Sexual Torture as a Crime Under International Criminal and Humanitarian Law
Criminal and Humanitarian Law Sexual Torture as a Crime Under International
Patricia Viseur Sellers 0
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Follow this and additional works at: http://academicworks.cuny.edu/clr Part of the Law Commons Recommended Citation Patricia V. Sellers, Sexual Torture as a Crime Under International Criminal and Humanitarian Law, 11 N.Y. City L. Rev. 339 (2008). Available at: http://academicworks.cuny.edu/clr/vol11/iss2/14
Patricia Viseur Sellers *
Thank you. Good morning.
General Comment 2 certainly advances our understanding of
the protection afforded individuals and groups from torture as well
as cruel, inhumane, degrading treatment and punishment—
whether such torture is State driven or otherwise attributable to the
State via private actors.1 Women and girls, as human beings,
benefit from the clarifying and progressive aspect of General Comment
No. 2. Sexual violence inflicted upon women and girls—and to a
lesser extent males—has driven the recent development of torture
law and its subsequent interpretation. The Committee Against
Torture’s concluding remark in paragraph 27 of General
Comment No. 2 exhorts that the previous comments are “without
prejudice to any higher protection contained in any international
instrument or national law.”2
General Comment No. 2 explicitly encourages the
penalization of torture under national law.3 I, however, will direct my
remarks to torture as a crime under international criminal law and
under humanitarian law, otherwise known as the law of armed
conflict. It is important to recognize that other bodies of international
law, parallel to human rights law, continuously develop and
inter* Patricia Viseur Sellers was the Legal Advisor for Gender-Related Crimes at the
Office of the Prosecutor for the International Criminal Tribunal for the former
Yugoslavia from 1994-2007. She is a Visiting Fellow at Kellogg College, University of
Oxford and an Independent Legal Expert. These remarks are based upon a presentation
delivered at the New York City Law Review Symposium “Preventing Torture:
Implications of General Comment 2: Implementation of Article 2 by States Parties of the U.N.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment” on Friday, March 28, 2008, at the New York City Bar Association.
1 See generally U.N. Office of the High Commissioner for Human Rights
[OHCHR], Comm. Against Torture, Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment, General Comment No. 2: Implementation of
Article 2 by States Parties, U.N. Doc. CAT/C/GC/2 (Jan. 24, 2008) [hereinafter General
Comment No. 2].
2 Id. ¶ 27 (“The Committee reiterates that this general comment has to be
considered without prejudice to any higher degree of protection contained in any
international instrument or national law, as long as they contain, as a minimum, the
standards of the Convention.”).
4 See Linda M. Keller, Is Truth Serum Torture, 20 AM. U. INTL L. REV. 521, 534–36
(2004–2005). Keller provides a focus on international law stating that it is “where the
definition of torture is most developed.” Id. at 534. Keller also provides that
international law “has risen to the level of a jus cogens norm binding on all states.” Id. at 535.
Keller also provides a list of international documents, which cover torture and cruel,
inhuman or degrading treatment. Id. at 535–36.
5 See Prosecutor v. Furundzija (Furundzija), Case No. IT-95-17/1-T, Judgment, ¶
160 (Dec. 10, 1998).
6 See Updated Statute of the International Criminal Tribunal for the Former
Yugoslavia, art. 2, February 2008, 32 I.L.M 1192. Article 5 of the Yugoslav Statute,
entitled Crimes Against Humanity reads:
The International Tribunal shall have power to prosecute persons
responsible for the following crimes when committed in armed conflict,
whether international or internal in character, and directed against any
civilian population: (a) murder; (b) extermination; (c) enslavement;
(d) deportation; (e) imprisonment; (f) torture; (g) rape; (h)
persecutions on political, racial and religious grounds; (i) other their
Id. art. 5.
7 Id. Article 2 of the Yugoslav Statute, entitled Grave Breaches of the Geneva
Conventions of 1949 reads inter alia:
The International Tribunal shall have power to prosecute persons
committing or ordering to be committed grave breaches of the Geneva
Conventions of 12 August 1949, namely the following acts against persons or
property protected under the provisions of the relevant Convention: (a)
wilful killing; (b) torture or inhumane treatment, including biological
experiments; (c) wilfully causing great suffering or serious injury to body
or health; . . . .
