Article 8 (2) (c) (i)-4

War crime of torture Elements 1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.

What is the definition of severe? The statute does not, however, define the term "severe." "In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines "severe" as "[u]ns paring in exaction, punishment, or censure" or "[I]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture." Websters New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992) ("extremely violent or grievous: severe pain") (emphasis in original); IX The Oxford English Dictionary 572 (1978) ("Of pain, suffering, loss, or the like: Grievous, extreme" and "of circumstances ... hard to sustain or endure"). Thus, the adjective "severe" conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure. (Bybee Memo, http://www.tomjoad.org/bybeememo.htm) They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that "severe pain," as used in Section 2340, must rise to a similarly high level the level that would ordinarily be associated with a sufficiently serious p hysical condition or injury such as death, organ failure, or serious impairment of body functions in order to constitute torture. (3) (Bybee Memo) Not all types of harsh treatment fall within the scope of Article 3 (Prohibition of Torture, Eurpoean Convention on Human Rights). The Court, from the beginning, has made it clear that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. In the seminal case on Article 3, Ireland v. the United Kingdom, 9 the Court made it clear that the assessment of the minimum level of severity is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (The Prohibition of Torture Implementation of Artcile 3 of the European Convention on Human Rights http://www.coe.int/t/dgi/publications/hrhandbooks/HRHAND-06(2003)_en.pdf

2.

The perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind.

While the facts state that indeed the POWs of Corti were interrogated and physically intimidated to divulge information, the degree of physical pressure were merely proportional to fall within the purview of Valid Derogation which requires the existence of a public emergency that threatens the life of the nation, a proclamation and notification, and consistency. According to the Derogation from Human Rights Treaties in Times of Emergency, An armed conflict, .is also a qualitative measure of severity that demands that derogations are permissible only if and to the extent that the situation constitutes a threat to the life of the nation. http://www.genevaacademy.ch/RULAC/derogation_from_human_rights_treaties_in_situations_of_emergenc y.php 3. Such person or persons were either hors de combat , or were civilians, medical personnel or religious personnel taking no active part in the hostilities.

Such persons were not hors de combat, and most were arrested based on either on a valid presumption that they were members or supporters of DNA militia or be cause they were POWs. Hors de combat is defined in the Geneva Convention as those Persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause. Valid Derogation should be applied.

4.

The perpetrator was aware of the factual circumstances that established this status.

Jones Is Not Responsible under Article 28(a). In Bemba effective control is an element of responsibility and must be obtained by modality, manner or nature by a commander over his forces or subordinates. In Hadzihasanovic, simply exercising influence is insufficient. Blaskic held that the commander must have effective control over his personnel, and whether the personnel had control is irrelevant. Furthermore, effective cont rol must have existed when the crime was committed. In this case, the KAF and KESA, rather than Jones, were in charge of the detention. Appointed as Vice-Chairman of the NCC, Jones welcomed the assistance of the KAF and KESA, but did not have effective control over them. Additionally, after approaching Corti, Jones and the KAF issued separate statements. Thus, Jones lacked control at the time.

5.

The conduct took place in the context of and was associated with an armed conflict not of an international character.

Katoland is not a High Contracting Party, the ICC being based on the Geneva Convention, which deals with non-international war or conflict before contracting parties, places the defendant outside of the purview of the ICC. On the one hand, the text is clear that the Conventions apply only to "High Contracting Parties," which, by definition, are states. (46 Va. J. Int'l L. 197, Virginia Journal of International Law, Retrieved from: http://rosabrooks.squarespace.com/the-politics-of-thegeneva-con/)

