Page 67 - ประมวลสรุปความรู้เกี่ยวกับพิธีสารอิสตันบูลและพิธีสารมินนิโซตา

I. RELEVANT INTERNATIONAL LEGAL NORMS AND STANDARDS ISTANBUL PROTOCOL

in which the underlying offence of torture as a crime Criminal Tribunal for Rwanda found that rape could
against humanity does not require a specific purpose. 214 constitute torture. According to the Trial Chamber:
However, it does require that the perpetrator knew
that the conduct was part of, or intended the Like torture, rape is used for such purposes
conduct to be, “part of a widespread or systematic as intimidation, degradation, humiliation,
attack directed against any civilian population” 215 discrimination, punishment, control or
and be committed “pursuant to or in furtherance destruction of a person. Like torture, rape
of a State or organizational policy to commit such is a violation of personal dignity, and rape
attack”, 216 both of which indicate purpose. in fact constitutes torture when inflicted by
or at the instigation of or with the consent
127. The International Tribunal for the Former Yugoslavia or acquiescence of a public official or other
outlined the prohibition of torture in armed conflict in person acting in an official capacity. 221
Prosecutor v. Anto Furundžija. The Court found that
it did not need to determine whether the provisions 129. The Appeals Chamber of the International Tribunal
had passed into customary law in their entirety, for the Former Yugoslavia affirmed that rape could
because “a general prohibition against torture has constitute torture 222 and the International Criminal
evolved in customary international law”, 217 and Court found that rape and other forms of sexual
emphasized that, depending upon the circumstances violence were used as a weapon of war. 223
of the particular case, torture may be prosecuted
as a category of serious violations of humanitarian 130. The International Criminal Tribunal for Rwanda
law, grave breaches of the Geneva Conventions, has also found that torture can be one of genocide’s
crimes against humanity or genocide. 218 Moreover, “underlying offences” because it constitutes an act that
“under international humanitarian law, in addition to “caus[es] serious bodily or mental harm to members of
individual criminal responsibility [for acts of torture], the group”. 224 Additionally, the International Tribunal
State responsibility may ensue as a result of State for the Former Yugoslavia found that permanent
officials engaging in torture or failing to prevent torture injury was not required for an act to constitute
or to punish torturers.” 219 The Court also found that torture, that causing mental suffering could qualify
the prohibition of torture during armed conflict is as torture and that “the prohibited purpose need be
reinforced by international human rights instruments, neither the sole nor the main purpose of inflicting
and that the prohibition of torture has become a the severe pain or suffering”. 225 The International
peremptory norm of international law, covers potential Tribunal for the Former Yugoslavia did not have a
breaches and imposes obligations towards everyone. 220 uniform answer about whether or not public officials
needed to play a role in acts of torture, 226 and the
128. Rape and sexual violence in armed conflict has International Criminal Tribunal for Rwanda decided
also been addressed. In Prosecutor v. Jean-Paul that there was no public official requirement when acts
Akayesu, the Trial Chamber of the International of torture constituted crimes against humanity. 227

214 Rome Statute, art. 7 (1) (f).
215 Ibid., art. 7 (1).
216 Ibid., art. 7 (2) (a).
217 International Tribunal for the Former Yugoslavia, Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgment, 10 December 1998, para. 137.
218 Ibid., para. 141.
219 Ibid., para. 142.
220 Ibid., paras. 144 and 147–152.
221 International Criminal Tribunal for Rwanda, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, para. 597 (see also para. 687).
222 International Tribunal for the Former Yugoslavia, Prosecutor v. Dragoljub Kunarac et al., Case Nos. IT-96-23 and IT-96-23/1-A, Judgment, 12 June 2002, paras. 149–151.
223 International Criminal Court, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Judgment, 21 March 2016, paras. 98–112. The Appeals Chamber of
the International Criminal Court overturned the ruling in Bemba in 2018.
224 Human Rights Watch, Genocide, War Crimes, and Crimes Against Humanity: Topical Digests of the Case Law of the International Criminal Tribunal for Rwanda and the
International Criminal Tribunal for the Former Yugoslavia (New York, 2004), pp. 12 and 21–22. See also International Criminal Tribunal for Rwanda, Prosecutor v. Jean-Paul
Akayesu, para. 504; and Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case No. ICTR-96-3-T, Judgment, 6 December 1999, para. 51.
225 International Tribunal for the Former Yugoslavia, Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-T, Judgment, 2 November 2001, para. 153; see also paras. 148–
149.
226 International Tribunal for the Former Yugoslavia, Prosecutor v. Dragoljub Kunarac et al., Judgment, 12 June 2002, para. 148; Prosecutor v. Milorad Krnojelac, Case No.
IT-97-25-T, Judgment, 15 March 2002, para. 187; Prosecutor v. Anto Furundžija, para. 162; and Prosecutor v. Zdravko Mucić et al., Judgment, 16 November 1998,
paras. 494–496.
227 International Criminal Tribunal for Rwanda, Prosecutor v. Laurent Semanza, paras. 342–343.

25