Id. art. 2.
of the Geneva Conventions of 1949.8 Hence, in terms of
international armed conflict or internal armed conflict—hence armed
conflict irrespective of its characterization—torture is actionable
under the Statute of the Yugoslav Tribunal. Torture was also
expressly included as a crime against humanity in Article 3 and as a
violation Common Article 3 and Additional Protocol II under
Article 4 of the Statute of the International Criminal Tribunal for
Torture was subsumed under the war crime provisions of the
London10 and Tokyo Charters11 that governed the World War II
Nuremberg and Tokyo international military tribunals.
Nonetheless, neither the Geneva Conventions of 1949, including Common
Article 3, nor the subsequent Additional Protocols to the Geneva
Conventions defines the elements of torture.12 Torture’s inclusion
as a war crime in the Yugoslav and Rwandan Statutes reflects both
the treaty bases of Geneva Law and precepts derived from the
violations of the laws and customs of war.
As a crime against humanity, however, torture originates not
from the Nuremberg or the Tokyo prosecutions, but from the
subsequent prosecutions in the European theatre that were governed
by Control Council Law No. 10.13 Torture as originally cast under
the crime against humanity provision of Control Council No. 10
8 Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction, Case No. IT-94-AR72, ¶ 92 (Oct. 2, 1995) [hereinafter Tadic
9 Statute of the International Criminal Tribunal for Rwanda, for the Prosecution
of Persons Responsible for Genocide and Other Serious Violations of International
Humanitarian Law Committed on the Territory of Rwanda and Rwandan Citizens
Responsible for Genocide and Other Such Violations Committed in the Territory of
the Neighbouring States, between 1 January 1994 and 31 December 1994, S.C. Res.
955, Annex, U.N. Doc. S/RES/955 (Nov. 8. 1994), reprinted in 33 I.L.M. 1598 (1994)
[hereinafter Rwanda Statute].
10 Charter of the International Military Tribunal, Annexed to the London
Agreement, 8 Aug. 1945, art. 6(b) U.N.T.S. 280, 59 Stat. 1544, 8 AS No. 472 [hereinafter
11 Charter of the International Military Tribunal for the Far East, Tokyo, Art. 5(b),
Jan. 19, 1946, 17 T.I.A.S. 1589 [hereinafter Tokyo Charter].
12 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating
to the Protection of Victims of International Armed Conflict, June, 8 1977, 1125
U.N.T.S. 3 (entered into force 7 Dec. 1978) (Additional Protocol I), reprinted in 16
I.L.M.1391 (1977); Protocol Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Protection of Victims of Non-International Armed Conflicts, June
8, 1977, 1125 U.N.T.S. 609, (entered into force 7 Dec. 1978) (Additional Protocol I),
reprinted in 16 I.L.M.182 (1977).
13 Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against
Humanity, Control Council Law No. 10, art. 2 (c) (Dec. 20, 1945), available at http://
justifies its enumeration within the Yugoslav and Rwandan Statutes;
albeit, torture as a crime against humanity is recognition based
upon customary international law.
Still, torture is conducive to individual penal sanctions under
humanitarian law, or as a crime against humanity, was rift of the
specific criminal elements when the ad hoc tribunals were created.14
Now that seems strange, in particular to people who practice
criminal law. How does a crime exist without knowledge or notice of its
criminal elements? Thank goodness, in 1984 when the Convention
against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“Convention” or “CAT convention”)15 was
drafted, Article 1 of the Convention informed humanitarian law
and international criminal law, as well as human rights law, of
torture’s customary definition. As a result, the first judgments
delivered by the Yugoslav Tribunal and Rwandan Tribunal that
addressed torture referred to the customary definition contained
in the Convention to enunciate the elements of torture as a war
crime and as a crime against humanity.16
Among the first Yugoslav Tribunal judgments that opined on
torture was the Cˇelebic´i case,17 formally called the Prosecutor vs.
Delalic case. The case concerned a Muslim-run detention camp that
held Serbian victims.18 Serbian women and men were separated
from each other and kept in different sections of the detention
camp.19 The judgment found that the camp’s deputy commander
raped two Serbian female prisoners in order to intimidate the
other female detainees20 and to discourage dissent among the
prisoners, in particular the women.21 The Trial Chamber held that
those incidents of rape amounted to torture as a war crime under
Article 3 of the Yugoslav Statute.22 Even though the Trial Chamber
resorted to the CAT Convention’s customary definition to derive
the elements of torture as a war crime,23 the Chamber’s
interpretation of the elements varied slightly from the Convention’s. The
Chamber held that torture could be committed by State actors and
non-State actors.24 This legal holding took into account the
breakup of the former Yugoslavia, which resulted in Parties to an armed
conflict acting on behalf of political entities, rather than bona fide
States that were fully recognized by the international community.
