at the relevant time provided:

Rape (1) Whoever compels a woman to have extramarital intercourse with him, or with a third person, by force or the threat of present danger to life or limb, shall be punished by not less than two years’ imprisonment.¹¹²⁵
The Criminal Code of Korea defines rape as sexual intercourse with a female “through violence or intimidation”.¹¹²⁶ Other jurisdictions with definitions of rape similarly requiring violence, force or a threat of force include China,¹¹²⁷ Norway,¹¹²⁸ Austria,¹¹²⁹ Spain¹¹³⁰ and Brazil.¹¹³¹
Certain jurisdictions require proof of force or threat of force (or equivalent concepts) and that the act was non-consensual or against the will of the victim.¹¹³² This includes some jurisdictions in the United States of America.¹¹³³

2. Specific circumstances which go to the vulnerability or deception of the victim
A number of jurisdictions provide that specified sexual acts will constitute rape not only where accompanied by force or threat of force but also in the presence of other specified circumstances. These circumstances include that the victim was put in a state of being unable to resist, was particularly vulnerable or incapable of resisting because of physical or mental incapacity, or was induced into the act by surprise or misrepresentation.
The penal codes of a number of continental European jurisdictions contain provisions of this type. The Swiss Penal Code provides that anyone who compels a woman to have sexual intercourse “notably by threat or by violence, by putting psychological pressure on the victim or rendering her unable to resist” commits rape.¹¹³⁴ The provision on rape in the Portuguese Penal Code contains a similar reference to the perpetrator making it impossible for the victim to resist¹¹³⁵. The relevant provision of the French Penal Code defines rape as “(a(ny act of sexual penetration of whatever nature, committed through violence, coercion, threat or surprise [...]”.¹¹³⁶ The Italian Penal Code contains the crime of compelling a person to have sexual intercourse by violence or threats but applies the same punishment to anyone who has intercourse with any person who, inter alia, was “mentally ill, or unable to resist by reason of a condition of physical or mental inferiority, even though this was independent of the act of the offender” or “was deceived because the offender impersonated another person”.¹¹³⁷
In Denmark, section 216 of the Criminal Code provides that rape is committed by any person who “enforces sexual intercourse by violence or under threat of violence ”, but specifies that “the placing of a person in such a position that that person is unable to resist the act shall be equivalent to violence.”¹¹³⁸ The Penal Codes of Sweden¹¹³⁹ and Finland¹¹⁴⁰, contain similar provisions . In Estonia, rape is defined in the Criminal Code as sexual intercourse “by violence or threat of violence or by taking advantage of the helpless situation of the victim ”.¹¹⁴¹
The Japanese Criminal Code provides that “[a] person who by violence or threat , obtains carnal knowledge of a female person of thirteen years or over shall be guilty of rape [...]”.¹¹⁴² Article 178 of the Code however, effectively widens the conduct which will be considered to amount to rape by providing that where a person “by taking advantage of loss of reason or incapacity to resist or by causing such loss of reason or incapacity to resist, commits an indecent act or obtains carnal knowledge of a woman”¹¹⁴³ is to be punished in the same way as provided for in the article relating to rape .
The Criminal Code of Argentina defines rape as sexual penetration where there is force or intimidation, where the victim is “of unsound mind or effect, or when due to illness or whatever other reason, they are incapable of resisting ” or where the victim is under twelve.¹¹⁴⁴ Similar provisions apply in Costa Rica,¹¹⁴⁵ Uruguay¹¹⁴⁶ and the Philippines.¹¹⁴⁷
Some States of the United States of America provide in their criminal codes that sexual intercourse constitutes rape if committed in the presence of various factors as an alternative to force, such as that the victim is drugged or unconscious , has been fraudulently induced to believe the perpetrator is the victim’s spouse , or is incapable of giving legal consent because of a mental disorder or developmental or physical disability.¹¹⁴⁸
The emphasis of such provisions is that the victim, because of an incapacity of an enduring or qualitative nature (eg mental or physical illness, or the age of minority) or of a temporary or circumstantial nature (eg being subjected to psychological pressure or otherwise in a state of inability to resist) was unable to refuse to be subjected to the sexual acts. The key effect of factors such as surprise, fraud or misrepresentation is that the victim was subjected to the act without the opportunity for an informed or reasoned refusal. The common denominator underlying these different circumstances is that they have the effect that the victim’s will was overcome or that her ability freely to refuse the sexual acts was temporarily or more permanently negated.

3. Absence of consent or voluntary participation
In most common law systems, it is the absence of the victim’s free and genuine consent to sexual penetration which is the defining characteristic of rape.¹¹⁴⁹ The English common law defined rape as sexual intercourse with a woman without her consent.¹¹⁵⁰ In 1976 rape was also defined by statute. Under the provision in force at the time relevant to these proceedings, a man committed rape where “(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it [...]”.¹¹⁵¹ Force or threat or fear of force need not be proven; however where apparent consent is induced by such factors it is not real consent.¹¹⁵² Similar definitions apply in other Commonwealth countries including Canada,¹¹⁵³ New Zealand¹¹⁵⁴ and Australia.¹¹⁵⁵ In these jurisdictions it is also clear that the consent must be genuine and voluntarily given. In Canada, consent is defined in the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”.¹¹⁵⁶ The Code also explicitly identifies circumstances in which no consent will be considered to have been obtained, including that “the agreement is expressed by the words or conduct of a person other than the complainant” or that the accused “induces the complainant to engage in the activity by abusing a position of trust, power or authority ”.¹¹⁵⁷ In Victoria, Australia, consent is defined as “free agreement” and the statute defines circumstances in which free agreement is not given, including where a person submits because of the use of force, fear of force or harm, or because the person is in unlawful detention ; where the person is asleep or unconscious or is mistaken as to, or is incapable of understanding, the nature of the act.¹¹⁵⁸
The Indian Penal Code provides that sexual intercourse with a woman will constitute rape in any of six defined circumstances. These include that it occurs “(a(gainst her will”; “without her consent”, or with her consent if such consent is negated by various circumstances including that it was “obtained by putting her or any person in whom she is interested in fear of death or being hurt”.¹¹⁵⁹ The provision on rape in the Bangladesh Penal Code is materially almost identical .¹¹⁶⁰
Rape is defined in South Africa at common law as a man intentionally having unlawful sexual intercourse with a woman without her consent.¹¹⁶¹ The Zambian Penal Code provides that rape is committed by any person

[...] who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representation as to the nature of the act, or, in the case of a married woman, by impersonating her husband.¹¹⁶²
Certain non-common law jurisdictions also define rape in terms of non-consensual sexual intercourse. The Belgian Penal Code provides: “Any act of sexual penetration , whatever its nature, and by whatever means, committed on someone who does not consent to it, constitutes the crime of rape.” There is no consent in particular when the act has been imposed through violence, coercion or ruse, or was made possible by the infirmity or the mental or physical incapacity of the victim.¹¹⁶³

4. The basic principle underlying the crime of rape in national jurisdictions
An examination of the above provisions indicates that the factors referred to under the first two headings are matters which result in the will of the victim being overcome or in the victim’s submission to the act being non-voluntary. The basic principle which is truly common to these legal systems is that serious violations of sexual autonomy are to be penalised. Sexual autonomy is violated wherever the person subjected to the act has not freely agreed to it or is otherwise not a voluntary participant.
In practice, the absence of genuine and freely given consent or voluntary participation may be evidenced by the presence of the various factors specified in other jurisdictions – such as force, threats of force, or taking advantage of a person who is unable to resist. A clear demonstration that such factors negate true consent is found in those jurisdictions where absence of consent is an element of rape and consent is explicitly defined not to exist where factors such as use of force, the unconsciousness or inability to resist of the victim, or misrepresentation by the perpetrator.¹¹⁶⁴
Given that it is evident from the Furundžija case that the terms coercion , force, or threat of force were not to be interpreted narrowly and that coercion in particular would encompass most conduct which negates consent, this understanding of the international law on the subject does not differ substantially from the Furundžija definition.
In light of the above considerations, the Trial Chamber understands that the 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) of 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.

