Persecution

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

762. To establish the actus reus of persecution in the present case, the Trial Chamber was required to establish that the underlying acts of terrorising civilians: discriminated in fact, denied or infringed upon a fundamental right laid down in international customary or treaty law,[1] and were “of equal gravity to the crimes listed in Article 5 whether considered in isolation or in conjunction with other acts.”[2] […]

[1]           Nahimana et al. Appeal Judgement, para. 985.

[2]           Nahimana et al. Appeal Judgement, paras 985-988; Brđanin Appeal Judgement, para. 296; Simić Appeal Judgement, para. 177; Blaškić Appeal Judgement, paras 135, 139, 154-155, 160.

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Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1812. […] [T]he criminal responsibility of an aider and abettor does not require the contribution to the crime of persecution to go to the discriminatory nature of this crime […][1]

[1]           See supra, para. 1808.

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Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

766. […] The Appeals Chamber reiterates that “it is not necessary that every individual act underlying the crime of persecution […] be of a gravity corresponding to other crimes against humanity: underlying acts of persecution can be considered together”.[1] […]

[1]           Nahimana et al. Appeal Judgement, para. 987.

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Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

713. […] [T]he Appeals Chamber observes that when considering whether an accused has the required intent for the crime of persecution, trial chambers are allowed to consider “the general attitude of the alleged perpetrator as demonstrated by his behaviour”.[1] The use of derogatory language in relation to a particular group – even where such usage is commonplace – is one aspect of an accused’s behaviour that may be taken into account, together with other evidence, to determine the existence of discriminatory intent.[2] […]

[1]           Kvočka et al. Appeal Judgement, para. 460.

[2]           See, e.g., Kvočka et al. Appeal Judgement, para. 461, finding that the Trial Chamber correctly found that the use of the word “balijas” by the accused Zoran Žigić towards Muslim detainees in the Omarska, Keraterm, and Trnopolje camps supported its conclusion that he had discriminatory intent in maltreating the detainees.

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Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

738. The Appeals Chamber reiterates that persecution as a crime against humanity does not require that the underlying acts are crimes under international law.[1] A trial chamber does not need to establish the elements of the underlying acts, including the mens rea, even when the underlying act also constitutes a crime under international law. With respect to the mens rea, all that is required is establishing that the underlying act was deliberately carried out with discriminatory intent. […]

[1]           Nahimana et al. Appeal Judgement, para. 985; Brđanin Appeal Judgement, para. 296; Kvočka et al. Appeal Judgement, para. 323.

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Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

Martić contested the purpose of the attack on the village of Kijevo. In response to Martić’s submission that the destruction of a church was due to its being used as a bell-tower for machine guns, the Appeals Chamber considered the legitimacy of attacking a church:

98. The […] Trial Chamber [relied] upon the evidence that the church was attacked as part of a pattern of persecutions against the non-Serb population of Kijevo. In relying upon the evidence for this purpose, the Trial Chamber did not consider whether the church was a legitimate military target[1] and disregarded the evidence that it might have been a legitimate military objective. The Appeals Chamber finds that in so doing, the Trial Chamber erred as this evidence was “clearly relevant to the findings” in question.[2] However, as the Appeals Chamber considers that the destruction of the church was not a decisive factor in the overall findings of the Trial Chamber on persecution, which included findings of torching of civilian buildings, looting and the effect of the ultimatum on the civilian population of Kijevo and other villages, the error of the Trial Chamber is not such as to warrant the interference of the Appeals Chamber.[3]

[1] Trial Judgement, para. 169; see also Trial Judgement, para. 426.

[2] See Limaj et al. Appeal Judgement, para. 86, referring to Kvočka et al. Appeal Judgement, para. 23.

[3] See, in general, Trial Judgement, paras 166-169, 426-430 and 432.

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

1026. The Appeals Chamber observes in this respect that in the Kordić and Čerkez Appeal Judgement the ICTY Appeals Chamber found that cumulative convictions are permissible for persecution and other inhumane acts, since each offence has a materially distinct element not contained in the other.[1] Relying on this jurisprudence, the ICTY Appeals Chamber found in the Stakić Appeal Judgement that it was permissible to enter cumulative convictions for extermination and persecution as crimes against humanity on the basis of the same facts. It found that extermination requires proof that the accused caused the death of a large number of people, while persecution requires proof that an act or omission was in fact discriminatory and that the act or omission was committed with specific intent to discriminate.[2] The Appeals Chamber endorses the analysis of the ICTY Appeals Chamber.

1027. According to the foregoing, the Appeals Chamber finds that it is permissible to convict Appellant Barayagwiza cumulatively of both persecution and extermination on the basis of the same facts, Judge Güney dissenting from this finding.

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

[2] Stakić Appeal Judgement, paras. 364, 367.

