Forcible transfer

Notion(s) Filing Case
Appeal Judgement - 28.11.2006 SIMIĆ Blagoje
(IT-95-9-A)

In the Stakić Appeal Judgement the Appeals Chamber found that the participation of an NGO in facilitating displacements does not in and of itself render an otherwise unlawful transfer lawful. Pursuant to this approach, the Appeals Chamber in the Simić case found that the presence of representatives from the UNPROFOR and the ICRC during some of the exchanges that took place did not render the displacements at issue lawful, nor did it lead to the conclusion that the forcible displacements were of insufficient gravity to rise to the level of persecution. See paragraph 180. 

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

At para. 317, the Appeals Chamber held the following:

Forcible transfer has been defined in the jurisprudence of the Tribunal as the forcible displacement of persons which may take place within national boundaries.[1] The mens rea does not require the intent to transfer permanently. The Appeals Chamber notes that Article 2(g) of the Statute, Articles 49 and 147 of Geneva Convention IV, Article 85(4)(a) of Additional Protocol I, and Article 18 of the 1996 ILC Draft Code all condemn forcible transfer.[2] The notion of forcible transfer had therefore clearly been accepted as conduct criminalised at the time relevant to this case, such that it does not violate the principle of nullum crimen sine lege. Furthermore, acts of forcible transfer have been accepted in other cases before the Tribunal as specifically substantiating the notion of other inhumane acts pursuant to Article 5(i).[3] In view of the foregoing, the Appeals Chamber finds that acts of forcible transfer may be sufficiently serious as to amount to other inhumane acts.[4]

[1] Krnojelac Trial Judgement, para. 474; Krstić Trial Judgement, para. 521. See also Stakić Rule 98bis Decision, in which the Trial Chamber found that forcible transfer relates to displacement within a State.

[2] Article 17 of Protocol II similarly prohibits the “displacement” of civilians.

[3] See Krstić Trial Judgement, para. 523; Kupreškić Trial Judgement, para. 566.

[4] See the definition of other inhumane acts set out in the Kordić Appeal Judgement, para. 117: “the victim must have suffered serious bodily or mental harm; the degree of severity must be assessed on a case-by-case basis with due regard for the individual circumstances”.

Download full document
ICTR Statute Article 3(i) ICTY Statute Article 5(i)
Notion(s) Filing Case
Appeal Judgement - 22.03.2006 STAKIĆ Milomir
(IT-97-24-A)

At paras 284 to 286 of the Judgement, the Appeals Chamber considered the issue of displacement for humanitarian reasons. It concluded:

Although displacement for humanitarian reasons is justifiable in certain situations,[1] the Appeals Chamber agrees with the Prosecution that it is not justifiable where the humanitarian crisis that caused the displacement is itself the result of the accused’s own unlawful activity.[2]

[1] See Article 17 of Additional Protocol II.

[2] Judgement, para. 287.

Download full document
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.

Download full document
ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

When finding that a forcible transfer amounts to “other inhumane acts” under Article 5(i) of the Statute, the Trial Chamber has to be convinced that the forcible transfer in question is of a similar seriousness to other enumerated crimes against humanity.

330. The Appeals Chamber has held that “acts of forcible transfer may be sufficiently serious as to amount to other inhumane acts”.[1] Accordingly, a Trial Chamber should examine if the specific instances of forcible transfer in the case before it were sufficiently serious to amount to “other inhumane acts” under Article 5(i) of the Statute. The Trial Chamber did not do so in the present case; rather, it seemed to have assumed that the acts of forcible transfer amounted to “other inhumane acts” under Article 5(i) of the Statute.[2] The Appeals Chamber finds that this was in error, but is not convinced that this error invalidates the Appellant’s conviction for other inhumane acts (forcible transfer).