Nonetheless, the Cˇelebic´i Trial Chamber held the individual
perpetrators responsible as de facto State actors.25
Turning our attention to the facts of the Cˇelebic´i case is
crucial. Professor Rhonda Copelon reminds us, that generally, we
precipitate over the meaning and the experience of rape as torture.
Although it is agreed that rape should be recognized as torture, we
hesitate to visualize rape and to truly understand why rape is
torture. Let me describe what often happens when a person, usually a
woman, suffers rape in a detention setting. The act is completely
unrelated to any sexual relations that, I hope, you in the audience
Sexual penetrations or rapes, in a detention center are usually
forced26 upon women who have not bathed in days, who have not
brushed their teeth in weeks, who are starving, who are recovering
from or are still in shock from seeing loved ones killed or
mutilated, or who have witnessed their houses burned down. The
actual rape is usually perpetrated upon a person who is utterly and
physically exhausted and terrorized. Her body is stiff. Her mind
sends no hormonal signals to release lubricating fluids to the body.
The person is forced to witness and participate in her own
torture—the forceful penetration. The victim is also forced to engage
in unwanted touching, fondling, and kissing. Usually the victim is
forced to be nude during the rape and to listen to the perpetrator
insult her, her race, or her ethnic group. The rape is often
committed in public, even if only one other person is present, maybe
another guard at the side of the perpetrator who waits for his turn.
Such facts certainly amount to the infliction of severe pain and
severe mental suffering even before a victim-survivor is stricken with
Post Traumatic Stress Disorder.27 Rape as torture is an act of
sexual penetration that is separate and differentiated from, and
unrelated and adverse to the sexual relations one experiences in their
26 Force must be interpreted broadly. It is not limited to notions of physical
coercion as noted in the International Criminal Court’s definition of the War crime of
1)The perpetrator invaded the body of a person by conduct resulting in
penetration, however slight, of any part of the body of the victim or of
the perpetrator with a sexual organ, or of the anal or genital opening of
the victim with any object or any other part of the body.
2) The invasion was committed by force, or threat of force or coercion,
such as that caused by fear of violence, duress, detention, psychological
oppression, or abuse of power, against such a person or another person,
or by taking advantage of a coercive environment, or the invasion was
committed against a person incapable of giving genuine consent.
Elements of Crimes, supra note 14, art. 8(
) (b) (xxii)-1.
27 A person with Post Traumatic Stress Disorder (PTSD) “has been exposed to a
traumatic event in which both of the following were present: (
) the person
experienced, witnessed, or was confronted with an event or events that involved actual or
threatened death or serious injury, or a threat to the physical integrity of self or
) the person’s response involved intense fear, helplessness, or horror.” AM.
PSYCHIATRIC ASSN., DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
DSMIV § 309.81 (4th ed. 1994).
In the Cˇelebic´i case, two women were raped under
circumstances similar to those just described.28 Sexual violations were also
inflicted upon the male prisoners.29 Certain male prisoners were
forced to commit fellatio upon each other. The Trial Chamber
factually found that a father-son pair was forced to suffer such a
sexual assault. The act not only increased the fear and the terror
among the other male inmates, but also sharpened the father and
son’s sense of humiliation.30 Investigations at the Yugoslav
Tribunal reveal that males are often sexually tortured31 in related pairs:
captain/private, father/son, brother/brother.32 Male sexual
assault is frequently done publicly, in front of the other male
prisoners. It purposefully sends a terrorizing message to them. In
addition, in the Cˇelebic´i camp males were sexually tortured by
having live wires wrapped around their penis.33
The Trial Chamber found that these acts amounted to cruel
treatment and inhumane treatment.34 Again, humanitarian law
did not provide specific elements of these offenses.35 In this
instance, the Trial Chamber did not revert to the CAT Convention,
but developed elements from past international jurisprudence, in
particular from the subsequent trials of Nuremberg.36
Accordingly, the Trial Chamber’s jurisprudence on sexualized torture
under humanitarian law also scrutinized factual findings, as well as
humanitarian law policy when determining the elements of torture
and cruel and inhumane treatment and when forging their
Another case that examined sexual torture, at the Yugoslav
Tribunal was the Prosecutor v. Furundzija.37 It is a very short case
that resulted in the Trial Chamber convicting a paramilitary
commander of torture and rape.38 The pertinent facts are as follows: A
Bosnian Muslim woman, Witness A, was arrested and taken to the
barracks of a Bosnian-Croat paramilitary group, the Jokers. At the
barracks she was “asked” to take off her clothes.39 She stood in a
state of forced nudity while she awaited someone called the “Boss”
to arrive and to interrogate her.40 When Furundzija, the “Boss,”
appeared, he questioned her on the whereabouts of her son and a
hidden military radio. During the interrogation, another member
of the Jokers paramilitary group, Bralo, drew out a knife and slowly
scraped the blade up and down her body. Bralo threatened to cut
out Witness A’s vagina if she didn’t answer Furundzija’s questions
After the initial interrogation, Furndizija left the barracks and
went to another building on the paramilitary compound.