Further, because Katoland distinguished itself from the FRB, the DDR being within the FRB, makes the conflict of an international and not a domestic character. 6. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Other principles: The De Minimis Rule Not all types of harsh treatment fall within the scope of Article 3. The Court, from the beginning, has made it clear that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. In the seminal case on Article 3, Ireland v. the United Kingdom,9 the Court made it clear that the assessment of the minimum level of severity is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.10 These words have been repeated again and again in the case-law of the Court.11 In Soering, the Court added that the severity depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner andmethod of its execution as well as the factors above. It has in the past been acknowledged by the Strasbourg system that what is classified as unacceptableilltreatment may also vary from place to place. The Commission has noted: It appears from the testimony of a number of witnesses that a certain roughness of treatment of detainees by both police and military authorities is tolerated by most detainees and even taken for granted. This underlines the fact thatthe point up to which prisoners and the public may accept physical violence as being neither cruel nor excessive, varies between different societies and even between different sections of them.13 It is the case that different societies, and indeed individuals within a particular society, can have different perceptions of what amounts to illtreatment.The extent of the psychological effects which particular treatment has on someone can often depend on an individuals culture Conditions of Detention Conditions of detention refers both to the general environment in which prisoners are detained andto the prison regime and specific conditions in which inmates are kept
Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment. However it has endorsed in part the definition provided in the United Nations Convention Against Torture, which came into force on 26 June 1987.17 At Article 1, the Convention states that the term torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind (emphasis added) Acts which objectively inflict sufficient severity of pain will be considered torture, whether or not a person is male or female, or of particularly strong constitution or not. The Court has recognized this in Selmouni,18 where it noted that the

treatment inflicted in that case was not only violent but would be heinous and humiliating for anyone, irrespective of their condition.1

The Court reiterates that Article 3 ECHR prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct. In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc. Furthermore, in considering whether a punishment or treatment is "degrading" within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. In this connection, the public nature of the punishment or treatment may be a relevant factor. At the same time, it should be recalled, the absence of publicity will not necessarily prevent a given treatment from falling into that category: it may well suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others. As regards the kind of treatment in question in the present case, the Court is of the view that handcuffing does not normally give rise to an issue under Article 3 ECHR where the measure has been imposed in connection with lawful arrest or detention and does not entail use of force, or public exposure, exceeding what is reasonably considered necessary in the circumstances (Raninen v. Finland)
The statute does not, however, define the term "severe." "In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines "severe" as "[u]nsparing in exaction, punishment, or censure" or "[I]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture." Websters New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992) ("extremely violent or grievous: severe pain") (emphasis in original); IX The Oxford English Dictionary 572 (1978) ("Of pain, suffering, loss, or the like: Grievous, extreme" and "of circumstances ... hard to sustain or endure"). Thus, the adjective "severe" conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.

These statutes define an emergency condition as one "manifesting itself by acute symptoms of sufficient security (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in placing the health of the individual ... (i) in serious jeopardy,

(ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part.

They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that "severe pain," as used in Section 2340, must rise to a similarly high level the level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions in order to constitute torture. (3)
Elements of definition. It should be recalled that usually in legal dispositions, torture is linked with cruel, inhuman and degrading treatment or punishment or ill-treatment. Torture is not an act in itself, or specific type of acts, but it is the legal qualification of an event or behaviour, based on the comprehensive assessment of this event or behaviour. Therefore, the difference between these different qualifications, torture, cruel, inhuman and degrading treatment or punishment or ill-treatment depends on the specific circumstances of each case and is not always obvious. It is clear that, because of the specific intensity or nature of certain acts, the qualification of torture may be easily granted in certain cases. However, in some others, the vulnerability of the victim (age, gender, status, etc), as well as the environment and the cumulative effect of various factors, should be taken into account to determine whether this case amounts to torture or whether it does not reach this ultimate threshold and should be considered as cruel, inhuman or degrading treatment or punishment Interpretation of Torture in the Light of the Practice and Jurisprudence of International Bodies. http://www.ohchr.org/Documents/Issues/Torture/UNVFVT/Interpretation_torture_2011_EN.pdf

The 1966 International Covenant on Civil and Political Rights (ICCPR), which prohibits torture and cruel, inhuman and degrading treatments,1 does not provide a legal definition of

these acts. In fact, the Human Rights Committee considered that:

The Covenant does not contain any definition of the concepts covered by article 7 nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different types of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied. 2

Nature of the act Intention of the perpetrator Purpose Involvement of public officials or assimilated

Torture is a severe form of inhuman treatment, but there is no objective element of distinction between the two categories Acts at stake are usually identical and only the level of intensity/severity of the ill-treatment, taking into account the vulnerability of the victim, may vary understood to be the purpose of the conduct and the powerlessness of the victim, rather than the intensity of the pain or suffering inflicted.14

