Bosnia and Herzegovina
Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
The Instructions to the Muslim Fighter (1993) issued by the Army of the Republic of Bosnia and Herzegovina in 1993 state: “Islam likewise forbids the torture and brutalization of prisoners of war.”
The Federation of Bosnia and Herzegovina’s Criminal Code (1998) provides that subjecting civilians, prisoners of war, the wounded, sick and shipwrecked to torture or inhuman treatment and causing great suffering to physical and mental health is a war crime.
The Republika Srpska’s Criminal Code (2000) contains the same provision.
Bosnia and Herzegovina’s Criminal Code (2003) criminalizes the following as an act of genocide:
Whoever, with an aim to destroy, in whole or in part, a national, ethnical, racial or religious group, orders the perpetration or perpetrates any of the following acts:
b) Causing serious bodily or mental harm to members of the group.
The Criminal Code criminalizes the following as crimes against humanity:
Whoever, as part of a widespread or systematic attack directed against any civilian population, with knowledge of such an attack, perpetrates any of the following acts:
k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to physical or mental health.
The Criminal Code also states that, in time of war, armed conflict or occupation, ordering or causing “intentional infliction of severe physical or mental pain or suffering upon a person (torture), inhuman treatment … [or] immense suffering or violation of bodily integrity or health”, against civilians, in violation of international law, constitutes a war crime.
The Criminal Code also contains the following war crimes provision:
Whoever, in violation of the rules of international law in time of war or armed conflict, orders or perpetrates in regard to wounded, sick, shipwrecked persons, medical personnel or clergy, any of the following acts:
a) … intentional infliction of severe physical or mental pain or suffering upon persons (torture, inhuman treatment) … ;
b) Causing great suffering or serious injury to bodily integrity or health;
shall be punished by imprisonment for a term of not less than ten years or long-term imprisonment.
The Criminal Code further states:
An official or another person who, acting upon the instigation or with the explicit or implicit consent of a public official person, inflicts on a person physical or mental pain or severe physical or mental suffering for such purposes as to obtain from him or a third person information or a confession, or to punish him for a criminal offence he or a third person has perpetrated or is suspected of having perpetrated or who intimidates or coerces him for any other reason based on discrimination of any kind,
shall be punished by imprisonment for a term of between one and ten years.
In the Drago case
in 1997, the Cantonal Court in Tuzla in Bosnia and Herzegovina convicted a person of causing serious bodily harm, ill-treatment and inhuman acts against detained civilians and military personnel. In its judgment, the Court referred to the 1949 Geneva Conventions and the 1977 Additional Protocol I and to the protection afforded to certain categories of persons in international armed conflicts.
In 2004, in its initial report to the Committee against Torture, Bosnia and Herzegovina stated: “Torture is one of the worst crimes and violations of human rights. It is the attack against the essence of human personality and dignity.”
The report also stated:
No exceptional circumstance may be invoked as the justification of torture, including the state of war in our country within the period 1992–1995, nor the decision on cease of the state of war dated 22.12.1995, nor the state of threat of war that lasted until 22.12.1996. No regulation whatsoever prescribes that the orders of a superior officer or authority may be invoked as justification of torture.
Bosnia and Herzegovina’s Criminal Code (2003) provides the following definition of “torture” in relation to crimes against humanity:
Torture means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, or being inherent in or incidental to, lawful sanctions.
In 2007, in the Lučić case, the Panel of the Court of Bosnia and Herzegovina, when addressing torture within the context of crimes against humanity, stated:
The essential elements for the definition of torture stated in Article 172(1)(f) of the CC BiH [Criminal Code of Bosnia and Herzegovina] are as follows: the infliction, by act or omission, of severe pain or suffering, whether physical or mental; the act or omission must be intentional; the act was perpetrated against a person under the supervision of the perpetrator; the heavy bodily or mental pain or suffering was inflicted upon the victim by the offence; the offence is not the consequence of the enforcement of legal sanctions.
The Court is of the opinion that the expression “severe pain or suffering” requires that only acts of substantial gravity may be considered to be torture; therefore neither interrogation by itself, nor minor contempt for the physical integrity of the victim satisfies this requirement.
The Court considers that in assessing the seriousness of this 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 victim’s age, sex, state of health and position of inferiority will also be relevant in assessing the gravity of the harm.
The Court notes that the definition of torture remains the same regardless of the legal provision under which the Accused has been charged.
[footnotes in original omitted]
The Court further stated:
[W]hen assessing the seriousness of the acts charged as torture, [the Court] must consider all the circumstances of the case, including the nature and context of the infliction of pain, the premeditation and institutionalization of the ill-treatment, the physical condition of the victim, the manner and method used, the position of inferiority of the victim, the extent to which he has been mistreated over a prolonged period of time, or he 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.
[footnote in original omitted]
Regarding other inhumane acts within the context of crimes against humanity, the Court held that:
The elements for the commission of “other inhumane acts … intentionally causing great suffering, or serious injury to body or physical or mental health” as foreseen in Article 172(1)(k) of the CC BiH [Criminal Code of Bosnia and Herzegovina] are as follows: there exists an inhumane act; the offence has not been stated differently in Article 172; the offence is of a nature similar to other offences defined under Article 172 [murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or other form of sexual violence, persecution, enforced disappearance of persons and apartheid]; the offence was committed with the intention to inflict heavy suffering or serious physical or mental injuries or deterioration of health; and by the commission of this offence, the victims sustained heavy suffering or serious physical or mental injuries or deterioration of health.
… On other inhumane acts, the ICTY established that: “The phrase ‘other inhumane acts’ was deliberately designed as a residual category, as it was felt to be undesirable for this category to be exhaustively enumerated. An exhaustive categorization would merely create opportunities for evasion of the letter of the prohibition” Kupreškić case
, Judgement, 14 January 2000, para. 563]. The ICTY believes that this residual category includes, for example, also degrading treatment, forcible transfer and forced prostitution, and use of persons as ‘human shields’. The suffering inflicted by the act upon the victim does not need to be lasting so long as it is real and serious. The required mens rea
is met where the principal offender, at the time of the act or omission, had the intention to inflict serious physical or mental suffering or to commit a serious attack on the human dignity of the victim, or where he knew that this act or omission was likely to cause serious physical or mental suffering or a serious attack upon human dignity and was reckless as to whether such suffering or attack would result from his act or omission.
[footnotes in original omitted]
In 2007, in the Janković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
[T]he criminal offence of torture … requires a forbidden intention such as obtaining information or a confession, or punishing, intimidating or coercing the victim or a third person, or discriminating, on any ground, against the victim or a third person …
[T]he first-instance Panel legitimately concluded that [the] actions [committed] amount to the elements of the criminal offence of torture due to the pain and suffering imposed on the injured parties and the discriminatory intention which is … the basis of that crime.
In 2004, in its initial report to the Committee against Torture, Bosnia and Herzegovina stated: “‘torture’ is deliberate grave physical or mental pain or pain inflicted on a person detained by the accused or under the supervision of the accused.”