Serious bodily or mental harm

Notion(s)	Filing	Case
Genocide \| Serious bodily or mental harm	Appeal Judgement - 12.03.2008	SEROMBA Athanase (ICTR-2001-66-A)
46. The Appeals Chamber recalls that “serious bodily or mental harm” is not defined in the Statute,[1] and that the Appeals Chamber has not squarely addressed the definition of such harm. The quintessential examples of serious bodily harm are torture, rape, and non-fatal physical violence that causes disfigurement or serious injury to the external or internal organs.[2] Relatedly, serious mental harm includes “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”.[3] Indeed, nearly all convictions for the causing of serious bodily or mental harm involve rapes or killings.[4] To support a conviction for genocide, the bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.[5] 47. The Appeals Chamber notes that the Trial Chamber did not clearly differentiate the actus reus of the underlying crime and the actus reus for aiding and abetting that crime. The Trial Chamber suggested that “[Athanase] Seromba’s refusal to allow the refugees to get food from the banana plantation substantially contributed to their physical weakening”[6] and that “[Athanase] Seromba’s order prohibiting refugees from getting food from the banana plantation, his refusal to celebrate mass in Nyange church, and his decision to expel employees and Tutsi refugees” facilitated their “living in a constant state of anxiety”.[7] Beyond these vague statements, the only other reference in the Trial Judgement to the underlying acts that caused serious bodily or mental harm is the conclusory statement that “it is beyond dispute that during the events of April 1994 in Nyange church, the attackers and other Interahamwe militiamen [...] caused serious bodily or mental harm to [the Tutsi refugees] on ethnic grounds, with the intent to destroy them, in whole or in part, as an ethnic group.”[8] 48. The Trial Chamber failed to define the underlying crime to which Athanase Seromba’s actions supposedly contributed. It also had a duty to marshal evidence regarding the existence of the underlying crime that caused serious bodily or mental harm, and its parsimonious statements fail to do so. In the absence of such evidence, the Appeals Chamber cannot equate nebulous invocations of “weakening” and “anxiety” with the heinous crimes that obviously constitute serious bodily or mental harm, such as rape and torture. 49. The Appeals Chamber finds that the Trial Chamber failed to establish with sufficient precision the crime of “causing serious bodily or mental harm”; therefore, Athanase Seromba’s conviction for aiding and abetting such a crime cannot stand. Accordingly, the Appeals Chamber grants this sub-ground of appeal and reverses the finding of the Trial Chamber that Athanase Seromba aided and abetted the causing of serious bodily or mental harm. show footnotes [1] Semanza Trial Judgement, para. 320. [2] Semanza Trial Judgement, para. 320, referring to Kayishema and Ruzindana Trial Judgement, para. 109; Ntagerura et al. Trial Judgement, para. 664. [3] Kajelijeli Trial Judgement, para. 815, referring to Kayishema and Ruzindana Trial Judgement, para. 110; Semanza Trial Judgement, para. 321. [4] See, e.g., Muhimana Trial Judgement, paras. 512, 513, 519; Gacumbitsi Trial Judgement, paras. 292, 293; Ntakirutimana Trial Judgement, paras. 788-790; Musema Trial Judgement, paras. 889, 890. [5] Kajelijeli Trial Judgement, para. 184; Krajišnik Trial Judgement, para. 862; Report of the International Law Commission on the Work of its Forty-Eighth Session 6 May - 26 July 1996, UN GAOR International Law Commission, 51st Sess., Supp. No. 10, p. 91, UN Doc. A/51/10 (1996). In relation to crimes against humanity, a Trial Chamber has refused to find that the removal of a church roof, which deprived Tutsis of an effective hiding place from those who sought to kill them, constituted the causing of serious bodily or mental harm because “the Chamber [was] not satisfied that this act amount[ed] to an act of similar seriousness to other enumerated acts in the Article”. Ntakirutimana Trial Judgement, para. 855. [6] Trial Judgement, para. 327. [7] Trial Judgement, para. 326. [8] Trial Judgement, para. 340. Download full document		ICTR Statute Article 2(2)(b) ICTY Statute Article 4(2)(b)
Notion(s)	Filing	Case
Genocide \| Serious bodily or mental harm	Appeal Judgement - 08.04.2015	TOLIMIR Zdravko (IT-05-88/2-A)
201. Article 4(2)(b) of the Statute provides that genocide can be committed by “causing serious bodily or mental harm to members of the [protected] group” with intent to destroy, in whole or in part, the group as such.[1] “Serious bodily or mental harm” is not defined in the Statute. Drawing on the case law of the ICTY and the ICTR, the Trial Chamber held that serious bodily or mental harm: must be of such a serious nature as to contribute or tend to contribute to the destruction of all or part of the group; although it need not be permanent or irreversible, it must go “beyond temporary unhappiness, embarrassment or humiliation” and inflict “grave and long-term disadvantage to a person’s ability to lead a normal and constructive life”.[2] The Trial Chamber also stated that the determination of the seriousness of the harm in question “must be made on a case-by-case basis”.