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ICTY Statute, Article 5:
“The International Tribunal shall have the 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 inhumane acts.”
Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 410: In addition to the statutory requirement of an armed conflict, the following sub-elements are necessary: “(i) There must be an attack. (ii) The acts of the perpetrator must be part of the attack. (iii) The attack must be ‘directed against any civilian population.’ (iv) The attack must be ‘widespread or systematic.’ (v) The perpetrator must know of the wider context in which his acts occur and know that his acts are part of the attack.”
Tadic, (Appeals Chamber), July 15, 1999, para. 251: “The armed conflict requirement is satisfied by proof that there was an armed conflict. . . .”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 23: “Article 5 vests the International Tribunal with the competence to prosecute crimes against humanity ‘when committed in armed conflict, whether international or internal in character.’”
Tadic, (Appeals Chamber), July 15, 1999, para. 251: “A nexus between the accused’s acts and the armed conflict is not required, as is . . . suggested by the [Tadic Trial] Judgment. The armed conflict requirement is satisfied by proof that there was an armed conflict; that is all that the Statute requires, and in so doing, it requires more than does customary international law.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 83: “[T]he requirement [committed in armed conflict] contained in Article 5 of the Statute is a purely jurisdictional prerequisite which is satisfied by proof that there was an armed conflict and that objectively the acts of the accused are linked geographically as well as temporally with the armed conflict.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 33: “The Appeal Chamber [in Tadic] . . . concluded in respect of Article 5 of the Statute that proof of a nexus between the conduct of the accused and the armed conflict is not required. . . .” “Although the acts or omissions must be committed in the course of an armed conflict, the nexus which is required is between the accused’s acts and the attack on the civilian population.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 23: “In the Tadic Jurisdiction Decision the Appeals Chamber found that under customary law there is no requirement that crimes against humanity have a connection to an international armed conflict. The Appeals Chamber further held that ‘customary international law may not require a connection between crimes against humanity and any conflict at all.’ Article 5, however, requires nothing more than the existence of an armed conflict at the relevant time and place for the International Tribunal to have jurisdiction.”
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 233: “[T]he jurisdiction of the Tribunal pursuant to Article 5 of the Statute only comprises such acts of an accused that were committed in ‘armed conflict.’”
Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 410: To show crimes against humanity, one element is “[t]here must be an attack.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 86: “[T]he attack could precede, outlast, or continue during the armed conflict, but it need not be a part of it.”
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 233: “The attack has been defined as a course of conduct involving the commission of acts of violence. The attack can precede, outlast, or continue during the armed conflict, but need not be a part of the conflict under customary international law.”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 30: “The concepts of ‘attack’ and ‘armed conflict’ are distinct and independent.” Quoting the Appeals Chamber in Tadic: “The two – the ‘attack on the civilian population’ and the ‘armed conflict’ – must be separate notions, although of course under Article 5 of the Statute the attack on ‘any civilian population’ may be part of an ‘armed conflict.’”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 29, 30: “In the context of a crime against humanity, the phrase ‘attack’ is not limited to the use of armed force; it also encompasses any mistreatment of the civilian population.” See also Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 86 (same).
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 87-88: “[W]hen establishing whether there was an attack upon a particular civilian population, it is not relevant that the other side also committed atrocities against its opponent’s civilian population. The existence of an attack from one side against the other side’s civilian population would neither justify the attack by that other side against the civilian population of its opponent nor displace the conclusion that the other side’s forces were in fact targeting a civilian population as such. Each attack against the other’s civilian population would be equally illegitimate and crimes committed as part of this attack could, all other conditions being met, amount to crimes against humanity. Evidence of an attack by the other party on the accused’s civilian population may not be introduced unless it tends ‘to prove or disprove any of the allegations made in the indictment,’ notably to refute the Prosecutor’s contention that there was a widespread or systematic attack against a civilian population. A submission that the other side is responsible for starting the hostilities would not, for instance, disprove that there was an attack against a particular civilian population.”
Tadic, (Appeals Chamber), July 15, 1999, para. 251: “A nexus with the accused’s acts is required . . . for the attack on ‘any civilian population.’”
Tadic, (Appeals Chamber), July 15, 1999, para. 271: “[T]o convict an accused of crimes against humanity, it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict). . . .”
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 234: “The acts of the accused must not be isolated but form part of the attack. This means that the act, by its nature or consequence, must objectively be a part of the attack.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 33: “[T]he nexus which is required is between the accused’s acts and the attack on the civilian population.”
Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 410: To show crimes against humanity, one element is there must be an attack “directed against any civilian population.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 90: “[T]he expression ‘directed against’ is an expression which ‘specifies that in the context of a crime against humanity the civilian population is the primary object of the attack.’ In order to determine whether the attack may be said to have been so directed, the Trial Chamber will consider . . . the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.”
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 235: “An attack is ‘directed against’ a civilian population if the civilian population is the primary object of the attack.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 90: “[T]he use of the word ‘population’ does not mean that the entire population of the geographical entity in which the attack is taking place must have been subjected to that attack. It is sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian ‘population,’ rather than against a limited and randomly selected number of individuals.” See also Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 235 (same).
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 180: “A population may be considered as ‘civilian’ even if certain non-civilians are present – it must simply be ‘predominantly civilian in nature.’”
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 235: “[T]he presence of a number of non-civilians cannot refute the predominantly civilian character of a population.”
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 235: “The population against whom the attack is directed is considered civilian if it is predominantly civilian.”
Jelisic, (Trial Chamber), December 14, 1999, para. 54: “‘The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.’”
Prosecutor v. Kupreskic et al., Case No. IT-95-16 (Trial Chamber), January 14, 2000, para. 549: “[T]he presence of those actively involved in the conflict should not prevent the characterization of a population as civilian and those actively involved in a resistance movement can qualify as victims of crimes against humanity.”
Blaskic, (Trial Chamber), March 3, 2000, para. 214: “[T]he presence of soldiers within an intentionally targeted civilian population does not alter the civilian nature of that population.”
Blaskic, (Trial Chamber), March 3, 2000, para. 214: “Crimes against humanity . . . do not mean only acts committed against civilians in the strict sense of the term but include also crimes against two categories of people: those who were members of a resistance movement and former combatants - regardless of whether they wore wear uniform or not – but who were no longer taking part in hostilities when the crimes were perpetrated because they had either left the army or were no longer bearing arms or, ultimately, had been placed hors de combat, in particular, due to their wounds or their being detained. [T]he specific situation of the victim at the moment the crimes were committed, rather than his status, must be taken into account in determining his standing as a civilian.”