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ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

1032. […] [T]he Appeals Chamber would recall that the crime of genocide inter alia requires the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. Persecution, like the other acts enumerated in Article 3 of the Statute, must have been committed as part of a widespread and systematic attack on a civilian population. It was therefore open to the Trial Chamber to enter cumulative convictions under Articles 2(3)(a) and 3(h) of the Statute on the basis of the same acts. […]

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

986. The Appeals Chamber considers that hate speech targeting a population on the basis of ethnicity, or any other discriminatory ground, violates the right to respect for the dignity[1] of the members of the targeted group as human beings,[2] and therefore constitutes “actual discrimination”. In addition, the Appeals Chamber is of the view that speech inciting to violence against a population on the basis of ethnicity, or any other discriminatory ground, violates the right to security[3] of the members of the targeted group and therefore constitutes “actual discrimination”. However, the Appeals Chamber is not satisfied that hate speech alone can amount to a violation of the rights to life, freedom and physical integrity of the human being. Thus other persons need to intervene before such violations can occur; a speech cannot, in itself, directly kill members of a group, imprison or physically injure them.

987. The second question is whether the violation of fundamental rights (right to respect for human dignity, right to security) is as serious as in the case of the other crimes against humanity enumerated in Article 3 of the Statute. The Appeals Chamber is of the view that it is not necessary to decide here whether, in themselves, mere hate speeches not inciting violence against the members of a group are of a level of gravity equivalent to that for other crimes against humanity. As explained above, it is not necessary that every individual act underlying the crime of persecution should be of a gravity corresponding to other crimes against humanity: underlying acts of persecution can be considered together. It is the cumulative effect of all the underlying acts of the crime of persecution which must reach a level of gravity equivalent to that for other crimes against humanity. Furthermore, the context in which these underlying acts take place is particularly important for the purpose of  assessing their gravity.

[1] On the content of this right, see for example the Universal Declaration on Human Rights, the Preamble of which expressly refers to the recognition of dignity inherent to all human beings, while the Articles set out its various aspects.

[2] In this regard, it should be noted that, according to the Kvočka et al. Appeal Judgement (paras. 323-325), violations of human dignity (such as harassment, humiliation and psychological abuses) can, if sufficiently serious, constitute acts of persecution.

[3] On the right to security, see for example Article 3 of the Universal Declaration on Human Rights (“Everyone has the right to life, liberty and security of person”).

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

985. The Appeals Chamber reiterates that “the crime of persecution consists of an act or omission which discriminates in fact and which: denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).”[1] However, not every act of discrimination will constitute the crime of persecution: the underlying acts of persecution, whether considered in isolation or in conjunction with other acts, must be of a gravity equal to the crimes listed under Article 3 of the Statute.[2] Furthermore, it is not necessary that these underlying acts of persecution amount to crimes in international law.[3] Accordingly, there is no need to review here the Appellants’ arguments that mere hate speech does not constitute a crime in international criminal law.

[1] Krnojelac Appeal Judgement, para. 185 (citing with approval Krnojelac Trial Judgement, para. 431), reiterated in Simić Appeal Judgement, para. 177; Stakić Appeal Judgement, paras. 327-328; Kvočka et al. Appeal Judgement, para. 320; Kordić and Čerkez Appeal Judgement, para. 101; Blaškić Appeal Judgement, para. 131; Vasiljević Appeal Judgement , para. 113.

[2] Brđanin Appeal Judgement, para. 296; Simić Appeal Judgement, para. 177; Naletilić and Martinović Appeal Judgement, para. 574; Kvočka et al. Appeal Judgement, para. 321; Kordić and Čerkez Appeal Judgement, para. 102; Blaškić Appeal Judgement, para. 135; Krnojelac Appeal Judgement, paras. 199, 221.

[3] Brđanin Appeal Judgement, para. 296; Kvočka et al. Appeal Judgement, para. 323. Contrary to what the Appellants contend, this is not a breach of the legality principle, since the crime of persecution as such is sufficiently defined in international law.

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
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 - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

579. The Appeals Chamber recalls that persecution as a crime against humanity requires evidence that the principal perpetrator had the specific intent to discriminate on political, racial, or religious grounds.[1] While the requisite discriminatory intent may not be inferred directly from the general discriminatory nature of an attack characterised as a crime against humanity, the “discriminatory intent may be inferred from such a context as long as, in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent.”[2]

580. Although the Trial Chamber correctly articulated the applicable law in this respect,[3] it failed to apply this standard in determining whether the rapes of K31, K14, and K62 constituted persecution. Notably, the Trial Chamber found that, in April and May 1999, Kosovo Albanians were targeted across Priština/Prishtina town by VJ and MUP forces: parts of the town were shelled by the VJ, buildings were set on fire, houses were looted, and large numbers of Kosovo Albanians were directly expelled from their homes, or fled due to the prevailing atmosphere of fear created by this campaign of violence.[4] Significantly, the Trial Chamber found that the Prosecution had failed to present “any evidence” from which the discriminatory intent of the perpetrators of the rapes could be inferred,[5] notwithstanding its finding that K31, K14, and K62 – all Kosovo Albanian women – were raped by VJ and MUP forces “in the course of the operation to remove large numbers of Kosovo Albanians from Priština/Prishtina town”.[6] In these circumstances, the Appeals Chamber considers that the Trial Chamber failed to properly consider the context in which the rapes occurred and erred in finding that there was no evidence from which the discriminatory intent of the perpetrators could be inferred. In light of this error, the Appeals Chamber will consider whether the only reasonable inference to be drawn from the evidence presented at trial was that K31, K14, and K62 were raped because they were Kosovo Albanian.

