11. The Appeals Chamber observes that Lukić’s condition was in issue at trial and on appeal, and the reports he relies upon for the purposes of his request are merely additional evidence going to proof of matters considered in the original proceedings.[1] Accordingly, the material submitted that relates to Lukić’s health condition does not amount to a “new fact” for the purposes of review under Rule 146 of the Rules. In any case, Lukić’s request for reduction of his sentence, and release on grounds of the recent deterioration of his health and diminished life expectancy, are more appropriately characterized as grounds in support of a request for early release. The Statute and Rules provide that the supervision of enforcement of sentences pronounced by the ICTY, and competence over requests for early release, lie within the powers of the President of the Mechanism.[2]

14.     The Appeals Chamber recalls the critical distinction between material submitted in support of a fact, which was not in issue or considered in the original proceedings, and material, which consists of additional evidence relating to a fact that was in issue or considered in the original proceedings.[1] Review will not be available where a fact was previously in issue.[2] Therefore, it is the definition of the fact in issue in the original proceedings, which will determine the availability of the review procedure.[3] The burden for showing that the information in the tendered material amounts to a “new fact” lies with the moving party.[4] […]

616. The Appeals Chamber notes that there is no appellate jurisprudence which addresses the specific cumulative convictions for genocide and murder as a violation of the laws or customs of war. However, the ICTR Appeals Chamber has upheld cumulative convictions for war crimes, as a broad category, and genocide based on the materially distinct elements of genocide and war crimes.[1] Relevantly, genocide requires proof of specific intent while war crimes require proof of the existence of a nexus between the alleged crimes and the armed conflict.[2]

See also para. 617.

225. Article 4(2)(c) of the Statute provides that genocide can be committed by “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”.[1] This provision has been analysed and interpreted by a number of trial chambers of the ICTY and the ICTR. The Trial Chamber in this case correctly summarised this jurisprudence as:

The underlying acts covered by Article 4(2)(c) are methods of destruction that do not immediately kill the members of the group, but ultimately seek their physical destruction. Examples of such acts punishable under Article 4(2)(c) include, inter alia, subjecting the group to a subsistence diet; failing to provide adequate medical care; systematically expelling members of the group from their homes; and generally creating circumstances that would lead to a slow death such as the lack of proper food, water, shelter, clothing, sanitation, or subjecting members of the group to excessive work or physical exertion.[2]

Unlike Articles 4(2)(a) and (b), Article 4(2)(c) does not require proof of a result such as the ultimate physical destruction of the group in whole or in part. However, Article 4(2)(c) applies only to acts calculated to cause a group’s physical or biological destruction deliberately and, as such, these acts must be clearly distinguished from those acts designed to bring about the mere dissolution of the group. Such acts, which have been referred to as “cultural genocide”, were excluded from the Genocide Convention. For example, the forcible transfer of a group or part of a group does not, by itself, constitute a genocidal act, although it can be an additional means by which to ensure the physical destruction of a group.[3]

226. The Appeals Chamber has not previously been called upon to address the issue of what acts qualify as the actus reus of genocide under Article 4(2)(c) of the Statute. However, it is satisfied that the legal principles stated by the Trial Chamber are consistent with the existing case law of the ICTY and the ICTR, as well as the letter and spirit of the Genocide Convention. The Appeals Chamber recalls, in this respect the relevant findings of the ICJ in the recent Croatia v. Serbia case. Citing ICTY jurisprudence, the ICJ held that:

[d]eliberate infliction on the [protected] group of conditions of life calculated to bring about its physical destruction in whole or in part, within the meaning of Article II(c) of the Convention, covers methods of physical destruction, other than killing, whereby the perpetrator ultimately seeks the death of the members of the group. Such methods of destruction include notably deprivation of food, medical care, shelter or clothing, as well as lack of hygiene, systematic expulsion from homes, or exhaustion as a result of excessive work or physical exertion.[4]

The Appeals Chamber recalls that it is not bound by the legal determinations reached by trial chambers of this Tribunal or by the ICJ.[5] The Appeals Chamber notes, however, that the ICJ is the principal organ of the United Nations and the competent organ to resolve disputes relating to the interpretation of the Genocide Convention.[6] The Appeals Chamber further notes that the ICJ’s interpretation of Article II(c) of the Genocide Convention cited above was based on ICTY trial jurisprudence and is consistent with it. The Appeals Chamber is therefore satisfied that the jurisprudence set out by the Trial Chamber accurately reflects the applicable law.

