SEVERITY as an element in Article 8 (2)(c)(i); Objective and Subjective Test

ICTY, Prosecutor vs. Radoslav Brdanin, In the Trial Chamber II, 01 September 2004 In assessing the seriousness of any mistreatment, the OBJECTIVE severity of the harm inflicted must be considered, including the nature, purpose and consistency of the acts committed. SUBJECTIVE criteria, such as the physical or mental condition of the victim, the effect of the treatment and, in some cases, factors such as the victims age, sex, state of health and position of inferiority will also be relevant in assessing the gravity of the harm. Permanent injury is not a requirement for torture; evidence of the suffering need not even be visible after the commission of the crime.

ICTY, Prosecutor vs. Kvocka et al, In the Trial Chamber, 02 November 2001 A precise threshold for determining what degree of suffering is sufficient to meet the definition of torture has not been delineated. In assessing the seriousness of any mistreatment, the Trial Chamber must first consider the OBJECTIVE severity of the harm inflicted. SUBJECTIVE criteria, such as the physical or mental effect of the treatment upon the particular victim and, in some cases, factors such as the victims age, sex, or state of health will also be relevant in assessing the gravity of the harm. Several acts were considered severe enough per se to constitute torture and those that are likely to constitute torture depending on the circumstances. Beating, sexual violence, prolonged denial of sleep, food, hygiene, and medical assistance, as well as threats to torture, rape, or kill relatives were among the acts most commonly mentioned as those likely to constitute torture. Mutilation of body parts would be an example of acts per se constituting torture. Damage to physical or mental health will be taken into account in assessing the gravity of the harm inflicted. The Trial Chamber noted that the abuse amounting to torture need not necessarily involve physical injury, as mental harm is a prevalent form of inflicting torture. For instance, the mental suffering caused to an individual who is forced to watch severe mistreatment inflicted on

a relative would rise to the level of gravity required under the crime of torture. Similarly, the Furund`ija Trial Chamber found that being forced to watch serious sexual attacks inflicted on a female acquaintance was torture for the forced observer. The presence of onlookers, particularly family members, also inflicts severe mental harm amounting to torture on the person being raped.

ICTY, Krnojelac Trial Judgement, In Trial Chamber II, Judgement of 15 March 2002 IT-97-25-T The Trial Chamber regards the general reasoning and criteria used by the European Court of Human Rights in order to assess the gravity of the act of torture, as well as its relationship with other less serious offences, as sufficiently compelling as to warrant adopting it in the present case. Severity of the treatment The European Court considers that, in order to fall within the scope of Article 3, an act of illtreatment, whether it is torture, inhuman or degrading treatment or punishment, must attain a minimum level of severity. The assessment of this threshold of severity is made in regard of the specific circumstances of the case and the Court considers the following: duration of treatment; physical effects of treatment; mental effects of treatment; and sex, age and state of health of the victim. (Source: European Court of Human Rights, Irlande v. United Kingdom, para 162) Thus, in one instance, the European Court held that methods of interrogation using the five techniques (sleep deprivation, maintaining in painful positions, deprivation of food and drink, subjection to noise and hooding) caused if not actual bodily injury, but at least intense physical and mental sufferingand also led to physical disturbances during the interrogation, and therefore fall into the category of inhuman treatment. However, it did not recognize that these

practices occasioned suffering of the particular intensity and cruelty implied by the word torture. Parameters used to define whether the perpetrated acts amounted to torture might be as follow:

The question would then be: was the applicant's pain and suffering severe and did the police have the specific intent (dolus specialis), for example, to discriminate against or punish the applicant? If we considered the pain and suffering undergone by the applicant to be less than severe then, in terms of the CAT, we would be speaking of inhuman and degrading treatment. (Source: European Court of Human Rights, Rehbock v. Slovenia Communication 29462/95, 28 November 2000)

Cases: ICTY, Krnojelac Trial Judgement, In Trial Chamber II, Judgement of 15 March 2002 IT-97-25-T The Trial Chamber was also satisfied that the brutal and deplorable living conditions imposed upon other detainees at the KP Dom in the period from April 1992 to July constituted acts and omissions of a seriousness comparable to the other crimes considered inhumane and cruel treatment, and thus warranted a finding that those acts and omissions constituted inhumane acts and cruel treatment to wit: 1. the detainees were crowded into a small number of rooms; Solitary confinement cells designed to hold one person were packed with up to 18 people at a time, making it impossible for the detainees to move around the cell or to sleep lying down. 2. the policy of overcrowding the detainees was aggravated by the poor hygienic conditions; Regular baths or showers were not provided, nor were hygienic products or toiletries supplied. As a result of these conditions, chicken lice spread from the prison farm to the rooms of the detainees.

3. detainees were denied the most basic protection freezing temperatures during the winter of 1992-199 despite available stocks of blankets which were not provided to them. 4. a deliberate policy to feed the detainees barely enough for their survival which made them to suffer weight loss ranging from 20 to 40 kgs. 5. detainees were not provided with medical help which was available, and in particular that emergency cases were not handled with proper care; detainees who were kept in isolation cells and solitary confinement were denied all access to medical care. 6. detainees were subjected to harrowing psychological abuse during their period of detention at the KP Dom. The detainees were exposed to the sounds of torture and beatings over a period of months, in particular in June and July 1992. They became nervous and panicky as a result of these sounds, and they could not sleep at night. 7. The 4 detainees were told by Todovic, a prison guard, that because of Zekovics(one of the detainees) escape, all food rations would be halved, and that work and medical treatment would be forbidden. The punishment lasted for at least ten days. All rooms were searched and medicines were seized. In addition, following the escape, several detainees, all work companions of Zekovic, were severely beaten by KP Dom guards as punishment for Zekovics escape or in order to obtain information about his whereabouts. 8. In view of the seriousness of the treatment inflicted upon the detainees, the Trial Chamber was satisfied that the treatment amounted to torture within the meaning of the definition given above. The Trial Chamber has also taken into account the fact that, following those beatings, one of the detainees was not given any medical treatment but was instead returned to the isolation cells where he was left lying on the floor with just one blanket to be shared between two detainees. Food rations, which were already largely insufficient, were halved.

In another instance, 4 detainees were told by Todovic, a prison guard, that because of Zekovics(one of the detainees) escape, all food rations would be halved, and that work and medical treatment would be forbidden. The punishment lasted for at least ten days. All rooms were searched and medicines were seized. In addition, following the escape, several detainees,

all work companions of Zekovic, were severely beaten by KP Dom guards as punishment for Zekovics escape or in order to obtain information about his whereabouts. In view of the seriousness of the treatment inflicted upon the detainees, the Trial Chamber was satisfied that the treatment amounted to torture within the meaning of the definition given above. The Trial Chamber has also taken into account the fact that, following those beatings, one of the detainees was not given any medical treatment but was instead returned to the isolation cells where he was left lying on the floor with just one blanket to be shared between two detainees. Food rations, which were already largely insufficient, were halved. Upon assessing the seriousness of the acts charged as torture, the Trial Chamber took into account all the circumstances of the case, including the nature and context of the infliction of pain, the premeditation and institutionalisation of the ill-treatment, the physical condition of the victim, the manner and method used, and the position of inferiority of the victim. In particular, to the extent that an individual has been mistreated over a prolonged period of time, or that he or she has been subjected to repeated or various forms of mistreatment, the severity of the acts should be assessed as a whole to the extent that it can be shown that this lasting period or the repetition of acts are inter-related, follow a pattern or are directed towards the same prohibited goal.