Jelisic, (Trial Chamber), December 14, 1999, para. 54: “[T]he notion of civilian population as used in Article 5 of the Statute includes, in addition to civilians in the strict sense, all persons placed hors de combat when the crime is perpetrated.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 180: “[I]ndividuals who at one time performed acts of resistance may in certain circumstances be victims of a crime against humanity.”
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 235: “[T]he definition of civilian population includes individuals who may at one time have performed acts of resistance and persons hors de combat. . . .”
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 547-549: “It would seem that a wide definition of ‘civilian’ and ‘population’ is intended. This is warranted first of all by the object and purpose of the general principles and rules of humanitarian law, in particular by the rules prohibiting crimes against humanity. The latter are intended to safeguard basic human values by banning atrocities directed against human dignity. [A] broad interpretation should . . . be placed on the word ‘civilians,’ the more so because the limitation [safeguarding civilians and not combatants] in Article 5 constitutes a departure from customary international law.”
Jelisic, (Trial Chamber), December 14, 1999, para. 54: “It follows from the letter and the spirit of Article 5 that the term ‘civilian population’ must be interpreted broadly.”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 33: “The protection of Article 5 extends to ‘any’ civilian population including, if a state takes part in the attack, that state’s own population. It is therefore unnecessary to demonstrate that the victims were linked to any particular side of the conflict.”
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 236: “The attack must be either widespread or systematic in nature.”
Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 431: “Only the attack, not the individual acts of the accused, must be ‘widespread or systematic.’”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 179: “[A] crime may be widespread or committed on a large scale by the ‘cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude.’”
Blaskic, (Trial Chamber), March 3, 2000, para. 206: “The widespread characteristic refers to the scale of the acts perpetrated and to the number of victims.” See also Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 236 (same).
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 94: “‘[P]atterns of crimes – that is the non-accidental repetition of similar criminal conduct on a regular basis – are a common expression of [a] systematic occurrence.’”
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 236: “The element ‘systematic’ requires an organised nature of the acts and the improbability of their random occurrence.”
Blaskic, (Trial Chamber), March 3, 2000, para. 203: “The systematic character refers to four elements which . . . may be expressed as follows: [1] the existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or weaken a community; [2] the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhumane acts linked to one another; [3] the preparation and use of significant public or private resources, whether military or other; [4] the implication of high-level political and/or military authorities in the definition and establishment of the methodical plan.”5
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 95: In assessing what constitutes a “widespread” or “systematic” attack, a Trial Chamber must “first identify the population which is the object of the attack and, in light of the means, methods, resources and result of the attack upon the population, ascertain whether the attack was indeed widespread or systematic.” “The consequences of the attack upon the targeted population, the number of victims, the nature of the acts, the possible participation of officials or authorities or any identifiable patterns of crimes, could be taken into account to determine whether the attack satisfies either or both requirements of a ‘widespread’ or ‘systematic’ attack.”
Jelisic, (Trial Chamber), December 14, 1999, para. 53: “The existence of an acknowledged policy targeting a particular community, the establishment of parallel institutions meant to implement this policy, the involvement of high-level political or military authorities, the employment of considerable financial, military or other resources and the scale or the repeated, unchanging and continuous nature of the violence committed against a particular civilian population are among the factors which may demonstrate the widespread or systematic nature of an attack.”
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 550: “[I]n certain circumstances, a single act has comprised a crime against humanity when it occurred within the necessary context. An isolated act, however – i.e. an atrocity which did not occur within such a context – cannot.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 178: “[A] single isolated act by a perpetrator, if linked to a widespread or systematic attack, could constitute a crime against humanity.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 98: “[N]either the attack nor the acts of the accused needs to be supported by any form of ‘policy’ or ‘plan.’” To prove that the attack was directed against a civilian population and that it was widespread or systematic, which are legal elements of the crime, “it is not necessary to show that they were the result of the existence of a policy or plan.” “[T]he existence of a policy or plan may be evidentially relevant, but it is not a legal element of the crime.”
But see Blaskic, (Trial Chamber), March 3, 2000, para. 204: “This plan [required for determining if an attack is systematic] . . . need not necessarily be declared expressly or even stated clearly and precisely. It may be surmised from the occurrence of a series of events, inter alia: [a] the general historical circumstances and the overall political background against which the criminal acts are set; [b] the establishment and implementation of autonomous political structures at any level of authority in a given territory; [c] the general content of a political programme, as it appears in the writings and speeches of its authors; [d] media propaganda; [e] the establishment and implementation of autonomous military structures; [f] the mobilisation of armed forces; [g] temporally and geographically repeated and co-ordinated military offensives; [h] links between the military hierarchy and the political structure and its political programme; [i] alterations to the ‘ethnic’ composition of populations; [j] discriminatory measures, whether administrative or other (banking restrictions, laissez-passer,…); [k] the scale of the acts of violence perpetrated – in particular, murders and other physical acts of violence, rape, arbitrary imprisonment, deportations and expulsions or the destruction of non-military property, in particular, sacral sites.”
But see Blaskic, (Trial Chamber), March 3, 2000, para. 205: The plan for the attack need not “necessarily be conceived at the highest level of the State machinery.”
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 556: “[T]he requisite mens rea for crimes against humanity appears to be comprised by (1) the intent to commit the underlying offence, combined with (2) knowledge of the broader context in which that offence occurs.”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 37: “[T]he accused [ . . . ] must have had the intent to commit the underlying offence or offences with which he is charged. . . .”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 103: “‘[T]he motives of the accused for taking part in the attack are irrelevant. . . .’” “[T]he accused need not share the purpose or goal behind the attack.”
Tadic, (Appeals Chamber), July 15, 1999, para. 270, 272: “[U]nder customary law, ‘purely personal motives’ do not acquire any relevance for establishing whether or not a crime against humanity has been perpetrated.” “[I]n the opinion of the Appeals Chamber, the requirement that an act must not have been carried out for the purely personal motives of the perpetrator does not form part of the prerequisites necessary for conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal’s Statute.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 187: “It is . . . settled that the motives of the accused are not relevant in this context.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 103: “It is . . . irrelevant whether the accused intended his acts to be directed against the targeted population or merely against his victim. It is the attack, not the acts of the accused, which must be directed against the target population and the accused need only know that his acts are part thereof.”