331. When finding that specific acts of forcible transfer amount to “other inhumane acts” under Article 5(i) of the Statute, a Trial Chamber has to be convinced that the forcible transfer is of a similar seriousness to other enumerated crimes against humanity.[3] This condition is satisfied in the present case. The acts of forcible transfer[4] were of similar seriousness to the instances of deportation,[5] as they involved a forced departure from the residence and the community, without guarantees concerning the possibility to return in the future, with the victims of such forced transfers invariably suffering serious mental harm.[6]

[1] Stakić Appeal Judgement, para. 317 (emphasis added).

[2] Trial Judgement, paras 722-726.

[3] Blagojević and Jokić Trial Judgement, para. 626; Galić Trial Judgement, para. 152; Vasiljević Trial Judgement, para. 234; Krnojelac Trial Judgement, para. 130. See also Kupreškić Trial Judgement, para. 566, and Kayishema and Ruzindana Trial Judgement, paras 151, 154 (stating that the acts or omissions must be as serious as the other crimes against humanity).

[4] See Trial Judgement paras 309 (Bijeljina), 402 (Bosanska Krupa), 314 (Bratunac), 533 (Sanski Most), 693 (Sokolac), 593 (Trnovo) and 365 (Zvornik).

[5] See Trial Chamber Judgement paras 380 (Banja Luka), 611 (Bileća), 419 (Bosanski Novi), 621 (Čajniče), 637 (Foča), 658-659 (Gacko), 507 (Prnjavor) and 366 (Zvornik).

[6] In this connection, see Blagojević and Jokić Trial Judgement, para. 629; Krstić Trial Judgement, para. 523; Kupreškić et al. Trial Judgement, para. 566.  

Download full document
ICTR Statute Article 3(i) ICTY Statute Article 5(i)
Notion(s) Filing Case
Appeal Judgement - 17.09.2003 KRNOJELAC Milorad
(IT-97-25-A)

217.    The Appeals Chamber will now examine which acts of displacement may constitute persecution when committed with the requisite discriminatory intent and whether the acts alleged by the Prosecution were such that they were acts constituting the crime of persecution. The Appeals Chamber holds that, in order to do this and contrary to what the Prosecution claims, it is not necessary to define deportation as “an umbrella term that covers acts of forcible displacement, whether internal or cross-border” so as to consider whether these acts were such as to constitute the crime of persecution.

218.    The Appeals Chamber holds that acts of forcible displacement underlying the crime of persecution punishable under Article 5(h) of the Statute are not limited to displacements across a national border. The prohibition against forcible displacements aims at safeguarding the right and aspiration of individuals to live in their communities and homes without outside interference. The forced character of displacement and the forced uprooting of the inhabitants of a territory entail the criminal responsibility of the perpetrator, not the destination to which these inhabitants are sent.

219.    The Appeals Chamber holds that the crime of persecution may take different forms. It may be one of the other acts constituting a crime under Article 5 of the Statute[2] or one of the acts constituting a crime under other articles of the Statute.[3]

220.    However, a conviction can only be based on an offence that existed at the time the acts or omissions with which the accused is charged were committed and which was sufficiently foreseeable and accessible.[4] It is therefore necessary to investigate which acts of displacement are considered crimes under customary international law. The Geneva Conventions are considered to be the expression of customary international law.[5] Article 49 of the Fourth Geneva Convention prohibits displacement to another state, within or from occupied territory. It provides that: “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”[6] Moreover, Article 85 of Additional Protocol I prohibits “the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or part of the population of the occupied territory within or outside this territory in violation of Article 49 of the Fourth Convention.”[7] Furthermore, Article 17 of Additional Protocol II to the Geneva Conventions explicitly prohibits the forced displacement of the population within or outside a country in which an internal armed conflict has broken out. It reads as follows:

Article 17 - Prohibition of forced movement of civilians - 1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition. 2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.

Article 17 of Additional Protocol II uses the term “forced movement” to describe displacements within and across borders during an internal armed conflict. However, the Commentary to this Protocol states that the term “forced movement” also covers “deportation measures obliging an individual to leave his country”.[9] The Geneva Conventions and their Additional Protocols prohibit forced movement within the context of both internal and international armed conflicts. This is relevant when determining the gravity of the acts in question, which is what the Appeals Chamber will now consider.

