Definition

Notion(s) Filing Case
Appeal Judgement - 22.03.2006 STAKIĆ Milomir
(IT-97-24-A)

The Appeals Chamber, seized of the question whether the Trial Chamber correctly defined the elements of the crime of extermination, adopted the definition given in the Ntakirutimana Appeal Judgement, in which the ICTR Appeals Chamber held:

522. [T]he Appeals Chamber finds that the crime of extermination requires proof that the accused participated in a widespread or systematic killing or in subjecting a widespread number of people or systematically subjecting a number of people to conditions of living that would inevitably lead to death [actus reus], and that the accused intended by his acts or omissions this result [mens rea].[1]

516. […] Extermination differs from murder in that it requires an element of mass destruction, which is not required for murder.”[2] The Appeals Chamber agrees with the Trial Chamber that the crime of extermination is the act of killing on a large scale.[3] The expressions “on a large scale” or “large number” do not, however, suggest a numerical minimum.[4]

For a full account of the Appeals Chamber’s discussion of the crime of extermination, see paras 252-261.

[1] Ntakirutimana Appeal Judgement, para. 522.

[2] Trial Judgement, para. 813 citing Akayesu Trial Judgement, para. 591. This position has been endorsed in all the ICTR Trial Judgements: Kayishema and Ruzindana Trial Judgement, para. 142; Rutaganda Trial Judgement, para. 82; Musema Trial Judgement, para. 217; Bagilishema Trial Judgement, para. 86; Semanza Trial Judgement, para. 340; Niyitekega Trial Judgement, para. 450; Kajelijeli Trial Judgement, para. 890; Media Trial Judgement, para. 1044; Kamuhanda Trial Judgement, para. 691. See also, ICTY, Krstić Trial Judgement, para. 503; Vasiljević Trial Judgement, para. 227; Stakić Trial Judgement, para. 639.

[3] Trial Judgement, para. 813 citing Vasiljević Trial Judgement, para. 232.

[4] Kayishema and Ruzindana Trial Judgement, para. 145; Bagilishema Trial Judgement, para. 87; Kajelijeli Trial Judgement, para. 891; Media Trial Judgement, para. 1044; Kamuhanda Trial Judgement, para. 692. 

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ICTR Statute Article 3(b) ICTY Statute Article 5(b)
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

135. In relation to genocide and extermination as a crime against humanity, the Appeals Chamber has held that “committing” under Article 6(1) of the Statute, which envisions physical perpetration of a crime, need not only mean physical killing and that other acts can constitute direct participation in the actus reus of the crimes. The question is whether an accused’s conduct “was as much an integral part of the [crimes] as were the killings which it enabled.” In this case, the Trial Chamber found that Munyakazi’s leadership role constituted an integral part of the crimes. This approach is in line with the jurisprudence of the Appeals Chamber.

136. Contrary to Munyakazi’s submissions, his role in the crimes is entirely consistent with the facts of the Seromba and Gacumbitsi cases.[5] Munyakazi fails to appreciate that the Trial Chamber found that he personally participated in the attacks, led the assailants, issued instructions, and, in particular, oversaw key aspects of the crimes, such as the destruction of the door at Shangi parish and the removal of refugees from Mibilizi parish.[6] The Appeals Chamber recalls that it has already rejected Munyakazi’s challenges to the assessment of his alibi, the Prosecution evidence, and his authority.[7] His liability was not based on his prominence or influence alone, but rather on his active involvement in the crimes committed at Shangi and Mibilizi parishes on 29 and 30 April 1994, respectively.

[1] Gacumbitsi Appeal Judgement, para. 60. See also Kalimanzira Appeal Judgement, para. 219; Seromba Appeal Judgement, para. 161.

[2] Kalimanzira Appeal Judgement, para. 219, quoting Gacumbitsi Appeal Judgement, para. 60. See also Seromba Appeal Judgement, para. 161.

[3] Trial Judgement, para. 491.

[4] Seromba Appeal Judgement, paras. 164-172, 190; Gacumbitsi Appeal Judgement, para. 60.

[5] Seromba Appeal Judgement, para. 171 (“It is irrelevant that Athanase Seromba did not personally drive the bulldozer that destroyed the church. What is important is that Athanase Seromba fully exercised his influence over the bulldozer driver who, as the Trial Chamber’s findings demonstrate, accepted Athanase Seromba as the only authority, and whose directions he followed.”); Gacumbitsi Appeal Judgement, para. 60 (“Here, the accused was physically present at the scene of the Nyarubuye Parish massacre, which he ‘directed’ and ‘played a leading role in conducting and, especially, supervising’.”)(internal citations omitted).

[6] Trial Judgement, paras. 134, 365, 366, 376, 380, 386, 387, 416, 417, 422, 423, 491.

[7] See supra Sections III.A (Alleged Errors in Assessing the Alibi); III.B.1 (Alleged Defects in the Form of the Indictment); III.B.2 (Alleged Errors in the Assessment of the Evidence); III.C (Alleged Errors Relating to Shangi Parish); III.D (Alleged Errors Relating to Mibilizi Parish).

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

478. The Appeals Chamber recalls that commission covers, primarily, the physical perpetration of a crime (with criminal intent) or a culpable omission of an act that is mandated by a rule of criminal law, but also participation in a joint criminal enterprise.[1] […]

[1] Tadić Appeal Judgement, para. 188.

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ICTR Statute Article 6(1)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

677. A person may be found guilty of the crime specified in Article 2(3)(c) of the Statute if he or she directly and publicly incited the commission of genocide (the material element or actus reus) and had the intent directly and publicly to incite others to commit genocide (the intentional element or mens rea). Such intent in itself presupposes a genocidal intent.[1]

678. The Appeals Chamber considers that a distinction must be made between instigation[2] under Article 6(1) of the Statute and public and direct incitement to commit genocide under Article 2(3)(c) of the Statute. In the first place, instigation under Article 6(1) of the Statute is a mode of responsibility; an accused will incur criminal responsibility only if the instigation in fact substantially contributed to the commission of one of the crimes under Articles 2 to 4 of the Statute. By contrast, direct and public incitement to commit genocide under Article 2(3)(c) is itself a crime, and it is not necessary to demonstrate that it in fact substantially contributed to the commission of acts of genocide.[3] In other words, the crime of direct and public incitement to commit genocide is an inchoate offence, punishable even if no act of genocide has resulted therefrom. This is confirmed by the travaux préparatoires to the Genocide Convention, from which it can be concluded that the drafters of the Convention intended to punish direct and public incitement to commit genocide, even if no act of genocide was committed, the aim being to forestall the occurrence of such acts.[4] The Appeals Chamber further observes — even if this is not decisive for the determination of the state of customary international law in 1994 — that the Statute of the International Criminal Court also appears to provide that an accused incurs criminal responsibility for direct and public incitement to commit genocide, even if this is not followed by acts of genocide.[5]

679. The second difference is that Article 2(3)(c) of the Statute requires that the incitement to commit genocide must have been direct and public, while Article 6(1) does not so require.

[1] In this respect, see Akayesu Trial Judgement, para. 560, quoted and approved in the Judgement, para. 1012.

[2] “Incit[ation]” in the French version of Article 6(1) of the Statute.

[3] Kajelijeli Trial Judgement, para. 855; Niyitegeka Trial Judgement, para. 431; Musema Trial Judgement, para. 120; Rutaganda Trial Judgement, para 38; Akayesu Trial Judgement, para. 562. The Trial Chamber endorsed this jurisprudence (Judgement, paras. 1013 and 1015) and the Appellants do not challenge this finding: see Nahimana Appellant’s Brief, para. 189; Barayagwiza Appellant’s Brief, para. 259; Ngeze Appellant’s Brief, paras. 255-256; Ngeze Brief in Reply, para. 31.

[4] The United States proposed amendment to remove incitement from the list of punishable acts (see UN ORGA, Sixth Committee, Third Session, 84th meeting, UN Doc. A/C.6/3/SR. 84, 26 October 1948, pp. 213-214) was rejected by 27 votes to 16, with 5 abstentions: UN ORGA, Sixth Committee, Third Session, 85th meeting, UN Doc. A/C.6/3/SR. 85, 27 October 1948, p. 229. Many delegations which voted to reject this amendment explained that it was important to make direct and public incitement to commit genocide punishable even when it was not followed by acts, so that the Convention should be an effective instrument for the prevention of genocide: see UN ORGA, Sixth Committee, Third Session, 84th and 85th meetings, UN Doc. A/C.6/3/SR. 84 and UN Doc. A/C.6/3/SR. 85, 27 and 27 October 1948, p. 208 (Venezuela), 215 and 226 (Poland), 216 (Yugoslavia), 219 (Cuba), 219, 227 and 230 (USSR), 222 (Uruguay), 223 (Egypt).