5. The effect of Rule 96: evidence in cases of sexual assault
The Prosecution submits that

[l]ack of consent is not an element of the offence of rape (or any other sexual assault) as defined by the law and rules of the Tribunal, and the existence of force , threat of force, or coercion vitiates consent as a defence.¹¹⁶⁵

It refers to Rule 96 of the Rules of Procedure and Evidence in support of its view that the relevance of consent is only as a defence in limited circumstances .
Rule 96 provides:

In cases of sexual assault:

(i) no corroboration of the victim’s testimony shall be required;

(ii) consent shall not be allowed as a defence if the victim

(a) has been subjected to or threatened with or has reason to fear violence, duress , detention or psychological oppression, or

(b) reasonably believed that if the victim did not submit, another might be so subjected , threatened or put in fear;

(iii) before evidence of the victim’s consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible;

(iv) prior sexual conduct of the victim shall not be admitted into evidence.
The reference in the Rule to consent as a “defence” is not entirely consistent with traditional legal understandings of the concept of consent in rape. Where consent is an aspect of the definition of rape in national jurisdictions, it is generally understood (as demonstrated by many of the provisions referred to above ) to be absence of consent which is an element of the crime. The use of the word “defence”, which in its technical sense carries an implication of the shifting of the burden of proof to the accused, is inconsistent with this understanding . The Trial Chamber does not understand the reference to consent as a “defence” in Rule 96 to have been used in this technical way. The reference in Rule 67(A)(ii)(a) to the “defence of alibi” is another example of the use of the word “defence ” in a non-technical sense. An alibi is not a defence in the sense that it must be proved by the defendant. A defendant who raises an alibi is merely denying that he was in a position to commit the crime with which he was charged, and by raising that issue, the defendant simply requires the Prosecution to eliminate the reasonable possibility that the alibi is true.
As emphasised by the Appeals Chamber, the Trial Chamber must interpret the Rules of Procedure and Evidence in the light of the relevant international law.¹¹⁶⁶ Consistently with its understanding of the definition of rape in international law , the Trial Chamber does not interpret the reference to consent as a “defence” as a reference to a defence in its technical sense. It understands the reference to consent as a “defence” in Rule 96 as an indication of the understanding of the judges who adopted the rule of those matters which would be considered to negate any apparent consent. It is consistent with the jurisprudence considered above and with a common sense understanding of the meaning of genuine consent that where the victim is “subjected to or threatened with or has reason to fear violence, duress , detention or psychological oppression” or “reasonably believed that if [he or she] did not submit, another might be so subjected, threatened or put in fear”, any apparent consent which might be expressed by the victim is not freely given and the second limb of the Trial Chamber’s definition would be satisfied. The factors referred to in Rule 96 are also obviously not the only factors which may negate consent. However, the reference to them in the Rule serves to reinforce the requirement that consent will be considered to be absent in those circumstances unless freely given.

E. Torture
Torture has been charged against the three accused as a violation of the laws or customs of war under Article 3 of the Statute and as a crime against humanity under Article 5 of the Statute. The elements common to each of those Articles are set out above.
Torture is prohibited under both conventional and customary international law and it is prohibited both in times of peace and during an armed conflict.¹¹⁶⁷ The prohibition can be said to constitute a norm of jus cogens.¹¹⁶⁸ However, relatively few attempts have been made at defining the offence of torture . This has been done in Article 1 of the 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Declaration on Torture”),¹¹⁶⁹ Article 1 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Convention”)¹¹⁷⁰ and Article 2 of the Inter-American Convention to Prevent and Punish Torture of 9 December 1985 (“Inter-American Torture Convention”).¹¹⁷¹ All three are, as is obvious, human rights instruments.
Because of the paucity of precedent in the field of international humanitarian law, the Tribunal has, on many occasions, had recourse to instruments and practices developed in the field of human rights law. Because of their resemblance, in terms of goals, values and terminology, such recourse is generally a welcome and needed assistance to determine the content of customary international law in the field of humanitarian law. With regard to certain of its aspects, international humanitarian law can be said to have fused with human rights law.
The Trial Chamber in Furundžija held that “[i]nternational law, while outlawing torture in armed conflict, does not provide a definition of the prohibition .”¹¹⁷² That Trial Chamber consequently turned to human rights law to determine the definition of torture under customary international law. The Trial Chamber, however, pointed out that it should “identify or spell out some specific elements that pertain to torture as considered from the specific viewpoint of international criminal law relating to armed conflicts.”¹¹⁷³
The Trial Chamber agrees with this approach. The absence of an express definition of torture under international humanitarian law does not mean that this body of law should be ignored altogether. The definition of an offence is largely a function of the environment in which it develops. Although it may not provide its own explicit definition of torture, international humanitarian law does provide some important definitional aspects of this offence.
In attempting to define an offence under international humanitarian law, the Trial Chamber must be mindful of the specificity of this body of law.¹¹⁷⁴ In particular, when referring to definitions which have been given in the context of human rights law, the Trial Chamber will have to consider two crucial structural differences between these two bodies of law:
(i) Firstly, the role and position of the state as an actor is completely different in both regimes. Human rights law is essentially born out of the abuses of the state over its citizens and out of the need to protect the latter from state-organised or state-sponsored violence. Humanitarian law aims at placing restraints on the conduct of warfare so as to diminish its effects on the victims of the hostilities .
In the human rights context, the state is the ultimate guarantor of the rights protected and has both duties and a responsibility for the observance of those rights. In the event that the state violates those rights or fails in its responsibility to protect the rights, it can be called to account and asked to take appropriate measures to put an end to the infringements.
In the field of international humanitarian law, and in particular in the context of international prosecutions, the role of the state is, when it comes to accountability , peripheral. Individual criminal responsibility for violation of international humanitarian law does not depend on the participation of thestate and, conversely , its participation in the commission of the offence is no defence to the perpetrator .¹¹⁷⁵ Moreover, international humanitarian law purports to apply equally to and expressly bind all parties to the armed conflict whereas, in contrast, human rights law generally applies to only one party, namely thestate involved, and its agents.
This distinction can be illustrated by two recent American decisions of the Court of Appeals for the Second Circuit rendered under the Alien Torts Claims Act. The Act gives jurisdiction to American district courts for any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States. In the first decision, In re Filártiga, the Court of Appeals of the Second Circuit held that “deliberate torture perpetrated under colour of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties”.¹¹⁷⁶ This decision was only concerned with the situation of an individual vis-à-vis a state, either his national state or a foreign state.¹¹⁷⁷ In a later decision in Kadic v Karadžic,¹¹⁷⁸ the same court made it clear that the body of law which it applied in the Filártiga case was customary international law of human rights and that, according to the Court of Appeals, in the human rights context torture is proscribed by international law only when committed by state officials or under the colour of the law.¹¹⁷⁹ The court added, however, that atrocities including torture are actionable under the Alien Tort Claims Act regardless of state participation to the extent that the criminal acts were committed in pursuit of genocide or war crimes.¹¹⁸⁰
(ii) Secondly, that part of international criminal law applied by the Tribunal is a penal law regime. It sets one party, the prosecutor, against another, the defendant . In the field of international human rights, the respondent is the state. Structurally , this has been expressed by the fact that human rights law establishes lists of protected rights whereas international criminal law establishes lists of offences .
The Trial Chamber is therefore wary not to embrace too quickly and too easily concepts and notions developed in a different legal context. The Trial Chamber is of the view that notions developed in the field of human rights can be transposed in international humanitarian law only if they take into consideration the specificities of the latter body of law. The Trial Chamber now turns more specifically to the definition of the crime of torture.
The Trial Chamber in the Delalic case, considered that the definition contained in the Torture Convention “reflects a consensus which the Trial Chamber considers to be representative of customary international law.”¹¹⁸¹ The Trial Chamber in the Furundžija case shared that view and held that there was general acceptance of the main elements contained in the definition set out in Article 1 of the Torture Convention. ¹¹⁸²
This Trial Chamber notes, however, that Article 1 of the Torture Convention makes it abundantly clear that its definition of torture is limited in scope and was meant to apply only “for the purposes of this Convention”.¹¹⁸³ In addition, paragraph 2 of Article 1 of the Torture Convention states that this Article is “without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.” Therefore, insofar as other international instruments or national laws give the individual broader protection, he or she shall be entitled to benefit from it. This, and the fact that the definition was meant to apply only in the context of the Convention are elements which should be kept in mind when considering the possibility that the definition of the Torture Convention produced an extra-conventional effect.
The 1975 Declaration on Torture contained a definition broadly similar to, but narrower than, the one contained in the Torture Convention.¹¹⁸⁴ The Declaration was non-binding but it certainly served as a basis for the definition eventually included in the Torture Convention. Article 2 of the Inter-American Torture Convention contains the following definition of torture:¹¹⁸⁵