221.    For these acts to be considered acts constituting the crime of persecution, they must have been committed, separately or cumulatively, with discriminatory intent and must constitute a crime of persecution the gravity of which is equal to the other crimes listed in Article 5 of the Statute. On several occasions, the Tribunal’s Trial Chambers have found that the forced displacement of the population within a state or across its borders constituted persecution.[10] The Secretary-General’s report, which was approved by the Security Council,[11] states that “[c]rimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character.”[12] It further states that “[c]rimes against humanity refer to inhumane acts of a very serious nature, such as wilful killing, torture or rape” and that “[i]n the conflict in the territory of the former Yugoslavia, such inhumane acts have taken the form of so-called ‘ethnic cleansing’ and widespread and systematic rape.”[13] The Security Council was therefore particularly concerned about acts of ethnic cleansing and wished to confer jurisdiction on the Tribunal to judge such crimes, regardless of whether they had been committed in an internal or an international armed conflict. Forcible displacements, taken separately or cumulatively, can constitute a crime of persecution of equal gravity to other crimes listed in Article 5 of the Statute. This analysis is also supported by recent state practice, as reflected in the Rome Statute, which provides that displacements both within a state and across national borders can constitute a crime against humanity and a war crime.[14]

222.    The Appeals Chamber concludes that displacements within a state or across a national border, for reasons not permitted under international law, are crimes punishable under customary international law, and these acts, if committed with the requisite discriminatory intent, constitute the crime of persecution under Article 5(h) of the Statute. The Appeals Chamber finds that the facts accepted by the Trial Chamber fall within the category of displacements which can constitute persecution.

223.    For the reasons set out above, the Appeals Chamber holds that at the time of the conflict in the former Yugoslavia, displacements both within a state and across a national border were crimes under customary international law. Consequently, the principle nullum crimen sine lege has been respected.[15]

[1] Prosecution Brief [Appeal Brief of the Prosecution, filed on 5 August 2002], para. 8.7.

[2] Kupreškić Judgement, paras. 608 to 615; see also Krstić Judgement, para. 535, and Kordić Judgement, paras. 197 and 198.;;.

[3] Kordić Judgement, para. 193; Krstić Judgement, para. 535.

[4] Ojdanić Decision [ Prosecutor v. Milan Milutinović, Nikola [ainović and Dragoljub Ojdanić, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003], paras. 37 to 39.

[5] Čelebići Appeals Judgement, para. 113; Tadić Decision (Motion on Jurisdiction) [The Prosecutor v. Duško Tadić, Case no. IT-94-1- AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], paras. 79 to 85. In paragraph 35 of his report, the Secretary-General declared that: “The part of conventional international humanitarian law which has beyond doubt become part of international customary law is the law applicable in armed conflict embodied in: the Geneva Conventions of 12 August 1949.”

[6] Article 49 of the Fourth Geneva Convention provides that: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.”

[7] Article 85 of Additional Protocol I provides that “[i]n addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed wilfully and in violation of the Conventions of the Protocol: (a) The transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth Convention.” The Commentary on the Additional Protocols states that “[t]he part of the sub-paragraph dealing with the transfer or deportation of the population of the occupied territory is merely a repetition of Article 147 of the Fourth Convention, and Article 49 of that Convention, to which reference is made, continues to apply unchanged. Thus the new element in this sub-paragraph concerns the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies.” (See Commentary to the Additional Protocols [Sandoz et al. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva 1986], p. 1000).

[8] The Commentary to Additional Protocol II states that paragraph 2 refers to forced movements across national borders and asks the following question with regard to this paragraph: “What is the position as regards deportation measures obliging an individual to leave his country? If such a measure arises from the situation of conflict, it constitutes forced movement within the meaning of this article […]”, paras. 4863 and 4864.

[9] Commentary to Additional Protocols, paras. 4863 and 4864.