Criteria essential for valid derogation

(a) Exi stence of a public emer gency that threatens the life of the nati on

The exist enc e of a s it uat ion amount ing t o public em ergenc y is a f undam ental requirement for triggering the derogat ion c laus e. Abs ent spec if ic def inition of public emergenc y in the I CCPR and ECHR, interpret at ions of its meaning and sc ope were prov ided by t he HRC and juris prudenc e of t he ECHR. Acc ording to HRC [n]ot ev ery dis turbance or c atastrophe qualif ies as a public emergenc y whic h t hreat ens the life of the nat ion. Unlike th e regional c onv ent ions, (10) t he ICCPR does not m ake ref erence t o war, yet civ il war and ot her cas es of s erious , v iolent int ernal unrest are by for the reas ons m ost ass erted for declaring a state of em ergenc y. (11) An arm ed c onf lict, howev er, does not aut om at ic ally sat is f y t he c rit eria a derogation should m eet as there is als o a qualit at iv e meas ure of s ev erit y that dem ands that derogat ions are perm iss ible only if and t o t he ext ent that t he s ituat ion c ons tit ut es a t hreat t o t he lif e of t he nat ion. (12)

The European Court of Hum an Rights (ECt HR) in Lawles s v . I reland, qualified t he tim e of public emergenc y as an except ional situat ion of c risis or em ergenc y whic h af flicts the whole populat ion and const itutes a threat to the organised life of the c ommunity of whic h the c ommunit y is c ompos ed. (13) This def init ion was f urt her dev eloped in t he Greek c as e, in whic h the European Comm ission on Human Rights pronounc ed t hat public emergenc y 1) m ust be actual or imm inent, 2) the eff ects of em ergenc y m ust inv olv e t he whole nat ion, 3) the c ontinuanc e of t he organised life of the c ommunit y mus t be t hreatened and 4) t he cris is or danger m ust be exc eptional, in t hat the norm al meas ures or rest rict ions, permitt ed by [European] Conv ent ion f or the m aint enance of public s af et y, healt h and order, are plainly inadequat e. (14) The recent j udgem ent on A and ot hers v . UK by t he ECHR has f urt her def ined t he c riteria s et by its prev ious pronounc em ents . Firs t, t he European Court of Human Rights agreed that the 9/11 att acks and t he thr eat of int ernational t errorism were an em ergenc y threatening, t he lif e of t he nat ion wit hin the meaning of Art ic le 15 of t he ECHR.