Tadic, (Appeals Chamber), July 15, 1999, para. 283, 292, 305: “The ordinary meaning of Article 5 makes it clear that this provision does not require all crimes against humanity to have been perpetrated with a discriminatory intent. Such intent is only made necessary for one sub-category of those crimes, namely ‘persecutions provided for in Article 5 (h).’” “[C]ustomary international law, as it results from the gradual development of international instruments and national case-law into general rules, does not presuppose a discriminatory or persecutory intent for all crimes against humanity.” “[T]he Trial Chamber erred in finding that all crimes against humanity require a discriminatory intent. Such an intent is an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required, that is, for Article 5 (h), concerning various types of persecution.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 186: “The Appeals Chamber in Tadic clarified another issue in relation to the requisite mens rea for crimes against humanity. It rejected the view that to constitute a crime against humanity all relevant acts or omissions must be undertaken by the perpetrator on discriminatory grounds. [D]iscriminatory intent ‘is an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required, that is, for Article 5(h), concerning various types of persecution.’”
Blaskic, (Trial Chamber), March 3, 2000, para. 244: “[T]o be judged guilty of crimes against humanity, except in the case of persecution, [the perpetrator] [need] not have had the intent of targeting civilians because of their race or their religious or political beliefs.”
Blaskic, (Trial Chamber), March 3, 2000, para. 260: “[F]or a widespread or systematic attack and the resultant crimes – murder, extermination, enslavement, deportation, imprisonment, torture, rape or other inhumane acts with the exception of persecution – to be characterised as crimes against humanity they need not have been perpetrated with the deliberate intent to cause injury to a civilian population on the basis of specific characteristics. [T]o be found guilty of such an offence, those responsible for the attack need not necessarily have acted with a particular racial, national, religious or political intent in mind.”
Prosecutor v. Todorovic, Case No. IT-95-9/1 (Trial Chamber), July 31, 2001, para. 113: The crime of persecution “is the only crime against humanity which requires that the perpetrator act with a discriminatory intent and, by its nature, it incorporates other crimes.”
See also discussion of mental state (mens rea) in underlying offenses, Section (IV)(c)(i)(6) (murder); (IV)(c)(ii)(4) (extermination); (IV)(c)(iii)(1) (enslavement); (IV)(c)(iv) (imprisonment); (IV)(c)(v)(4) (torture); (IV)(c)(vi) (rape); (IV)(c)(vii)(2) (persecution); (IV)(c)(viii)(2)(c) (other inhumane acts), ICTY Digest.
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 102: “[T]he accused must have had the intent to commit the underlying offence or offences with which he is charged, and that he must have known ‘that there is an attack on the civilian population and that his acts comprise part of that attack, or at least that he took the risk that his acts were part of the attack.’” See also Krnojelac, (Trial Chamber), March 15, 2002, para. 59 (same).
Tadic, (Appeals Chamber), July 15, 1999, para. 271: “The Trial Chamber correctly recognised that crimes which are unrelated to widespread or systematic attacks on a civilian population should not be prosecuted as crimes against humanity. Thus to convict an accused of crimes against humanity, it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related.”
Blaskic, (Trial Chamber), March 3, 2000, para. 244: “The perpetrator must knowingly participate in a widespread or systematic attack against a civilian population.”
Jelisic, (Trial Chamber), December 14, 1999, para. 56: “The accused must . . . be aware that the underlying crime which he is committing forms part of the widespread and systematic attack.”
Blaskic, (Trial Chamber), March 3, 2000, para. 247: “The accused must first have knowledge of the general context in which his acts occur and then of the nexus between his action and that context.”
Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 410: In addition to the statutory requirement of an armed conflict, the following sub-elements are necessary: “ . . . v) The perpetrator must know of the wider context in which his acts occur and know that his acts are part of the attack.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 185: “Part of what transforms an individual’s act(s) into a crime against humanity is the inclusion of the act within a greater dimension of criminal conduct; therefore an accused should be aware of this greater dimension in order to be culpable thereof. Accordingly, actual or constructive knowledge of the broader context of the attack, meaning that the accused must know that his act(s) is part of a widespread or systematic attack on a civilian population and pursuant to some sort of policy or plan, is necessary to satisfy the requisite mens rea element of the accused.”6
Vasiljevic, (Trial Chamber), November 29, 2002, para. 37: The perpetrator “must know ‘that there is an attack on the civilian population and that his acts comprise part of that attack, or at least [that he took] the risk that his acts were part of the attack.’”
Blaskic, (Trial Chamber), March 3, 2000, para. 257: “It follows that the mens rea specific to a crime against humanity does not require that the agent be identified with the ideology, policy or plan in whose name mass crimes were perpetrated nor even that he supported it. It suffices that he knowingly took the risk of participating in the implementation of the ideology, policy or plan. This specifically means that it must, for example, be proved that: [a] the accused willingly agreed to carry out the functions he was performing; [b] that these functions resulted in his collaboration with the political, military or civilian authorities defining the ideology, policy or plan at the root of the crimes; [c] that he received orders relating to the ideology, policy or plan; and lastly [d] that he contributed to its commission through intentional acts or by simply refusing of his own accord to take the measures necessary to prevent their perpetration.”
Krnojelac, (Trial Chamber), March 15, 2002, para. 59: “It is sufficient that, through his acts or the function which he willingly accepted, he [the perpetrator] knowingly took the risk of participating in the implementation of th[e] attack.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 102: “This requirement [that the accused must have known that there is an attack on the civilian population and that his acts comprise part of that attack, or at least that he took the risk that his acts were part of the attack] does not entail knowledge of the details of the attack.”
Krnojelac, (Trial Chamber), March 15, 2002, para. 59: “[T]he accused must know that there is an attack directed against the civilian population and he must know that his acts are part of that attack, or at least take the risk that they are part thereof. This, however, does not entail knowledge of the details of the attack.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 185: “There is no apparent requirement in the jurisprudence . . . that the perpetrator must approve of the context in which his acts occur, as well as have knowledge of it.” “[T]he perpetrator must knowingly commit crimes against humanity in the sense that he must understand the overall context of his act.”
Blaskic, (Trial Chamber), March 3, 2000, para. 258-259: “[K]nowledge of the political context in which the offence fits may be surmised from the concurrence of a number of concrete facts” and “these are: [a] the historical and political circumstances in which the acts of violence occurred; [b] the functions of the accused when the crimes were committed; [c] his responsibilities within the political or military hierarchy; [d] the direct and indirect relationship between the political and military hierarchy; [e] the scope and gravity of the acts perpetrated; [f] the nature of the crimes committed and the degree to which they are common knowledge.”