[10] Blaškić Judgement, in which acts of displacement within Bosnia and Herzegovina within the context of an armed international conflict were described as forcible transfer which constituted persecution, paras. 75 to 130, 234, 366, 380, 575 and 631. In the Naletilić and Martinović Judgement, the Trial Chamber found that there had been forcible transfer pursuant to Article 2(g) of the Statute in the case of displacements within Bosnia and Herzegovina and concluded that the same acts constituted persecution by way of forcible transfer and not by way of deportation, paras. 512 to 571 and 669 to 672. See also Plavšić Sentencing Judgement, paras. 31 to 40, and Krstić Judgement, paras. 537 to 538. In paragraph 629 of the Kupreškić Judgement, the Trial Chamber stated that “the organised detention and expulsion from Ahmići can constitute persecution.”

[11] Resolution 827 (1993).

[12] Secretary-General’s Report [Report of the Secretary-General Pursuant to Paragraph 2 of Security Council resolution 808 (1993), UN Doc S/25704, 3 May 1993], para. 47.

[13] Ibid. [Report of the Secretary-General Pursuant to Paragraph 2 of Security Council resolution 808 (1993), UN Doc S/25704, 3 May 1993], para. 48.

[14] The Tadić Appeals Judgement states that the Statute “was adopted by an overwhelming majority of the States attending the Rome Diplomatic Conference and was substantially endorsed by the Sixth Committee of the United Nations General Assembly. This shows that that text is supported by a great number of States and may be taken to express the legal position i.e. opinio iuris of those States”, para. 223. “Deportation or forcible transfer of population” is punishable under Article 7(1)(d) of the Rome Statue. Paragraph 2 states that: “Deportation or forcible transfer of population means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.” Article 8(2)(a)(vii) of the Rome Statute [Statute of the International Criminal Court adopted in Rome on 17 July 1998, PCNICC/1999/INF.3] also provides that unlawful deportation and transfer constitute war crimes.

[15] Paragraph 37 of the Ojdanić Decision states that: “The principle nullum crimen sine lege is, as noted by the International Military Tribunal in Nuremberg, first and foremost a principle of justice. It follows from this principle that a criminal conviction can only be based on a norm which existed at the time the acts or omission with which the accused is being charged were committed.” (footnotes omitted).

Download full document
Notion(s) Filing Case
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.

Download full document
Notion(s) Filing Case
Appeal Judgement - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

151. The Appeals Chamber notes that the Trial Chamber appears to use the terms deportation and forcible transfer interchangeably. The Geneva Conventions prohibit forcible transfers and deportation. Article 49 of Geneva Convention IV provides that “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.” Article 147 of Geneva Convention IV, listing grave breaches to which Article 146 relates, refers to “unlawful deportation or transfer or unlawful confinement of a protected person.” Article 85 of Additional Protocol I prohibits “the transfer by the occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or part of the population of the occupied territory within or outside this territory in violation of Article 49 of the Fourth Convention.” In addition, Article 17 of Additional Protocol II provides:

1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.

2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.

152. The Appeals Chamber in the Krnojelac case held that:

 Forcible displacements, taken separately or cumulatively, can constitute a crime of persecution of equal gravity to other crimes listed in Article 5 of the Statute. […]

The Appeals Chamber concludes that displacements within a state or across a national border, for reasons not permitted under international law, are crimes punishable under customary international law, and these acts, if committed with the requisite discriminatory intent, constitute the crime of persecution under Article 5(h) of the Statute.[1]

153. In light of the foregoing analysis and jurisprudence, the Appeals Chamber considers that at the time relevant to the Indictment in this case, deportation, forcible transfer, and forcible displacement constituted crimes of equal gravity to other crimes listed in Article 5 of the Statute and therefore could amount to persecutions as a crime against humanity.

[1] Krnojelac Appeal Judgement, paras. 221-222. The separate opinion of Judge Schomburg appended to that judgement calls for the direct application of “deportation”, punishable under Article 5(d) of the Statute. 