For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish. […]
Article 3 of the Inter-American Torture Convention limits the applicability of this definition of torture in the context of the Convention to two broad categories of people. Article 3 provides:

The following shall be held guilty of the crime of torture: (a) A public servant or employee who acting in that capacity orders, instigates or induces the use of torture, or who directly commits it or who, being able to prevent it, fails to do so. (b) A person who at the instigation of a public servant or employee mentioned in subparagraph (a) orders, instigates or induces the use of torture, directly commits it or is an accomplice thereto.
This definition is broader than the one contained in the Torture Convention . Firstly, the definition of the Inter-American Convention does not specify a threshold level of pain or suffering which is necessary for ill treatment to constitute torture .¹¹⁸⁶ It actually removes any requirement of physical or mental suffering if the intent of the perpetrator is “to obliterate the personality of the victim or to diminish his physical or mental capacities”. Secondly, this definition does not contain an exhaustive list of purposes that can be pursued by the perpetrator but instead provides examples of such purposes and adds “or for any other purpose.”
Other international human rights instruments prohibit the act of torture without providing an express definition of the offence. Article 5 of the 1948 Universal Declaration of Human Rights provides that no one shall be subjected to torture or to cruel treatment. Article 30 of that Declaration in turn holds that “[n]othing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.”¹¹⁸⁷ This general statement is also valid with respect to the principle of freedom of torture expressed in Article 5.
Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention” or “Convention”) provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment . The European Court of Human Rights (“ECHR”) held that the concept of torture attaches a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.¹¹⁸⁸ The European Commission of Human Rights held that torture constitutes an aggravated and deliberate form of inhuman treatment which is directed at obtaining information or confessions , or at inflicting a punishment.¹¹⁸⁹ The three main elements of the definition of torture under the European Convention are thus the level of severity of the ill-treatment, the deliberate nature of the act and the specific purpose behind the act. The requirement that the state or one of its officials take part in the act is a general requirement of the Convention - not a definitional element of the act of torture - which applies to each and every prohibition contained in the Convention. Article 1 of the Convention, which provides that the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention, is clearly addressed to member states, not to individuals. The ECHR is not a criminal court which determines individual criminal responsibility, but an organ whose mandate is to determine state compliance with its obligations under the Convention.
The Trial Chamber notes, however, the ECHR’s jurisprudence which has held that Article 3 of the Convention may also apply in situations where organs or agents of the state are not involved in the violation of the rights protected under Article 3.¹¹⁹⁰ For example, in HLR v France, the Court held that

Owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 of the Convention (art. 3) may also apply where the danger emanates from persons or groups of persons who are not public officials .¹¹⁹¹
Article 7 of the 1966 International Covenant on Civil and Political Rights (“ICCPR”) provides that no one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment. The Human Rights Committee held that the protection offered by Article 7 of the ICCPR was not limited to acts committed by or at the instigation of public officials but that it also possessed horizontal effects, and that states should therefore protect individuals from interference by private parties. The Committee stated the following: “It is also the duty of public authorities to ensure protection by law against such treatment even when committed by persons acting outside or without any official authority”.¹¹⁹²
In a later Comment of 3 April 1992, the Human Rights Committee stated that

[i]t is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.¹¹⁹³
The Trial Chamber in Furundžija held that a conventional provision could have an extra-conventional effect to the extent that it codifies or contributes to developing or crystallising customary international law.¹¹⁹⁴ In view of the international instruments and jurisprudence reviewed above, the Trial Chamber is of the view that the definition of torture contained in the Torture Convention cannot be regarded as the definition of torture under customary international law which is binding regardless of the context in which it is applied. The definition of the Torture Convention was meant to apply at an inter-state level and was, for that reason, directed at the states’ obligations. The definition was also meant to apply only in the context of that Convention, and only to the extent that other international instruments or national laws did not give the individual a broader or better protection. The Trial Chamber, therefore, holds that the definition of torture contained in Article 1 of the Torture Convention can only serve, for present purposes, as an interpretational aid.
Three elements of the definition of torture contained in the Torture Convention are, however, uncontentious and are accepted as representing the status of customary international law on the subject:
(i) Torture consists of the infliction, by act or omission, of severe pain or suffering , whether physical or mental.¹¹⁹⁵
(ii) This act or omission must be intentional.¹¹⁹⁶
(iii) The act must be instrumental to another purpose, in the sense that the infliction of pain must be aimed at reaching a certain goal.¹¹⁹⁷
On the other hand, three elements remain contentious:
(i) The list of purposes the pursuit of which could be regarded as illegitimate and coming within the realm of the definition of torture.
(ii) The necessity, if any, for the act to be committed in connection with an armed conflict.
(iii) The requirement, if any, that the act be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
The Trial Chamber is satisfied that the following purposes have become part of customary international law: (a) obtaining information or a confession, (b) punishing , intimidating or coercing the victim or a third person, (c) discriminating, on any ground, against the victim or a third person. There are some doubts as to whether other purposes have come to be recognised under customary international law. The issue does not need to be resolved here, because the conduct of the accused is appropriately subsumable under the above-mentioned purposes.
There is no requirement under customary international law that the conduct must be solely perpetrated for one of the prohibited purposes. As was stated by the Trial Chamber in the Delalic case, the prohibited purpose must simply be part of the motivation behind the conduct and need not be the predominating or sole purpose.¹¹⁹⁸
Secondly, the nature of the relationship between the underlying offence – torture - and the armed conflict depends, under the Tribunal’s Statute, on the qualification of the offence, as a grave breache, a war crime or a crime against humanity.¹¹⁹⁹ If, for example, torture is charged as a violation of the laws or customs of war under Article 3 of the Statute, the Trial Chamber will have to be satisfied that the act was closely related to the hostilities.¹²⁰⁰ If, on the other hand, torture is charged as a crime against humanity under Article 5 of the Statute, the Trial Chamber will have to be convinced beyond reasonable doubt that there existed an armed conflict at the relevant time and place.
Thirdly, the Torture Convention requires that the pain or suffering be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. As was already mentioned, the Trial Chamber must consider each element of the definition “from the specific viewpoint of international criminal law relating to armed conflicts.”¹²⁰¹ In practice, this means that the Trial Chamber must identify those elements of the definition of torture under human rights law which are extraneous to international criminal law as well as those which are present in the latter body of law but possibly absent from the human rights regime.
The Trial Chamber draws a clear distinction between those provisions which are addressed to states and their agents and those provisions which are addressed to individuals. Violations of the former provisions result exclusively in the responsibility of the state to take the necessary steps to redress or make reparation for the negative consequences of the criminal actions of its agents. On the other hand, violations of the second set of provisions may provide for individual criminal responsibility , regardless of an individual’s official status. While human rights norms are almost exclusively of the first sort, humanitarian provisions can be of both or sometimes of mixed nature. This has been pointed out by the Trial Chamber in the Furundžija case:¹²⁰²

Under current international humanitarian law, in addition to individual criminal liability, State responsibility may ensue as a result of State officials engaging in torture or failing to prevent torture or to prevent torturers. If carried out as an extensive practice of State officials, torture amounts to a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, thus constituting a particularly wrongful act generating State responsibility.
Several humanitarian law provisions fall within the first category of legal norms, expressly providing for the possibility of state responsibility for the acts of its agents: thus, Article 75 (“Fundamental Guarantees”) of Additional Protocol I provides that acts of violence to the life, health, or physical or mental well -being of persons such as murder, torture, corporal punishment and mutilation, outrages upon personal dignity, the taking of hostages, collective punishments and threats to commit any of those acts when committed by civilian or by military agents of the state could engage the state’s responsibility.¹²⁰³ The requirement that the acts be committed by an agent of the state applies equally to any of the offences provided under paragraph 2 of Article 75 and in particular , but no differently, to the crime of torture.
This provision should be contrasted with Article 4 (“Fundamental Guarantees ”) of Additional Protocol II. The latter provision provides for a list of offences broadly similar to that contained in Article 75 of Additional Protocol I but does not contain any reference to agents of the state. The offences provided for in this Article can, therefore, be committed by any individual, regardless of his official status, although, if the perpetrator is an agent of the state he could additionally engage the responsibility of the state. The Commentary to Additional Protocol II dealing specifically with the offences mentioned in Article 4(2)(a) namely, violence to the life, health, or physical or mental well being of persons in particular murder and cruel treatment such as torture, states:¹²⁰⁴
The most widespread form of torture is practised by public officials for the purpose of obtaining confessions, but torture is not only condemned as a judicial institution ; the act of torture is reprehensible in itself, regardless of its perpetrator , and cannot be justified in any circumstances.¹²⁰⁵
The Trial Chamber also notes Article 12 (“Protection and Care”) of 1949 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, which provides that members of the armed forces and other defined persons who are wounded or sick shall be respected and protected in all circumstances .¹²⁰⁶ In particular, paragraph 2 of this Article provides that the wounded or sick shall not be tortured. The Commentary to this paragraph adds the following:

The obligation [of respect and protection mentioned in paragraph 1] applies to all combatants in an army, whoever they may be, and also to non-combatants. It applies also to civilians, in regard to whom Article 18 specifically states: ‘The civilian population shall respect these wounded and sick, and in particular abstain from offering them violence.’ A clear statement to that effect was essential in view of the special character which modern warfare is liable to assume (dispersion of combatants, isolation of units, mobility of fronts, etc) and which may lead to closer and more frequent contacts between military and civilians. It was necessary, therefore , and more necessary today than in the past, that the principle of the inviolability of wounded combatants should be brought home, not only to the fighting forces , but also to the general public. That principle is one of the fine flowers of civilization, and should be implanted firmly in public morals and in the public conscience.¹²⁰⁷
A violation of one of the relevant articles of the Statute will engage the perpetrator’s individual criminal responsibility. In this context, the participation of the state becomes secondary and, generally, peripheral. With or without the involvement of the state, the crime committed remains of the same nature and bears the same consequences. The involvement of the state in a criminal enterprise generally results in the availability of extensive resources to carry out the criminal activities in question and therefore greater risk for the potential victims. It may also trigger the application of a different set of rules, in the event that its involvement renders the armed conflict international. However, the involvement of the state does not modify or limit the guilt or responsibility of the individual who carried out the crimes in question. This principle was clearly stated in the Flick judgement :¹²⁰⁸

But the International Military Tribunal was dealing with officials and agencies of the State, and it is argued that individuals holding no public offices and not representing the State, do not, and should not, come within the class of persons criminally responsible for a breach of international law. It is asserted that international law is a matter wholly outside the work, interest and knowledge of private individuals . The distinction is unsound. International law, as such, binds every citizen just as does ordinary municipal law. Acts adjudged criminal when done by an officer of the Government are criminal also when done by a private individual. The guilt differs only in magnitude, not in quality. The offender in either case is charged with personal wrong and punishment falls on the offender in propria persona . The application of international law to individuals is no novelty. […] There is no justification for a limitation of responsibility to public officials.
Likewise, the doctrine of “act of State”, by which an individual would be shielded from criminal responsibility for an act he or she committed in the name of or as an agent of a state, is no defence under international criminal law. This has been the case since the Second World War, if not before.¹²⁰⁹ Articles 1 and 7 of the Statute make it clear that the identity and official status of the perpetrator is irrelevant insofar as it relates to accountability. Neither can obedience to orders be relied upon as a defence playing a mitigating role only at the sentencing stage. In short, there is no privilege under international criminal law which would shield state representatives or agents from the reach of individual criminal responsibility. On the contrary, acting in an official capacity could constitute an aggravating circumstance when it comes to sentencing, because the official illegitimately used and abused a power which was conferred upon him or her for legitimate purposes.
The Trial Chamber also points out that those conventions, in particular the human rights conventions, consider torture per se while the Tribunal’s Statute criminalises it as a form of war crime, crime against humanity or grave breach. The characteristic trait of the offence in this context is to be found in the nature of the act committed rather than in the status of the person who committed it.¹²¹⁰
The Trial Chamber concludes that the definition of torture under international humanitarian law does not comprise the same elements as the definition of torture generally applied under human rights law. In particular, the Trial Chamber is of the view that the presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law.
On the basis of what has been said, the Trial Chamber holds that, in the field of international humanitarian law, the elements of the offence of torture, under customary international law are as follows:
(i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental.¹²¹¹
(ii) The act or omission must be intentional.¹²¹²
(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.¹²¹³

F. Outrages upon personal dignity
As has been observed above,¹²¹⁴ the Prosecutor charged outrages upon personal dignity under Article 3 of the Statute on the basis of common Article 3 of the 1949 Geneva Conventions. It is clearly established in the Tribunal’s jurisprudence that Article 3 of the Statute permits the prosecution of offences falling under common Article 3 of the Geneva Conventions of 1949.¹²¹⁵ The specific offence of outrages upon personal dignity is found in common Article 3(1)(c)¹²¹⁶ which prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment”. This specific offence of outrages upon personal dignity has been recognised at both Appeals Chamber and Trial Chamber level to constitute an offence which may be prosecuted pursuant to Article 3 of the Statute.¹²¹⁷
The precise elements of the offence of outrages upon personal dignity have not been the subject of a definitive statement by the Appeals Chamber. In the Aleksovski case,¹²¹⁸ in which the accused was charged with and convicted of outrages upon personal dignity under Article 3 of the Statute, the definition of the offence is discussed in the Trial Chamber’s judgement. On appeal, the Appeals Chamber was not called upon to define or consider in general terms the Trial Chamber’s definition of the elements of the offence. The specific issues before the Appeals Chamber in that case were the appellant’s contentions that the acts upon which the charges were based were not sufficiently serious and that to prove this crime it must be established that the perpetrator had a discriminatory intent. In dealing with these issues the Appeals Chamber did make a number of observations which are relevant for present purposes and are referred to below.
The Trial Chamber in the Aleksovski case discussed the elements of outrages upon personal dignity but did not seek to define the offence exhaustively. It observed first that the purpose of paragraph (1) of common Article 3 is to uphold the inherent human dignity of the individual.¹²¹⁹ It noted that the general proscription in common Article 3 is against inhuman treatment and that “(a(n outrage against 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”.¹²²⁰ It observed, in relation to the actus reus of the offence, that:

An outrage against 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.¹²²¹
Insofar as this definition provides that an outrage upon personal dignity is an act which “cause[s] serious humiliation or degradation to the victim”, the Trial Chamber agrees with it. However, the Trial Chamber would not agree with any indication from the passage above that this humiliation or degradation must cause “lasting suffering”¹²²² to the victim. 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”. In the view of the Trial Chamber, 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.
As noted by the Trial and Appeals Chambers in the Aleksovski case, the prohibition of the offence of outrages upon personal dignity is a category of the broader proscription of inhuman treatment in common Article 3.¹²²³ Inhuman treatment had been described in the Trial Chamber’s judgement in the Delalic proceedings as constituted by:

[...] 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.¹²²⁴
This reinforces the key aspect of the definition of the actus reus of the offence of outrages upon personal dignity, as set out by the Trial Chamber in the Aleksovski case – that the relevant act or omission must cause serious suffering or humiliation. The absence of any suggestion that the suffering caused by the inhuman treatment must have a lasting quality confirms the Trial Chamber’s conclusion that there is no such requirement in relation to the offence of outrages upon personal dignity.¹²²⁵
The Trial Chamber in the Aleksovski case also considered the question of how the existence of humiliation or degradation could be measured and concluded that a purely subjective assessment would be unfair to the accused because the accused’s culpability would be made to depend not on the gravity of the act but on the sensitivity of the victim. Therefore it was concluded that “[...] an objective component to the actus reus is apposite: the humiliation to the victim must be so intense that the reasonable person would be outraged”.¹²²⁶
On appeal, in relation to the appellant’s contention that the relevant conduct was not of adequate gravity to constitute outrages upon personal dignity, the Appeals Chamber found that the conduct of the appellant upon which the charges were founded – aiding and abetting in “excessive and cruel interrogation, physical and psychological harm, forced labour (digging trenches), in hazardous circumstances, being used as human shields”¹²²⁷ – was of a sufficient level of gravity to support convictions for outrages against personal dignity. While not commenting on the definition of the offence, the Appeals Chamber stated :