[1] Krnojelac Appeal Judgement, para. 184. See also Blaškić Appeal Judgement, para. 164.

[2] Blaškić Appeal Judgement, para. 164, referring to Krnojelac Appeal Judgement, para. 184.

[3] Trial Judgement, vol. 1, para. 180, referring to Blaškić Appeal Judgement, para. 164.

[4] See Trial Judgement, vol. 2, paras 885-888, 1240-1242.

[5] Trial Judgement, vol. 2, para. 1245 (emphasis added).

[6] Trial Judgement, vol. 2, para. 889 (emphasis added).

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Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

414. The Appeals Chamber notes that the permissibility of cumulative convictions for the crimes of murder as a crime against humanity and persecution as a crime against humanity has been specifically considered by the Appeals Chamber.[1] The Appeals Chamber has found that the crime of persecution requires a materially distinct element to be proven that is not present as an element in the crime of murder, namely proof that an act or omission discriminates in fact and that the act or omission was committed with specific intent to discriminate.[2] The crime of murder was also held to require proof of a materially distinct element that is not required to be proven in establishing the crime of persecution, namely proof of the death of one or more persons.[3] Therefore, cumulative convictions for murder and persecution as crimes against humanity were found to be permissible.[4] The Appeals Chamber accordingly finds that the Trial Chamber did not err in convicting Nsengiyumva for both murder and persecution as crimes against humanity for the killings in Gisenyi town.[5]

416. The Appeals Chamber recalls, however, that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because, whereas extermination requires the materially distinct element that the killings occur on a mass scale, murder does not contain an element materially distinct from extermination.[1] The Trial Chamber therefore erred in law in entering cumulative convictions for murder and extermination as crimes against humanity for the killings in Gisenyi town. Since the offence of extermination contains an additional materially distinct element,[2] which is present in the instant case,[3] the Appeals Chamber concludes that Nsengiyumva’s convictions for extermination entered under Count 6 of the Nsengiyumva Indictment should be upheld while his convictions for murder as a crime against humanity under Count 5 should be vacated.

735. The Appeals Chamber confirms that cumulative convictions for extermination and persecution as crimes against humanity based on the same set of facts are permissible since each offence has a materially distinct element not contained in the other.[6] Extermination requires proof that the accused caused the death of a large number of people, while persecution necessitates evidence that an act or omission was in fact discriminatory and that the act or omission was perpetrated with the specific intent to discriminate.[7].

736. Bagosora did not formally raise any error vis-à-vis his cumulative convictions for murder and extermination as crimes against humanity. However, the Appeals Chamber recalls its holding above in connection with Nsengiyumva’s appeal that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity.[1] Accordingly, the Appeals Chamber finds, proprio motu, that the Trial Chamber erred in law in convicting Bagosora of both murder and extermination as crimes against humanity based on the same facts. In this context, the Appeals Chamber recalls that the more specific provision should be upheld.[2] Consequently, the Appeals Chamber concludes that Bagosora’s conviction for murder as a crime against humanity under Count 4 of the Bagosora Indictment pursuant to Article 6(3) of the Statute should be reversed, while his conviction for extermination under Count 6 of the Bagosora Indictment should be affirmed.

 

 

[1] See supra, para. 416.

[2] See supra, fn. 961.

[1] Ntakirutimana Appeal Judgement, para. 542.

[2] See Krajišnik Appeal Judgement, para. 386, citing Čelebići Appeal Judgement, para. 413: “Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction. This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision”. See also Strugar Appeal Judgement, para. 321.

[3] See supra, para. 398.

 

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ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

135. The Appeals Chamber considers that “although persecution often refers to a series of acts, a single act may be sufficient, as long as this act or omission discriminates in fact and was carried out deliberately with the intention to discriminate on one of the listed grounds.”[1] Furthermore, the acts underlying persecutions as a crime against humanity, whether considered in isolation or in conjunction with other acts, must constitute a crime of persecutions of gravity equal to the crimes listed in Article 5 of the Statute.[2]

138. The Appeals Chamber considers that the Trial Chamber failed to mention that acts of persecutions, considered separately or together, should reach the level of gravity of other crimes listed in Article 5 of the Statute. It appeared to consider, erroneously, that underlying acts are rendered sufficiently grave if they are committed with a discriminatory intent.

