|Appeal Judgement - 19.07.2010||
HARADINAJ et al.
93. […] [T]he Appeals Chamber recalls the Čelebići Trial Judgement, which held that:
The basis of the inclusion of cruel treatment within Article 3 of the Statute is its prohibition by common article 3(1) of the Geneva Conventions, which proscribes, “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture”. In addition to its prohibition in common article 3, cruel treatment or cruelty is proscribed by article 87 of the Third Geneva Convention, which deals with penalties for prisoners of war, and article 4 of Additional Protocol II, which provides that the following behaviour is prohibited:
violence to life, health and physical and or mental well being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment.
As with the offence of inhuman treatment, no international instrument defines this offence, although it is specifically prohibited by article 5 of the Universal Declaration of Human Rights, article 7 of the ICCPR, article 5, paragraph 2, of the Inter-American Convention of Human Rights and article 5 of the African Charter of Human and Peoples’ Rights. In each of these instruments, it is mentioned in the same category of offence as inhuman treatment.
94. As is the case with the international law instruments mentioned above, the jurisprudence of the Tribunal does not provide a comprehensive definition of the offence of cruel treatment, but the Appeals Chamber has defined the elements of cruel treatment as a violation of the laws or customs of war as follows:
a. an intentional act or omission […] which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity,
b. committed against a person taking no active part in the hostilities.
 Čelebići Trial Judgement, paras 548-549.
 Blaškić Appeal Judgement, para. 595 (citing Čelebići Appeal Judgement, paras 424, 426 (internal citations omitted)).
|ICTY Statute Article 3|
|Appeal Judgement - 29.07.2004||
593. The first issue for the Appeals Chamber to determine is whether international law criminalises the use of detainees to dig trenches of a military character per se because it necessarily constitutes cruel treatment. As regards the employment of civilians for such purposes, Article 51 of Geneva Convention IV, governing the treatment of civilians, precludes the ‘Occupying Power’ from compelling ‘protected persons’ to serve in its armed or auxiliary forces. The Occupying Power may in fact compel protected persons to work if they are over eighteen years of age, and subject to certain other conditions. ‘Protected persons’ may not, however, be compelled to undertake any work which would involve them in the obligation to take part in military operations, and in no case shall the requisition of labour lead to a mobilization of workers “in an organisation of a military or semi-military character.”
597. The Appeals Chamber has noted that the use of forced labour is not always unlawful. Nevertheless, the treatment of non-combatant detainees may be considered cruel where, together with the other requisite elements, that treatment causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. The Appeals Chamber notes that Geneva Conventions III and IV require that when non-combatants are used for forced labour, their labour may not be connected with war operations or have a military character or purpose. The Appeals Chamber finds that the use of persons taking no active part in hostilities to prepare military fortifications for use in operations and against the forces with whom those persons identify or sympathise is a serious attack on human dignity and causes serious mental (and depending on the circumstances physical) suffering or injury. Any order to compel protected persons to dig trenches or to prepare other forms of military installations, in particular when such persons are ordered to do so against their own forces in an armed conflict, constitutes cruel treatment. The Appeals Chamber accordingly finds that a reasonable trier of fact could have come to the conclusion that the Appellant has violated the laws or customs of war under Article 3 of the Statute, and common Article 3(1)(a) of the Geneva Conventions, and is guilty under Count 16 for ordering the use of detainees to dig trenches.
 Found by the Trial Chamber to be applicable in this case; see Trial Judgement, paras. 133, 143, and 147.
 Article 51 of Geneva Convention IV reads as follows: “The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted.
The 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. Protected persons may not be compelled to undertake any work which would involve them in the obligation of taking part in military operations. The Occupying Power may not compel protected persons to employ forcible means to ensure the security of the installations where they are performing compulsory labour.
The work shall be carried out only in the occupied territory where the persons whose services have been requisitioned are. Every such person shall, so far as possible, be kept in his usual place of employment. Workers shall be paid a fair wage and the work shall be proportionate to their physical and intellectual capacities. The legislation in force in the occupied country concerning working conditions, and safeguards as regards, in particular, such matters as wages, hours of work, equipment, preliminary training and compensation for occupational accidents and diseases, shall be applicable to the protected persons assigned to the work referred to in this Article.
In no case shall requisition of labour lead to a mobilization of workers in an organization of a military or semi-military character.”
 Indeed, Article 49 of Geneva Convention III begins: “The Detaining Power may utilize the labour of prisoners of war”. Geneva Convention IV (Article 51) specifies what labour is prohibited – there is no blanket prohibition against the use of protected persons for labour.
 Commentary to Geneva Convention III, [Commentary, III Geneva Convention relative to the Treatment of Prisoners of War (1949), International Committee of the Red Cross, Geneva, 1960] p. 266, and Article 51 of Geneva Convention IV.
 Commentary to Geneva Convention III, p. 267. Commentary to Geneva Convention IV [Commentary, IV Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949), International Committee of the Red Cross, Geneva, 1958], p. 294: “it is generally agreed that the inhabitants of the occupied territory cannot be requisitioned for such work as the construction of fortifications, trenches or aerial bases”.
|Other instruments Geneva Convention III: Article 49. Geneva Convention IV: Article 3(1)(a), 51.|
|Appeal Judgement - 04.12.2012||
LUKIĆ & LUKIĆ
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634. The Appeals Chamber considers that not all acts committed in detention can be presumed to meet the requisite seriousness. […]