The Appeals Chamber notes that the Draft Code of Crimes against the Peace and Security of Mankind by the International Law Commission in 1996 provides that direct and public incitement to commit genocide is punishable only if the act in fact occurs: see Articles 2(f) and 17 of the Draft Code of Crimes against the Peace and Security of Mankind and the comments relating thereto, 1996, Report of the International Law Commission on the deliberations of its 48th meeting, 51 UN ORGA Supp. (No. 10), reproduced in the Yearbook of the International Law Commission, 1996, vol. II (Part Two) (hereinafter “Draft Code of Crimes against the Peace and Security of Mankind”). However, the Appeals Chamber considers that this position does not reflect customary international law on the matter. Indeed, the International Law Commission itself specified that this limitation “does not in any way affect the application of the general principles independently of the Code or of similar provisions contained in other instruments, notably article III of the Convention on the Prevention and Punishment of the Crime of Genocide”: Draft Code of Crimes against the Peace and Security of Mankind, footnote 45 (para. 6, p. 20).

[5] Indeed, Article 25(3)(b) of the Statute of the International Criminal Court provides that any person who “orders, solicits or induces” the commission of a crime falling under the jurisdiction of the Court shall be individually responsible for such a crime “which in fact occurs or is attempted”. However, Article 25(3)(e) of the Statute of the International Criminal Court provides that a person may incur criminal responsibility for direct and public incitement to commit genocide and it does not require the “commission or attempted commission of such a crime”.

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ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

484. The Appeals Chamber recalls that, for the liability of an accused to be established under Article 6(3) of the Statute, the Prosecutor has to show that: (1) a crime over which the Tribunal has jurisdiction was committed; (2) the accused was a de jure or de facto superior of the perpetrator of the crime and had effective control over this subordinate (i.e., he had the material ability to prevent or punish commission of the crime by his subordinate); (3) the accused knew or had reason to know that the crime was going to be committed or had been committed; and (4) the accused did not take necessary and reasonable measures to prevent or punish the commission of the crime by a subordinate.[1]

865. [I]t is not necessary for the accused to have had the same intent as the perpetrator of the criminal act; it must be shown that the accused “knew or had reason to know that the subordinate was about to commit such act or had done so”.[2] Furthermore, it is not necessary for the Appellant’s subordinates to have killed Tutsi civilians: the only requirement is for the Appellant’s subordinates to have committed a criminal act provided for in the Statute, such as direct and public incitement to commit genocide. 

[1] See Halilović Appeal Judgement, paras. 59 and 210; Gacumbitsi Appeal Judgement, para. 143; Blaškić Appeal Judgement, paras. 53-85; Bagilishema Appeal Judgement, paras. 24-62; Čelebići Appeal Judgement, paras. 182-314.

[2] Article 6(3) of the Statute.        

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Decision on Review - 19.03.2009 NALETILIĆ Mladen
(IT-98-34-R)

11. The Appeals Chamber recalls that the term “new fact” refers to new evidentiary information supporting a fact that was not at issue during the trial or appeal proceedings.[1] The requirement that the fact was not at issue during the proceedings means that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[2] Essentially, the moving party must show that the Chamber did not know about the fact in reaching its decision.[3]

 

[1] Blaškić Review Decision, paras 14-15; Tadić Review Decision, para. 25. See also Rutaganda Review Decision, para. 9; Niyitegeka Review Decision, para. 14.

[2] Blaškić Review Decision, para. 14; Tadić Review Decision, para. 25. See also Rutaganda Review Decision, para. 9; Niyitegeka Review Decision, para. 14.

[3] Blaškić Review Decision, para. 14. See also Rutaganda Review Decision, para. 9; Niyitegeka Review Decision, para. 14.

 

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Notion(s) Filing Case
Contempt Appeal Judgement - 03.07.2009 JOKIĆ Miodrag
(IT-05-88-R77.1-A)

28. The Appeals Chamber recalls that Rule 77(A)(i) of the Rules states:

The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with its administration of justice, including any person who

(i) being a witness before a Chamber, contumaciously refuses or fails to answer a question; […]

The Trial Chamber found that Rule 77(A)(i) of the Rules imposes criminal liability “where a witness knowingly and wilfully interferes with the Chamber’s administration of justice by persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber.”[1] Its ensuing discussion covered two main points: “Whether the Accused persistently refused or failed to answer a question without reasonable excuse while being a witness before the Chamber”[2] and “[w]hether by refusing to testify the Accused knowingly and wilfully interfered with the Tribunal’s administration of justice”.[3] While the Trial Chamber did not explicitly state what it considered to be the actus reus and mens rea of the offence, the Appeals Chamber understands from this structure that the Trial Chamber considered the actus reus to be persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber and the mens rea to be knowingly and wilfully interfering with the Tribunal’s administration of justice by refusing to testify. Accordingly, the Appeals Chamber turns to consider whether the Trial Chamber erred in so defining the actus reus and mens rea of contempt under Rule 77(A)(i).

[1] Trial Judgement, para. 12.

[2] Trial Judgement, p. 7, paras 22-31.

[3] Trial Judgement, p. 11, paras 32-36.

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Decision on Joinder - 27.01.2006 TOLIMIR et al.
(IT-04-80-AR73.1)

At para. 4, the Appeals Chamber recalled that Trial Chambers exercise discretion in different types of decisions and qualified again those decisions:

4. The Appeals Chamber has held that Trial Chambers exercise discretion in different types of decisions – “such as when imposing sentence, in determining whether provisional release should be granted, in relation to the admissibility of some types of evidence, in evaluating evidence, and (more frequently) in deciding points of practice or procedure.”[1] Deference is afforded to the Trial Chamber’s discretion in these decisions because they “draw[] on the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case, and require[] a complex balancing of intangibles in crafting a case-specific order to properly regulate a highly variable set of trial proceedings.”[2]

See also Pandurević Decision on Provisional Release, para. 4.

[1] Prosecutor v. Milošević, Case Nos.: IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002 (“Milošević Decision on Joinder”), para. 3.

[2] Prosecutor v. Milošević, Case No. IT-02-54-AR73.7, Decision  on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004 ( “Milošević Decision on Defense Counsel”), para. 9.

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Notion(s) Filing Case
Appeal Judgement - 13.12.2004 NTAKIRUTIMANA and NTAKIRUTIMANA
(ICTR-96-10-A and ICTR-96-17-A)

517. In finding that an element of the crime of extermination was the “killing of certain named or described persons”[1] the Trial Chamber purported to be following the Akayesu Trial Judgement,[2] which it found had since been followed in Rutaganda and Musema.[3] More recently, this element was also stated in the Niyitegeka Trial Judgement.[4] In other judgements issued by ICTR Trial Chambers “certain named or described persons” has not been considered to be an element of the crime of extermination.[5] Further, none of the judgements of the ICTY which have considered the charge of extermination has identified killing “certain named or described persons” to be an element of the crime of extermination.[6]

518.    The Appeals Chamber agrees with the Prosecution that customary international law does not consider a precise description or designation by name of victims to be an element of the crime of extermination. […]

522. […] the Appeals Chamber finds that the crime of extermination requires proof that the accused participated in a widespread or systematic killing or in subjecting a widespread number of people or systematically subjecting a number of people to conditions of living that would inevitably lead to death, and that the accused intended by his acts or omissions this result. Applying this definition, the Trial Chamber erred in law by interpreting the requirement of “killing of certain named or described persons” to be an element of the crime of extermination.

See also paras. 518-521.

[1] Trial Judgement, para. 813 citing Akayesu Trial Judgement, para. 592.

[2] Akayesu Trial Judgement, para. 592.

[3] Trial Judgement, n. 1154. It must be noted that this definition was not challenged on appeal in Rutaganda and Musema.

[4] Niyitekega Trial Judgement, para. 450.

[5] Kayishema and Ruzindana Trial Judgement, paras. 142-147; Bagilishema Trial Judgement para. 89; Semanza Trial Judgement, paras. 340-463; Kajelijeli Trial Judgement, paras. 891-893; Media Trial Judgement, para. 1044; Kamuhanda Trial Judgement, paras. 691-695.