[1] Vasiljević Appeal Judgement, para. 113.

[2] Krnojelac Appeal Judgement, paras. 199, 221.

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

148. The prohibition against pillage may therefore be considered to be part of customary international law. In addition, it may be noted that the Nuremberg Charter[1] and Control Council Law No. 10[2] prohibited the war crime of “plunder of public and private property,” and the crime of pillage was the subject of criminal proceedings before the International Military Tribunal at Nuremberg and other trials following the Second World War, where in certain cases, it was charged both as a war crime and a crime against humanity.[3] There may be some doubt, however, as to whether acts of plunder, in and of themselves, may rise to the level of gravity required for crimes against humanity.[4]

149. The Appeals Chamber finds that the destruction of property, depending on the nature and extent of the destruction, may constitute a crime of persecutions of equal gravity to other crimes listed in Article 5 of the Statute.

[1] Article 6(b) (Annex to the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis (London Agreement)), London, 8 Aug. 1945, 85 U.N.T.S. 251.

[2] Law No. 10 of the Control Council of Germany, Art. 2(1)(b) (Official Gazette of the Control Council for Germany, No. 3, p. 22, Military Government Gazette, Germany, British Zone of Control, No. 5, p. 46, Journal Officiel du Commandement en Chef Francais en Allemagne, No. 12 of 11 Jan. 1946).

[3] See The Pohl Case, Vol. V TWC, p. 958 ff; The IG Farben Case, Vol. VIII TWC, p. 1081 ff; The Krupp Case, Vol. IX TWC, p. 1327 ff; The Flick Case, Vol. VI TWC, p. 1187 ff.

[4] In The Flick Case, the Nuremberg Military Tribunal found that the compulsory taking of industrial property did not constitute crimes against humanity. The Tribunal stated:

The “atrocities and offenses” listed [in Law No. 10] “murder, extermination,” etc., are all offenses against the person. Property is not mentioned. Under the doctrine of ejusdem generis the catch-all words “other persecutions” must be deemed to include only such as affect the life and liberty of the oppressed peoples. Compulsory taking of industrial property, however reprehensible, is not in that category.

The Flick Case, Trials of War Criminals Before the Nürnberg Military Tribunals Under Control Council Law No. 10, Vol. 6, p. 1215.

In the Eichmann case, the Israeli District Court held that the plunder of property could only be considered to constitute a crime against humanity if it was committed “by pressure of mass terror against a civilian population, or if it [was] linked to any of the other acts of violence defined by the [Nazi and Nazi Collaborators Punishment Law, 5710/1950] as a crime against humanity or as a result of any of those acts, i.e. murder, extermination, starvation, or deportation of any civilian population, so that the plunder is only part of a general process…” The Individual in International Law, in International Law Reports, E. Lauterpacht, ed., vol. 36, London (1968), p. 241.

          However, the Rome Statute is expansive in its definition of crimes which may fall under persecution; Art. 7(1)(h)(4) states that “The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court.” Pillaging constitutes a war crime under Art. 8(2)(e)(v) of the Rome Statute. The Appeals Chamber is aware, however, that the Rome Statute entered into force after the crimes at issue in this case took place.

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

160. The Appeals Chamber considers that a Trial Chamber, when making a determination on a charge of persecutions, is obliged to assess whether the underlying acts amount to persecutions as a crime against humanity in international customary law. Upon consideration of the Trial Chamber’s outline of the applicable law on persecutions, it is evident that the Trial Chamber did not consider the requirement that acts of persecutions must be of an equal gravity or severity as the other acts enumerated under Article 5 of the Statute; it is not enough that the underlying acts be perpetrated with a discriminatory intent. […]

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
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. 

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

108. The Appeals Chamber finds that the destruction of property, depending on the nature and extent of the destruction, may constitute a crime of persecutions of equal gravity to other crimes listed in Article 5 of the Statute.[1]

[1] See Blaškić Appeal Judgement, para. 149.

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

111. […] The Appeals Chamber holds that the mens rea for persecutions “is the specific intent to cause injury to a human being because he belongs to a particular community or group.” The Appeals Chamber stresses that there is no requirement in law that the actor possess a “persecutory intent” over and above a discriminatory intent.[1]

112. In addition, the Appeals Chamber considers that a person who orders, plans or instigates an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, plan or instigation, has the requisite mens rea for establishing liability under Article 7(1) of the Statute pursuant to ordering, planning or instigating. Ordering, planning or instigating with such awareness has to be regarded as accepting that crime. Thus, an individual who orders, plans or instigates an act with the awareness of a substantial likelihood that persecutions as a crime against humanity will be committed in the execution of the order, plan or instigation, may be liable under Article 7(1) of the Statute for the crime of persecutions.[2]

[1] Blaškić Appeal Judgement, para. 165.