227. […] The Appeals Chamber recalls that Article 4(2)(c) of the Statute covers “methods of destruction that do not immediately kill the members of the group, but ultimately seek their physical destruction”.[7] It is clear from the Tribunal’s case law, explicitly relied upon by the ICJ, that killings may not be considered, under Article 4(2)(c) of the Statute, as acts resulting in the deliberate infliction of conditions of life calculated to bring about the protected group’s physical destruction.

228. The Appeals Chamber recalls that the different categories of genocidal acts proscribed in Article 4(2) of the Statute correspond to and aim to capture different methods of physical destruction of a protected group: subparagraphs (a) and (b) of Article 4(2) of the Statute proscribe acts causing a specific result, which must be established by the evidence, i.e., killings and serious bodily or mental harm respectively;[8] on the other hand, subparagraph (c) of the same Article purports to capture those methods of destruction that do not immediately kill the members of the group, but which, ultimately, seek their physical destruction.[9] The chambers of the Tribunal and the ICJ have listed several acts as examples of such methods of destruction that could potentially meet the threshold of Article 4(2)(c) of the Statute and Article II(c) of the Genocide Convention, including deprivation of food, medical care, shelter or clothing, lack of hygiene, systematic expulsion from homes, or subjecting members of the group to excessive work or physical exertion.[10] Notably, killings, which are explicitly mentioned as a separate genocidal act under Article 4(2)(a) of the Statute, may not be considered as a method of inflicting upon the protected group conditions of life calculated to bring about its destruction under Article 4(2)(c) of the Statute.

229. The Appeals Chamber, therefore, finds merit in Tolimir’s contention that the Trial Chamber was legally barred from considering the combined effect of the killing and the forcible transfer operations under Article 4(2)(c) of the Statute. The Appeals Chamber recognises that in the Indictment, this actus reus of genocide was alleged to have been perpetrated through “the forcible transfer of the women and children from Srebrenica and Žepa, the separation of the men in Potočari and the execution of the men from Srebrenica”, all of which operations were to be considered together.[11] Such combined consideration, however, was contrary to the legal principles governing the application of Article 4(2)(c) of the Statute, which limit the scope of the provision to “methods of physical destruction, other than killing”.[12]

230. Another error committed by the Trial Chamber in its application of Article 4(2)(c) of the Statute was its consideration of the destruction of mosques in Srebrenica and Žepa as an additional act through which the Bosnian Serb Forces inflicted on the protected group conditions of life calculated to bring about its destruction.[13] […] [A]cts amounting to “cultural genocide” are excluded from the scope of the Genocide Convention.[14] Notably, the ICJ also held that “the destruction of historical, cultural and religious heritage cannot be considered to constitute the deliberate infliction of conditions of life calculated to bring about the physical destruction of the group”.[15] The Trial Chamber, therefore, committed a legal error in considering the destruction of mosques in Srebrenica and Žepa under Article 4(2)(c) of the Statute.

[…]

234. The Appeals Chamber recalls again that the forced displacement of a population “does not constitute in and of itself a genocidal act”[16] and that acts meeting the threshold of Article 4(2)(c) of the Statute typically relate to the deliberate withholding or taking away of the basic necessities of life over an extended period of time.[17] […]

201. Article 4(2)(b) of the Statute provides that genocide can be committed by “causing serious bodily or mental harm to members of the [protected] group” with intent to destroy, in whole or in part, the group as such.[1] “Serious bodily or mental harm” is not defined in the Statute. Drawing on the case law of the ICTY and the ICTR, the Trial Chamber held that serious bodily or mental harm:

must be of such a serious nature as to contribute or tend to contribute to the destruction of all or part of the group; although it need not be permanent or irreversible, it must go “beyond temporary unhappiness, embarrassment or humiliation” and inflict “grave and long-term disadvantage to a person’s ability to lead a normal and constructive life”.[2]

The Trial Chamber also stated that the determination of the seriousness of the harm in question “must be made on a case-by-case basis”.[3]

202. The Appeals Chamber recalls that it has not directly addressed what constitutes serious mental harm as an act of genocide. Nonetheless, it is satisfied that the definition of serious mental harm adopted in the Trial Judgement is consistent with the case law of the ICTY and the ICTR and aligns with the letter and spirit of the Genocide Convention. […]