[6] Krstić Trial Judgement, paras. 495-505; Vasiljević Trial Judgement, paras. 216-233; Stakić Trial Judgement, paras. 638-661. Although the definition in the Akayesu Judgement is mentioned in the Krstić Judgement, it should be noted, however, that the Trial Chamber in Krstić did not endorse this definition and preferred to make its own assessment to determine the underlying elements of extermination. It seems, moreover, that the Trial Chamber in Krstić decided on the need for identification of the victims (para. 499) as a mere requirement of identification of the victims as civilians. 

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ICTR Statute Article 3(b) ICTY Statute Article 5(b)
Notion(s) Filing Case
Decision Regarding False Testimony - 02.03.2016 NTAKIRUTIMANA and NTAKIRUTIMANA
(MICT-12-17)

10.     […] False testimony has been defined by the Appeals Chamber of the ICTR as “a deliberate offence which requires wilful intent on the part of the perpetrator to mislead the Judge and thus to cause harm”.[1]

[1] Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, 27 November 2007, n. 68. The elements of false testimony have also been defined by trial chambers of the ICTR and the International Criminal Tribunal for the former Yugoslavia (“ICTY”) as: (i) the witness must make a solemn declaration; (ii) a false statement must be contrary to the solemn declaration; (iii) the witness must believe at the time that it was false; and (iv) there must be a relationship between the statement and a material matter within the case. See, e.g., The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Defence Motion for Investigation of Prosecution Witness Ahmed Mbonyunkiza for False Testimony, 29 December 2006, para. 6; Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-T, Decision on Reconsideration of the Decision on Protective Measures for Witness P024 and Initiation of the Proceedings pursuant to Rule 91, 13 July 2006 (confidential), para. 3.

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MICT Rule Rule 108(B)
Notion(s) Filing Case
Appeal Judgement - 01.06.2001 AKAYESU Jean Paul
(ICTR-96-4-A)

477.    Article 6(1) of the Statute both texts of which are authoritative, provides that:

A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime.[1]

478.    There is a glaring disparity between the English text and the French text: indeed, the English word “instigated” is translated into French as “incité”. That said, the Appeals Chamber is of the opinion that linguistically the two terms are synonymous. The Appeals Chamber points out in particular that neither text contains any suggestion or recommendation that incitement must be direct and public. Consequently, by interpreting this provision “in accordance with [its] ordinary meaning”,[2] the Appeals Chamber holds that, although instigation may, in certain circumstances, be direct and public, this does not, however, constitute a requirement. Nothing in Article 6 (1) suggests that there is such a requirement. The Appeals Chamber concurs with the Prosecution’s argument that “[…] [i]f the drafters of the Statute had wished to similarly confine instigation’ to situations where it was public and direct’, it would be reasonable to expect that they would have specifically required it”.[3] It goes without saying that “[a] special meaning shall be given to a term if it is established that the parties so intended”.[4] Such an intent has not been established.

479.    Furthermore, the Appeals Chamber is of the view that this interpretation is supported by Article 2(3)(c) of the Statute, where the Security Council specifically chose the same wording as that of the corresponding provision of the Convention on Genocide.[5] Article 2(3)(c) reads:

The following acts shall be punishable:

[…]

(c) Direct and public incitement to commit genocide.[6]

480.    With respect specifically to incitement to commit the crime of genocide, the Statute makes clear that the act must be direct and public, which plainly excludes any other form of incitement to commit genocide, including private incitement to commit genocide. Such additional element is not included in the text of Article 6(1) of the Statute.  The Appeals Chamber is of the opinion that if such a requirement were to be included also in Article 6(1) of the Statute, then the specification contained in Article 2(3)(c) of the Statute would be superfluous.[7]

481.    In this connection, it would be erroneous to superimpose this wording on the (discrete) wording of Article 6(1) of the Statute, so as to import into the latter language to the effect that Article 2(3)(c) of the Statute provides explicitly that incitement to commit genocide must be public.  As stated above, this would run counter to the well-established rules of interpretation under, which, in general, disparities in meaning are seen as tantamount to disparities in language.

482.    Consequently, the Appeals Chamber finds that there is no cause to hold that the Security Council intended Article 6(1) of the Statute to include an additional element (absent from the explicit language of the provision), which would require an interpretation inconsistent with its plain and ordinary meaning.

483.    For the foregoing reasons, having considered this ground of appeal the Appeals Chamber finds that “incitement”, as set out in Article 6(1) of the Statute, need not be “direct and public”.

[1] Emphasis added.

[2] Article 31(1) of the Vienna Convention on the Law of Treaties.

[3] Prosecution’s Brief [Prosecutor’a Appellant Brief, 10 July 2000], para. 5.27.

[4] Article 31(4) of the Vienna Convention on the Law of Treaties.

[5] Article III of the Convention on the Prevention and Punishment of the Crime of Genocide:  The Following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide.

[6] Article 2(3)(c) of the Statute (emphasis added).  One may also cite Article 2(3)(f) of ILC Report which provides that “[a]n individual shall be responsible for a crime set out in articles 17, 18, 19 or 20 if that individual: […] (f) directly and publicly incites another individual to commit such a crime which in fact occurs” .(p.18)

[7] Tadic Appeal Judgment para. 284.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

27. [...] [T]he Appeals Chamber does not interpret the observation in the ICRC Commentary on the Additional Protocols, that the term “outrages upon personal dignity” refers to acts “aimed at humiliating and ridiculing” the victim,[1] as necessarily supporting a requirement of a specific intent on the part of a perpetrator to humiliate, ridicule or degrade the victims.  The statement seems simply to describe the conduct which the provision seeks to prevent.  The Trial Chamber’s indication that the mens rea of the offence is the “intent to humiliate or ridicule” the victim[2] may therefore impose a requirement that the Prosecution was not obliged to prove and the Appeals Chamber does not, by rejecting this ground of appeal, endorse that particular conclusion.

[1] Sandoz et al. (eds.), ICRC Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) (“ICRC Commentary on the Additional Protocols”), para. 3047. This statement was referred to by the Trial Chamber at paras. 55 and 56.  There is no specific reference in the ICRC Commentaries to the Geneva Conventions to the mental element required in relation to the offence of outrages upon personal dignity.

[2] Judgement, para. 56.  The Trial Chamber also observed that an outrage against personal dignity is motivated “by contempt for the human dignity of another person” - para. 56.  Although this is no doubt true, it does not make such a motivation an element of the offence to be proved beyond reasonable doubt.

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ICTY Statute Article 3 Other instruments Geneva Convention III: Article 3(1)(c)
Notion(s) Filing Case
Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

145. The Appellant contends that the crime of direct and public incitement to commit genocide, whilst a “serious offence”, cannot be considered as a crime of similar gravity to genocide, since, unlike the crime of genocide, it is an inchoate offence.[1] The Appeals Chamber disagrees. There is no hierarchy of crimes within the jurisdiction of the Tribunal.[2] […]

146. […] [T]he analysis in the Nahimana et al. Appeal Judgement in fact supports the proposition that the offence of direct and public incitement to commit genocide is, in and of itself, a serious offence warranting serious punishment, notwithstanding that no physical act of genocide may have been committed. It does not indicate any hierarchy between the two offences. […]

148. The Appeals Chamber reiterates that whilst a Trial Chamber is obliged to take into account the general sentencing practice in Rwanda, it is not obliged to follow it.[3] The Appeals Chamber notes that although it would appear that Rwandan law does not make direct and public incitement to commit genocide a separate offence, it nevertheless criminalizes genocide[4] and provides that the act of, inter alia, “incitement, by way of speech, image or writing, to commits [sic] such a crime, even where not followed by an execution” shall be punishable by penalties provided for under that law.[5]

[1] Bikindi’s Appellant’s Brief, para. 109, citing Nahimana et al. Appeal Judgement, para. 678. See also AT. [Transcript page from Appeal hearings held on 30 September 2009 in Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A] 30 September 2009 pp. 72, 73.

[2] Mrkšić and [ljivančanin Appeal Judgement, para. 375, quoting D. Nikolić Sentencing Appeal Judgement, para. 46; Stakić Appeal Judgement, para. 375. See also Nahimana et al. Appeal Judgement, para. 1060.

[3] See supra [Bikindi’s Appellant’s Brief] para. 141.

[4] See, e.g., Organic Law No. 33bis/2003 Repressing the Crime of Genocide, Crimes Against Humanity and War Crimes, of 6 September 2003 (“Organic Law No. 33bis/2003”), Article 2.

[5] See Organic Law No. 33bis/2003, Article 17(3). The Appeals Chamber observes that whilst it would have been preferable for the Trial Chamber to also refer to Organic Law No. 33bis/2003 in its discussion on the Rwandan law relating to the offence of genocide, its failure to do so does not impact the validity of the Trial Chamber’s overall assessment of Rwanda’s sentencing practice.

