498. 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
Preparatory Commission for the International Criminal Court, 6 July 2000, PCNICC/2000/INF/3/Add.2.
Article 27(1) (“Irrelevance of the official capacity”) of the ICC Statute further states that the Statute shall apply “equally to all persons without any distinction based on official capacity”. Although the ICC Statute does not necessarily represent the present status of international customary law, it is a useful instrument in confirming the content of customary international law. These provisions obviously do not necessarily indicate what the state of the relevant law was at the time relevant to this case. However they do provide some evidence of state opinio juris as to the relevant customary international law at the time at which the recommendations were adopted. See, eg, Prosecutor v Furundžija, Case IT-95-17/1-T, Judgement, 10 Dec 1998, par 227; Prosecutor v Tadic, Case No IT-94-A, Judgement, 15 July 1999, par
1211 223.Prosecutor v Furundžija, Case IT-95-17/1-T, Judgement, 10 Dec 1998, par 162; Prosecutor v Delalic and Others, Case IT-96-21-T, Judgement, 16 Nov 1998, par 468.
1212 Prosecutor v Furundžija, Case IT-95-17/1-T, Judgement, 10 Dec 1998, par 162; Prosecutor v Akayesu, ICTR-96-4-T, Judgement, 2 Sept 1998, par 594.
1213 Prosecutor v Delalic and Others, Case IT-96-21-T, Judgement, 16 Nov 1998, pars 470-472; Prosecutor v Akayesu, ICTR-96-4-T, Judgement, 2 Sept 1998, par 594.
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
499. 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.
500. 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
1214 See section dealing with common elements to Article 3 of the Statute (pars 400-409).
1215 Prosecutor v Tadic, Case IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 Oct 1995, par 89: “Article 3 is a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5, more specifically [….] (iii) violations of common Article 3 and other customary rules on internal conflicts; […]”. See also Prosecutor v Aleksovski, Case 14/1-A, Judgement, 24 Mar 2000, par 21; Prosecutor v Furundžija, Case IT-95-17/1-T, Judgement, 10 Dec 1998, pars 132-133.
1216 It is also found in Art 75(2)(b) of Additional Protocol I and Art 4(2)(e) of Additional Protocol II.
1217 See Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgement, 24 Mar 2000, pars 21-22, implicitly affirming, in its discussion of the mental element of the offence of outrages against personal dignity, the Trial Chamber’s conviction of the accused on aCountof outrages against personal dignity under Art 3 on the basis of common Art 3(1)(c).
1218 Prosecutor v Aleksovski, Case No IT-95-14/1.
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
501. 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.
502. 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
1219 Prosecutor v Aleksovski, Case No IT-95-14/1-T, Judgement, 25 June 1999, par 49.
1220 Ibid, pars 51 and 54.
1221 Ibid, par 56.
1222 The original French version of the judgement refers to “une souffrance … durable”.
1223 Prosecutor v Aleksovski, Case No IT-95-14/1-T, Judgement, 25 June 1999, par 54; Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgement, 24 Mar 2000, par 26.
1224 Prosecutor v Delalic and Others, Case No 96-21-T, Judgement, 16 Nov 1998, par 543. See also Prosecutor v Bla{kic, Case No IT-95-14-T, Judgement, 3 Mar 2000, pars 154-155 where Trial Chamber I
503. 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
504. 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
505. 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
adopts the conclusions of the judgement in the Delali} case (Case No 96-21-T, Judgement, 16 Nov 1998) in relation to the offence of inhuman treatment.
1225 In relation to the crime of outrages upon personal dignity in the Statute of the International Criminal Court adopted at Rome on 17 July 1998, PCNICC/1999/INF/3, 17 Aug 1999, the Preparatory Commission has made a final recommendation as to the elements of the crime which makes no reference to any requirement of a lasting quality to the humiliation or degradation caused. The Report of the Preparatory Commission for the International Criminal Court, Addendum, Finalized Draft Text of the Elements of Crimes, PCNICC/2000/INF/3/Add.2, 6 July 2000 describes the elements of the offence (Art 8(2)(b)(xxi), p 33) as: “(1) The perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons. (2) The severity of the humiliation, degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity.” These recommendations, adopted in July 2000 obviously do not necessarily indicate what the state of the relevant law was at the time relevant to this case. However they do provide some evidence of state opinio juris as to the relevant customary international law at the time at which the recommendations were adopted. See, eg, Prosecutor v Furundžija, Case IT-95-17/1-T, Judgement, 10 Dec 1998, par 227; Prosecutor v Tadic, Case No IT-94-A, Judgement, 15 July 1999, par 223.
1226 Prosecutor v Aleksovski, Case No IT-95-14/1-T, Judgement, 25 June 1999, par 54.
1227 For the indictment against Aleksovski, see Prosecutor v Kordic and Others, Indictment, 10 Nov 1995, par 31 supporting, inter alia, Count10 of the indictment which charged “[…] a VIOLATION OF THE
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
506. 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
507. 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.
508. 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
LAWS OR CUSTOMS OF WAR (outrages against personal dignity) as recognised by Articles 3, 7(1) and 7(3) of the Statute of the Tribunal”.
1228 Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgement, 24 Mar 2000, par 37 (emphasis added).
1229 Paragraph 502. The inclusion in the recommended elements of the offence for the purposes of the ICC Statute of a requirement that the “severity of the humiliation, degradation or other violation [be] of such degree as to be generally recognised as an outrage upon personal dignity” is consistent with this conclusion. (See Finalized Draft Text of the Elements of the Crimes, Art 8(2)(b)(xxi), par 2).
1230 The Appeals Chamber noted: “the Trial Chamber’s reasoning in relation to the mental element of the offence of outrages upon personal dignity […] is not always entirely clear.”: Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgement, 24 Mar 2000, par 27.
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
509. 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 victim1234 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 510. 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.
511. 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:
1231 Prosecutor v Aleksovski, Case IT-95-14/1-T, Judgement, 25 June 1999, par 56.
1232 The Trial Chamber’s factual findings as to the mental state of the accused in relation to the relevant acts appear to support a finding of a specific intent to humiliate as well as of knowledge of the trauma and humiliation caused by the acts – see pars 224 and 237 and Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgement, 24 Mar 2000, par 27.
1233 “The Trial Chamber’s indication that the mens rea of the offence is the “intent to humiliate or ridicule”
the victim may therefore impose a requirement that the Prosecution was not obliged to prove and the Appeals Chamber does not, by rejecting this ground of appeal, endorse that particular conclusion.”:
Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgement, 24 Mar 2000, par 27.
1234 Sandoz and Others, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, par 3047. This statement was referred to by the Trial Chamber at pars 55 and 56.
1235 Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgement, 24 Mar 2000, par 27.
[…] 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.
512. 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.
513. 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.
514. In the view of the Trial Chamber, the offence of outrages upon personal dignity requires
1236 Prosecutor v Aleksovski, Case IT-95-14/1-T, Judgement, 25 June 1999, par 56.
1237 Prosecutor v Aleksovski, Case IT-95-14/1-A, Judgement, 24 Mar 2000, par 27.
1238 Prosecutor v Delalic and Others, Case No 96-21-T, Judgement, 16 Nov 1998, par 543. See also later in that par: “Thus, inhuman treatment is intentional treatment which does not conform with the fundamental principle of humanity […]”.
(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.