[2] Blaškić Appeal Judgement, para. 166.

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

1039. It has previously been held in Krnojelac, Vasiljević, and Krstić, that intra-Article 5 convictions under the Statute for persecutions as a crime against humanity with other crimes against humanity found in that Article, are impermissibly cumulative.  In Vasiljević and Krstić, the Appeals Chamber stated that the appellant could not be convicted both for murder and persecutions under Article 5(a) and (h) of the Statute, on the basis of the same acts.[1] It was reasoned that where a charge of persecutions is premised on murder and is proven, the Prosecution need not prove an additional fact in order to secure the conviction for murder because the offence is subsumed by the offence of persecutions, which requires proof of a materially distinct element of discriminatory intent in the commission of the act.[2] Similarly, the Appeals Chamber in these cases, as well as in Krnojelac, held that convictions for persecutions under Article 5(h) and for other inhumane acts under Article 5(i) on the basis of the same conduct are impermissibly cumulative “since the crime of persecution in the form of inhumane acts subsumes the crime against humanity of inhumane acts.”[3] 

1040. The Appeals Chamber considers that cogent reasons warrant a departure from this jurisprudence[4] as an incorrect application of the Čelebići test to intra-Article 5 convictions.  These cases are in direct contradiction to the reasoning and proper application of the test by the Appeals Chambers in Jelisić, Kupreškić, Kunarać, and Musema. As stated above, the Appeals Chamber in Čelebići expressly rejected an approach that takes into account the actual conduct of the accused as determinative of whether multiple convictions for that conduct are permissible.  Rather, what is required is 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. It must be considered whether each offence charged has a materially distinct element not contained in the other; that is, whether each offence has an element that requires proof of a fact not required by the other offence.  

1041. The first pair of intra-Article 5 cumulative convictions at issue in this case is persecutions as a crime against humanity under Article 5(h) of the Statute and murder as a crime against humanity under Article 5(a) of the Statute. The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of murder under Article 5 of the Statute:  the requirement of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. Murder, by contrast, requires proof that the accused caused the death of one or more persons, regardless of whether the act or omission causing the death discriminates in fact or was specifically intended as discriminatory, which is not required by persecutions. Thus, cumulative convictions on the basis of the same acts under Article 5 of the Statute are permissible in relation to these crimes.

1042. The second pair of intra-Article 5 cumulative convictions at issue in this case is persecutions and other inhumane acts as a crime against humanity under Article 5(i) of the Statute.  The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of other inhumane acts under Article 5 of the Statute:  the requirement of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. Other inhumane acts, by contrast, require proof that the accused caused serious bodily or mental harm to the victim(s), regardless of whether the act or omission causing the harm discriminates in fact or was specifically intended as discriminatory, which is not required by persecutions. Thus, cumulative convictions on the basis of the same acts are permissible in relation to these crimes under Article 5 of the Statute.

1043. Finally, the third pair of intra-Article 5 cumulative convictions at issue in this case is persecutions and imprisonment as a crime against humanity under Article 5(e) of the Statute.  The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of imprisonment under Article 5 of the Statute:  the requirement of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate.  On the other hand, the offence of imprisonment requires proof of the deprivation of the liberty of an individual without due process of law, regardless of whether the deprivation of liberty discriminates in fact or was specifically intended as discriminatory, which is not required by persecutions.  Thus, cumulative convictions on the basis of the same acts are permissible in relation to these crimes under Article 5 of the Statute.  

See also Joint Dissenting Opinion on Cumulative Convictions of Judges Schomburg and Güney.

[1] Vasiljević Appeal Judgement, para. 146; Krstić Appeal Judgement, para. 231.

[2] Krstić Appeal Judgement, para. 231-232.

[3] Krnojelac Appeal Judgement, para. 188; Vasiljević Appeal Judgement, para. 146; Krstić Appeal Judgement, para. 231.

[4] Aleksovski Appeal Judgement, paras 107, 109.

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ICTR Statute Article 3 ICTY Statute Article 5
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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.

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Appeal Judgement - 17.09.2003 KRNOJELAC Milorad
(IT-97-25-A)

184.    The Appeals Chamber reiterates that, in law, persecution as a crime against humanity requires evidence of a specific intent to discriminate on political, racial or religious grounds and that it falls to the Prosecution to prove that the relevant acts were committed with the requisite discriminatory intent. The Appeals Chamber may not hold that the discriminatory intent of beatings can be inferred directly from the general discriminatory nature of an attack characterised as a crime against humanity.[1] According to the Appeals Chamber, such a context may not in and of itself evidence discriminatory intent. Even so, the Appeals Chamber takes the view that discriminatory intent may be inferred from such a context as long as, in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent. Circumstances which may be taken into consideration include the operation of the prison (in particular, the systematic nature of the crimes committed against a racial or religious group) and the general attitude of the offence’s alleged perpetrator as seen through his behaviour.