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 560: “The constituent elements of murder under Article 5(a) of the Statute . . . comprise the death of the victim as a result of the acts or omissions of the accused, where the conduct of the accused was a substantial cause of the death of the victim. It can be said that the accused is guilty of murder if he or she engaging in conduct which is unlawful, intended to kill another person or to cause this person grievous bodily harm, and has caused the death of that person.”
Krstic, (Trial Chamber), August 2, 2001, para. 485: “Murder has consistently been defined . . . as the death of the victim resulting from an act or omission of the accused committed with the intention to kill or to cause serious bodily harm which he/she should reasonably have known might lead to death.”
Blaskic, (Trial Chamber), March 3, 2000, para. 217: “[T]he legal and factual elements of the offence” of murder are: “[a] the death of the victim; [b] the death must have resulted from an act of the accused or his subordinate; [c] the accused or his subordinate must have been motivated by the intent to kill the victim or to cause grievous bodily harm in the reasonable knowledge that the attack was likely to result in death.”
Jelisic, (Trial Chamber), December 14, 1999, para. 35: “Murder is defined as homicide committed with the intention to cause death. The legal ingredients of the offence as generally recognised in national law may be characterised as follows: [a] the victim is dead, [b] as a result of an act of the accused, [c] committed with the intention to cause death.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 236: “In order for an accused to be found guilty of murder, the following elements need to be proved: the death of the victim; that the death resulted from an act or omission of the accused or his subordinate; that the accused or his subordinate intended to kill the victim, or to cause grievous bodily harm or inflict serious injury in the reasonable knowledge that the attack was likely to result in death.”
Krnojelac, (Trial Chamber), March 15, 2002, para. 323-324: “[T]he elements of the offence of murder are the same under both Article 3 and Article 5 of the Statute.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 236: “[The] elements [of murder under Article 5] are similar to those required in connection to wilful killing under Article 2 and murder under Article 3 of the Statute, with the exception that in order to be characterised as a crime against humanity a ‘murder’ must have been committed as part of a widespread or systematic attack against a civilian population.”
See also discussion of willful killing under Article 2, Section (I)(d)(i), and murder under Article 3, Section (II)(d)(iv), ICTY Digest.
Krnojelac, (Trial Chamber), March 15, 2002, para. 326: “Proof beyond reasonable doubt that a person was murdered does not necessarily require proof that the dead body of that person has been recovered. [T]he fact of a victim’s death can be inferred circumstantially from all of the evidence presented to the Trial Chamber.”
Krnojelac, (Trial Chamber), March 15, 2002, para. 329: “The crucial issues [for determining whether suicide can constitute murder] are causation and intent. The relevant act or omission by the Accused or by those for whose acts or omissions the Accused bears criminal responsibility must have caused the suicide of the victim and the Accused, or those for whom he bears criminal responsibility, must have intended by that act or omission to cause the suicide of the victim, or have known that the suicide of the victim was a likely and foreseeable result of the act or omission. The Accused cannot be held criminally liable unless the acts or omissions for which he bears criminal responsibility induced the victim to take action which resulted in his death, and that his suicide was either intended, or was an action of a type which a reasonable person could have foreseen as a consequence of the conduct of the Accused, or of those for whom he bears criminal responsibility.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 235: “[T]he Blaskic Trial Chamber held that ‘it is murder (“meurtre”) and not premeditated murder (“assassinat”) which must be the underlying offence of a crime against humanity.’” See also Blaskic, (Trial Chamber), March 3, 2000, para. 216 (same).
Jelisic, (Trial Chamber), December 14, 1999, para. 51: “The Trial Chamber notes . . . that the English text of the Statute uses the term ‘murder’” and “observes” that “it is appropriate to adopt this as the accepted term in international custom.”
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 561: “The requisite mens rea of murder under Article 5(a) is the intent to kill or the intent to inflict serious injury in reckless disregard of human life. [T]he standard of mens rea required is intentional and premeditated killing. The result is premeditated when the actor formulated his intent to kill after a cool moment of reflection. The result is intended when it is the actor’s purpose, or the actor is aware that it will occur in the ordinary course of events.”
Krstic, (Trial Chamber), August 2, 2001, para. 503: “[F]or the crime of extermination to be established, in addition to the general requirements for a crime against humanity, there must be evidence that a particular population was targeted and that its members were killed or otherwise subjected to conditions of life calculated to bring about the destruction of a numerically significant part of the population.”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 229: “[T]he elements of the crime of ‘extermination’ are as follows: 1. The material element of extermination consists of any one act or combination of acts which contributes to the killing of a large number of individuals (actus reus). 2. The offender must intend to kill, to inflict grievous bodily harm, or to inflict serious injury, in the reasonable knowledge that such act or omission is likely to cause death, or otherwise intends to participate in the elimination of a number of individuals, in the knowledge that his action is part of a vast murderous enterprise in which a large number of individuals are systematically marked for killing or killed (mens rea).”
Krstic, (Trial Chamber), August 2, 2001, para. 502: “[T]he definition should be read as meaning the destruction of a numerically significant part of the population concerned.”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 227: The “Trial Chamber concludes . . . that criminal responsibility for ‘extermination’ only attaches to those individuals responsible for a large number of deaths, even if their part therein was remote or indirect. Responsibility for one or for a limited number of such killings is insufficient.”
But see Krstic, (Trial Chamber), August 2, 2001, para. 501: “[W]hile extermination generally involves a large number of victims, it may be constituted even where the number of victims is limited.”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 227: “The Trial Chamber . . . concludes that the act of extermination must be collective in nature rather than directed towards singled out individuals. . . .”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 228: “[I]t is not sufficient to establish extermination for the offender to have intended to kill a large number of individuals, or to inflict grievous bodily harm, or to inflict serious injury, in the reasonable knowledge that such act or omission was likely to cause death as in the case of murder. He must also have known of the vast scheme of collective murder and have been willing to take part therein.”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 229: “The offender must intend to kill, to inflict grievous bodily harm, or to inflict serious injury, in the reasonable knowledge that such act or omission is likely to cause death, or otherwise intends to participate in the elimination of a number of individuals, in the knowledge that his action is part of a vast murderous enterprise in which a large number of individuals are systematically marked for killing or killed (mens rea).”