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ICTR Statute Article
2(3)(c)
ICTY Statute Article
4(3)(c)
Notion(s) Filing Case
Decision on Motions - 26.09.2000 BLAŠKIĆ Tihomir
(IT-95-14-A)

15. […] The usual meaning of a witness statement in trial proceedings is an account of a person’s knowledge of a crime, which is recorded through due procedure in the course of an investigation into the crime. […]

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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

127. The Appeals Chamber has explained that an aider and abettor carries out acts specifically directed to assist, encourage, or lend moral support to the perpetration of a certain specific crime, which have a substantial effect on the perpetration of the crime.[1] […]

192. […] The Appeals Chamber recalls that Article 7(1) of the Statute deals not only with individual responsibility by way of direct or personal participation in the criminal act but also with individual participation by way of aiding and abetting in the criminal acts of others.[2] Aiding and abetting generally involves a lesser degree of directness of participation in the commission of the crime than that required to establish primary liability for an offence.[3]

[1] Simić Appeal Judgement, para. 85; Blaškić Appeal Judgement, paras. 45, 46; Vasiljević Appeal Judgement, para. 102; Ntagerura et al. Appeal Judgement, para. 370.

[2] Aleksovski Appeal Judgement, para. 170.

[3] Čelebići Appeal Judgement, paras. 342, 343.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

320.    The offence of unlawful confinement of a civilian, a grave breach of the Geneva Conventions which is recognised under Article 2(g) of the Statute of the Tribunal, is not further defined in the Statute.  As found by the Trial Chamber, however, clear guidance can be found in the provisions of Geneva Convention IV.  The Trial Chamber found that the confinement of civilians during armed conflict may be permissible in limited cases, but will be unlawful if the detaining party does not comply with the provisions of Article 42 of Geneva Convention IV, which states:

The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.

Thus the involuntary confinement of a civilian where the security of the Detaining Power does not make this absolutely necessary will be unlawful.  Further, an initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.[1]  That article provides:

Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose.  If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. 

Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or have been released from internment or assigned residence.  The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.

321.    In its consideration of the law relating to the offence of unlawful confinement, the Trial Chamber also referred to Article 5 of Geneva Convention IV, which imposes certain restrictions on the protections which may be enjoyed by certain individuals under the Convention.[2]  It provides, in relevant part:

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

[…]

In each case, such persons shall nevertheless be treated with humanity, and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.  They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.[3]

This provision reinforces the principle behind Article 42, that restrictions on the rights of civilian protected persons, such as deprivation of their liberty by confinement, are permissible only where there are reasonable grounds to believe that the security of the State is at risk. 

322.    The Appeals Chamber agrees with the Trial Chamber that the exceptional measure of confinement of a civilian will be lawful only in the conditions prescribed by Article 42, and where the provisions of Article 43 are complied with.[4]  Thus the detention or confinement of civilians will be unlawful in the following two circumstances:

(i)       when a civilian or civilians have been detained in contravention of Article 42 of Geneva Convention IV, ie they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary; and

(ii)       where the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified.

See also paragraphs 327, 329.

[1]    [Čelebići] Trial Judgement, para 583.

[2]    [Čelebići] Trial Judgement, paras 566-567.

[3]    Emphasis added.

[4]    This does not preclude the existence of other circumstances which may render confinement of a civilian unlawful, but that question does not now arise for determination by the Appeals Chamber.

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ICTY Statute Article 2(g) Other instruments Geneva Convention IV: Articles 5; 42; 43.
Notion(s) Filing Case
Appeal Judgement - 02.02.2009 KARERA François
(ICTR-01-74-A)

321. The actus reus of aiding and abetting is constituted by acts or omissions that assist, further, or lend moral support to the perpetration of a specific crime, and which substantially contribute to the perpetration of the crime.[1] The mens rea for aiding and abetting is knowledge that acts performed by the aider and abettor assist in the commission of the crime by the principal.[2] It is well established that it is not necessary for an accused to know the precise crime which was intended and which in the event was committed, but he must be aware of its essential elements.[3] If an accused is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime.[4]

[1] Nahimana et al. Appeal Judgement, para. 482.

[2] Nahimana et al. Appeal Judgement, para. 482.

[3] Nahimana et al. Appeal Judgement, para. 482.

[4] See Stakić Appeal Judgement, para. 50; Nahimana et al. Appeal Judgement, para. 482.

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Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

25. The Appeals Chamber notes that the Trial Chamber convicted Kordić for planning, instigating, and ordering crimes pursuant to Article 7(1) of the Statute.[1] The Trial Chamber’s legal definitions of these modes of responsibility have not been appealed by any of the Parties. However, the Appeals Chamber deems it necessary to set out and clarify the applicable law in relation to these modes of responsibility insofar as it is necessary for its own decision.

26. The actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated.[2] It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.

27. The actus reus of “instigating” means to prompt another person to commit an offence.[3] While it is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused, it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[4]

28. The actus reus of “ordering” means that a person in a position of authority instructs another person to commit an offence.[5] A formal superior-subordinate relationship between the accused and the perpetrator is not required.[6]

29. The mens rea for these modes of responsibility is established if the perpetrator acted with direct intent in relation to his own planning, instigating, or ordering. 

30. In addition, the Appeals Chamber has held that a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute. The Appeals Chamber held that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.[7]

31. A person who plans an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that plan, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to planning. Planning with such awareness has to be regarded as accepting that crime.

32. A person who instigates another person to commit an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that instigation, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to instigating.  Instigating with such awareness has to be regarded as accepting that crime.

[1] Trial Judgement, paras 829, 834.

[2] See Trial Judgement, para. 386.

[3] See Trial Judgement, para. 387.

[4] Cf. Trial Judgement, para. 387.

[5] Trial Judgement, para. 388.

[6] Trial Judgement, para. 388.

[7] Blaškić Appeal Judgement, para. 42.

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Appeal Judgement - 27.01.2014 ĐORĐEVIĆ Vlastimir
(IT-05-87/1-A)

850. The Appeals Chamber notes that the definition and elements of sexual assault have been discussed, in various degrees of detail, by several trial chambers.[1] Trial chambers have held that sexual assault is broader than rape and encompasses “all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation in a way that is humiliating and degrading for the victim’s dignity”.[2] The Appeals Chamber notes that the Milutinović et al. Trial Chamber, after a thorough analysis, identified the elements of sexual assault as follows:

(a) The physical perpetrator commits an act of a sexual nature on another; this includes requiring that other person to perform such an act.
(b) That act infringes the victim’s physical integrity or amounts to an outrage to the victim’s personal dignity.
(c) The victim does not consent to the act.
(d) The physical perpetrator intentionally commits the act.
(e) The physical perpetrator is aware that the act occurred without the consent of the victim.[3]

851. This definition was adopted by the Trial Chamber in the present case.[4] While the Appeals Chamber is satisfied that this definition correctly reflects the elements of sexual assault (other than rape), it finds that some further elaboration is useful.

852. It is evident that sexual assault requires that an act of a sexual nature take place. The Appeals Chamber notes that the act must also constitute an infringement of the victim’s physical or moral integrity.[5] Often the parts of the body commonly associated with sexuality are targeted or involved. Physical contact is, however, not required for an act to be qualified as sexual in nature.[6] Forcing a person to perform or witness certain acts may be sufficient, so long as the acts humiliate and/or degrade the victim in a sexual manner.[7] Furthermore, the Appeals Chamber agrees with the Milutinović et al. Trial Chamber that “it would be inappropriate to place emphasis on the sexual gratification of the perpetrator […]. In the context of an armed conflict, the sexual humiliation and degradation of the victim is a more pertinent factor than the gratification of the perpetrator” as it is precisely the sexual humiliation and degradation which “provides specificity to the offence”.[8] With regard to the issue of consent, the Appeals Chamber considers that any form of coercion, including acts or threats of (physical or psychological) violence, abuse of power, any other forms of duress and generally oppressive surrounding circumstances, may constitute proof of lack of consent and usually is an indication thereof.[9] In addition, a status of detention, particularly during armed conflict, will normally vitiate consent.[10]

[1]  See Milutinović et al. Trial Judgement, vol. 1, paras 195-201; Brđanin Trial Judgement, para. 1012; Stakić Trial Judgement, para. 757; Furundžija Trial Judgement, para. 186.

