Nexus with the attack
|Appeal Judgement - 05.05.2009||
MRKŠIĆ & ŠLJIVANČANIN
41. The Appeals Chamber recalls that once the requirement of a widespread or systematic attack against a civilian population is fulfilled, there must be a nexus between the acts of the accused and the attack itself. The Appeals Chamber considers that, as correctly noted by the Prosecution, the requirement that the acts of an accused must be part of the “attack” against the civilian population does not, however, require that they be committed in the midst of that attack: a crime which is committed before or after the main attack against the civilian population or away from it could still, if sufficiently connected, be part of that attack. Hence, the fact that the crimes committed in Ovčara took place after the widespread and systematic attack against the civilian population of Vukovar cannot in itself be determinative of whether the nexus requirement was met. Such a nexus consists of two elements:
(i) the commission of an act which, by its nature or consequences, is objectively part of the attack; coupled with
(ii) knowledge on the part of the accused that there is an attack on the civilian population and that his act is part thereof.
Thus, to convict an accused of crimes against humanity, it must be proven that his acts were related to a widespread or systematic attack against a civilian population and that he knew that his acts were so related. Such an assessment will be made on a case-by-case basis. For example, having considered the context and circumstances in which an act was committed, an act may be so far removed from the attack that no nexus can be established (so called “isolated act”) and hence cannot qualify as a crime against humanity.
42. In the present case, after reviewing the evidence before it, the Trial Chamber concluded that the perpetrators of the crimes committed against the prisoners in Ovčara selected the individuals based on their involvement in the Croatian armed forces. The Trial Chamber found:
While there may have been a small number of civilians among the 194 identified murder victims charged in the Indictment, in the Chamber’s finding, the perpetrators of the offences against the prisoners at Ovčara on 20/21 November 1991 charged in the Indictment, acted in the understanding that their acts were directed against members of the Croatian forces.”
The Appeals Chamber concurs with the Trial Chamber’s assessment of the evidence in the trial record. The crimes in Ovčara were directed against a specific group of individuals, the victims of the crimes were selected based on their perceived involvement in the Croatian armed forces, and as such treated “differently from the civilian population”. The Prosecution’s arguments that the crimes occurred two days after the fall of Vukovar, that Ovčara was located within the geographical scope of the attack against Vukovar, that the perpetrators of the crimes in Ovčara also participated in the attack against the civilian population in Vukovar, and that the perpetrators of the crimes “harboured intense feeling of animosity towards persons they perceived as enemy forces, do not undermine the Trial Chamber’s findings, unchallenged by the Parties, that the perpetrators of the crimes in Ovčara acted in the understanding that their acts were directed against members of the Croatian armed forces. The fact that they acted in such a way precludes that they intended that their acts form part of the attack against the civilian population of Vukovar and renders their acts so removed from the attack that no nexus can be established.
43. The Appeals Chamber finds that the requirement of a nexus between the acts of the accused and the attack itself was not established and that, in the absence of the required nexus under Article 5 of the Statute between the crimes committed against the prisoners at Ovčara and the widespread or systematic attack against the civilian population of Vukovar, the crimes committed cannot be qualified as crimes against humanity. Thus, even though the Trial Chamber erred in law by adding a requirement that the victims of the underlying crimes under Article 5 of the Statute be civilians, the Appeals Chamber concurs with the Trial Chamber – albeit for different reasons – that the “jurisdictional prerequisites of Article 5 of the Statute have not been established”.
 AT. 301.
 Kunarac et al. Appeal Judgement, para. 100.
 Tadić Appeal Judgement, paras 248, 251, 271; Kunarac et al. Appeal Judgement, para. 99. For the mens rea of crimes against humanity, see Kunarac et al. Appeal Judgement, paras 102-103.
 Kunarac et al. Appeal Judgement, para. 100. See also Blaškić Appeal Judgement, para. 101.
 Trial Judgement, para. 481. See also Trial Judgement, para. 207.
 Trial Judgement, para. 474.
 Trial Judgement, para. 475.
 Trial Judgement, para. 476.
 Prosecution Brief in Reply, paras 26, 39-40. See also AT. 238-241, 302.
 Trial Judgement, para. 482.
|ICTR Statute Article 3 ICTY Statute Article 5|
|Appeal Judgement - 15.07.1999||
248. The Appeals Chamber agrees with the Prosecution that there is nothing in Article 5 to suggest that it contains a requirement that crimes against humanity cannot be committed for purely personal motives. The Appeals Chamber agrees that it may be inferred from the words “directed against any civilian population” in Article 5 of the Statute that the acts of the accused must comprise part of a pattern of widespread or systematic crimes directed against a civilian population and that the accused must have known that his acts fit into such a pattern. There is nothing in the Statute, however, which mandates the imposition of a further condition that the acts in question must not be committed for purely personal reasons, except to the extent that this condition is a consequence or a re-statement of the other two conditions mentioned.