Krstic, (Trial Chamber), August 2, 2001, para. 500: “[E]xtermination may be retained when the crime is directed against an entire group of individuals even though no discriminatory intent nor intention to destroy the group as such on national, ethnical, racial or religious grounds has been demonstrated; or where the targeted population does not share any common national, ethnical, racial or religious characteristics.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 116: “‘[T]he actus reus of the violation [of enslavement] is the exercise of any or all of the powers attaching to the right of ownership over a person,’ and the ‘mens rea of the violation consists in the intentional exercise of such powers.’”
Krnojelac, (Trial Chamber), March 15, 2002, para. 350: “Enslavement under Article 5 . . . has been defined by the Tribunal as the exercise of any or all of the powers attaching to the right of ownership over a person. The actus reus of enslavement is the exercise of those powers, and the mens rea is the intentional exercise of such powers.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 119: In determining whether enslavement has been established, the indicia of enslavement identified by the Trial Chamber include: “control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour.”
Krnojelac, (Trial Chamber), March 15, 2002, para. 359: “‘[T]he exaction of forced or compulsory labour or service’ is an ‘indication of enslavement,’ and a ‘factor to be taken into consideration in determining whether enslavement was committed.’”
Kunarac, Kovac and Vukovic, (Trial Chamber), February 22, 2001, para. 542: “Detaining or keeping someone in captivity, without more, [existence of other indications of enslavement] would, depending on the circumstances of a case, usually not constitute enslavement.” “Further indications of enslavement include exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 121, 356: “The duration of the enslavement is not an element of the crime. The question turns on the quality of the relationship between the accused and the victim. A number of factors determine that quality. One of them is the duration of the relationship.” “[D]uration may be a factor ‘when considering whether someone was enslaved.’ This means that duration is not an element of the crime, but a factor in the proof of the elements of the crime. The longer the period of enslavement, the more serious the offence.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 120: The “lack of resistance or the absence of a clear and constant lack of consent during the entire time of the detention” cannot be interpreted as a sign of consent. Lack of consent is not an element of the crime of enslavement.
See also discussion of slavery under Article 3, Section (II)(d)(xiii), ICTY Digest.
Krnojelac, (Trial Chamber), March 15, 2002, para. 115: “To establish the crime of imprisonment as a crime against humanity under Article 5(e) of the Tribunal’s Statute . . . the following elements must be established: i) an individual is deprived of his or her liberty; ii) the deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty; iii) the act or omission by which the individual is deprived of his or her physical liberty is performed by the accused or a person or persons for whom the accused bears criminal responsibility with the intent to deprive the individual arbitrarily of his or her physical liberty or in the reasonable knowledge that his act or omission is likely to cause arbitrary deprivation of physical liberty.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 302-303: “[T]he term imprisonment in Article 5(e) of the Statute should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against a civilian population. In that respect, the Trial Chamber will have to determine the legality of imprisonment as well as the procedural safeguards pertaining to the subsequent imprisonment of the person or group of persons in question, before determining whether or not they occurred as part of a widespread or systematic attack directed against a civilian population.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 142: The definition [of torture] is based on the following constitutive elements: “(i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental. (ii) The act or omission must be intentional. (iii) 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 also Krnojelac, (Trial Chamber), March 15, 2002, para. 179 (same).
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 142: The first element for the crime of torture is “[t]he infliction, by act or omission, of severe pain or suffering, whether physical or mental.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 149-151: “[S]ome acts establish per se the suffering of those upon whom they were inflicted. Rape is . . . such an act. . . . Sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture. Severe pain or suffering, as required by the definition of the crime of torture, can thus be said to be established once rape has been proved, since the act of rape necessarily implies such pain or suffering.”
Kvocka et al., (Trial Chamber), November 2, 2001, para. 145: “[R]ape may constitute severe pain and suffering amounting to torture, provided that the other elements of torture, such as a prohibited purpose, are met.”
See also discussion of rape and other forms of sexual violence constituting the war crime of torture under Article 3, Section (II)(d)(i)(7)(b), ICTY Digest.
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 142: “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 also Krnojelac, (Trial Chamber), March 15, 2002, para. 179 (same).
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 155: “[A]cts need not have been perpetrated solely for one of the purposes prohibited by international law. If one prohibited purpose is fulfilled by the conduct, the fact that such conduct was also intended to achieve a non-listed purpose (even one of a sexual nature) is immaterial.”
Mucic et al., (Trial Chamber), November 16, 1998, para. 470: The prohibited purposes listed in the Torture Convention “do not constitute an exhaustive list, and should be regarded as merely representative.” “Further, there is no requirement that the conduct must be solely perpetrated for a prohibited purpose. Thus, in order for this requirement to be met, the prohibited purpose must simply be part of the motivation behind the conduct and need not be the predominating or sole purpose.”
Kvocka et al., (Trial Chamber), November 2, 2001, para. 153: “[T]he prohibited purpose need be neither the sole nor the main purpose of inflicting the severe pain or suffering.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 153: “[E]ven if the perpetrator’s motivation is entirely sexual, it does not follow that the perpetrator does not have the intent to commit an act of torture or that his conduct does not cause severe pain or suffering, whether physical or mental, since such pain or suffering is a likely and logical consequence of his conduct. In view of the definition, it is important to establish whether a perpetrator intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental, to his victims.”
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 148: “[T]he public official requirement is not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention.”
Kvocka et al., (Trial Chamber), November 2, 2001, para. 139: “[T]he state actor requirement imposed by international human rights law is inconsistent with the application of individual criminal responsibility for international crimes found in international humanitarian law and international criminal law.”
See also discussion of torture under Article 3, Section (II)(d)(i), ICTY Digest.
Kunarac, Kovac and Vokovic, (Appeals Chamber), June 12, 2002, para. 127-132: “[T]he actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.” “Resistance” is not a requirement. “Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape.” “[T]here are ‘factors [other than force] which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim.’ A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force.”
Kvocka et al., (Trial Chamber), November 2, 2001, para. 175, 180: “Rape was succinctly defined in the Akayesu Trial Chamber Judgement as ‘a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.’” “[S]exual violence is broader than rape and includes such crimes as sexual slavery or molestation. Moreover, the Akayesu Trial Chamber emphasized that sexual violence need not necessarily involve physical contact and cited forced public nudity as an example.”