[2]  Brđanin Trial Judgement, para. 1012; Stakić Trial Judgement, para. 757; Furundžija Trial Judgement, para. 186 (in these cases, the definition of sexual assault was not challenged on appeal). See Kvočka et al. Trial Judgement, para. 180, referring to Akayesu Trial Judgement, para. 688 (the definition of sexual assault was again not challenged on appeal). See Akayesu Trial Judgement, in which the Trial Chamber held that “sexual violence, which includes rape, [is] any act of a sexual nature which is committed on a person under circumstances which are coercive. [It] is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact” (Akayesu Trial Judgement, para. 688. This definition was also not challenged on appeal).

[3]  Milutinović et al. Trial Judgement, vol. 1, para. 201.

[4]  Trial Judgement, para. 1768.

[5]  See Stakić Trial Judgement, para. 757; Furundžija Trial Judgement, para. 186.

[6]  See Milutinović et al. Trial Judgement, vol. 1, para. 199; Akayesu Trial Judgement, para. 688.

[7] See Milutinović et al. Trial Judgement, vol. 1, para. 199; Brđanin Trial Judgement, para. 1012; Stakić Trial Judgement, para. 757; Furundžija Trial Judgement, para. 186.

[8]  Milutinović et al. Trial Judgement, vol. 1, para. 199.

[9]  See Milutinović et al. Trial Judgement, vol. 1, para. 200.

[10]  See Kvočka et al. Appeal Judgement, para. 396; Kunarac et al. Appeal Judgement, paras 132-133; Milutinović et al. Trial Judgement, vol. 1, para. 200.

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Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

308. At the outset, the Appeals Chamber notes that the Trial Chamber correctly set out that “[d]eportation and forcible transfer both entail the forcible displacement of persons from the area in which they are lawfully present, without grounds permitted under international law”,[1] adding that international humanitarian law recognises limited circumstances under which the displacement of civilians during armed conflict is allowed.[2] The Trial Chamber was thus clearly aware of the requirement that the forced displacement be “without grounds permitted under international law”. While the Trial Chamber did not explicitly find that the forced displacements in the case at hand were “without grounds permitted under international law”, the Appeals Chamber is not satisfied that this defect of the Trial Judgement invalidates the verdict. Indeed, several sections of the Trial Judgement make clear that the Trial Chamber implicitly found that the forced displacements were “without grounds permitted under international law”, and that they occurred as a direct result of the ”severe living conditions” created by the Serb authorities and forces.[3] The Appeals Chamber agrees: clearly, the forced displacements could not be justified under international law.[4] In fact, Amicus Curiae does not even suggest that they could. These arguments are rejected.

309. […] With regard to the latter, the Appeals Chamber agrees with the statement in the Stakić Trial Judgement that deportation does not require “that a minimum number of individuals must have been forcibly transferred for the perpetrator to incur criminal responsibility” as such a requirement would be “tantamount to negating the protective effect of the prohibition against deportation.”[5] The Appeals Chamber also recalls that, except for extermination, it is not necessary that a crime be carried out against a multiplicity of victims to constitute a crime against humanity: an act directed against a limited number of victims or even against a single victim can constitute a crime against humanity, provided it forms part of a widespread or systematic attack directed against a civilian population.[6] […]

[1] Trial Judgement, para. 723.

[2] Trial Judgement, para. 725.

[3] See Trial Judgement, Part 4 (describing systematically the forced displacements in the Indictment municipalities) and paras 727-732. 

[4] In this connection, the Appeals Chamber recalls that the displacement for humanitarian reasons “is not justifiable [under international law] where the humanitarian crisis that caused the displacement is itself the result of the accused’s own unlawful activity”: Stakić Appeal Judgement, para. 287.

[5] Stakić Trial Judgement, para. 685.

[6] Nahimana et al. Appeal Judgement, para. 924; Deronjić Appeal Judgement, para. 109; Kordić and Čerkez Appeal Judgement, para. 94; Blaškić Appeal Judgement, para. 101; Kunarac et al. Appeal Judgement, para. 96.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

111. The Appeals Chamber supports the conclusion of the Trial Chamber that “there is now general acceptance of the main elements contained in the definition set out in Article 1 of the Torture Convention”,[1] and takes the view that the definition given in Article 1 reflects customary international law.[2]  The Appellant does not dispute this finding by the Trial Chamber.  The Trial Chamber correctly identified the following elements of the crime of torture in a situation of armed conflict:

(i)     . . . the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition

(ii)     this act or omission must be intentional;

(iii)    it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person;

(iv)    it must be linked to an armed conflict;

(v)     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.[3]

Under this definition, in order to constitute torture, the accused’s act or omission must give rise to “severe pain or suffering, whether physical or mental.”

[1] Judgement, para. 161.  See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the United Nations General Assembly on 10 December 1984 and entered into force on 26 June 1987.

[2] Article 1 of the Torture Convention defines torture in the following terms: “any act by which severe pain or suffering, whether physical or mental, is 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.  It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

[3] Judgement, para. 162.

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Notion(s) Filing Case
Appeal Judgement - 12.06.2002 KUNARAC et al.
(IT-96-23 & IT-96-23/1-A)

117. The Appeals Chamber accepts the chief thesis of the Trial Chamber that the traditional concept of slavery, as defined in the 1926 Slavery Convention and often referred to as “chattel slavery”,[1] has evolved to encompass various contemporary forms of slavery which are also based on the exercise of any or all of the powers attaching to the right of ownership.  In the case of these various contemporary forms of slavery, the victim is not subject to the exercise of the more extreme rights of ownership associated with “chattel slavery”, but in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality;[2] the destruction is greater in the case of “chattel slavery” but the difference is one of degree. The Appeals Chamber considers that, at the time relevant to the alleged crimes, these contemporary forms of slavery formed part of enslavement as a crime against humanity under customary international law.

118. The Appeals Chamber will however observe that the law does not know of a “right of ownership over a person”.[3] Article 1(1) of the 1926 Slavery Convention speaks more guardedly “of a person over whom any or all of the powers attaching to the right of ownership are exercised.”  That language is to be preferred. 

119. The Appeals Chamber considers that the question whether a particular phenomenon is a form of enslavement will depend on the operation of the factors or indicia of enslavement identified by the Trial Chamber. These factors include the “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”.[4] […]

120. […] [T]he Appeals Chamber does not accept the premise that lack of consent is an element of the crime since, in its view, enslavement flows from claimed rights of ownership; accordingly, lack of consent does not have to be proved by the Prosecutor as an element of the crime.  However, consent may be relevant from an evidential point of view as going to the question whether the Prosecutor has established the element of the crime relating to the exercise by the accused of any or all of the powers attaching to the right of ownership.  In this respect, the Appeals Chamber considers that circumstances which render it impossible to express consent may be sufficient to presume the absence of consent. […]

121. […] The Trial Chamber found that the duration of the detention is another factor that can be considered but that its importance will depend on the existence of other indications of enslavement.[5] The Appeals Chamber upholds this finding and observes that 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.  The Appeals Chamber considers that the period of time, which is appropriate, will depend on the particular circumstances of each case.

122. Lastly, as far as the mens rea of the crime of enslavement is concerned, the Appeals Chamber concurs with the Trial Chamber that the required mens rea consists of the intentional exercise of a power attaching to the right of ownership.[6]  It is not required to prove that the accused intended to detain the victims under constant control for a prolonged period of time in order to use them for sexual acts.

123. Aside from the foregoing, the Appeals Chamber considers it appropriate in the circumstances of this case to emphasise the citation by the Trial Chamber of the following excerpt from the Pohl case: [7]

Slavery may exist even without torture.  Slaves may be well fed, well clothed, and comfortably housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful restraint.  We might eliminate all proof of ill-treatment, overlook the starvation, beatings, and other barbarous acts, but the admitted fact of slavery - compulsory uncompensated labour - would still remain.  There is no such thing as benevolent slavery.  Involuntary servitude, even if tempered by humane treatment, is still slavery.

The passage speaks of slavery; it applies equally to enslavement.

[1]   “Chattel slavery” is used to describe slave-like conditions.  To be reduced to “chattel” generally refers to a form of movable property as opposed to property in land.

[2]   It is not suggested that every case in which the juridical personality is destroyed amounts to enslavement; the concern here is only with cases in which the destruction of the victim’s juridical personality is the result of the exercise of any of the powers attaching to the right of ownership.

[3]   Trial Judgement, para 539.  See also Article 7(2)(c) of the Rome Statute of the International Criminal Court, adopted in Rome on 17 July 1998 (PCNICC/1999/INF.3, 17 August 1999), which defines enslavement as “the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.”

[4]   Trial Judgement, para 543.  See also Trial Judgement, para 542.

[5]   Ibid., para 542.

[6]   Ibid., para 540.