[3] 202. The Appeals Chamber recalls that it has not directly addressed what constitutes serious mental harm as an act of genocide. Nonetheless, it is satisfied that the definition of serious mental harm adopted in the Trial Judgement is consistent with the case law of the ICTY and the ICTR and aligns with the letter and spirit of the Genocide Convention. […] 203. As correctly stated by the Trial Chamber, serious mental harm must be of such a serious nature as to contribute or tend to contribute to the destruction of all or part of the group.[4] The ICTR Appeals Chamber in the Seromba case has held in this regard that: serious mental harm includes “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”. Indeed, nearly all convictions for the causing of serious bodily or mental harm involve rapes or killings. To support a conviction for genocide, the bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.[5] Contrary to Tolimir’s argument, serious mental harm must be lasting[6] but need not be permanent and irremediable.[7] Tolimir fails to show that these articulations of serious mental harm are “too general and imprecise”.[8] 204. The Appeals Chamber is also not persuaded that the United States of America’s “understanding” of serious mental harm as “the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques”, expressed in its instrument of accession to the Genocide Convention,[9] is correct under customary international law […] […] 207. […] The Appeals Chamber notes that there is ICTY and other international jurisprudence for the proposition that survivors of killing operations may suffer serious mental harm amounting to an act of genocide.[10] The Appeals Chamber finds no error in the Trial Chamber’s conclusion that the mental harm suffered by the survivors of the killings qualified as an act of genocide under Article 4 of the Statute. […] […] 209. […] The Appeals Chamber recalls that while “forcible transfer does not in and of itself constitute a genocidal act […] it is […] a relevant consideration as part of the overall factual assessment”[11] and “could be an additional means by which to ensure the physical destruction” of the protected group.[12] Nothing in the Tribunal’s jurisprudence or in the Genocide Convention provides that a forcible transfer operation may only support a finding of genocide if the displaced population is transferred to concentration camps or places of execution. Tolimir cites no authority suggesting the existence of such a requirement. A forcible transfer operation may still “ensure the physical destruction” of the protected group[13] by causing serious mental harm or leading to conditions of life calculated to bring about the group’s physical destruction, even if the group members are not transferred to places of execution. […] […] 211. Further, the Appeals Chamber is not persuaded that the Trial Chamber was not entitled to take into account the inability and fears of the group to return to their former homes, or the post-transfer quality of their life in making such an assessment. […] The Appeals Chamber notes that these factors are particularly relevant to considering whether the harm caused grave and long-term disadvantage to the ability of members of the protected group to lead a normal and constructive life.[14] 212. […] As noted above, serious mental harm need not result from acts causing permanent or irremediable mental impairment. It suffices that the harmful conduct caused grave and long-term disadvantage to the ability of the members of the protected group to lead a normal and constructive life[15] so as to threaten the physical destruction of the group in whole or in part.[16] […] […] 215. On the other hand, the Appeals Chamber recalls that serious mental harm results only from acts causing grave and long-term disadvantage to the ability of members of the protected group to lead a normal and constructive life[17] and threatening the physical destruction of the group as such.[18] […] 216. […] [S]erious mental harm must be “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”.[19] The Appeals Chamber further recalls that acts falling under Article 4(2)(b) of the Statute require proof of a result, i.e., that serious mental harm was inflicted.[20] 217. The Trial Chamber did not find that Žepa’s Bosnian Muslim population suffered a mass violent separation of families and the ongoing trauma of having lost their family members, like the Bosnian Muslims from Srebrenica,[21] and failed to point to any evidence on the record establishing that the mental harm suffered by that group tended to contribute to the destruction of the Muslims of Eastern BiH as such.