This community, then republic, defined itself as a separate or distinct entity within the territory of Bosnia-Herzegovina. The latter was questioned in the nude in front of around forty soldiers with one of them threatening her with genital mutilation if she did not tell the truth. This woman was then taken to another room and confronted with a Bosnian Croat who had assisted her family in the past. The man had been badly beaten beforehand. Whilst Anto Furundzija continued to interrogate his two victims, a soldier was beating the man on the toes with a truncheon.
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Prosecutor v. Erdemovic, Case No. Kordic and Cerkez, Case No. Kunarac, Kovac and Vokovic, Case No. Kunarac, Kovac and Vukovic, Case No. Mucic et al. IT Trial Chamber , November 16, Naletilic and Martinovic, Case No. IT Trial Chamber , March 31, Rajic, Case No.
Tadic, Case No. Naletilic and Martinovic , Case No. IT Trial Chamber , March 31, , para. Kordic and Cerkez , Case No.
Kunarac, Kovac and Vokovic , Case No. Tadic , Case No. Kordic and Cerkez , Trial Chamber , February 26, , para. In this regard, the Appeals Chamber has held that: Even if substantial clashes were not occurring in the [specific region] at the time and place the crimes were allegedly committed.
It is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict. Blaskic , Case No. IT Trial Chamber , March 3, , para. This does not mean that the crimes must all be committed in the precise geographical region where an armed conflict is taking place at a given moment. IT Appeals Chamber , July 15, , para. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international or, depending upon the circumstances, be international in character alongside an internal armed conflict if i another State intervenes in that conflict through its troops, or alternatively if ii some of the participants in the internal armed conflict act on behalf of that other State.
Tadic , Appeals Chamber , July 15, , para. In the case of individuals forming part of armed forces or military units, as in the case of any other hierarchically organised group, the test is that of overall control by the State. IT Appeals Chamber , February 20, , para. Aleksovski , Case No.
This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law.
The control required by international law may be deemed to exist when a State or, in the context of an armed conflict, the Party to the conflict has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.
Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts. Blaskic , Trial Chamber , March 3, , para.
It suffices to establish the existence of the conflict within the whole region of which the municipalities are a part. Rajic , Case No. It appears that Croatia, in addition to assisting the Bosnian Croats.
This sort of control is sufficient for the purposes of the legal criteria required by international law. Hence, even after 19 May the armed conflict in Bosnia and Herzegovina between the Bosnian Serbs and the central authorities of Bosnia and Herzegovina must be classified as an international armed conflict. Naletilic and Martinovic , Trial Chamber , March 31, , para.
While previously wars were primarily between well-established States, in modern inter-ethnic armed conflicts such as that in the former Yugoslavia, new States are often created during the conflict and ethnicity rather than nationality may become the grounds for allegiance.
Or, put another way, ethnicity may become determinative of national allegiance. Under these conditions, the requirement of nationality is even less adequate to define protected persons.
Aleksovski , Appeals Chamber , March 24, , para. See also discussion of the mens rea for willful killing, Section I d i 2 ; mens rea for extensive destruction of property not justified by military necessity, Section I d v ; and mens rea for unlawful transfer, Section I d vii , ICTY Digest. Materially, the elements of these offences are the same. Hence, acts characterised in the Conventions and Commentaries as inhuman, or which are inconsistent with the principle of humanity, constitute examples of actions that can be characterised as inhuman treatment.
This category of offences includes those acts which do not fulfil the conditions set for the characterisation of torture, even though acts of torture may also fit the definition given. It could be inflicted for other motives such as punishment, revenge or out of sadism, and could also cover moral suffering.
In describing serious injury to body or health, it states that the concept usually uses as a criterion of seriousness the length of time the victim is incapacitated for work…. This offence includes those acts that do not fulfil the conditions set for torture even though acts of torture may also fit the definition given. The Chamber holds that Article 2 d of the Statute requires the destruction to be extensive regardless of whether the property is characterised as carrying general protection or is protected because it is situated on occupied territory.
A single act may, in exceptional circumstances, be interpreted as fulfilling the requirement of extensiveness, as for instance the bombing of a hospital.
To constitute a grave breach, the destruction unjustified by military necessity must be extensive, unlawful and wanton. Thus the detention or confinement of civilians will be unlawful in the following two circumstances: i when a civilian or civilians have been detained in contravention of Article 42 of Geneva Convention IV, i.
Such responsibility is more properly allocated to those who are responsible for the detention in a more direct or complete sense, such as those who actually place an accused in detention without reasonable grounds to believe that he constitutes a security risk; or who, having some powers over the place of detention, accepts a civilian into detention without knowing that such grounds exist; or who, having power or authority to release detainees, fails to do so despite knowledge that no reasonable grounds for their detention exist, or that any such reasons have ceased to exist.
Therefore, failure by a person with such authority to exercise the power to release detainees, whom he knows have not been afforded the procedural rights to which they are entitled, commits the offence of unlawful confinement of civilians, even if he is not responsible himself for the failure to have their procedural rights respected.
The elements of the offence are similar to those. This distinction imposes more onerous duties on an occupying power than on a party to an international armed conflict. The occupation extends only to the territory where such authority has been established and can be exercised. The application of the overall control test is applicable to the latter. A further degree of control is required to establish occupation.
In this respect, battle areas may not be considered as occupied territory. Aleksovski, Case No. IT Trial Chamber , March 3, IT Trial Chamber , March 5, Furundzija, Case No.
Jelisic , Case No. IT Appeals Chamber , July 5, IT Trial Chamber , December 14, Krnojelac, Case No. IT Trial Chamber , March 15, Krstic , Case No. IT Trial Chamber , August 2, Kupreskic et al.
IT Trial Chamber , January 14, Kvocka et al. IT Appeals Chamber , April 8, IT Appeals Chamber , February 20, Plavsic, Case No. Sikirica et al. IT Trial Chamber , November 13, IT Trial Chamber , September 3, Simic, Case No. IT Appeals Chamber , January 31, IT Appeals Chamber , January 26, IT Appeals Chamber , July 15, IT Trial Chamber , November 11, IT Trial Chamber , May 7, Todorovic , Case No.
Vasiljevic, Case No.
The Prosecutor v. Anto Furundžija