[7]   US v Oswald Pohl and Others, Judgement of 3 November 1947, reprinted in Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council No. 10, Vol 5, (1997), p 958 at p 970.

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Appeal Judgement - 12.06.2002 KUNARAC et al.
(IT-96-23 & IT-96-23/1-A)

127. [T]he Trial Chamber concluded: [1]   

the 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.[2]

128. The Appeals Chamber concurs with the Trial Chamber’s definition of rape.  Nonetheless, the Appeals Chamber believes that it is worth emphasising two points.  First, it rejects the Appellants’ “resistance” requirement, an addition for which they have offered no basis in customary international law. The Appellants’ bald assertion that nothing short of continuous resistance provides adequate notice to the perpetrator that his attentions are unwanted is wrong on the law and absurd on the facts.

129. Secondly, with regard to the role of force in the definition of rape, the Appeals Chamber notes that the Trial Chamber appeared to depart from the Tribunal’s prior definitions of rape.[3]  However, in explaining its focus on the absence of consent as the conditio sine qua non of rape, the Trial Chamber did not disavow the Tribunal’s earlier jurisprudence, but instead sought to explain the relationship between force and consent. Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape.[4] In particular, the Trial Chamber wished to explain that there are “factors [other than force] which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim”.[5] 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. 

130. The Appeals Chamber notes, for example, that in some domestic jurisdictions, neither the use of a weapon nor the physical overpowering of a victim is necessary to demonstrate force. A threat to retaliate “in the future against the victim or any other person” is a sufficient indicium of force so long as “there is a reasonable possibility that the perpetrator will execute the threat”.[6]  While it is true that a focus on one aspect gives a different shading to the offence, it is worth observing that the circumstances giving rise to the instant appeal and that prevail in most cases charged as either war crimes or crimes against humanity will be almost universally coercive. That is to say, true consent will not be possible.

131. Under the chapter entitled “Crimes Against Sexual Self-Determination,” German substantive law contains a section penalising sexual acts with prisoners and persons in custody of public authority.[7] The absence of consent is not an element of the crime. Increasingly, the state and national laws of the United States — designed for circumstances far removed from war contexts — support this line of reasoning.  For example, it is a federal offence for a prison guard to have sex with an inmate, whether or not the inmate consents.  Most states have similar prohibitions in their criminal codes.[8] In State of New Jersey v Martin, the Appellate Division of the New Jersey Superior Court commented on the purpose of such protections: “[the legislature] reasonably recognised the unequal positions of power and the inherent coerciveness of the situation which could not be overcome by evidence of apparent consent”.[9]  And, in some jurisdictions, spurred by revelations of pervasive sexual abuse of women prisoners, sexual contact between a correctional officer and an inmate is a felony.[10] That such jurisdictions have established these strict liability provisions to protect prisoners who enjoy substantive legal protections, including access to counsel and the expectation of release after a specified period, highlights the need to presume non-consent here.

132. For the most part, the Appellants in this case were convicted of raping women held in de facto military headquarters, detention centres and apartments maintained as soldiers’ residences.  As the most egregious aspect of the conditions, the victims were considered the legitimate sexual prey of their captors. Typically, the women were raped by more than one perpetrator and with a regularity that is nearly inconceivable.  (Those who initially sought help or resisted were treated to an extra level of brutality).  Such detentions amount to circumstances that were so coercive as to negate any possibility of consent.

133. In conclusion, the Appeals Chamber agrees with the Trial Chamber’s determination that the coercive circumstances present in this case made consent to the instant sexual acts by the Appellants impossible.  […]

[1]   Trial Judgement, paras 447-456.

[2]   Ibid., para 460.

[3]   See, e.g., Furundžija Trial Judgement, para 185.  Prior attention has focused on force as the defining characteristic of rape.  Under this line of reasoning, force or threat of force either nullifies the possibility of resistance through physical violence or renders the context so coercive that consent is impossible.           

[4]   Trial Judgement, para 458.

[5]   Ibid., para 438.

[6]   California Penal Code 1999, Title 9, Section 261(a)(6).  The section also lists, among the circumstances transforming an act of sexual intercourse into rape, “where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another” (Section 261(a)(2)).  Consent is defined as “positive cooperation in act or attitude pursuant to an exercise of free will” (Section 261.6).

[7]   Indeed, a more recently enacted German Criminal Code (Strafgesetzbuch), Chapter 13, Section 177, which defines sexual coercion and rape, recognizes the special vulnerability of victims in certain situations.  It was amended in April 1998 to explicitly add “exploiting a situation in which the victim is unprotected and at the mercy of the perpetrator’s influence” as equivalent to “force” or “threat of imminent danger to life or limb”.  

[8]   See, e.g., N.J. Stat. Section 2C: 14-2 (2001) (An actor is guilty of, respectively, aggravated and simple sexual assault…[if] “[t]he actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional, or occupational status” or if “[t]he victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional or occupational status.”).

[9]   State of New Jersey v Martin, 235 N.J. Super. 47, 56, 561 A.2d, 631, 636 (1989).  Chapter 13 of the German Criminal Code has similar provisions.  Section 174a imposes criminal liability for committing “sexual acts on a prisoner or person in custody upon order of a public authority.”  Section 174b punishes sexual abuse by means of exploiting a position in public office.   In neither instance is the absence of consent an element.

[10]  See Women Prisoners of the District of Columbia Department of Corrections v District of Columbia, 877 F. Supp. 634, 640 (D.D.C. 1994), rev’d on other grounds, 93 F.3d 910 (D.C. Cir. 1996) and Prison Litigation Reform Act of 1996, Pub. L. 105-119, 18 U.S.C. Section 3626.

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Appeal Judgement - 12.06.2002 KUNARAC et al.
(IT-96-23 & IT-96-23/1-A)

142. With reference to the Torture Convention [1] and the case-law of the Tribunal and the ICTR, the Trial Chamber adopted a definition based on the following constitutive elements: [2]

(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.

[…]

144. The Appeals Chamber largely concurs with the Trial Chamber’s definition[3] but wishes to hold the following. 

145. First, the Appeals Chamber wishes to provide further clarification as to the nature of the definition of torture in customary international law as it appears in the Torture Convention, in particular with regard to the participation of a public official or any other person acting in a non-private capacity. Although this point was not raised by the parties, the Appeals Chamber finds that it is important to address this issue in order that no controversy remains about this appeal or its consistency with the jurisprudence of the Tribunal.

146. The definition of the crime of torture, as set out in the Torture Convention, may be considered to reflect customary international law.[4] The Torture Convention was addressed to States and sought to regulate their conduct, and it is only for that purpose and to that extent that the Torture Convention deals with the acts of individuals acting in an official capacity.  Consequently, the requirement set out by the Torture Convention that the crime of torture be committed by an individual acting in an official capacity may be considered as a limitation of the engagement of States; they need prosecute acts of torture only when those acts are committed by “a public official...or any other person acting in a non-private capacity.”  So the Appeals Chamber in the Furundžija case was correct when it said that the definition of torture in the Torture Convention, inclusive of the public official requirement, reflected customary international law.[5] 

147. Furthermore, in the Furundžija Trial Judgement, the Trial Chamber noted that the definition provided in the Torture Convention related to “the purposes of [the] Convention”.[6]  The accused in that case had not acted in a private capacity, but as a member of armed forces during an armed conflict, and he did not question that the definition of torture in the Torture Convention reflected customary international law.  In this context, and with the objectives of the Torture Convention in mind, the Appeals Chamber in the Furundžija case was in a legitimate position to assert that “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”.[7]  This assertion, which is tantamount to a statement that the definition of torture in the Torture Convention reflects customary international law as far as the obligation of States is concerned, must be distinguished from an assertion that this definition wholly reflects customary international law regarding the meaning of the crime of torture generally.

148. The Trial Chamber in the present case was therefore right in taking the position that the 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. However, the Appeals Chamber notes that the Appellants in the present case did not raise the issue as to whether a person acting in a private capacity could be found guilty of the crime of torture; nor did the Trial Chamber have the benefit of argument on the issue of whether that question was the subject of previous consideration by the Appeals Chamber.

 

[1]   Article 1 of the Torture Convention: “For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is 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.  It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

[2]   Trial Judgement, para 497.

[3]   Trial Judgement, paras 142, 497.

[4]   See Furundžija Appeal Judgement, para 111; Čelebići Trial Judgement, para 459; Furundžija Trial Judgement, para 161 and Trial Judgement, para 472.  The ICTR comes to the same conclusion: see Akayesu Trial Judgement, para 593.  It is interesting to note that a similar decision was rendered very recently by the German Supreme Court (BGH St volume 46, p 292, p 303).

