32.     […] A three-stage process is established by the Rules and the relevant Practice Directions for the filing of written submissions before the International Tribunal. For motions filed during appeals from judgement, as is the case here, the moving party is requested to file a motion containing (i) the precise ruling or relief sought; (ii) the specific provision of the Rules under which the ruling or relief is sought; and (iii) the grounds on which the ruling or relief is sought.[1] The opposite party is entitled to file a response stating whether or not the motion is opposed and the grounds therefore,[2] and the moving party may file a reply[3] restricted to dealing with issues raised in the opposite party’s response.[4]  The Appeals Chamber recognizes that it is not possible to require a party to anticipate all the arguments made in response by the opposite party. The very purpose of a reply is to permit the moving party to rebut the arguments raised in opposition by the other party. Subject to a rejoinder, this can sometime necessitate submitting an argument not developed in the initial motion. However, this right to fully address the opposing party’s arguments does not allow the moving party to use its reply to make new claims or to raise totally new arguments. As the Appeals Chamber has already stated, if a party raises in a reply an argument or request for the first time, then the opposing party is deprived of an opportunity to respond and this can harm the fairness of the proceedings.[5] That is notably why the core of the moving party’s arguments must be provided in the initial motion and not raised for the first time in the reply.

76. The wanton destruction of cities, towns or villages, or devastation not justified by military necessity, a violation of the laws and customs of war recognised by Article 3(b) of the Statute, is covered by Article 6(b) of the Nuremberg Charter. This provision is restated in Principle 6 of the Nuremberg principles.[1] It refers to war crimes already covered in Articles 46, 50, 53 and 56 of the Hague Regulations, which are applicable to cases of occupation.[2] However, the violation in question is more narrowly defined than Article 23(g) of the Hague Regulations, which states that it is especially forbidden “to destroy […] the enemy’s property, unless such destruction […] is imperatively demanded by the necessities of war.”  The Report of the Secretary-General states that the above instrument and the Regulations annexed thereto has beyond doubt become part of international customary law.[3] A fortiori, there is no doubt that the crime envisaged by Article 3(b) of the Statute was part of international customary law at the time it was allegedly committed. 

73. Thus the detention or confinement of civilians will be unlawful in the following two circumstances:

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

(ii) where the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified.[1]

21. The Appeals Chamber reiterates that an appeal is not a trial de novo.  In making its assessment, the Appeals Chamber will in principle only take into account the following factual evidence: evidence referred to by the Trial Chamber in the body of the judgement or in a related footnote; evidence contained in the trial record and referred to by the parties; and additional evidence admitted on appeal.[1]

See also Separate Opinion of Judge Weinberg de Roca.

41. The Appeals Chamber notes that the Trial Chamber considered that Article 3 of the Statute covers not only violations which are based in customary international law but also those based on treaties. It found that Additional Protocol I constituted applicable treaty law in the present case,[1] and found that “whether [Additional Protocol I] reflected customary law at the relevant time in this case is beside the point.”[2]

42. The Appeals Chamber holds that the Trial Chamber’s approach is correct.

43. This approach is consistent with the language of Article 1 of the Statute granting the International Tribunal “competence to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia”. It is also consistent with Security Council Resolution 827 (1993) in which the Security Council expressed its determination “to take effective measures to bring to justice the persons who are responsible for [violations of international humanitarian law]”.[3] These instruments do not impose any restriction to customary international law, which is in line with the statements made in the Security Council at the time the Statute was adopted.[4]

44. The Trial Chamber’s approach is also in line with the Report of the Secretary-General in which he stated that:

the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise.[5]

The maxim of nullum crimen sine lege is also satisfied where a State is already treaty-bound by a specific convention, and the International Tribunal applies a provision of that convention irrespective of whether it is part of customary international law.[6]

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]

115. […] the existence of an international armed conflict, an element of Articles 42 and 43 of Geneva Convention IV, is not required for imprisonment as a crime against humanity.

116. The Appeals Chamber agrees with the Trial Chamber’s finding “that the term imprisonment in Article 5(e) of the Statute should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual[1] without due process of law, as part of a widespread or systematic attack directed against a civilian population”.[2]

373. […] Article 2 of Geneva Convention IV speaks of “armed conflict […] between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them.”[1]  However, this article cannot be interpreted to rule out the characterisation of the conflict as being international in a case when none of the parties to the armed conflict recognises the state of war.  The purpose of Geneva Convention IV, i.e. safeguarding the protected persons, would be endangered if States were permitted to escape from their obligations by denying a state of armed conflict. The Appeals Chamber recalls that “[i]t must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests.”[2]

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.

542. […] the Musema Appeals Chamber held that the crime of genocide under Article 2 of the Statute and the crime of extermination under Article 3 of the Statute each contained a materially distinct element not required by the other. The materially distinct element of genocide is the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group. The materially distinct element of extermination, as a crime against humanity, is the requirement that the crime was committed as part of a widespread or systematic attack against a civilian population.[1] Upon this basis, the Appeals Chamber held that convictions for genocide and extermination as a crime against humanity, based on the same facts, are permissible.[2] This conclusion has recently been confirmed by the ICTY Appeals Chamber in the Krstić case.[3]