Meanwhile, Bralo continued to sexually torture Witness A, raping her
orally, anally, and vaginally in conditions similar to those I
described earlier. Imagine her physical and mental pain.42
Moreover, Witness A endured the torture in front of about thirty other
paramilitary soldiers who were fully armed.43
The commander returned with a Bosnian-Croat soldier,
Witness D, who the paramilitary group had detained earlier in order
to extract information from him.44 Prior to his detention by the
Jokers, Witness D had been held in a Bosnian Muslim Army prison.
Furundzija wanted to know whether Witness D had revealed any
facts to the Bosnian Muslim Army about the Bosnian-Croat military
command or its future military operations.45 In order to coerce
Witness D’s confession, he was taken to the barracks where he was
forced to watch the anal, vaginal, and oral rape inflicted on a
naked woman,46 Witness A.
The Trial Chamber held that Witness A was tortured. It also
39 Id. ¶ 40.
40 Id. ¶ 80.
41 Id. ¶ 82.
42 Id. ¶ 83.
43 Id. ¶ 76.
44 Id. ¶ 84.
45 Id. ¶ 75.
46 Id. ¶ 87. See also Prosecutor v. Miroslav Bralo, Case No. IT-95-17-S, Sentencing
Judgment, Dec. 7, 2005. Bralo was indicted, but only arrested several years after
Furundzija was tried. Bralo pleaded guilty to the rape and torture of Witness A and
currently serving a twenty year prison term. The Bralo Trial Chamber characterized
the relevant facts of torture as, “Bralo threatened Witness A’s life while she was being
interrogated, he raped her in front of an unknown number of other people over an
extended period of time, and he bit her and ejaculated repeatedly over her body
held that Witness D, even though he was a Bosnian-Croat soldier
like the perpetrators, had been tortured because he was forced to
watch someone else be tortured in an attempt to make him
confess.47 The Furundzija Trial Chamber, like the Cˇelebic´i case,
looked to the CAT Convention definition to pronounce the
elements of the prohibition of torture under humanitarian law. The
judgment reiterated that Furundzija, acting under color of
HerzegBosna, an independent political entity inside the Republic of
Bosnia and Herzegovina,48 was a de facto State actor and could be guilty
of torture. Again, the Trial Chamber did not require facts to
establish the actions nor lack of due diligence on the part of a
“legitimate” State as a pre-condition to convict the paramilitary
The next Yugoslav judgment that advanced torture
jurisprudence was the Prosecutor v. Kunarac.50 It is commonly referred to as
the Foca judgment, in reference to the town where the crimes
occurred. The case follows eight to twenty Bosnian Muslim women
and girls through a series of Bosnian Serb detention centers and
private homes. In these locations, the females suffered countless
rapes by Kunarac’s military unit and other Bosnian Serb troops
who rotated back and forth to the frontlines of battle.51 Several of
the women and girls were eventually enslaved.52 Later, some were
sold for a television set or the sum of 500 Deutsch marks.53
The facts of the Kunarac case are unbearable. In one incident,
Kunarac’s deputy urged a young woman to “please” his
commander, Kunarac. While Kunarac’s soldiers are in the living room
of a house, raping another female detainee, the young woman is
told to go into the commander’s bedroom and to initiate sexual
intercourse with him. She is, in essence, ordered to start her own
torture process. The young woman was aware that Kunarac’s
soldiers in the living room were fully armed. The deputy had
threatened to kill her if she did not ensure that Kunarac was
during his prolonged assault of her. These actions demonstrate a desire to debase and
terrify a vulnerable woman, who was at the complete mercy of her captors.” Id. ¶ 34.