Sec ond, in res pons e t o an argum ent t hat terrorism could not c onceiv ably be a threat to the UKs inst itutions or t he UKs exist enc e as a c iv il communit y, the Court held t hat it had been [] prepared to take into acc ount a m uch broader range of factors in determ ining the nature and degree of t he act ual and imm inent threat t o t he nat ion and has in t he past c oncluded t hat emer genc y s it uat ions hav e exist ed ev en though t he inst it utions of the State did not appear t o be imperilled. (15) The exist enc e of t he public em ergenc y should be prov ed by t he state derogat ing f rom it s obligations. (16) Alt hough, t he ECt HR has of granted a m argin of appreciat ion t o st at es in det erm ining whet her a public em ergenc y exis ts, (17) nonet heless the Court held t hat t he discret ion of st at es is accom panied by a European superv is ion. (18) I n c ont rast t he HRC has m ade no suc h referenc e t o a margi n of apprec iat ion t o t hat in Silv a v Uruguay, f ound t he State Part y to be dut y -bound t o giv e a s uff ic ient ly det ailed account of t he relev ant f acts when it inv okes Article 4(1) and t hat it is t he Committees funct ion t o s ee to it that St at es part ies liv e up t o t heir c ommitm ents under t he Cov enant . (19) (b) The r equir ements of pr ocl amati on and notifi cati on The requirements of proc lamation and not if ic at ion are not simply tec hnic al and dis pens able f orm alit ies as bot h proc edural guarantees are import ant f or the purpos es of national and int ernat ional s uperv is ion. (20) The I CCPR requires an off ic ial proc lam at ion of the exis tenc e of a public emergenc y, whic h is an essent ial t ec hnic al prerequisit e f or the applicat ion of derogat ion. (21) General Comm ent 29 s pec if ies t hat st ates m ust act wit hin t heir c ons tit ut ional and other prov isions of law t hat gov ern s uc h proc lam at ion and the exerc ise of em ergenc y powers . (22) The dut y to proc laim (23) should be dist inguis hed f rom the dut y t o not if y under Art icle 4(3) of I C CPR and Article 15(3) of ECHR. The dut y t o proc laim t he st ate of emergenc y is des igned to prev ent arbitrary or de facto derogation and t o obligate derogat ing st at es to act openly f rom t he outset of t he em ergenc y and to deligitim at e after -t he -f act j ust if icat ions for v iolat ion of f undamental rights (24) and als o serv es a domest ic s uperv ision as oppos ed to internat ional whic h is t ied to the dut y of not if icat ion. (25) Alt hough, t he ECHR does not c ont ain the requirem ent of proc lam at ion. (26) The not ificat ion r equirement serv es as a guarantee f or superv ision by int ernational bodies of t he legalit y of t he establishm ent of a state of emergenc y. St at es part ies to the Cov enant are bound to inf orm t he ot her part ies immediat ely. Not wit hs tanding the s ilenc e of t he Euro pean Conv ent ion regarding t he iss ue, in t he Lawless c as e, t he European Court f ound an im plic it requirement t hat not if ic at ion be wit hout delay. (27) Notific at ion proc edures im pose t he dut y on the st at e t o provide information about the provis ions f rom whi c h it has derogated (28) and the st at es part ies are t o inc lude in their reports s uff ic ient and prec is e information about their law and prac tic e in t he field of emergenc y powers . (29) To this point , t he approac h of t he s uperv isory bodies in det ermining wh et her v iolat ion of t he not if icat ion requirement renders derogat ion inv alid has not been cons istent. The HRC, howev er in a num ber of indiv idual applic at ions under the first Optional Prot ocol adopt ed an approach of dec lining to recognize t he legit imac y of pa rt icular inv asions of prot ect ed rights in t he absence of s ubm iss ions of f act or law t o j ust if y s uch derogat ion. (30) (c) M easur es stri ctl y r equir ed by the exi genci es of si tuati on: the pri nci pl e of pr opor tionali ty Derogat ion m eas ures must be lim it ed to the extent strict ly required by t he exigencies of t he s ituat ion, (31) i.e. they need to be proport ionate. The requirement of proport ionalit y c onstitut es one of the s ubst ant iv e limits t o t he em ergenc y powers requiring spec if ic sc rut iny and s pecific just if ic at ion of eac h meas ure t ak en in res pons e t o an em ergenc y, rather than an abst ract assessm ent of t he ov erall s it uat ion. (32) The HRC highlights t hree f actors in proport ionalit y: sev erit y, durat ion and geographic sc ope. The HRC als o subm its t hat rest rict ions t hat are already allowed wit h the t reat y provis ions on c ert ain f reedoms, e.g., t o f reedom of mov em ent (Artic le 12) or freed om of ass em bly (21) are generally s uff ic ient t o c ov er s it uat ions of m ass dem ons trat ion including inst anc es of v iolenc e, or a major indust rial ac cident . (33) Furt her, t he HRC is of v iew t hat no prov is ion of t he Cov enant, howev er v alidly derogat ed from will be ent irely inapplicable t o t he behav iour of a State part y. (34) The HRC conf irms t hat :