Download full document
ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

918. In addition, Župljanin’s argument that the Trial Chamber was required to find that he intended coercive acts under the first category of joint criminal enterprise because the actus reus of the JCE I Crimes requires that the act inducing the departure be criminal, finds no support in the jurisprudence of the Tribunal. […] Contrary to Župljanin’s unreferenced assertion, the jurisprudence of the Tribunal does not require that persons be displaced as a result of criminal acts.[1]

[1] In relation to Župljanin’s argument that measures authorised or permitted under the law of armed conflict, such as a lawful and legitimate attack on a village, do not satisfy the actus reus of forcible transfer (Župljanin Appeal Brief [Stojan [Ž]]upljanin’s Appeal Brief, 19 August 2013 (confidential; public redacted version filed on 23 August 2013, re-filed on 21 April 2016)]], para. 8.), the Appeals Chamber observes that Župljanin does not point to any evidence to suggest that the displacements in this case were justified under international humanitarian law. The Appeals Chamber therefore dismisses Župljanin’s argument as undeveloped and demonstrating no error.

Download full document
Notion(s) Filing Case
Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

388. Addressing the more specific issue of intra-Article 5 cumulative convictions, the Kordić and Čerkez Appeal Judgement ruled that a correct application of the Čelebići test required “an examination, as a matter of law, of the elements of each offence in the Statute that pertain to that conduct for which the accused has been convicted.” Based on this reasoning, the Appeals Chamber admitted that convictions for the crimes against humanity of persecution on the one hand, and murder, other inhumane acts and imprisonment on the other hand, could be cumulated, since all of these offences contained “an element that requires proof of a fact not required by the other[s]”.[1]

389. In the instant case, Amicus Curiae alleges that the Kordić and Čerkez Appeal Judgement is an incorrect application of the Čelebići test and should therefore not be used as a precedent. The Appeals Chamber cannot agree with this interpretation. While prior jurisprudence adopted another point of view,[2] in the Kordić and Čerkez Appeal Judgement the Appeals Chamber clearly explained the reasons that warranted the departure from previous cases.[3] Subsequent appeal judgements in the Stakić, Naletilić and Martinović and Nahimana et al. cases confirmed the approach adopted in Kordić and Čerkez.[4] The Appeals Chamber therefore sees no cogent reason to depart from the current jurisprudence with respect to intra-Article 5 cumulative convictions.

390. In the Trial Judgement, the Trial Chamber determined that:

[p]ersecution as a crime against humanity has a materially distinct element from murder as a crime against humanity in that persecution requires proof that an act or omission discriminates in fact, and proof that the act or omission was committed with specific intent to discriminate. Conversely, murder as a crime against humanity requires proof that the accused caused the victim’s death, which is not an element required for proof of persecution. As a result, a cumulative conviction for persecution and murder under Article 5 of the Statute is permissible. The same reasoning applies to extermination, deportation, and forced transfer as an inhumane act.[5]

391. The Appeals Chamber, by majority, Judge Güney dissenting,[6] considers that this is a correct application of the law on cumulative convictions. Therefore, the Trial Chamber did not err in cumulating the conviction for persecution as a crime against humanity with the convictions for the crimes against humanity of murder, extermination, deportation and inhumane acts (forcible transfer). This ground of appeal is dismissed.

[1] Kordić and Čerkez Appeal Judgement, paras 1040-1043.

[2] See Krstić Appeal Judgement, paras 230-233; Vasiljević Appeal Judgement, paras 144-146; Krnojelac Appeal Judgement, para. 188.

[3] Kordić and Čerkez Appeal Judgement, para. 1040.

[4] See Nahimana et al. Appeal Judgement, paras 1026-1027; Naletilić and Martinović Appeal Judgement, paras 587-591; Stakić Appeal Judgement, paras 355-367.

[5] Trial Judgement, para. 1130.

[6] See Nahimana et al. Appeal Judgement, Partly Dissenting Opinion of Judge Güney, para. 5.

Download full document
ICTR Statute Article 3 ICTY Statute Article 5