47 Furundzija, Case No. IT-95-17/1-A, Judgment, Disposition ¶ 267(ii).
48 Id. ¶51.
49 The Furundzija Trial Chamber interpreted the official capacity element as: “at
least one of the persons involved in the torture process must be a public official or
must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any
other authority-wielding entity. ” Id. ¶ 62.
50 Prosecutor v. Kunarac, Case No. IT-96-23 and 23/1, Judgment (Feb 22, 2001).
53 Id. ¶¶ 775–782.
“pleased.”54 In addition to the incessant rapes in the Kunarac case,
there was forced nudity. Women and girls are forced to dance on
tabletops while naked and generally made to remain unclothed, as
long as the soldiers so desired.55
For the countless rapes, the Kunarac Trial Chamber found the
three accused guilty,56 inter alia, of torture as a war crime.
Likewise, they were guilty of the crimes of rape, enslavement, and
inhumane acts as crimes against humanity under the Yugoslav Statute.
The Kunarac Trial Chamber, moreover, after a lengthy comparison
of torture’s characterization as a human rights violation and its
status as an international crime, revised the elements of torture
handed down in the previous Yugoslav judgments.57 The Kunarac
Trial Chamber duly regarded the definition in the CAT
Convention, but rejected the utilization of those requirements not in
conformity to humanitarian law norms. The Kunarac Trial Chamber
viewed torture, including sexual torture, as not requiring any
element of official capacity.58 It held that humanitarian law eschewed
an element of State or official capacity or acquiescence or consent
of official capacity.59 It opined that other crimes under
humanitarian law did not confine perpetrators to be State actors.
The jurisprudence of the ad hoc Tribunals fostered a more
germane interpretation of torture under humanitarian law and
international criminal law that readily encompassed rape yet removed
requirements of official capacity or consent. Emphasis is to be
54 Id. ¶ 219.
55 Id. ¶¶ 766–774.
56 Id. ¶¶ 593–822.
57 The Kunarac Trial Chamber opined that:
[The Chamber] must consider each element of the definition “from the
specific viewpoint of international criminal law relating to armed
conflicts.” In practice, this means that the Trial Chamber must identify
those elements of the definition of torture under human rights law
which are extraneous to international criminal law as well as those
which are present in the latter body of law but possibly absent from
human rights regime.
Kunarac, Case No. IT-96-23 and 23/1, Judgment ¶ 488 (quoting Furundzija, Case No.
IT-95-17/1-T, Judgment ¶ 162).
58 Id. ¶ 496.
59 The Kunarac Chamber held that torture as characterized by international
customary law of international humanitarian law consisted of: (
) The infliction by act or
omission, of severe pain or suffering, whether physical or mental; (
) The act or
omission must be intentional; (3) The act or omission must aim at obtaining information
or a confession, or at punishing, intimidating, or coercing the victim or a third
person, or at discriminating, on any ground against the victim or a third person. See id. ¶
placed on the torture act alleged to have been committed,60 not
the official or unofficial status of the torturer. To obtain a
conviction for torture, the status of the perpetrator became irrelevant61 as
long as other elements and the jurisdictional prerequisites were
established. The humanitarian and criminal law interpretation,
hence, moved beyond the Convention’s customary definition.