See also discussion of rape under Article 3, Sections (II)(d)(i)(7)(b) and (II)(d)(ii), ICTY Digest.
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 634: “The following elements must be proven to establish that persecution as a crime against humanity has been committed: i) the perpetrator commits a discriminatory act or omission; ii) the act or omission denies or infringes upon a fundamental right laid down in international customary or treaty law; iii) the perpetrator carries out the act or omission with the intent to discriminate on racial, religious or political grounds; iv) the general requirements for a crime against humanity pursuant to Article 5 of the Statute are met.”
Kvocka et al., (Trial Chamber), November 2, 2001, para. 185: Persecutory acts separately or combined, must be “of the same gravity or severity as the other enumerated crimes in Article 5.”
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 618-619: “[I]in order for persecution to amount to a crime against humanity it is not enough to define a core assortment of acts and to leave peripheral acts in a state of uncertainty. There must be clearly defined limits on the types of acts which qualify as persecution. [A]t a minimum, acts of persecution must be of an equal gravity or severity to the other acts enumerated under Article 5.” (underlining removed) See also Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 193-195.
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 621: “The Trial Chamber . . . defines persecution as the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5.” (underlining removed)
Vasiljevic, (Trial Chamber), November 29, 2002, para. 247: “In order to qualify as persecution, the act or omission must reach a level of gravity at least equal to that of other offences listed in the Statute.”
Kvocka et al., (Trial Chamber), November 2, 2001, para. 185: “The Tribunal’s caselaw has specified that persecutory acts include those crimes enumerated in other sub-clauses of Article 5, crimes found elsewhere in the Statute, and acts not enumerated in the Statute but which may entail the denial of other fundamental human rights. . . .”
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 581, 614-615: “[T]he Trial Chamber rejects the notion that persecution must be linked to crimes found elsewhere in the Statute of the International Tribunal. [N]o such requirement is imposed on it by the Statute of the International Tribunal.” “A narrow definition of persecution is not supported in customary international law.” “[P]ersecution can consist of the deprivation of a wide variety of rights. A persecutory act need not be prohibited explicitly either in Article 5 or elsewhere in the Statute.” See also Kvocka et al., (Trial Chamber), November 2, 2001, para. 185 (persecution includes “acts not enumerated in the Statute. . . .”)
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 605-606: “[A]cts enumerated in other sub-clauses of Article 5 can . . . constitute persecution. A narrow interpretation of persecution, excluding other sub-headings of Article 5, is . . . not an accurate reflection of the notion of persecution which has emerged from customary international law. [I]f persecution was given a narrow interpretation, so as not to include the crimes found in the remaining sub-headings of Article 5, a lacuna would exist in the Statute of the Tribunal. There would be no means of conceptualising those crimes against humanity which are committed on discriminatory grounds, but which, for example, fall short of genocide, which requires a specific intent ‘to destroy, in whole or in part, a national, ethnical, racial, or religious group.’”
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 622: “In determining whether particular acts constitute persecution . . . acts of persecution must be evaluated not in isolation but in context, by looking at their cumulative effect.”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 247: “When considering whether an act or omission satisfies this threshold [that the act or omission must reach a level of gravity at least equal to that of other offenses listed in the Statute], acts should not be considered in isolation but should be examined in their context and with consideration of their cumulative effect. Although it is not required that each underlying act constitute a violation of international law, the acts must, either separately or in combination, amount to persecution.”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 246: “The act or omission constituting the crime of persecution may assume various forms, and there is no comprehensive list of what acts can amount to persecution. It may encompass acts that are listed in the Statute as well as acts that are not listed in the Statute. The persecutory act or omission may encompass physical or mental harm or infringements upon individual freedom.”
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 624: “[P]ersecution was often used to describe a series of acts. However, the Trial Chamber does not exclude the possibility that a single act may constitute persecution. In such a case, there must be clear evidence of the discriminatory intent.”
Blaskic, (Trial Chamber), March 3, 2000, para. 234: “In the context of the crime of persecution, the destruction of property must be construed to mean the destruction of towns, villages and other public or private property belonging to a given civilian population or extensive devastation not justified by military necessity and carried out unlawfully, wantonly and discriminatorily.”
Blaskic, (Trial Chamber), March 3, 2000, para. 227: “[P]ersecution may take forms other than injury to the human person, in particular those acts rendered serious not by their apparent cruelty but by the discrimination they seek to instil within humankind. [P]ersecution may . . . take the form of confiscation or destruction of private dwellings or businesses, symbolic buildings or means of subsistence belonging to the Muslim population of Bosnia-Herzegovina.”
Blaskic, (Trial Chamber), March 3, 2000, para. 234: In the context of the crime of persecution, “the plunder of property is defined as the unlawful, extensive and wanton appropriation of property belonging to a particular population, whether it be the property of private individuals or of state or ‘quasi-state’ public collectives.”
Blaskic, (Trial Chamber), March 3, 2000, para. 233: “[T]he crime of ‘persecution’ encompasses not only bodily and mental harm and infringements upon individual freedom but also acts which appear less serious, such as those targeting property, so long as the victimised persons were specially selected on grounds linked to their belonging to a particular community.”
Blaskic, (Trial Chamber), March 3, 2000, para. 234: “The unlawful detention of civilians, as a form of the crime of persecution, means unlawfully depriving a group of discriminated civilians of their freedom.”
Blaskic, (Trial Chamber), March 3, 2000, para. 234: “The deportation or forcible transfer of civilians [as a form of the crime of persecution] means ‘forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.’”
Kvocka et al., (Trial Chamber), November 2, 2001, para. 190: “In order to constitute persecution, harassment, humiliation, and psychological abuse must occupy the same level of seriousness as other listed or recognized crimes against humanity, or together with other crimes cognizable under Article 5, they must form part of a course of conduct which satisfies the criteria for persecution.” “[H]umiliating treatment that forms part of a discriminatory attack against a civilian population may, in combination with other crimes or, in extreme cases alone, similarly constitute persecution.”
Kupreskic et al, (Trial Chamber), January 14, 2000, para. 600, 615: “In their interpretation of persecution courts have included acts such as murder, extermination, torture, and other serious acts on the person such as those presently enumerated in Article 5.”
Kupreskic et al, (Trial Chamber), January 14, 2000, para. 615: “Persecution can also involve a variety of other discriminatory acts, involving attacks on political, social, and economic rights.”