[1] It should be noted that not every attack against a civilian population is necessarily discriminatory. Moreover, the discriminatory character is not an constituent element of an attack against a civilian population.

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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).

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

319. Referring to the case-law of the Tribunal, the Trial Chamber defined the constitutive elements of the crime of persecution as follows: “(1) the occurrence of a discriminatory act or omission; (2) a basis for that act or omission founded on race, religion, or politics; and (3) the intent to infringe an individual’s enjoyment of a basic or fundamental right”[1] and, in more general terms, defined persecutions as “the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5”.[2]

320. The Appeals Chamber finds no error in the constitutive elements identified by the Trial Chamber but prefers to adopt the wording of the Krnojelac Appeal Judgement, which was rendered after the delivery of the Trial Judgement in the present case and which it has endorsed in all its recent judgements:

(…) the crime of persecution consists of an act or omission which:

  1. discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and
  2. was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).[3]

321. The Appeals Chamber also notes that with respect to the actus reus of the crime of persecutions, the Trial Chamber rightly noted that the acts included in the crime of persecution, be they considered in combination or separately, are of the same gravity as the enumerated crimes in Article 5 of the Statute.[4] Kvočka does not in fact contest the standard of gravity but refers to it to show the Trial Chamber’s alleged error. The Appeals Chamber points out that to apply the standard of gravity, the acts must not be considered in isolation, but in context, by looking at their cumulative effect.[5]

[1] Trial Judgement, para. 184, referring to Tadić Trial Judgement, para. 715.

[2] Trial Judgement, para. 184, refering to Kupreškić et al. Trial Judgement, para. 621.

[3] Krnojelac Appeal Judgement, para. 185; Vasiljević Appeal Judgement, para. 113; Blaskić Appeal Judgement, para. 131; Kordić and Čerkez Appeal Judgement, para. 101.

[4] Trial Judgement, paras. 184-185.

[5] See Trial Judgement, para. 185; also Kupreškić et al. Trial Judgement, paras 615(e) and 622; Krnojelac Trial Judgement, para. 434. 

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
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Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

323. Harassment, humiliation and psychological abuse are not listed as such under Article 5 of the Statute nor do they constitute specific offences under other articles of the Statute. The Appeals Chamber notes however that Common Article 3(1)(c) of the Geneva Conventions prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment”. The specific offence of outrages upon personal dignity also appears in Article 75(2)(b) of Additional Protocol I.[1] The Appeals Chamber also considers that acts of harassment and other psychological abuse, depending on the circumstances, can clearly be assimilated to violations of the “mental well-being of persons” prohibited under Article 75(2)(a) of Additional Protocol I.[2] The Appeals Chamber recalls incidentally that acts underlying persecution under Article 5(h) of the Statute need not be considered a crime in international law.

See also paras 324-325.

[1] See also Article 4(2)(e) of Additional Protocol II.

[2] See ibid.

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

366. […] discriminatory intent of crimes cannot be inferred directly from the general discriminatory nature of an attack characterized as a crime against humanity. However, the discriminatory intent may be inferred from the context of the attack, provided it is substantiated by the surrounding circumstances of the crime.[1] Accordingly, the Appeals Chamber found in the case Prosecutor v. Krnojelac that, when beatings were inflicted only on the non-Serb detainees in a prison, it was reasonable to conclude that these beatings were committed because of the political or religious affiliation of the victims, and that these acts were committed with the requisite discriminatory intent.[2] In the present case, it appears that almost all the detainees in the camp belonged to the non-Serb group. It was reasonable to conclude that the reason for their detention was their membership in this group and therefore of a discriminatory nature.

[1] Krnojelac Appeal Judgement, para. 184.

[2] Ibid., para. 186; Kordić and Čerkez Appeal Judgement, para. 950.

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Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

455. The Appeals Chamber recalls that a persecutory act must be discriminatory in fact for the crime of persecutions to be established.[1] The Trial Chamber clearly acknowledged this legal requirement in its statement of the law, when it observed that a persecutory act or omission must “discriminate in fact”.[2] Sredoje Lukić’s argument therefore fails.

[1] Kvočka et al. Appeal Judgement, para. 320; Krnojelac Appeal Judgement, para. 185.

[2] Trial Judgement, para. 992. 

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Appeal Judgement - 03.04.2007 BRĐANIN Radoslav
(IT-99-36-A)

The Appeals Chamber agreed with the Trial Chamber that it was clear from ARK Crisis Staff decisions that the reason for the dismissals of non-Serbs was the ethnicity of the individuals concerned, and that Brđanin could not rely on Article 27 of Geneva Convention IV to argue that the dismissals were permissible under international law.