[5]   Furundžija Appeal Judgement, para 111: “The Appeals Chamber supports the conclusion of the Trial Chamber that “there is now general acceptance of the main elements contained in the definition set out in Article 1 of the Torture Convention [Furundžija Trial Judgement, para 161] and takes the view that the definition given in Article 1 [of the said Convention] reflects customary international law.”

[6]   Furundžija Trial Judgement, para 160, quoting Article 1 of the Torture Convention.

[7]   Furundžija Appeal Judgement, para 111, citing Furundžija Trial Judgement, para 162.

[8]   See Commission on Human Rights, Forty-eighth session, Summary Record of the 21st Meeting, 11 February 1992, Doc. E/CN.4/1992/SR.21, 21 February 1992, para 35: “Since it was clear that rape or other forms of sexual assault against women held in detention were a particularly ignominious violation of the inherent dignity and right to physical integrity of the human being, they accordingly constituted an act of torture.”  Other Chambers of this Tribunal have also noted that in some circumstances rape may constitute an act of torture: Furundžija Trial Judgement, paras 163 and 171 and Čelebići Trial Judgement, paras 475-493.

[9]   See Čelebići Trial Judgement, paras 480 and following, which quotes in this sense reports and decisions of organs of the UN and regional bodies, in particular, the Inter-American Commission on Human Rights and the European Court of Human Rights, stating that rape may be a form of torture.

[10]  Kunarac Appeal Brief [Appellant’s Brief for the Acused [sic] Dragoljub Kunarac Against Judgement of 22 February 2001, 16 July 2001 (public)] para 122 and Vuković Appeal Brief [Appellant’s Brief for the Acused [sic] Zoran Vuković Against Judgement of 22 February 2001, 12 July 2001 (confidential) (confidentiality lifted by Registry on 18 October 2001)], para 165.

[11]  Trial Judgement, paras 486 and 654.

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Notion(s) Filing Case
Appeal Judgement - 12.06.2002 KUNARAC et al.
(IT-96-23 & IT-96-23/1-A)

162. Contrary to the claims of the Appellant, the Appeals Chamber considers that the Trial Chamber was not obliged to define the specific acts which may constitute outrages upon personal dignity. Instead it properly presented the criteria which it used as a basis for measuring the humiliating or degrading character of an act or omission. The Trial Chamber, referring to the Aleksovski case, stated that the humiliation of the victim must be so intense that any reasonable person would be outraged.[1]  In coming to its conclusion, the Trial Chamber did not rely only on the victim’s purely subjective evaluation of the act to establish whether there had been an outrage upon personal dignity, but used objective criteria to determine when an act constitutes a crime of outrages upon personal dignity.

163. In explaining that outrages upon personal dignity are constituted by “any act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity”,[2] the Trial Chamber correctly defined the objective threshold for an act to constitute an outrage upon personal dignity. It was not obliged to list the acts which constitute outrages upon personal dignity.  […]

[1]   Aleksovski Trial Judgement, para 56, quoted in  Trial Judgement, para 504.

[2]   Trial Judgement, para 507 (emphasis added).

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Notion(s) Filing Case
Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

259. The Trial Chamber referred to the case-law of the ICTY and ICTR and adopted the following definition of the crime of murder:

The ICTY and the ICTR have consistently defined the crime of murder as requiring that the death of the victim result from an act or omission of the accused committed with the intent to kill, or with the intent to cause serious bodily harm which the perpetrator should reasonably have known might lead to death.[1]

The Appeals Chamber cannot but agree with the Trial Chamber’s definition, but wishes to clarify the following.

260. In the Krnojelac case, the Trial Chamber rightly stated that proof beyond reasonable doubt that a person was murdered does not necessarily require proof that the dead body of that person has been recovered.[2] The fact of a victim’s death can be inferred circumstantially from all of the evidence presented to the Trial Chamber. All that is required to be established from that evidence is that the only reasonable inference from the evidence is that the victim is dead as a result of acts or omissions of the accused or of one or more persons for whom the accused is criminally responsible.[3]

261. Accordingly, for the crime of murder under Article 3 of the Statute to be established, the Prosecutor bears the onus of proving:

1) the death of a victim taking no active part in the hostilities;

2) that the death was the result of an act or omission of the accused or of one or more persons for whom the accused is criminally responsible;

3) the intent of the accused or of the person or persons for whom he is criminally responsible

    a) to kill the victim; or

    b) to wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death.[4]

[1] Trial Judgement, para. 132.

[2] Krnojelac Trial Judgement, para. 326.

[3] Ibid., paras 326-327. See also Tadić Trial Judgement, para. 240.

[4] Čelebići Appeal Judgement, para. 423; Kordić and Čerkez Appeal Judgement, para. 37. See also. Jelisić Trial Judgement, para. 35; Kupreškić et al. Trial Judgement, paras 560-561; Blaskić Trial Judgement, para. 217; Kordić and Čerkez Trial Judgement, para. 236; Krstić Trial Judgement, para. 485; Krnojelac Trial Judgement, para. 324; Vasiljević Trial Judgement, para. 205; Stakić Trial Judgement, para. 584; Galić Trial Judgement, para. 150.

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Notion(s) Filing Case
Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

395. The Trial Chamber relied on the definition of rape as given in the Kunarac et al. Trial Judgement,[1] which reads as follows:

In light of the above considerations, the Trial Chamber understands that the 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) of 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.[2]

This definition was confirmed by the Appeals Chamber, which added that the “assertion that nothing short of continuous resistance provides adequate notice to the perpetrator that his attentions are unwanted is wrong on the law and absurd on the facts”.[3] Any diverging definition of the crime in Yugoslav law is irrelevant. Radić’s argument that the Statute was not in force when the crimes were committed[4] is without merit: the prohibition of rape in armed conflicts has been long recognized in international treaty law as well as in customary international law.[5]

[1] Trial Judgement, para. 177.

[2] Kunarac et al. Trial Judgement, para. 460.

[3] Kunarac et al. Appeal Judgement, para. 128.

[4] Radić Reply Brief, para. 75.

[5] Furundžija Trial Judgement, para. 168; Čelebići Trial Judgement paras 476-479; Furundžija Appeal Judgement, para. 210.

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Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

40. The Appeals Chamber considers that the trial chamber is best placed to determine both the modalities for disclosure of material intended for use in cross-examination and also the amount of time that is sufficient for an accused to prepare his defence based on the specifics of such disclosure.[1] In this case, the Trial Chamber stated its preference for disclosure prior to cross-examination, and, when this did not occur, it assessed any possible prejudice to Kalimanzira.[2] The Appeals Chamber can identify no error in the Trial Chamber’s approach. […]

[1] See Bagosora et al. Appeal Decision of 25 September 2006, para. 12.

[2] Trial Judgement, paras. 38, 40, 41.

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Notion(s) Filing Case
Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

218. In discussing the forms of responsibility under Article 6(1) of the Statute, the Trial Chamber stated that “‘[c]ommitting’ implies, primarily, physically perpetrating a crime.”[1] The Appeals Chamber can identify no error in this definition. The formulation is similar to the one articulated in the Nahimana et al. Appeal Judgement.[2] Indeed, the Trial Chamber’s use of the term “primarily” to qualify its definition of committing as physical perpetration illustrates that it did not limit the scope of its inquiry.[3] This stands in contrast to the definition used by the trial chamber in the Seromba case, which the Appeals Chamber found too restrictive.[4] The fact that the Trial Chamber did not explicitly recall the additional clarification of this well-settled principle provided by the Gacumbitsi and Seromba Appeal Judgements does not mean that these clarifications were not considered.

219. It follows from the Gacumbitsi and Seromba Appeal Judgements that physical perpetration need not only mean physical killing and that other acts can constitute direct participation in the actus reus of the crime.[5] The question is whether an accused’s conduct “was as much an integral part of the genocide as were the killings which it enabled.”[6] Bearing this in mind, the Appeals Chamber is not convinced that the Trial Chamber’s conclusion that Kalimanzira’s conduct was best characterized as aiding and abetting was unreasonable. The Trial Chamber did not find that he supervised or directed the attack at Kabuye hill. Instead, it concluded that he lured Tutsis to Kabuye hill and brought armed reinforcements.[7]

220. In other cases, trial chambers have qualified bringing assailants to a killing site as aiding and abetting.[8] In the circumstances of this case, the Appeals Chamber is not convinced that Kalimanzira’s tacit approval of Sub-Prefect Ntawukulilyayo’s call for Tutsis to go to Kabuye hill, and his leading assailants to Kabuye hill,[9] are sufficient to require that the legal qualification of his overall conduct be elevated to “committing”. Furthermore, the fact that the Trial Chamber found that Kalimanzira possessed genocidal intent,[10] rather than simply knowledge of the principal perpetrators’ mens rea,[11] does not in itself compel the conclusion that the Trial Chamber erred in finding that aiding and abetting most accurately described Kalimanzira’s conduct. The Appeals Chamber recalls that it is not unusual for a trial chamber to find that an individual convicted only of aiding and abetting possesses genocidal intent.[12]

[1] Trial Judgement, para. 161.