The victims were not merely inconvenienced or made uncomfortable – what they had to endure, under the prevailing circumstances, were physical and psychological abuse and outrages that any human being would have experienced as such.¹²²⁸
Again, this requirement of an objective assessment of the relevant act is reinforced by reference to the definition of inhuman treatment in the judgement of the Trial Chamber in the Delalic case, quoted above.¹²²⁹
Taking into account the above considerations, this Trial Chamber understands an outrage upon personal dignity to be any act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity.
The Trial Chamber’s observations in the Aleksovski case on the mental element of the offence of outrages upon personal dignity do not provide an unambiguous statement of what it considered the relevant mens rea to be.¹²³⁰ The judgement first notes that “the Commentary indicates that the accused must have committed the act with the intent to humiliate or ridicule the victim”, an apparent reference to the ICRC Commentary to the relevant provision of one of the Additional Protocols, as the ICRC Commentaries to the Geneva Conventions do not make reference to the mens rea for outrages against personal dignity. The judgement then observes, in relation to the offence of inhuman treatment under the Additional Protocols :

The ICRC, in proposing the mental element for the offence of “inhuman treatment” accepted a lower degree of mens rea, requiring the perpetrator to act wilfully . Recklessness cannot suffice; 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.¹²³¹
Because the distinction in the judgement between references to the views of the ICRC and expression of the Trial Chamber’s own understanding of the mens rea requirement is not always easy to identify, the precise scope of the relevant mens rea for the crime of outrages upon personal dignity is left somewhat open.¹²³² It is apparent from the Appeals Chamber’s judgement that it did not regard the mental element of the offence as involving any specific intent to humiliate, ridicule or degrade the victims .¹²³³ It noted particularly that it did not interpret the ICRC Commentaries’ statement that the term “outrages upon personal dignity” refers to acts “aimed at humiliating and ridiculing” the victim ¹²³⁴ as suggesting a requirement of a specific intent to humiliate, ridicule or degrade, but as seeking “simply to describe the conduct which the provision seeks to prevent”.¹²³⁵
The Appeals Chamber did not comment on the alternative indication in the Trial Chamber’s judgement that, as well as deliberately committing the relevant act or omission, the perpetrator must have “been able to perceive” that the humiliation or degradation of the victim was a foreseeable and reasonable consequence of his actions.¹²³⁶ In its discussion of the facts of the case, the Appeals Chamber stated that it was “satisfied that the Trial Chamber found that the Appellant deliberately participated in or accepted the acts which gave rise to his liability under Articles 7(1) and 7(3) of the Statute for outrages upon personal dignity and was therefore guilty of those offences”,¹²³⁷ which leaves open the question of whether there is any requirement of knowledge of the foreseeable consequences.
In the discussion of the offence of inhuman treatment in the judgement of the Trial Chamber in the Delalic case, reference to the mental element is limited to the requirement that the relevant act or omission be intentional:

[...] inhuman treatment is an intentional act or omission, that is an act which , judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.¹²³⁸

No reference is made to a requirement of specific intent or of knowledge of the effect on the victim of the intentional act.
The Trial Chamber has considered the jurisprudence referred to above in relation to the question of whether there must be, in addition to the intention to commit the particular act or omission, some knowledge of the consequences of that action . The Trial Chamber is of the view that the requirement of an intent to commit the specific act or omission which gives rise to criminal liability in this context involves a requirement that the perpetrator be aware of the objective character of the relevant act or omission. It is a necessary aspect of a true intention to undertake a particular action that there is an awareness of the nature of that act . As the relevant act or omission for an outrage upon personal dignity is an act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity, an accused must know that his act or omission is of that character – ie, that it could cause serious humiliation , degradation or affront to human dignity. This is not the same as requiring that the accused knew of the actual consequences of the act.
In practice, the question of knowledge of the nature of the act is unlikely to be of great significance. When the objective threshold of the offence is met – ie the acts or omissions would be generally considered to be seriously humiliating , degrading or otherwise a serious attack on human dignity – it would be rare that a perpetrator would not also know that the acts could have that effect.
In the view of the Trial Chamber, the offence of outrages upon personal dignity requires
(i) that the accused intentionally committed or participated in an act or 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.

G. Enslavement

1. Background
The Indictment charges both Dragoljub Kunarac and Radomir Kovac with enslavement as a crime against humanity under Article 5(c) of the Statute.¹²³⁹ The common elements of crimes against humanity under this Article are set out above . What falls to be determined here is what constitutes “enslavement” as a crime against humanity; in particular, the customary international law content of this offence at the time relevant to the Indictment.
What follows is not intended to be an exhaustive pronouncement on the law of enslavement. The enslavement charges in the present case relate solely to the treatment of women and children and certain allegations of forced or compulsory labour or service.
The Prosecutor made submissions on enslavement in her briefs¹²⁴⁰ and during closing arguments.¹²⁴¹ The Defence made submissions on enslavement in their final trial brief¹²⁴² and during closing arguments.¹²⁴³

2. The law
The Statute does not define “enslavement”. It is therefore necessary to look to various sources that deal with the same or similar subject matter, including international humanitarian law and human rights law.
Although the international legal struggle against slavery – dating back more than a century and a half - was one of the most important forerunners to the international protection of human rights, it is only in 1926 that the Slavery Convention provided the first basic definition. That definition - “Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”¹²⁴⁴ – proved to be abiding. The Slavery Convention also prohibits the slave trade:

The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport of slaves.¹²⁴⁵

With respect to forced or compulsory labour, the state parties to that Convention furthermore recognised

that recourse to compulsory or forced labour may have grave consequences and undertake [...] to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery.¹²⁴⁶
The customary international law status of these substantive provisions is evinced by the almost universal acceptance of that Convention and the central role that the definition of slavery in particular has come to play in subsequent international law developments in this field. The 1956 Supplementary Slavery Convention¹²⁴⁷ augments the Slavery Convention and defines slavery and the slave trade¹²⁴⁸ in essentially the same terms as used in the Slavery Convention. In particular, “slavery” and “slave” are defined as follows:

[...] ‘slavery’ means, as defined in the Slavery Convention of 1926, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, and ‘slave’ means a person in such condition or status .¹²⁴⁹
Just before the Second World War, the 1930 Forced and Compulsory Labour Convention ¹²⁵⁰ was drafted under the auspices of the International Labour Organisation (“ILO”). That Convention defines forced or compulsory labour as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.¹²⁵¹ Excluded from the definition is, inter alia, any work or service exacted in the event of war that endangers the existence or the well-being of the whole or part of the population ,¹²⁵² and minor communal services that can be considered as normal civic obligations.¹²⁵³ The 1957 Convention Concerning the Abolition of Forced Labour (“Forced Labour Convention ”)¹²⁵⁴ was also drafted under the auspices of the ILO and was intended to complement the Slavery Convention, the Supplementary Slavery Convention and the Forced and Compulsory Labour Convention. It provides that

Each member of the International Labour Organization which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour (a) As a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system; [...] (e) As a means of racial, social, national or religious discrimination.¹²⁵⁵
The end of the Second World War saw the first codification of crimes against humanity in the Charter of the International Military Tribunal of 1945 (“Nuremberg Charter”),¹²⁵⁶ which provides that the Nuremberg Tribunal

[...] shall have the power to try and punish persons who [...] committed any of the following crimes: The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) Crimes against Peace [...]: (b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, [...] deportation to slave labor [...]: (c) Crimes against Humanity: namely, murder, extermination , enslavement, deportation and other inhumane acts committed against any civilian population [...].¹²⁵⁷