Blaskic, (Trial Chamber), March 3, 2000, para. 220: “[I]nfringements of the elementary and inalienable rights of man, which are ‘the right to life, liberty and the security of person,’ the right not to be ‘held in slavery or servitude,’ the right not to ‘be subjected to torture or to cruel, inhuman or degrading treatment or punishment’ and the right not to be ‘subjected to arbitrary arrest, detention or exile’ as affirmed in Articles 3, 4, 5 and 9 of the Universal Declaration of Human Rights, by their very essence may constitute persecution when committed on discriminatory grounds.”
Kvocka et al., (Trial Chamber), November 2, 2001, para. 186: “[T]he ICTY have found that the following acts may constitute persecution when committed with the requisite discriminatory intent: imprisonment, unlawful detention of civilians or infringement upon individual freedom, murder, deportation or forcible transfer, ‘seizure, collection, segregation and forced transfer of civilians to camps,’ comprehensive destruction of homes and property, the destruction of towns, villages and other public or private property and the plunder of property, attacks upon cities, towns and villages, trench-digging and the use of hostages and human shields, the destruction and damage of religious or educational institutions, and sexual violence.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 202-207: “[T]hese acts may constitute the crime of persecution provided they are performed with the requisite discriminatory intent:”
- attacking cities, towns and villages;
- trench-digging and use of hostages and human shields;
- the “wanton and extensive destruction and/or plundering of Bosnian Muslim civilian dwellings, buildings, businesses, and civilian personal property and livestock” may constitute the crime of persecution when the cumulative effect of such property destruction is the removal of civilians from their homes on discriminatory grounds;
- destruction and damage of religious or educational institutions.
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 208-210: The following acts do not constitute persecution as a crime against humanity because they do not rise to the same level of gravity as the other crimes against humanity enumerated in Article 5:
· encouraging and promoting hatred on political grounds;
· dismissing and removing Bosnian Muslims from government.
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 212: “[A] particular intent is required, in addition to the specific intent (to commit the act and produce its consequences) and the general intent (objective knowledge of the context in which the accused acted). This intent – the discriminatory intent – is what sets the crime of persecution apart from other Article 5 crimes against humanity. This discriminatory intent requirement for the crime of persecution is thus different from the more general level of intent required for the other crimes against humanity under Article 5, when mere ‘knowledge of the context’ of a widespread or systematic attack against a civilian population is sufficient.” (underlining removed)
Blaskic, (Trial Chamber), March 3, 2000, para. 235: Persecution “must be committed for specific reasons whether these be linked to political views, racial background or religious convictions. It is the specific intent to cause injury to a human being because he belongs to a particular community or group, rather than the means employed to achieve it, that bestows on it its individual nature and gravity and which justifies its being able to constitute criminal acts which might appear in themselves not to infringe directly upon the most elementary rights of a human being, for example, attacks on property.”
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 636: “[T]he mens rea requirement for persecution is higher than for ordinary crimes against humanity, although lower than for genocide. [P]ersecution as a crime against humanity is an offence belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. In both categories what matters is the intent to discriminate: to attack persons on account of their ethnic, racial, or religious characteristics (as well as, in the case of persecution, on account of their political affiliation). While in the case of persecution the discriminatory intent can take multifarious inhumane forms and manifest itself in a plurality of actions including murder, in the case of genocide that intent must be accompanied by the intention to destroy, in whole or in part, the group to which the victims of the genocide belong. [F]rom the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution. To put it differently, when persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide.”
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 636: “A discriminatory basis exists where a person is targeted on the basis of religious, political or racial considerations, i.e. for his or her membership in a certain victim group that is targeted by the perpetrator group. . . . [T]he targeted group does not only comprise persons who personally carry the (religious, racial or political) criteria of the group. The targeted group must be interpreted broadly, and may, in particular, include such persons who are defined by the perpetrator as belonging to the victim group due to their close affiliations or sympathies for the victim group. . . . [T]his interpretation is consistent with the underlying ratio of the provision prohibiting persecution, as it is the perpetrator who defines the victim group while the targeted victims have no influence on the definition of their status. The Chamber finds that in such cases, a factual discrimination is given as the victims are discriminated in fact for who or what they are on the basis of the perception of the perpetrator.”
Blaskic, (Trial Chamber), March 3, 2000, para. 235: The “perpetrator of the acts of persecution does not initially target the individual but rather membership in a specific racial, religious or political group.”
Kvocka et al., (Trial Chamber), November 2, 2001, para. 195: “[T]he discriminatory act could result from the application of positive or negative criteria.” For example, “an attack ‘conducted against only the non-Serb portion of the population because they were non-Serbs’ was indicative of the necessary discriminatory intent.”
Kvocka et al., (Trial Chamber), November 2, 2001, para. 201: “[D]iscriminatory intent of a perpetrator can be inferred from knowingly participating in a system or enterprise that discriminates on political, racial or religious grounds.”
Krnojelac, (Trial Chamber), March 15, 2002, para. 435: “There is no requirement under persecution that a discriminatory policy exist or that, in the event that such a policy is shown to have existed, the accused has taken part in the formulation of such discriminatory policy or practice by a governmental authority.”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 248: “The requirement that an accused consciously intends to discriminate does not require the existence of a discriminatory policy or, where such a policy is shown to exist, participation by the accused in the formulation of that discriminatory policy or practice by an authority.”
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 625: “Although acts of persecution are often part of a discriminatory policy, the Trial Chamber finds that it is not necessary to demonstrate that an accused has taken part in the formulation of a discriminatory policy or practice by a governmental authority.”
But see Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 220: “[I]n order to possess the necessary heightened mens rea for the crime of persecution, the accused must have shared the aim of the discriminatory policy: ‘the removal of those persons from the society in which they live alongside the perpetrators, or eventually from humanity itself.’”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 248: “The accused must consciously intend to discriminate for persecution to be established. It is not sufficient that the accused was merely aware that he is in fact acting in a discriminatory way.”
Krnojelac, (Trial Chamber), March 15, 2002, para. 435: “The crime of persecution also derives its unique character from the requirement of a specific discriminatory intent. It is not sufficient for the accused to be aware that he is in fact acting in a way that is discriminatory; he must consciously intend to discriminate.”
Krnojelac, (Trial Chamber), March 15, 2002, para. 435: “While the intent to discriminate need not be the primary intent with respect to the act, it must be a significant one.”