167.    […] In particular, the Appeals Chamber notes that, in the context of persecution, the lawfulness of the measures taken under Article 27 of Geneva Convention IV is appropriately dealt with when considering the general elements of crimes against humanity and when considering whether an act is carried out on discriminatory grounds.

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Appeal Judgement - 03.05.2006 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

Paras 589-591: applying the approach in the Kordić and Čerkez Appeal Judgement to cumulative convictions, the Appeals Chamber found that cumulative convictions on the basis of the same acts are permissible in relation to persecutions under Article 5(h) and torture under Article 5(f) of the Statute.

The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of torture under Article 5 of the Statute: the requirements of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. Torture, by contrast, requires proof that the accused caused the severe pain or suffering of an individual, regardless of whether the act or omission causing the harm discriminates in fact or was specifically intended as discriminatory.[1]

[1] Naletilić and Martinović Appeal Judgement, para. 590.

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Article 5(f)
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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

2135.            Article 3(h) of the Statute, which confers jurisdiction on the Tribunal over the crime of persecution as a crime against humanity, reads as follows:

The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: […] (h) Persecutions on political, racial and religious grounds[.]

2136.            The Appeals Chamber notes that Article 3(h) of the Statute limits the jurisdiction of the Tribunal over persecution as a crime against humanity to three listed discriminatory grounds, namely political, racial, and religious grounds.[1] While persecution as a crime against humanity under customary international law might not be restricted to these three discriminatory grounds, the Appeals Chamber recalls that “it [was] open to the Security Council – subject to respect for peremptory norms of international law (jus cogens) – to adopt definitions of crimes in the Statute which deviate from customary international law.”[2] Whether or not the Security Council may have defined the crime of persecution as a crime against humanity more narrowly than necessary under customary international law, the Tribunal’s jurisdiction is limited to persecution on political, racial, and religious grounds.[3]

2137.            As ethnicity is not enumerated among the discriminatory grounds of persecution in Article 3(h) of the Statute, the question remains whether it is subsumed under one of the three listed discriminatory grounds, more specifically under the “racial” ground. The Appeals Chamber recalls that, while the Statute “is legally a very different instrument from an international treaty”,[4] it is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in the light of its object and purpose, within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties of 1969, which reflects customary international law.[5] In this regard, the Appeals Chamber observes that the chapeau of Article 3 of the Statute distinguishes “ethnicity” from “race” in the listed discriminatory grounds for the attack against a civilian population.[6] The Appeals Chamber, Judge Agius dissenting, considers that, according to the ordinary meaning of the terms of the provision, such distinction reflects the autonomy between the two notions. In the view of the Appeals Chamber, Judge Agius dissenting, this conclusion is also supported by a contextual reading of Article 3 of the Statute which makes it clear that “ethnicity” cannot be encapsulated in “race”. Indeed, interpreting the discriminatory ground of “race” in Article 3(h) of the Statute as including “ethnicity” would render the distinction in the chapeau of Article 3 of the Statute redundant, illogical, and superfluous.[7] According to a textual and contextual interpretation of Article 3(h) of the Statute, the Appeals Chamber, Judge Agius dissenting, therefore finds that “ethnicity” cannot be interpreted as being included in the list of discriminatory grounds enumerated therein.

2138. Moreover, the Appeals Chamber notes that the definition of persecution as a crime against humanity is well settled in the jurisprudence of the Tribunal. As reiterated by the Appeals Chamber in the Nahimana et al. case, “the crime of persecution consists of an act or omission which discriminates in fact and which: denies or infringes upon fundamental right laid down in international customary or treaty law (the actus reus); and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).”[8] Thus, in the Nahimana et al. case, the Appeals Chamber specified the mens rea requirement for persecution as a crime against humanity and, contrary to the Trial Chamber’s holding, did not extend it to include “ethnicity” as an additional discriminatory ground. The Appeals Chamber notes that to support its conclusion that “discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape”, the Trial Chamber relied, inter alia, on paragraphs 986 through 988, and 1002 of the Nahimana et al. Appeal Judgement.[9] However, the Appeals Chamber observes that the Trial Chamber’s reliance on these paragraphs of the Nahimana et al. Appeal Judgement to define the mens rea of the crime of persecution is misplaced.[10] Contrary to the Trial Chamber’s finding, these paragraphs of the Nahimana et al. Appeal Judgement deal with the actus reus – and not the mens rea – of the crime of persecution, holding that hate speech targeting the population on the basis of ethnicity could constitute an act, which discriminates in fact.[11]

2139.            Accordingly, the Appeals Chamber finds that the Trial Chamber committed an error of law in considering that “discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape.”[12] […]