The Nuremberg Charter did not, however, provide a definition of enslavement.
The Nuremberg indictment¹²⁵⁸ included deportation to slave labour and enslavement charges.¹²⁵⁹ The Nuremberg judgement,¹²⁶⁰ however , made no attempt to define these concepts or to draw a systematic distinction between deportation to slave labour and enslavement.¹²⁶¹ In the section of that judgement dealing with the legal findings in relation to each individual defendant, reference was made to the involvement in one way or another in the slave labour program of thirteen defendants.¹²⁶² The Nuremberg Tribunal, however, did not indicate whether that conduct went to the convictions entered for war crimes or for crimes against humanity, except in the case of the defendant Von Schirach, who was only convicted of a crime against humanity in relation to his involvement in forced labour.¹²⁶³ From Von Schirach’s conviction, at least, it is clear that that Tribunal interpreted slave or forced labour to constitute not only a war crime, but also enslavement as a crime against humanity. Other specific aspects of the Nuremberg judgement deserve mention here. With respect to the so-called voluntary recruiting of forced labourers, the Tribunal, in relation to the defendant Sauckel, appointed by Hitler as Plenipotentiary General for the Utilisation of Labour, said that he “[...] described so-called “voluntary” recruiting by “a whole batch of male and female agents just as was done in the olden times for shanghaiing. [...]”.¹²⁶⁴ The defendant Speer was convicted for his participation in the slave labour program , even though he “insisted that the slave labourers be given adequate food and working conditions so that they could work efficiently”.¹²⁶⁵ Last, the Nuremberg Tribunal referred to “female domestic workers” in the context of the slave labour program, specifically, the transfer of 500 000 female domestic workers from the eastern occupied territories to Germany over whom the defendants Sauckel, Himmler and Bormann had control.¹²⁶⁶ According to the transcripts of the proceedings before the Nuremberg Tribunal, these domestic workers were procured to relieve German housewives and the wives of German farmers.¹²⁶⁷ They had no claim to free time, although, as a reward for good work, they could be given leave to stay outside the assigned home for three hours once a week.¹²⁶⁸
The Allied Control Council Law No 10 of 1945 (“CCL 10”)¹²⁶⁹ also codified crimes against humanity, including enslavement, in terms similar to the Nuremberg Charter.¹²⁷⁰ Some CCL 10 judgements, notwithstanding the general failure to distinguish between war crimes and crimes against humanity and enslavement and related concepts, indicate which factors were considered in determining whether enslavement was committed.
The accused in the Milch case before the US Military Tribunal was charged with slave labour and deportation to slave labour of German nationals and nationals of other countries as a crime against humanity.¹²⁷¹ The Tribunal held that:

Does anyone believe that the vast hordes of Slavic Jews who laboured in Germany’s war industries were accorded the rights of contracting parties? They were slaves , nothing less - kidnapped, regimented, herded under armed guards, and worked until they died from disease, hunger, exhaustion. [...]. As to non-Jewish foreign labour , with few exceptions they were deprived of the basic civil rights of free men; they were deprived of the right to move freely or to choose their place of residence ; to live in a household with their families; to rear and educate their children ; to marry; to visit public places of their own choosing; to negotiate, either individually or through representatives of their own choice, the conditions of their own employment ; to organize in trade unions; to exercise free speech or other free expression of opinion; to gather in peaceful assembly; and they were frequently deprived of their right to worship according to their own conscience. All these are the sign -marks of slavery, not free employment under contract.¹²⁷²

The US Military Tribunal in the Pohl case, in considering war crimes and crimes against humanity charges, succinctly held as follows:

Slavery may exist even without torture. Slaves may be well fed, well clothed, and comfortably housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful restraint. We might eliminate all proof of ill-treatment, overlook the starvation, beatings, and other barbarous acts, but the admitted fact of slavery - compulsory uncompensated labour - would still remain . There is no such thing as benevolent slavery. Involuntary servitude, even if tempered by humane treatment, is still slavery.¹²⁷³
The Charter of the International Military Tribunal for the Far East of 1946 (“Tokyo Charter”),¹²⁷⁴ in terms similar to the Nuremberg Charter, provided that Tribunal with jurisdiction over

[...] (a) Crimes against Peace [...]; (b) Conventional War Crimes: Namely, violations of the laws or customs of war; (c) Crimes against Humanity: Namely, murder , extermination, enslavement, deportation and other inhumane acts [...].¹²⁷⁵
The Tokyo indictment,¹²⁷⁶ in the part of the indictment dealing with conventional war crimes and crimes against humanity,¹²⁷⁷ included references to war labour, forced labour and enslavement, without distinguishing between war crimes and crimes against humanity.¹²⁷⁸ The Tokyo judgement¹²⁷⁹ also did not systematically distinguish between deportation to slave labour, slave labour and enslavement, nor did it attempt to define them in any detail.¹²⁸⁰ With respect to the use of labour by civilians from occupied territories, the following was stated:

Having decided upon a policy of employing prisoners of war and civilian internees on work directly contributing to the prosecution of the war, and having established a system to carry that policy into execution, the Japanese went further and supplemented this source of manpower by recruiting labourers from the native population of the occupied territories. This recruiting of labourers was accomplished by false promises , and by force. After being recruited, the labourers were transported to and confined in camps. Little or no distinction appears to have been made between these conscripted labourers on the one hand and prisoners of war and civilian internees on the other hand. They were all regarded as slave labourers to be used to the limit of their endurance. For this reason, we have included these conscripted labourers in the term “civilian internees” whenever that term is used in this chapter.¹²⁸¹
Some of the provisions of the 1977 Additional Protocol II¹²⁸² and the 1949 Geneva Convention IV¹²⁸³ are of assistance for current purposes. They give some indication as to who may be required to perform what kinds of work under what conditions in armed conflicts . Some indication is also given as to minimum protections to be extended to civilians , in particular women and children, to whom special protection is consistently granted .
Of particular importance in this regard is Article 4 (“Fundamental guarantees ”) of Additional Protocol II, which Protocol “develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949”.¹²⁸⁴ Article 4 provides that in non-international conflicts:

(1) All persons who do not take a direct part [...] in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. [...] (2) Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever: (a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; [...] (e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault ; (f) slavery and the slave trade in all their forms; [...] (h) threats to commit any or the foregoing acts. [...].¹²⁸⁵

The reference to slavery and the slave trade is based on Article 1 of the Slavery Convention of 1926. In a commentary to the Additional Protocol, it is said that :

This sub-paragraph reiterates the tenor of Article 8, paragraph 1, of the [ICCPR]. It is one of the “hard-core” fundamental guarantees, now reaffirmed in the Protocol . The prohibition of slavery is now universally accepted; therefore the adoption of the sub-paragraph did not give rise to any discussion. However, the question may arise what is meant by the phrase “slavery and the slave trade in all their forms”. It was taken from the Slavery Convention, the first universal instrument on this subject, adopted in 1926 (Article 1). A Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, was adopted in 1956, and supplements and reinforces the prohibition; certain institutions and practices comparable to slavery, such as servitude for the payment of debts, serfdom, the purchase of wives and the exploitation of child labour are prohibited. [...]¹²⁸⁶

Other provisions of Additional Protocol II that are of general relevance for present purposes are those relating to children,¹²⁸⁷ persons whose liberty has been restricted and who are made to work,¹²⁸⁸ and the prohibition of the forced movement of civilians. The last mentioned prohibition is aimed against the displacement of the civilian population, something which “shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand.”¹²⁸⁹
Geneva Convention IV similarly underlines the basic protections to be extended to civilians. Article 3, common to all four Geneva Conventions, which relates to non-international conflicts and finds application through Article 3 of the ICTY Statute, provides that persons taking no active part in the hostilities shall in all circumstances be treated humanely. Other noteworthy provisions of Geneva Convention IV, despite applying only to international armed conflicts, include Article 24 (special consideration for children),¹²⁹⁰ Article 27 (humane treatment of protected persons),¹²⁹¹ Article 31 (protection from coercion),¹²⁹² Article 32 (prohibition of any measure causing physical suffering or extermination ),¹²⁹³ Article 42 (assigned residence and internment),¹²⁹⁴ Article 51 (prohibition of work and requisitioning of labour) and various Articles relating to the treatment of internees.¹²⁹⁵ Article 95, one of the Articles relating to the treatment of internees, sets out the conditions under which a detaining power may require internees to work. It is worth quoting in some detail:

The Detaining Power shall not employ internees as workers, unless they so desire . Employment which, if undertaken under compulsion by a protected person not in internment, would involve a breach of Articles 40 or 51 of the present Convention , and employment on work which is of a degrading or humiliating character are in any case prohibited. [...] These provisions constitute no obstacle to the right of the Detaining Power to employ [...] internees for administrative and maintenance work in places of internment and to detail such persons for work in the kitchens or for other domestic tasks [...].¹²⁹⁶ No internee may, however, be required to perform tasks for which he is, in the opinion of a medical officer, physically unsuited. The Detaining Power shall take entire responsibility for all working conditions, for medical attention, for the payment of wages, and for ensuring that all employed internees receive compensation for occupational accidents and diseases. [...].