249. The Appeals Chamber would also agree with the Prosecution that the words “committed in armed conflict” in Article 5 of the Statute require nothing more than the existence of an armed conflict at the relevant time and place. The Prosecution is, moreover, correct in asserting that the armed conflict requirement is a jurisdictional element, not “a substantive element of the mens rea of crimes against humanity” (i.e., not a legal ingredient of the subjective element of the crime).
250. This distinction is important because, as stated above, if the exclusion of “purely personal” behaviour is understood simply as a re-statement of the two-fold requirement that the acts of the accused form part of a context of mass crimes and that the accused be aware of this fact, then there is nothing objectionable about it; indeed it is a correct statement of the law. It is only if this phrase is understood as requiring that the motives of the accused (“personal reasons”, in the terminology of the Trial Chamber) not be unrelated to the armed conflict that it is erroneous. Similarly, that phrase is unsound if it is taken to require proof of the accused’s motives, as distinct from the intent to commit the crime and the knowledge of the context into which the crime fits.
251. […] A nexus with the accused’s acts is required, however, only for the attack on “any civilian population”. A nexus between the accused’s acts and the armed conflict is not required, as is instead suggested by the Judgement. The armed conflict requirement is satisfied by proof that there was an armed conflict; that is all that the Statute requires, and in so doing, it requires more than does customary international law.
See also paragraphs 256–270.
The Appeals Chamber concluded:
271. The Trial Chamber correctly recognised that crimes which are unrelated to widespread or systematic attacks on a civilian population should not be prosecuted as crimes against humanity. Crimes against humanity are crimes of a special nature to which a greater degree of moral turpitude attaches than to an ordinary crime. Thus to convict an accused of crimes against humanity, it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related.
272. For the above reasons, however, the Appeals Chamber does not consider it necessary to further require, as a substantive element of mens rea, a nexus between the specific acts allegedly committed by the accused and the armed conflict, or to require proof of the accused’s motives. Consequently, in the opinion of the Appeals Chamber, the requirement that an act must not have been carried out for the purely personal motives of the perpetrator does not form part of the prerequisites necessary for conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal’s Statute.
 This requirement had already been recognised by this Tribunal in the Vukovar Hospital Rule 61 Decision:
“Crimes against humanity are to be distinguished from war crimes against individuals. In particular, they must be widespread or demonstrate a systematic character. However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity. As such, an individual committing a crime against a single victim or a limited number of victims might be recognised as guilty of a crime against humanity if his acts were part of the specific context identified above.”(“Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence”, The Prosecutor v. Mile Mrksić et al., Case No.: IT-95-13-R61, Trial Chamber I, 3 April 1996, para. 30).
 Cross-Appellant’s Brief [Brief of Argument of the Prosecution (Cross-Appellant), 12 January 1998], para. 4.9.
|ICTR Statute Article 3 ICTY Statute Article 5|
|Appeal Judgement - 12.06.2002||
KUNARAC et al.
(IT-96-23 & IT-96-23/1-A)
100. The acts of the accused must be part of the “attack” against the civilian population, but they need not be committed in the midst of that attack. A crime which is committed before or after the main attack against the civilian population or away from it could still, if sufficiently connected, be part of that attack. The crime must not, however, be an isolated act. A crime would be regarded as an “isolated act” when it is so far removed from that attack that, having considered the context and circumstances in which it was committed, it cannot reasonably be said to have been part of the attack.
 Kupreškić Trial Judgement, para 550.
 Ibid.; Tadić Trial Judgement, para 649 and Mrkšić Rule 61 Decision [ Prosecutor v Mile Mrkšić et al., Case No. IT-95-13-R61, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 3 April 1996], para 30. On 30 May 1946, the Legal Committee of the United Nations War Crime Commission held that: “Isolated offences did not fall within the notion of crimes against humanity. As a rule systematic mass action, particularly if it was authoritative, was necessary to transform a common crime, punishable only under municipal law, into a crime against humanity, which thus became also the concern of international law. Only crimes which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied at different times and places, endangered the international community or shocked the conscience of mankind, warranted intervention by States other than that on whose territory the crimes had been committed, or whose subjects had become their victims” (see, History of the United Nations War Crimes Commission and the Development of the Laws of War, Compiled by the United Nations War Crimes Commission, 1948, p 179).
|ICTR Statute Article 3 ICTY Statute Article 5|