[1] Cf. Tadić Appeal Judgement, para. 284; Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadić Appeal Decision on Jurisdiction”), paras. 78, 140-141. The Appeals Chamber notes that this is similar to the Statute of the ICTY. See Article 5(h) of the Statute of the ICTY. On the contrary, the Appeals Chamber observes that the Rome Statute does not limit the jurisdiction of the ICC to an exhaustive list of discriminatory grounds on which persecution as a crime against humanity must be committed. Indeed, Article 7(1)(h) of the Rome Statute contains an illustrative (open-ended) list of prohibited grounds for persecution as a crime against humanity, which reads as follows: “For the purpose of this Statute, ‘crimes against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: […] (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”. The Appeals Chamber further notes that the Statute of the Special Court for Sierra Leone (“SCSL”), which was adopted after the Rome Statute, limits the jurisdiction of the SCSL over the crime of persecution as a crime against humanity to an exhaustive list of four discriminatory grounds, namely political, racial, ethnic, and religious grounds. See Article 2(h) of the Statute of the SCSL.

[2] Tadić Appeal Judgement, para. 296. See also Tadić Appeal Decision on Jurisdiction, paras. 78, 140, 141. Cf. also Tadić Appeal Judgement, paras. 249, 251.

[3] Cf. Tadić Trial Judgement, para. 711 (“There are no definitive grounds in customary international law on which persecution must be based and a variety of different grounds have been listed in international instruments. The grounds in the Statute are based on the Nürnberg Charter which included race, religion and politics as the three grounds, as did Control Council Law No. 10, both of which were drafted to address the European situation. In contrast the Tokyo Charter excluded religion as a basis for persecution, given its inapplicability to the Pacific theatre of operation while, alternatively, the Convention on the Prevention and Punishment of the Crime of Genocide contains the additional ground of ethnicity as do the 1991 and 1996 versions of the I.L.C. Draft Code, whereas the original 1954 Draft Code included culture as a basis for persecution. The possible discriminatory bases which the International Tribunal is empowered to consider are limited by the Statute to persecutions undertaken on the basis of race, religion and politics.”) (internal references omitted).

[4] Tadić Appeal Judgement, para. 282.

[5] Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, Vol. 1155, p. 331 (“Vienna Convention”). See also Tadić Appeal Judgement, para. 282, referring to International Court of Justice, Competence of the General Assembly for the admission of a State to the United Nations, Advisory Opinion: I.C.J. Reports 1950, p. 4; Aleksovski Appeal Judgement, para. 98, referring to Article 31(1) of the Vienna Convention (“Ultimately, that question must be answered by an examination of the Tribunal’s Statute and Rules, and a construction of them which gives due weight to the principles of interpretation (good faith, textuality, contextuality, and teleology) set out in the 1969 Vienna Convention on the Law of Treaties.”); Čelebići Appeal Judgement, para. 67 and references cited therein (reiterating that Article 31 of the Vienna Convention reflects customary international law); Jelisić Appeal Judgement, para. 35 (“Following the settled jurisprudence of the Tribunal, those words [(of Rules 98bis(B) of the ICTY Rules of Procedure and Evidence)] are to be ‘interpreted in good faith in accordance with the ordinary meaning to be given to [them] in their context and in the light of [their] object and purpose’, within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties 1969.” (alteration in the original)).

[6] See supra, para. 2135.

[7] The Appeals Chamber recalls that “it is an elementary rule of interpretation that one should not construe a provision or a part of [it] as if it were superfluous and hence pointless: the presumption is warranted that law-makers enact or agree upon rules that are well thought out and meaningful in all their elements.” See Tadić Appeal Judgement, para. 284. The Appeals Chamber further observes that the distinction between “race” and “ethnicity” is also clearly established in the definition of genocide given in Article 2 of the Statute (“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group […].”).

[8] Nahimana et al. Appeal Judgement, para. 985. See also, e.g., Kvočka et al. Appeal Judgement, para. 320; Kordić and Čerkez Appeal Judgement, para. 101; Blaškić Appeal Judgement, para. 131; Krnojelac Appeal Judgement, para. 185.

[9] Trial Judgement, para. 6097, referring to Bagosora et al. Trial Judgement, para. 2209, Nahimana et al. Appeal Judgement, paras. 986-988, 1002. The Appeals Chamber notes that paragraph 2209 of the Bagosora et al. Trial Judgement also refers to paragraphs 986 through 988, and 1002 of the Nahimana et al. Appeal Judgement.

[10] See Trial Judgement, para. 6097.

[11] See Nahimana et al. Appeal Judgement, para. 986. The Appeals Chamber further notes that, in the Nahimana et al. case, the convictions for persecution as a crime against humanity were based on the Trial Judgement’s finding that “the discriminatory intent of the Accused falls within the scope of crime against humanity of persecution on political grounds of an ethnic character”, noting that “RTLM, Kangura and CDR […] essentially merged political and ethnic identity, defining their political target on the basis of ethnicity and political positions relating to ethnicity.” See Nahimana et al. Trial Judgement, para. 1071. This finding was not challenged on appeal.

[12] Trial Judgement, para. 6097.

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