[22] Even if all the factors considered by the Trial Chamber were established, in the absence of findings or references to evidence of any long-term consequences of the forcible transfer operation on the Žepa population and the Bosnian Muslim population of Eastern BiH in general and of a link between the circumstances of the transfer operation in Žepa and the physical destruction of the protected group as a whole, no reasonable trial chamber could have found that the Bosnian Muslims forcibly transferred from Žepa suffered serious mental harm within the meaning of Article 4(2)(b) of the Statute. The Appeals Chamber, Judges Sekule and Güney dissenting, thus reverses the Trial Chamber’s findings in this regard and Tolimir’s remaining arguments are rendered moot and need not be addressed. show footnotes [1] The same language is used in Article II(b) of the Genocide Convention. [2] Trial Judgement, para. 738, citing Krajišnik Trial Judgement, para. 862; Seromba Appeal Judgement, para. 46; Gatete Trial Judgement, para. 584, Brđanin Trial Judgement, para. 690; Stakić Trial Judgement, para. 516; Akayesu Trial Judgement, paras 502–504; Kayishema and Ruzindana Trial Judgement, para. 108; Bagosora et al. Trial Judgement, para. 2117; Krstić Trial Judgement, para. 513; Blagojević and Jokić Trial Judgement, para. 645. [3] Trial Judgement, para. 738. [4] Trial Judgement, para. 738, and authorities cited therein. See also ICJ Croatia v. Serbia Judgment, para. 157 (“in light of the [Genocide] Convention’s object and purpose, the ordinary meaning of 'serious’ is that the bodily or mental harm referred to in subparagraph (b) of that Article must be such as to contribute to the physical or biological destruction of the group, in whole or in part.”). The Appeals Chamber notes that, significantly, under Article IX of the Genocide Convention, the International Court of Justice (“ICJ”) is the competent organ to resolve disputes relating to the interpretation of that Convention. It is also the principal judicial organ of the United Nations and the community of nations at large. See Charter of the United Nations, Art. 92. [5] Seromba Appeal Judgement, para. 46 (internal citations omitted). See also Krajišnik Trial Judgement, paras 862-863 (“‘failure to provide adequate accommodation, shelter, food, water, medical care, or hygienic sanitation facilities’ will not amount to the actus reus of genocide if the deprivation is not so severe as to contribute to the destruction of the group, or tend to do so. Living conditions, which may be inadequate by any number of standards, may nevertheless be adequate for the survival of the group”); International Criminal Court, Elements of Crimes (2011), Art. 6(b), n. 3 (specifying that an act of serious bodily or mental harm “may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment”.). [6] Judge Sekule dissents on the Majority’s interpretation of the jurisprudence in that “harm must be lasting” for reasons set out in his partly dissenting opinion appended to the present Judgement. [7] See Trial Judgement, para. 738; Blagojević and Jokić Trial Judgement, paras 645-646; Brđanin Trial Judgement, para. 690; Stakić Trial Judgement, para. 516; Krstić Trial Judgement, para. 513 (holding that serious mental harm “must involve harm that goes beyond temporary unhappiness, embarrassment or humiliation” and result “in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.”); Bagosora et al. Trial Judgement, para. 2117; Kayishema and Ruzindana Trial Judgement, para. 108; Akayesu Trial Judgement, paras 502–504. See also Bosnia Genocide Judgment, para. 300 (quoting with approval Stakić Trial Judgement in this regard). [8] See Appeal Brief, para. 73. [9] See Genocide Convention Implementation Act of 1987, Pub. L. No. 100-606, 102 Stat. 3045, 18 U.S.C. §1091(a)(3) (1988), also available at 28 I.L.M. 754 (1989). [10] See Popović et al. Trial Judgement, para. 845; Blagojević and Jokić Trial Judgement, para. 647; Krstić Trial Judgement, para. 514; Bosnia Genocide Judgment, paras 290-291. [11] Blagojević and Jokić Appeal Judgement, para. 123. See also Krstić Appeal Judgement, para. 33. [12] Krstić Appeal Judgement, para. 31. [13] Krstić Appeal Judgement, para. 31. [14] See supra, para. 201. [15] See supra, para. 201. [16] Seromba Appeal Judgement, para. 46. [17] See supra, paras 203-204, 209. [18] Seromba Appeal Judgement, para. 46. [19] Seromba Appeal Judgement, para. 46. [20] Trial Judgement, para. 737; Brđanin Trial Judgement, para. 688; Stakić Trial Judgement, para. 514. See also Popović et al. Trial Judgement, para. 811. [21] The Appeals Chamber acknowledges the Trial Chamber’s finding that, “[i]n the period leading up to the fall of the Žepa enclave, the population of Žepa, including the able-bodied men and some wounded, had fled to the surrounding mountains”. See Trial Judgement, para. 639. The Trial Chamber also found that, even though Žepa’s Muslim civilians “started returning to the centre of Žepa in order to be evacuated” once news about the 24 July 1995 evacuation agreement began to spread (Trial Judgement, para. 639), “[m]ost of the able-bodied men, including members of the ABiH, remained in the mountains at this time”. Trial Judgement, n. 2737, and authorities cited therein. In analysing whether the genocidal act of Article 4(2)(b) of the Statute had been committed, however, the Trial Chamber did not list the de facto separation of families in Žepa among the factors causing serious mental harm to the Bosnian Muslims of Žepa (Trial Judgement, para. 758), even though it did hold that serious mental harm was caused as a result of, inter alia, the forced, violent separation of Srebrenica’s Muslim families in Potočari, which resulted in the detention of men and boys from Srebrenica and their subsequent murders by the Bosnian Serb Forces. See Trial Judgement, para. 756. [22] Cf. Seromba Appeal Judgement, para. 48 (“the Appeals Chamber cannot equate nebulous invocations of 'weakening’ and 'anxiety’ with the heinous crimes that obviously constitute serious bodily or mental harm, such as rape and torture.”). Download full document		ICTR Statute Article 2(2)(b) ICTY Statute Article 4(2)(b)