I would endeavor to add that the factual bases also assisted in
the development of torture law. The fact findings of sexual torture
found in the Kunarac case together with the Chamber’s
acknowledgment of the sexual torture jurisprudence of the Cˇelebic´i and
Furundzija cases, might have prompted, in part, the Kunarac
Chamber’s revisitation of the relevance of the element of official capacity
In another Yugoslav case, Prosecutor v. Tadic,62 two Bosnian
Muslim male prisoners were forced to lick the buttocks of another
male prisoner, suck his penis, and then were told to bite off his
testicles.63 In the indictment, the Prosecutor alleged torture and
cruel treatment jointly, not alternatively, under Article 2 and 3 of
the Yugoslav Tribunal Statute. The Trial Chamber held that those
acts of sexual violence could amount to torture, under Article 3;
however, the Defendant was owed the benefit of the lesser
conviction64 whenever the Prosecutor failed to distinguish the two crimes
in the charging instrument. Therefore, the Tadic Trial Chamber
entered a conviction for the war crime of cruel treatment.65
I am confident that if torture were to have been properly
charged in Tadic, the factual findings would have sufficed as the
basis of the conviction.66 Nevertheless, the acts of male sexual
violence enriched the interpretation of cruel treatment and
inhumane treatment as war crimes.67
The International Criminal Court (“ICC”), as of yet, has not
adjudicated evidence of torture as either a crime against humanity
or as a war crime. The governing instrument of the ICC, the Rome
Statute,68 as supplemented by the Elements of the Crimes69
modifies the requirements of torture. The Elements of the Crimes
removes several CAT Convention prerequisites, codifies some of
the ad hoc Tribunals’ jurisprudence, and incorporates further
The Rome Statute’s elements of torture focus on an act where
there is a knowing infliction of severe pain or suffering, whether
physical or mental. The Rome Statute’s potential interpretation,
accordingly deletes any elements of official capacity and
underlying purposes for the commission of the torture act. Paralleling the
ad hoc Tribunal jurisprudence, it removes the relevance of official
capacity, acquiescence, or consent. Thus, torture can be
committed by a State or a non-State actor. The Rome Statute includes
another element, namely, that the victim of torture must be in the
custody or under the control of the perpetrator.70 The definition
of torture set forth in the CAT Convention has been addressed by
international judicial institutions. How will the ICC elements of
torture affect future adjudications of sexual violence under
humanitarian law or international criminal law? Concerted attention
must be given to the ICC’s development of torture jurisprudence.
I emphasize that the facts of sexual torture described today,
offers a lens and perspective from which to perceive and better
understand facts that have surfaced from the detention facilities in
Guanta´namo and Abu Ghraib.71 In this week’s New Yorker
magazine, appears an article about the female soldier who snapped
many of the pictures of Abu Ghraib prisoners when they were
subjected to sexual torture. The article recounts that the soldier was
incredulously unaware that she was photographing acts of torture
actionable under humanitarian law. She justified these acts by
simply observing that, “well, they were forced naked, but no one
touched them.” In essence, no physical harm was done to them.72
Soldiers must understand factually, what is torture. What does
it mean to be held for hours in a position of forced nudity, among
guards who are armed, while your genitals are exposed and female
underwear is tied on your head? Such acts resurface homophobic
taunting, patriarchal sexism, and dire fear. At their lowest
denominator, they are degrading punishment. More appropriately, the
mental suffering suffices to establish the crime of torture.
Today, as we proceed through the conference, we will
concentrate on torture in its manifestation as a human rights violation. I,
however, would underscore torture’s other legal life under
international criminal law and humanitarian law.
(last visited Nov. 1, 2008).
14 See, e.g., Furundzija (Furundzija), Case No. IT-95-17 /1-T, Judgment, ¶¶ 159; see also supra notes 6 , 7 , 9 . Neither the Geneva Convention of 1949 , the Additional Protocols to the Geneva Conventions of 1977, nor the Yugoslav Statue and Rwanda Statute discussed above, enumerated crimes prohibited in their instruments, including torture . In direct contrast, crimes under the jurisdiction of the Rome Statute of the International Criminal Court , U.N. Doc . A/CONE.183/9 (July 17 , 1998 ) [hereinafter Rome Statute], state their respective elements in a supplemental instrument, the Elements of Crimes, U .N. Doc. PCNICC/ 2000 /1/Add.2 ( 2000 ) [hereinafter Elements of Crimes] .
15 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment , art. 1 , Dec . 10 , 1984 , S. Treaty Doc . No. 100 - 20 ( 1988 ), 1465 U.N.T.S. 85 , 23 I.L.M. 1027 ( 1984 ) [hereinafter Convention]. According to Articles 1 and 2 of the Convention:
1. For purposes of this Convention, any act by which severe pain and suffering, whether physical or mental, as 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, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity .
2. This article is without prejudice to any international instrument . . . .
Regional human rights instruments, notably Article 2 of the Inter-American Convention to Prevent and Punish Torture, voice slightly different requirements for torture as a human rights violation. See Inter-American Convention to Prevent and Punish Torture , art. 2, Dec. 9 , 1985 , O.A.S.T.S. No . 67 , OEA/Ser.A/42, entered into force Feb. 28 1987 .
