Crime of terror

Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

32. The Appeals Chamber recalls that when noting Article 49 (1) of Additional Protocol I, the Galić Appeals Chamber held that the crime of terror can comprise attacks or threats of attacks against the civilian population.[1] It did not limit the possible consequences of such attacks to death or serious injuries among the victims.[2] Rather, it concentrated on the assessment of whether the allegations before it would qualify for the crime of terror under international customary law.

33. The Appeals Chamber finds that the Trial Chamber misinterpreted the Galić jurisprudence by stating that “actual infliction of death or serious harm to body or health is a required element of the crime of terror”, and thus committed an error of law.Causing death or serious injury to body or health represents only one of the possible modes of commission of the crime of terror, and thus is not an element of the offence per se. What is required, however, in order for the offence to fall under the jurisdiction of this Tribunal, is that the victims suffered grave consequences resulting from the acts or threats of violence;[4] such grave consequences include, but are not limited to death or serious injury to body or health. Accordingly, because the Trial Chamber established in the present case that all the incidents imputed to the SRK constituted unlawful attacks against civilians, and thus caused death or serious injury to body or health of civilians,[5] the threshold of gravity required for the crime of terror based on those incidents has been met. Whereas the nature of the acts of violence or threats thereof constitutive of the crime of terror can vary,[6] the Appeals Chamber is satisfied that the actus reus of the crime of terror has been established in this case and does not find it necessary to explore the matter any further.

34. As for the Prosecution’s submission that the crime of terror has no result requirement provided that the underlying acts or threats of violence are “capable of spreading terror”,[7] the Appeals Chamber notes that the travaux préparatoires to Additional Protocol I show that there had been attempts among the delegations to introduce “acts capable of spreading terror” into the language of the prohibition enshrined under Article 51(2) thereof.[8] However, these proposals were not reflected in the final text of the provision.[9] In addition, the Appeals Chamber considers that the definition of the actus reus of the crime of terror suggested by the Prosecution, notably “acts capable of spreading terror”, does not necessarily imply grave consequences for the civilian population and thus does not per se render the violation of the said prohibition serious enough for it to become a war crime within the Tribunal’s jurisdiction.

35. The Appeals Chamber further recalls that the Galić Appeal Judgement clarifies that while “extensive trauma and psychological damage form part of the acts or threats of violence”, the “actual terrorisation of the civilian population is not an element of the crime”.[10] It should be noted, however, that evidence of actual terrorisation may contribute to establishing other elements of the crime of terror.[11] The Trial Chamber in the instant case established that the incidents had had a psychological impact on the population of Sarajevo.[12] In the circumstances of the case, such psychological impact also satisfies the required gravity threshold.[13]

[1] Galić Appeal Judgement, para 102.

[2] Galić Appeal Judgement, para 102.

[3] Trial Judgement [Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Judgement, 12 December 2007], paras 876, 880.

[4] In paragraph 94 of its Tadić Jurisdiction Decision [Prosecutor v. Duško Tadić a/k/a “Dule”, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], the Appeals Chamber held that for criminal conduct to fall within the scope of Article 3 of the Statute, the following four conditions must be satisfied:

“(i) the violation must constitute an infringement of a rule of international humanitarian law;

(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met […];

(iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a “serious violation of international humanitarian law” although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary international law) whereby “private property must be respected” by any army occupying an enemy territory;

(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.”

[5] Trial Judgement, paras 911-913, 953.

[6] Galić Appeal Judgement, para 102.

[7] AT. 122-123.

[8] Travaux Préparatoires, Vol. III, CDDH/III/38, p. 203, CDDH/III/51, p. 206; Vol. XIV, CDDH/III/SR. 8, pp. 60, 64.

[9] The committee entrusted with the consideration of draft Article 51 submitted the following with regard to the prohibition of spreading terror: “The prohibition of 'acts or threats of violence which have the primary object of spreading terror is directed to intentional conduct specifically directed toward the spreading of terror and excludes terror which was not intended by a belligerent and terror' that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful.” (Galić Appeal Judgement, para. 103, citing Travaux préparatoires, Vol. XIV, CDDH/215/Freq., p. 274).

[10] Galić Appeal Judgement, paras 102, 104.

[11] See Galić Appeal Judgement, para. 107.

[12] Trial Judgement, paras 740-746, 910.

[13] See supra, para. 33. See also the Prosecution’s oral submissions in this regard (AT. 118).

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ICTY Statute Article 3 Other instruments Additional Protocol I: Article 49(1); 51(2).
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

37. The Appeals Chamber notes that the mens rea of the crime of terror consists of the intent to make the civilian population or individual civilians not taking direct part in hostilities the object of the acts of violence or threats thereof, and of the specific intent to spread terror among the civilian population.[1] While spreading terror must be the primary purpose of the acts or threats of violence, it need not be the only one.[2] The Galić Appeal Judgement suggests that such intent can be inferred from the “nature, manner, timing and duration” of the acts or threats.[3] However, this is not an exhaustive list of mandatory considerations but an indication of some factors that may be taken into account according to the circumstances of the case. […] Furthermore, the Appeals Chamber rejects Milošević’s argument that the Trial Chamber could not take into account the evidence relative to the actus reus of the crime when establishing the mens rea. In this regard, the Appeals Chamber finds that both the actual infliction of terror and the indiscriminate nature of the attack were reasonable factors for the Trial Chamber to consider in determining the specific intent of the accused in this case.

[1] Galić Appeal Judgement, para. 104.

[2] Galić Appeal Judgement, para. 104.

[3] Galić Appeal Judgement, para. 104.

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ICTY Statute Article 3
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

39. […] [T]he Appeals Chamber recalls the two-pronged test articulated in the Čelebići Appeal Judgement[1] and emphasizes that the focus of the analysis is to be placed on the legal elements of each crime, rather than on the underlying conduct of the accused.[2] With respect to the offence of unlawful attacks against civilians, the Appeals Chamber recalls that it requires proof of death or serious injury to body or health, which, as explained in paragraph 33 above, is not per se an element of the crime of terror. Conversely, the offence of terror requires proof of an intent to spread terror among the civilian population which is not an element of the crime of unlawful attacks against civilians. Therefore, the Appeals Chamber finds that each offence has an element requiring proof of a fact not required by the other, thus allowing cumulative convictions. The Trial Chamber’s conclusion to the contrary was, accordingly, erroneous.

[1] Čelebići Appeal Judgement, paras 412-413.

[2] Stakić Appeal Judgement, para. 356.

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ICTY Statute Article 3
Notion(s) Filing Case
Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

The Appeals Chamber first delineated the crime:

69. The crime charged under Count 1 of the Indictment pursuant to Article 3 of the Statute and on the basis of Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II is the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population. It encompasses the intent to spread terror when committed by combatants[1] in a period of armed conflict. The findings of the Appeals Chamber with respect to grounds five, sixteen and seven will therefore not envisage any other form of terror.

The Appeals Chamber then determined that the prohibition of terror against the civilian population as enshrined in Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II clearly belonged to customary international law from at least the time of its inclusion in those treaties (paras 87-90). It added – Judge Schomburg dissenting – that customary international law imposed individual criminal liability for violations of the prohibition of terror against the civilian population as enshrined in Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II, from at least the period relevant to the Indictment (paras 91-98).

Finally, the Appeals Chamber identified the elements of this crime (see para. 102 for the actus reus and paras 103-104 for the mens rea).

[1] See Kordić and Čerkez Appeal Judgement, para. 50.

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ICTY Statute Article 3 Other instruments Additional Protocol I: Article 51(2).
Additional Protocol II: Article 13(2).