Article 40 concerns the treatment of aliens in the territory of a party to the conflict .¹²⁹⁷ It provides as follows:

Protected persons may be compelled to work only to the same extent as nationals of the Party to the conflict in whose territory they are. If protected persons are of enemy nationality, they may only be compelled to do work which is normally necessary to ensure the feeding, sheltering, clothing, transport and health of human beings and which is not directly related to the conduct of military operations. In the cases mentioned in the two preceding paragraphs, protected persons compelled to work shall have the benefit of the same working conditions and of the same safeguards as national workers in particular as regards wages, hours of labour, clothing and equipment [...].

Article 51 concerns the treatment of protected persons in occupied territories.¹²⁹⁸ In the relevant part it provides that an occupying power

may not compel protected persons to work unless they are over eighteen years of age, and then only on work which is necessary either for the needs of the army of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country. [...] Workers shall be paid a fair wage and the work shall be proportionate to their physical and intellectual capacities. [...]
Article 27 of Geneva Convention IV, for example, provides for special consideration for women, in that women shall be “especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. [...]”¹²⁹⁹ The quoted provision

[...] denounces certain practices which occurred, for example, during the last World War, when innumerable women of all ages, and even children, were subjected to outrages of the worst kind: rape committed in occupied territories, brutal treatment of every sort, mutilations etc. In areas where troops were stationed, or through which they passed, thousands of women were made to enter brothels against their will or were contaminated with venereal diseases, the incidence of which often increased on an alarming scale.¹³⁰⁰
The Trial Chamber notes that in the present case no assertion has been made that the victims relevant to the enslavement counts were interned or residentially assigned; such assertions, if made, could not have been valid.¹³⁰¹
Various international human rights treaties refer to slavery or related concepts without explicitly providing any definition. These include the Universal Declaration of Human Rights of 1948 (“UDHR”),¹³⁰² the International Covenant on Civil and Political Rights of 1966 (“ICCPR”),¹³⁰³ the European Convention on Human Rights and Fundamental Freedoms of 1950 (“European Convention”),¹³⁰⁴ the American Convention on Human Rights of 1969 (“American Convention”)¹³⁰⁵ and the African Charter on Human and Peoples’ Rights of 1981 (“African Charter”).¹³⁰⁶
The European Commission and Court of Human Rights (“European Commission” and “ECHR” respectively) have not yet had to decide a case even remotely similar to the present. Some of their remarks and findings on the interpretation of the relevant provisions of the European Convention are, however, of some assistance for current purposes. In the Van Droogenbroeck v Belgium case,¹³⁰⁷ the European Commission observed obiter dictum, that the distinction between servitude and forced labour is not explicitly stated in the European Convention and that

It may be considered, however, that in addition to the obligation to perform certain services for others, the notion of servitude embraces the obligation for the “serf ” to live on another person’s property and the impossibility of altering his condition .¹³⁰⁸

The European Commission was chiefly guided in this interpretation by Article 1 of the Supplementary Slavery Convention.¹³⁰⁹
The ECHR, in the case of Van der Mussele v Belgium¹³¹⁰ had to consider a complaint by a lawyer who had been required to defend a person without receiving remuneration or being reimbursed for his expenses. The applicant claimed, inter alia, that these circumstances amounted to forced or compulsory labour contrary to Article 4(2) of the European Convention. The Court noted that “forced or compulsory labour” is not defined in the European Convention and that no guidance on this point is to be found in various Council of Europe documents relating to the preparatory work of the European Convention.¹³¹¹ The drafters of that Convention, like the drafters of Article 8 of the ICCPR, based their work to a large extent on the 1930 Forced and Compulsory Labour Convention .¹³¹² The Court expressly took account of the 1930 Forced and Compulsory Labour Convention and the 1957 Forced Labour Convention in interpreting “forced or compulsory labour” as used in the European Convention.¹³¹³ It found that the word “labour” is not limited to manual labour.¹³¹⁴ Concerning the adjective “forced”, the Court stated that “it brings to mind the idea of physical or mental constraint [...].”¹³¹⁵ As to “compulsory”, there has to be work ““exacted [...] under the menace of any penalty ” and also performed against the will of the person concerned, that is work for which he “has not offered himself voluntarily””.¹³¹⁶ The Court also referred to the jurisprudence of the European Commission, which has consistently considered the elements of forced or compulsory labour to be that the work or service is performed against the will of the person concerned and that the requirement that the work or service is performed is unjust or oppressive or the work or service itself involves unavoidable hardship.¹³¹⁷ The Court expressly distanced itself from the second element identified by the Commission ,¹³¹⁸ and adopted a different approach ,¹³¹⁹ eventually holding that there was no compulsory labour for the purposes of Article 4(2) of the European Convention .¹³²⁰
The Trial Chamber also notes the 1979 Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”), which includes the obligation that states parties suppress “all forms of traffic in women and exploitation of prostitution of women.”¹³²¹ The 1989 Convention on the Rights of the Child also specifically forbids trafficking in children.¹³²² Unlike the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, the afore-mentioned treaties do not require a link between trafficking and prostitution.¹³²³
The UN International Law Commission (“ILC”) has consistently included enslavement as a crime against humanity in its draft codes of crimes against the peace and security of mankind.¹³²⁴ The 1991 Draft Code of Crimes Against the Peace and Security of Mankind included “establishing or maintaining over persons a status of slavery, servitude or forced labour” as a violation of systematic or mass violations of human rights, a category which corresponds to crimes against humanity.¹³²⁵ The commentary to that draft provision states that this part of the draft is based on some of the conventions that define those crimes, namely, the Slavery Convention , the Supplementary Slavery Convention, the ICCPR and the two ILO Conventions.¹³²⁶ The 1996 Draft Code of Crimes Against the Peace and Security of Mankind, includes enslavement as a crime against humanity.¹³²⁷ “Enslavement” was defined to mean

establishing or maintaining over persons a status of slavery, servitude or forced labour contrary to well-established and widely-recognized standards of international law, such as: the 1926 Slavery Convention (slavery); the 1956 [Supplementary Slavery Convention] (slavery and servitude); the [ICCPR] (slavery and servitude); and the 1957 [Forced Labour Convention] (forced labour).¹³²⁸

The Draft Code also included “rape, enforced prostitution and other forms of sexual abuse” as a crime against humanity.¹³²⁹ As a body consisting of experts in international law, including government legal advisers, elected by the UN General Assembly, the work of the ILC, at least in relation to this issue, may be considered as evidence of customary international law.¹³³⁰
With respect to the geographical area relevant to the current case, the 1976 Criminal Code of the Socialist Federal Republic of Yugoslavia (“SFRY Criminal Code ”) criminalised war crimes against the civilian population, which included the ordering or commissioning of forcible prostitution, rape and forcible labour.¹³³¹ It furthermore criminalised establishing “slavery relations” and transporting people in “slavery relation”, as follows:

(1) Whoever brings another person in slavery relation, or engages in the trade with persons who are in slavery relation, or who incites another person to sell his freedom or freedom of persons he supports, shall be punished by imprisonment for a term exceeding one year but not exceeding 10 years. (2) Whoever transports persons in slavery relation from one country to another, shall be punished by imprisonment for a term exceeding six months but not exceeding five years.¹³³²