Krnojelac, (Trial Chamber), March 15, 2002, para. 436: “The discriminatory intent must relate to the specific act charged as persecution rather than the attack in general, even though the latter may also in practice have a discriminatory aspect. This is clear from the definition of persecution which requires an act or omission that is in fact persecutory. There is no requirement, either under the crime of persecution or under the general requirements for crimes against humanity, that the attack in general be discriminatory. [T]he law has . . . been applied by this Tribunal on the basis that an attack on discriminatory grounds is a sufficient basis from which to infer the necessary discriminatory intent for persecution. While such an approach would probably reach the correct conclusion for most acts occurring within the context of a discriminatory attack, there may be certain acts committed within the context of the attack either on discriminatory grounds not listed in the Statute, or for purely personal reasons. Therefore, this approach does not necessarily allow for an accurate inference regarding intent to be drawn with respect to all acts.”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 249: “[T]he discriminatory intent must relate to the specific act charged as persecution. It is not sufficient that the act merely occurs within an attack which has a discriminatory aspect. Occasionally, the law has been applied by this Tribunal on the basis that a discriminatory attack is a sufficient basis from which to infer the discriminatory intent of acts carried out within that attack. This approach may lead to the correct conclusion with respect to most of the acts carried out within the context of an discriminatory attack, but there may be acts committed within the context that were committed either on discriminatory grounds not listed in the Statute, or for purely personal reasons. . . . [T]his approach does not necessarily allow for an accurate inference regarding intent to be drawn with respect to all acts that occur within that context.”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 245: “[T]he act or omission must in fact have discriminatory consequences rather than merely be done with discriminatory intention. Discriminatory intent by itself is not sufficient. Without this requirement an accused could be convicted of persecution without anyone having actually been persecuted. . . .”
Krnojelac, (Trial Chamber), March 15, 2002, para. 432: “Previous Tribunal jurisprudence… has required a discriminatory element as part of the actus reus, that is, the act or omission must in fact have discriminatory consequences rather than merely be done with discriminatory intention. Discriminatory intent by itself is not sufficient. A different approach was recently taken in the Kvocka Trial Judgment, rejecting the need for discriminatory consequences. [T]his Trial Chamber does not find that judgment persuasive. [L]ogic argues in favour of a requirement that the act be discriminatory in fact. Without such a requirement, an accused could be convicted of persecution without anyone actually having been persecuted. In addition, the distinction between the crime of persecution and other crimes would be rendered virtually meaningless by depriving the crime of persecution of the qualities that distinguish it from other prohibited acts, such as murder and torture, which have as their object the protection of individuals irrespective of any group association.”
Naletilic and Martinovic, (Trial Chamber), March 31, 2003, para. 247: “Article 5(i) of the Statute (other inhumane acts) is a residual clause, which applies to acts that do not fall within any of other sub-clause of Article 5 of the Statute but are sufficiently similar in gravity to the other enumerated crimes. Inhumane acts are ‘[…] acts or omissions intended to cause deliberate mental or physical suffering to the individual.’ As constituting crimes against humanity, these acts must also be widespread or systematic.”
Kupreskic et al., (Trial Chamber), January 14, 2000, para. 563: “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.”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 234: “The elements to be proved [for other inhumane acts] are: (i) the occurrence of an act or omission of similar seriousness to the other enumerated acts under the Article; (ii) the act or omission caused serious mental or physical suffering or injury or constituted a serious attack on human dignity; and (iii) the act or omission was performed deliberately by the accused or a person or persons for whose acts and omissions he bears criminal responsibility.”
Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 271-272: “Within the context of the discussion of ‘other inhumane acts,’ the Blaskic Trial Chamber defined the elements of serious bodily or mental harm thus: the victim must have suffered serious bodily or mental harm; the degree of severity must be assessed on a case-by-case basis with due regard for the individual circumstances; the suffering must be the result of an act of the accused or his subordinate; when the offence was committed, the accused or his subordinate must have been motivated by the intent to inflict serious bodily or mental harm upon the victim.”
Vasiljevic, (Trial Chamber), November 29, 2002, para. 235: “To assess the seriousness of an act, consideration must be given to all the factual circumstances” and these “may include the nature of the act or omission, the context in which it occurred, the personal circumstances of the victim including age, sex and health, as well as the physical, mental and moral effects of the act upon the victim. [T]he fact that an act has had long term effects may be relevant to the determination of the seriousness of the act.” See also Blaskic, (Trial Chamber), March 3, 2000, para. 243.
Krnojelac, (Trial Chamber), March 15, 2002, para. 131: “The suffering inflicted by the act upon the victim does not need to be lasting so long as it real and serious.”
Krnojelac, (Trial Chamber), March 15, 2002, para. 132: “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 his 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.” See also Vasiljevic, (Trial Chamber), November 29, 2002, para. 236.
Jelisic, (Trial Chamber), December 14, 1999, para. 52: “The sub-characterisation ‘other inhumane acts’ specified under Article 5(i) of the Statute is an generic charge which encompasses a series of crimes. [T]he notion of cruel treatment set out in Article 3 of the Statute ‘carries an equivalent meaning [ . . . ] as inhuman treatment does in relation to grave breaches of the Geneva Conventions.’ Likewise . . . the notions of cruel treatment within the meaning of Article 3 and of inhumane treatment set out in Article 5 of the Statute have the same legal meaning.”
See discussion of inhuman treatment under Article 2, Section (I)(d)(ii)(2)(c), and cruel treatment under Article 3, Section (II)(d)(iii), ICTY Digest.
Krstic, (Trial Chamber), August 2, 2001, para. 523: “[F]orcible displacement within or between national borders is included as an inhumane act under Article 5(i) defining crimes against humanity.”
Kvocka et al., (Trial Chamber), November 2, 2001, para. 208: “Mutilation and other types of severe bodily harm, beatings and other acts of violence, serious physical and mental injury, forcible transfer, inhumane and degrading treatment, forced prostitution, and forced disappearance are listed in the jurisprudence of the Tribunal as falling under this category [other inhumane acts].”
Blaskic, (Trial Chamber), March 3, 2000, para. 239: “[S]erious physical and mental injury – excluding murder – is without doubt an ‘inhumane act’ within the meaning of Article 5 of the Statute.”
5 As to whether there is any requirement of a plan or policy, see discussion, Section (IV)(b)(v)(7), ICTY Digest.
6 See Section (IV)(b)(v)(7), ICTY Digest, as to whether a plan or policy is required.