16 See Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment (Sept. 2 , 1998 ), Furundzija (Furundzija) , Case No. IT-95-17 /1-T, Judgment, ¶¶ 159 - 164 ; see also Prosecutor v. Delalic (Delalic) , Case No. IT -96-21-T, Judgment, ¶¶ 452 - 469 (Nov. 16, 1998 ).
17 Delalic, Case No. IT-96-21-T, Judgment.
18 Id. ¶¶ 4 , 130 .
19 Id. ¶ 153 .
20 Id. ¶ 941 .
22 Id. ¶¶ 941 , 963 .
23 Id. ¶¶ 459 .
24 The Trial Chamber observed that, “In the context of international humanitarian law, this requirement must be interpreted to include officials of non-State parties to a conflict, in order for the prohibition to retain significance in situations of internal armed conflicts or international conflicts involving some non-State entities .” Id. ¶ 473 .
25 The Trial Chamber found that Hazim Delic and Esad Landzo perpetrated acts of torture in their roles as officials of the Bosnian authorities running the prisoncamp . Delalic, Case No. IT -96-21-T, Judgment, ¶¶ 923 , 940 , 962 , 967 , 998 . The State of Bosnia and Herzegovina was recognized as independent on April 6, 1992, however, The Republic of Bosnia and Herzegovina became Bosnia and Herzegovina after the Dayton Peace Agreement in 1995 . Id. ¶ 2 n.6.
28 Delalic, Case No. IT-96-21-T, Judgment, ¶¶ 926 - 43 , 944 - 65 .
29 Id. ¶¶ 1062 - 66 .
30 Id. ¶ 1065 .
31 See, e.g., Prosecutor v . Tadic, Case No. IT-94-1-T, Judgement, ¶ 206 ( May 7 , 1997 ); Prosecutor v . Milan Simic, Case No. IT-95-9-T, Judgment (October 17 , 2003 ); Prosecutor v . Stevan Todorovic, Case No. IT-95-9 /1-S, Sentencing Judgment ( 31 July 2001 ) ; Prosecutor v . Ranko Cesic, Case No. IT-95-10/1-S, Sentencing and Judgment (March 11 , 2004 ); Prosecutor v . Plavsic, Case Ni. IT-00-39 and 40, Sentencing and Judgment (Jan. 27 , 2003 ).
32 Delalic, Case No. IT-96-21-T, Judgment, ¶ 1065 .
33 Id. ¶¶ 1038 - 40 , 1045 .
34 Id. ¶ 1072 . But see id . ¶ 1019 ( The placing of a burning fuse cord around the genital areas two victims caused “great suffering or serious injury .”).
36 Beth Van Schaack , Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals , 97 GEO. L.J. 119 , 123 ( 2008 ).
37 Furundzija, Case No. IT-95- 17 /1-A, Judgment, Disposition ¶ 112 .
60 Id. ¶ 495 .
62 Tadic, Case No. IT-94-1-T, Judgement, ¶ 536 .
63 Id. ¶ 660 .
64 Id. ¶¶ 720 , 726 .
65 Id. ¶¶ 720 , 726 .
66 On appeal, the Appellate Chamber also held Dusko Tadic criminally liable for the sexual abuse as inhumane treatment under Article 2 of the Yugoslav Statute . Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Judgement (July 15 , 1999 ).
67 See Chandra Jeet , International Criminal Justice: Issues and Perspectives , 44 INT'L STUD . 258 , 253 - 63 ( 2007 ) (book review).
68 See Rome Statute, supra note 14.
69 ELEMENTS OF CRIMES, supra note 14.
70 For example, the Elements of the Crimes gives the critical elements of torture, as a crime against humanity under: “(1) The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons; (2) Such person or persons were in the custody or under the control of the perpetrator . ” Id. art. 7 ( 1 )(f).
71 See generally Jamie Mayerfeld, Playing by Our Own Rules: How Marginalization of International Human Rights Law Led to Torture, 20 HARV . HUM. RTS. J. 89 ( 2007 ) ; THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB (Karen J. Greenberg & Joshua L. Dratel eds., 2005 ).
72 Specialist Sabrina Harman stated, “Until Redcross came we had prisoners the MI put in womens panties trying to get them to talk. Pretty funny but they say it was 'cruel.' I don't think so. No physical harm was done.” Philip Gourevitch & Errol Morris, Exposure: The Woman Behind the Camera at Abu Ghraib, THE NEW YORKER , Mar . 24 ,