The legal obligation to narrow down all derogat ions to those st rict ly required by t he exigenc ies of the s it uation establishes bot h f or Stat es part ies and for t he Comm itt ee a dut y to conduct a careful analys is under each art icle of t he Cov enant bas ed on an object iv e ass essm ent of the act ual situat ion.(35) States part ies t o t he I CCPR are required t o prov ide c aref ul just if icat ion, not only for t heir dec is ion t o proc l aim a st at e of em ergenc y, but als o for any s pec if ic m eas ures based on s uc h a proc lamat ion.(36) By cont rast, t he European Court of Human Rights allows st at es a wide m argin of apprec iation in t he cont ext of proport ionalit y as well. The Court in I reland v . UK held t hat it falls t o t he nat ional authorit ies t o dec ide how f ar it is nec essary to go in att empt ing to ov erc ome em ergenc y(37) and conf irmed t he approac h in Brannigan and Mc Bride v . UK granting disc ret ion t o t he st ate to determ ine t he nature and t he sc ope of derogations nec essary. (38) Nev ert heless, t he European Court will only acc ept s pec if ic m eas ures if the St at e has m ade a c onv inc ing c ase as to why they are nec ess ary. I n sev eral c as es conc erning Turkey, the Court did not acc ept a period of up t o f ift een days f or a c riminal s uspect to be held wit hout appearanc e bef ore the judge, despite the exis tence of an emergenc y. (39) (d) The Pri nci pl e of Consistency Derogat ion m eas ures should not be incons ist ent wit h ot her obligat ions of the derogat ing state un der int ernat ional law. The principle of cons ist enc y is anot her s af eguard of t he derogat ion prov ision whic h is bas ed on t he princ iples of legalit y and the rule of law inherent in the Cov enant as a whole. (40) The express ion ot her obligat ions under intern at ional law ref ers t o cust omary internat ional law and to int ernat ional treat y law, m ost im port ant ly to ot her hum an rights conv ent ions and t o t reat ies in the f ield of int ernat ional hum anit arian law (41) including the m inim um guarantees found in Comm on Art i c le 3 to 1949 Genev a Convent ions , and in t he t wo 1979 Addit ional Protoc ols. At t his point it is import ant t o underline t hat there is no conc ept of derogat ion in humanitarian law as s uc h (42) s inc e internat ional humanitarian law is des igned in ess enc e t o operat e in em ergenc y s it uat ions , henc e, t he obligations st emming f rom humanitarian la w t reat ies generally c annot be derogated f rom . Other obligations als o include t he 1951 Conv ent ion on the Status of Ref ugees and its 1967 Prot ocol, the 1989 Conv ention o n t he Rights of t he Child, I LO Conv ent ions on Forc ed Labour, Freedom of As sociat ion and Equal Rights of W ork ers . (43) In addit ion, the Human Rights Comm itt ee has propos ed examples of ot her obligat ions as inc luding t he Rom e Stat ut e of t he Internat ional Cr iminal Court , and certain rules of custom ary int ernat ional law, s uch as the prohibition of ref oulement. Art ic le 5 (1) of the I CCPR st at es that there s hall be no rest rict ion upon or derogat ion f rom any f undamental rights rec ognized in ot her inst rum ents on the pret ext t hat t he Cov enant does not rec ognize s uch rights or t hat it rec ognizes t hem t o a less er ext ent. (e) Non-der ogabl e ri ghts The relev ant treat y prov is ions prov ide a lis t of rights t hat in abs olut e t erms cannot be derogat ed f rom. The lis t v aries in diff erent t reat ies, yet c ommon to all treat ies are: the right t o life, t he prohibit ion of s lavery, prohibit ion of tort ure or to cruel, inhuman or degrading t reatm ent or punishm ent and prohibit ion of retroactiv e penal measures. The HRC st resses that the lis t of non- derogable rights does not mean t hat other art ic les in t he Cov enant m ay be s ubject ed to derogat ions at will, ev en where a threat to the life of the nation exists . (44) General Comment 29 giv es an expanded interpretation on t he scope of non -derogable rights. The addit ion of f urther non -derogable rights c an be explained by t he HRCs profess ed aut horit y t o ass ess c ompat ibilit y of derogat ions wit h st at es ot her obligat ions under internat ional law and als o due t o t he v iew of t he HRC that derogat ion s f rom cert ain rights c ould nev er be proport ionate, so thos e right s are eff ect iv ely non -derogable. (45) In doing s o, t he HRC discerns elem ents of rights not list ed under Art ic le 4 that c annot be m ade s ubj ect t o derogat ion. (46) Accordingly, derogat ions ca n nev er aut horize act s of genoc ide (47) or crimes against humanit y (t he HRC ref ers t o elements of crimes against humanit y s uc h as deport ation or f orcible trans fer of populat ion t hrough identif ying non derogable elements of Artic le 12 under I CCPR on f reedom of m ov ement (48)) as defined by t he Rom e Statut e of t he I nt ernational Crim inal Court. (49) As a norm of general int ernat ional law not s ubject t o derogat ion, t he HRC list s t he right of all persons deprived of libert y t o be treated wit h hum anit y (under Ar t icle 10(1)) s upport ed by referenc e t o its c lose connect ion wit h t he prohibit ion of t orture (Art icle 7). I n t he Comm itt ees opinion, this cat egory also inc ludes prohibition against tak ing of hostages, abduct ions, or unacknowledged det ent ion.

http://www.genevaacademy.ch/RULAC/derogation_from_human_rights_treaties_in_situations_of_emergency.php