3. Conclusion
In summary, the Trial Chamber finds that, at the time relevant to the indictment , enslavement as a crime against humanity in customary international law consisted of the exercise of any or all of the powers attaching to the right of ownership over a person.
Thus, the Trial Chamber finds that the actus reus of the violation is the exercise of any or all of the powers attaching to the right of ownership over a person. The mens rea of the violation consists in the intentional exercise of such powers.
This definition definition may be broader than the traditional and sometimes apparently distinct definitions of either slavery, the slave trade and servitude or forced or compulsory labour found in other areas of international law. This is evidenced in particular by the various cases from the Second World War referred to above, which have included forced or compulsory labour under enslavement as a crime against humanity. The work of the ILC, discussed above, further supports this conclusion.¹³³³
Under this definition, indications of enslavement include elements of control and ownership; the restriction or control of an individual’s autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator . The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion ; the fear of violence, deception or false promises; the abuse of power; the victim’s position of vulnerability; detention or captivity, psychological oppression or socio -economic conditions. Further indications of enslavement include exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving physical hardship; sex; prostitution ; and human trafficking. With respect to forced or compulsory labour or service , international law, including some of the provisions of Geneva Convention IV and the Additional Protocols, make clear that not all labour or service by protected persons, including civilians, in armed conflicts, is prohibited – strict conditions are, however, set for such labour or service. The “acquisition” or “disposal” of someone for monetary or other compensation, is not a requirement for enslavement . Doing so, however, is a prime example of the exercise of the right of ownership over someone. The duration of the suspected exercise of powers attaching to the right of ownership is another factor that may be considered when determining whether someone was enslaved; however, its importance in any given case will depend on the existence of other indications of enslavement. Detaining or keeping someone in captivity, without more, would, depending on the circumstances of a case, usually not constitute enslavement.
The Trial Chamber is therefore in general agreement with the factors put forward by the Prosecutor, to be taken into consideration in determining whether enslavement was committed. These are the control of someone’s movement,¹³³⁴ control of physical environment,¹³³⁵ psychological control,¹³³⁶ measures taken to prevent or deter escape,¹³³⁷ force, threat of force or coercion,¹³³⁸ duration,¹³³⁹ assertion of exclusivity ,¹³⁴⁰ subjection to cruel treatment and abuse,¹³⁴¹ control of sexuality and¹³⁴² forced labour.¹³⁴³ The Prosecutor also submitted that the mere ability to buy, sell, trade or inherit a person or his or her labours or services could be a relevant factor.¹³⁴⁴ The Trial Chamber considers that the mere ability to do so is insufficient , such actions actually occurring could be a relevant factor.

H. Cumulative convictions

1. Background
The issue of cumulative convictions centres on the question whether an accused may be convicted of more than one offence for the same conduct.
With respect to the present case, in several instances the accused are charged with more than one offence under a single Article, like torture and rape under Article 5 of the Statute, based on the same conduct. The accused are also charged with offences under two Articles, like torture under Article 5 and torture and/or rape under Article 3 of the Statute, again based on the same conduct.
The Prosecutor submits that an accused may be indicted, convicted and sentenced on cumulative charges emanating from the same conduct under the following circumstances : where the offences have different elements; where the provisions creating the offences protect different interests; or where it is necessary to record a conviction for both offences in order to fully describe what the accused did.¹³⁴⁵ The Defence submits that an accused cannot be indicted and convicted for more than one offence for the same act.¹³⁴⁶
Although the Appeals Chamber in the Delalic case rendered its judgement only very recently,¹³⁴⁷ this Trial Chamber applies the approach of the majority in that judgement to the issue of cumulative convictions, without the assistance of the parties, in the present case.

2. The law
(a) Cumulative charges
The Appeals Chamber in the Delalic case held that cumulative charging is to be allowed.¹³⁴⁸ The primary reason is that it is impossible for the Prosecutor to determine with certainty, prior to the presentation of all the evidence, which of the charges brought against an accused will be proved. A Trial Chamber is in a better position, after the parties’ presentation of the evidence, to evaluate which charges should be retained.¹³⁴⁹
(b) Cumulative convictions

(i) The approach laid down by the Appeals Chamber in the Delalic case
The Appeals Chamber in the Delalic case held that cumulative convictions are permissible only in certain circumstances.¹³⁵⁰ It is worth quoting the relevant section of that judgement in full:

412. [...] [t]his Appeals Chamber holds that reasons of fairness to the accused and the consideration that only distinct crimes may justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not required by the other.

413. Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction. This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision.¹³⁵¹
Accordingly, once all the evidence has been assessed, before deciding which convictions, if any, to enter against an accused, a Trial Chamber first has to determine whether an accused is charged with more than one statutory offence based upon the same conduct. Secondly, if there is evidence to establish both offences, but the underlying conduct is the same, the Trial Chamber has to determine whether each relevant statutory provision has a materially distinct element not contained in the other. This involves a comparison of the elements of the relevant statutory provisions – the facts of a specific case play no role in this determination. Thirdly , if the relevant provisions do not each have a materially distinct element, the Trial Chamber should select the more specific provision.
As to the impact that cumulative convictions based on the same conduct will have on sentencing, the Appeals Chamber in the Delalic case held that it must be ensured that the final or aggregate sentence reflects the totality of the criminal conduct and overall culpability of the offender.¹³⁵² The prejudice that an offender will or may suffer because of cumulative convictions based on the same conduct has to be taken into account when imposing the sentence .

(ii) The application of the identified approach to the present case
The Appeals Chamber in the Delalic case dealt with the matter of cumulative convictions in the context of Articles 2 and 3 of the Statute. This Trial Chamber considers the approach identified in that judgement must also be applied in the present case, which relates to Articles 3 and 5 of the Statute. It would be inappropriate to apply different approaches to different cumulations of charges.
The Prosecutor charges Dragoljub Kunarac for torture under Articles 5 and 3 ¹³⁵³ and for rape under Articles 5 and 3, based upon the same criminal conduct.¹³⁵⁴ She also charges Dragoljub Kunarac and Radomir Kovac with enslavement under Article 5 and outrages upon personal dignity under Article 3 based upon the same conduct .¹³⁵⁵ Based upon the same criminal conduct, Zoran Vukovic has been indicted under Articles 5 and 3 on counts of torture and counts of rape.¹³⁵⁶
The Prosecutor does not submit that convictions for rape and enslavement under Article 5 based on the same conduct should be entered against the accused. The alleged repeated violations of the sexual integrity of the victims, by various means , is one of the main factors to be considered when determining whether enslavement was committed.¹³⁵⁷ She states that

The main characteristic of the enslavement exercised by the accused Kunarac and Kovac was the sexual exploitation of the girls and women. All the controls exerted served that purpose. Repeated violations of the victim’s sexual integrity, through rape and other sexual violence, were some of the most obvious exercises of the powers of ownership by the accused.¹³⁵⁸

Furthermore, with regards to rape and outrages upon personal dignity, the Prosecutor charges rape and outrages upon personal dignity separately in this case, although , in her view, rape clearly could have and has been classified as an outrage upon personal dignity.¹³⁵⁹ In view of these submissions, the cumulative convictions problem in relation to rape and enslavement and rape and outrages upon personal dignity does not arise, because these charges are not based on the same conduct.
Having regard to the Indictments and the Prosecutor’s submissions, what is to be determined here, therefore, are the following questions. First, would convictions for an Article 3 offence and an Article 5 offence, based on the same conduct, be permissible? Secondly, would convictions for rape and torture under one Article based on the same conduct be permissible?

a. Convictions under Articles 3 and 5 of the Statute
Applying the approach adopted by the Appeals Chamber in the Delalic case, convictions for both an Article 3 offence and an Article 5 offence based on the same conduct would be permissible. That is so because each Article has at least one materially distinct element that does not appear in the other. A materially distinct element in Article 3 vis-à-vis Article 5 is the nexus requirement , which holds that there must be a close link between the acts of an accused and the armed conflict.¹³⁶⁰ A materially distinct element in Article 5 vis-à-vis Article 3 is the requirement of a widespread or systematic attack directed against a civilian population. In other words, regardless of the enumerated or specific offences charged under Articles 3 and 5, convictions under both Articles based on the same conduct will be permissible . With reference to the present case, convictions based on the same conduct would be permissible: convictions for rape under both Articles; convictions for torture under both Articles; convictions for enslavement under Article 5 and outrages upon personal dignity under Article 3; convictions for rape under Article 5 and torture under Article 3; convictions for rape under Article 3 and torture under Article 5; and convictions for enslavement under Article 5 and rape under Article 3.

b. Torture and rape under Articles 3 or 5 of the Statute
Applying the approach adopted by the Appeals Chamber in the Delalic case, convictions for rape and torture under either Article 3 or Article 5 based on the same conduct would be permissible. Comparing the elements of rape and torture under either Article 3 or Article 5, a materially distinct element of rape vis-à-vis torture is the sexual penetration element. A materially distinct element of torture vis-à-vis rape is the severe infliction of pain or suffering aimed at obtaining information or a confession, punishing, intimidating, coercing or discriminating against the victim or a third person.