[2] Nahimana et al. Appeal Judgement, para. 478 (“The Appeals Chamber recalls that commission covers, primarily, the physical perpetration of a crime (with criminal intent) or a culpable omission of an act that is mandated by a rule of criminal law, but also participation in a joint criminal enterprise.”).

[3] Trial Judgement, para. 161.

[4] See Seromba Appeal Judgement, para. 155 (“‘committing’ means [...] direct physical or personal perpetration”), quoting Seromba Trial Judgement, para. 302. See also Seromba Appeal Judgement, para. 161 (“[T]he Trial Chamber erred in law by holding that ‘committing’ requires direct and physical perpetration of the crime by the offender.”).

[5] Gacumbitsi Appeal Judgement, para. 60; Seromba Appeal Judgement, para. 161.

[6] Gacumbitsi Appeal Judgement, para. 60. See also Seromba Appeal Judgement, para. 161.

[7] Trial Judgement, para. 393.

[8] See, e.g., Semanza Trial Judgement, paras. 431-433; Ntakirutimana Trial Judgement, paras. 827-831.

[9] See Trial Judgement, paras. 392, 393.

[10] Trial Judgement, para. 393.

[11] See Blagojević and Jokić Appeal Judgement, para. 127.

[12] See Ntakirutimana Trial Judgement, paras. 827-831. Cf. Semanza Trial Judgement, paras. 431-433.

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ICTR Statute Article 6 (1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

466. Article 23(2) of the Statute and Rule 98 ter(C) of the Rules provide that a judgement shall be rendered by a “majority of the judges”. Rule 87(A) of the Rules specifies that a majority of judges must be satisfied that guilt has been proved beyond reasonable doubt. In the present case, there was no such majority as only Judge David was satisfied that Sredoje Lukić fulfilled the actus reus and mens rea of aiding and abetting extermination in the Pionirska Street Incident.[1] As set out above, for different reasons neither Judge Van den Wyngaert nor Judge Robinson was satisfied that Sredoje Lukić should be convicted of this offence. Thus, to conclude that the Trial Chamber’s majority findings on Sredoje Lukić’s participation in the murders and on their characterisation as extermination support a finding of guilt would lead to Sredoje Lukić’s conviction, despite the fact that only one Judge was satisfied that all the necessary elements were fulfilled. Such a conclusion is incompatible with the principle that a finding of guilt may be reached only when a majority of the trial chamber is satisfied that guilt has been proved beyond reasonable doubt, as enshrined in Rule 87(A) of the Rules. Thus, the Prosecution has not shown that the Trial Chamber erred in failing to convict Sredoje Lukić for aiding and abetting extermination as a crime against humanity on Pionirska Street. The Prosecution’s first ground of appeal is therefore dismissed.

[1] Trial Judgement, paras 934, 953. 

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ICTR Statute Article 22(2) ICTY Statute Article 23(2) ICTR Rule Rule 87(A);
Rule 88(C)
ICTY Rule Rule 87(A);
Rule 98 ter(C)
Notion(s) Filing Case
Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

70. [A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there. […]

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Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

480. The actus reus of “instigating” implies prompting another person to commit an offence.[1] It is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[2] The mens rea for this mode of responsibility is the intent to instigate another person to commit a crime or at a miminum the awareness of the substantial likelihood that a crime will be committed in the execution of the act or omission instigated.[3]

660. The Appeals Chamber recalls that, for a defendant to be convicted of instigation to commit a crime under Article 6(1) of the Statute, it must be established that the acts charged contributed substantially to the commission of the crime, but they need not be a sine qua non condition for its commission. The Appeals Chamber further recalls that, contrary to what the Appellant appears to contend,[4] the accused does not need to be actually present when the instigated crime is committed.

[1] Ndindabahizi Appeal Judgement, para. 117; Kordić and Čerkez Appeal Judgement, para. 27.

[2] Gacumbitsi Appeal Judgement, para. 129; Kordić and Čerkez Appeal Judgement, para. 27. Once again, although the French version of the Kordić and Čerkez Judgement reads “un élément déterminant, the English version – which is authoritative – reads “factor substantially contributing to”.

[3] Kordić and Čerkez Appeal Judgement, paras. 29 and 32.

[4] See Barayagwiza Appellant’s Brief, para. 232.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 03.05.2006 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

Paras 152-154: the Appeals Chamber found that there is no occasion in this case to define the elements of deportation as a crime against humanity under Article 5(d) of the Statute, because the Indictment included no charges under that Article. It also saw no need to consider the issue as a matter of general significance to the International Tribunal’s jurisprudence, as it had already been settled in the Stakić Appeal Judgement.[1]

Regarding deportation as a form of persecutions under Article 5(h) of the Statute, the Appeals Chamber referred to the Krnojelac Appeal Judgement, para. 218: for the purposes of persecutions, it is irrelevant whether “deportation” encompasses a border element, because acts of “forcible displacement” are equally punishable as underlying acts of persecutions whether or not a border is crossed. “Forcible displacement” also sufficiently captures underlying acts of “deportation” and “forcible transfer” (para. 154):

[…] the question whether “deportation” encompasses a border element is irrelevant for the purposes of liability under Article 5(h) of the Statute, because acts of forcible displacement are equally punishable as underlying acts of persecutions whether or not a border is crossed. It is moreover not necessary, for the purposes of a persecutions conviction, to distinguish between the underlying acts of “deportation” and “forcible transfer”; the criminal responsibility of the accused is sufficiently captured by the general concept of forcible displacement.

[1] Stakić Appeal Judgement, paras 274-308.

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

151.    The Appeals Chamber understands the Trial Chamber’s reasoning to be that, if a doubt exists in the interpretation of a statute, the doubt must be interpreted in favour of the accused. The Trial Chamber considered that “meurtre” is not the same as “killing”.[1] However, having regard to the operative part of Article 2(2) of the Statute, it found that “there is virtually no difference” between the two terms as the term “killing” is linked to the intent to destroy in whole or in part.[2] The Appeals Chamber accepts this view, but states that if the word “virtually” is interpreted in a manner that suggests a difference, though minimal, between the two terms, it would construe them both as referring to intentional but not necessarily premeditated murder, this being, in its view, the meaning to be assigned to the word “meurtre”. […]

[1] Trial Judgement, para. 103. 

[2] Ibid., para. 104.

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

3327.            The Appeals Chamber recalls that the actus reus of instigating is to prompt another person to commit an offence.[1] It is not necessary to prove that the accused was present when the instigated crime was committed[2] or that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[3]

3328.            […] The Appeals Chamber considers that Kanyabashi’s commitment to execute the directives and instructions announced by Kambanda and Sindikubwabo to identify and kill Tutsis does not necessarily amount to prompting the attendees or the people in Butare Prefecture to kill Tutsis.[4] In the absence of any evidence discussed by the Trial Chamber or pointed out by the Prosecution that Kanyabashi’s Speech was understood as instigating the killing of Tutsis or had any impact on the conduct of those who subsequently committed killings,[5] the Appeals Chamber finds that a reasonable trier of fact could have concluded that Kanyabashi did not instigate genocide through his speech.

[1] See, e.g., Nzabonimana Appeal Judgement, para. 146; Nahimana et al. Appeal Judgement, para. 480; Kordić and Čerkez Appeal Judgement, para. 27.

[2] Nahimana et al. Appeal Judgement, para. 660. See also Boškoski and Tarčulovski Appeal Judgement, para. 125, fn. 347.

[3] See, e.g., Nzabonimana Appeal Judgement, para. 146; Nahimana et al. Appeal Judgement, paras. 480, 660; Kordić and Čerkez Appeal Judgement, para. 27.

[4] The Black's Law Dictionary defines the verb “prompt” as “to incite, especially to immediate action”. See Black’s Law Dictionary, 9th edition, 2009. In the Oxford Dictionary the verb “prompt” is defined as “to incite to action; to move or induce (a person, etc.) to or to do something”. See Oxford English Dictionary, 2015.

[5] See also infra, para. 3333.

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