203. As correctly stated by the Trial Chamber, serious mental harm must be of such a serious nature as to contribute or tend to contribute to the destruction of all or part of the group.[4] The ICTR Appeals Chamber in the Seromba case has held in this regard that:

serious mental harm includes “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”. Indeed, nearly all convictions for the causing of serious bodily or mental harm involve rapes or killings. To support a conviction for genocide, the bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.[5]

Contrary to Tolimir’s argument, serious mental harm must be lasting[6] but need not be permanent and irremediable.[7] Tolimir fails to show that these articulations of serious mental harm are “too general and imprecise”.[8]

204. The Appeals Chamber is also not persuaded that the United States of America’s “understanding” of serious mental harm as “the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques”, expressed in its instrument of accession to the Genocide Convention,[9] is correct under customary international law […]

[…]

207. […] The Appeals Chamber notes that there is ICTY and other international jurisprudence for the proposition that survivors of killing operations may suffer serious mental harm amounting to an act of genocide.[10] The Appeals Chamber finds no error in the Trial Chamber’s conclusion that the mental harm suffered by the survivors of the killings qualified as an act of genocide under Article 4 of the Statute. […]

[…]

209. […] The Appeals Chamber recalls that while “forcible transfer does not in and of itself constitute a genocidal act […] it is […] a relevant consideration as part of the overall factual assessment”[11] and “could be an additional means by which to ensure the physical destruction” of the protected group.[12] Nothing in the Tribunal’s jurisprudence or in the Genocide Convention provides that a forcible transfer operation may only support a finding of genocide if the displaced population is transferred to concentration camps or places of execution. Tolimir cites no authority suggesting the existence of such a requirement. A forcible transfer operation may still “ensure the physical destruction” of the protected group[13] by causing serious mental harm or leading to conditions of life calculated to bring about the group’s physical destruction, even if the group members are not transferred to places of execution. […]

[…]

211. Further, the Appeals Chamber is not persuaded that the Trial Chamber was not entitled to take into account the inability and fears of the group to return to their former homes, or the post-transfer quality of their life in making such an assessment. […] The Appeals Chamber notes that these factors are particularly relevant to considering whether the harm caused grave and long-term disadvantage to the ability of members of the protected group to lead a normal and constructive life.[14]

212. […] As noted above, serious mental harm need not result from acts causing permanent or irremediable mental impairment. It suffices that the harmful conduct caused grave and long-term disadvantage to the ability of the members of the protected group to lead a normal and constructive life[15] so as to threaten the physical destruction of the group in whole or in part.[16] […]

[…]

215. On the other hand, the Appeals Chamber recalls that serious mental harm results only from acts causing grave and long-term disadvantage to the ability of members of the protected group to lead a normal and constructive life[17] and threatening the physical destruction of the group as such.[18] […]

216. […] [S]erious mental harm must be “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”.[19] The Appeals Chamber further recalls that acts falling under Article 4(2)(b) of the Statute require proof of a result, i.e., that serious mental harm was inflicted.[20]

217. The Trial Chamber did not find that Žepa’s Bosnian Muslim population suffered a mass violent separation of families and the ongoing trauma of having lost their family members, like the Bosnian Muslims from Srebrenica,[21] and failed to point to any evidence on the record establishing that the mental harm suffered by that group tended to contribute to the destruction of the Muslims of Eastern BiH as such.[22] Even if all the factors considered by the Trial Chamber were established, in the absence of findings or references to evidence of any long-term consequences of the forcible transfer operation on the Žepa population and the Bosnian Muslim population of Eastern BiH in general and of a link between the circumstances of the transfer operation in Žepa and the physical destruction of the protected group as a whole, no reasonable trial chamber could have found that the Bosnian Muslims forcibly transferred from Žepa suffered serious mental harm within the meaning of Article 4(2)(b) of the Statute. The Appeals Chamber, Judges Sekule and Güney dissenting, thus reverses the Trial Chamber’s findings in this regard and Tolimir’s remaining arguments are rendered moot and need not be addressed.

Fn. 587. The Appeals Chamber notes that views of a single signatory on the meaning of a particular term used in a treaty only bind that State for the purpose of domestic implementing legislation and do not necessarily suggest a universal consensus on this issue. Even if the United States of America had submitted an official reservation as to the use of the term “mental harm” in Article II of the Genocide Convention – which it did not – such a reservation would not have modified the Convention for other signatories in that respect. See VCLT, Art. 21(2) (“The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.”).

529. […] The Appeals Chamber recalls that the crimes of genocide and conspiracy to commit genocide both require genocidal intent as a part of the mens rea element[…] [1] […].

567. […] [T]he Appeals Chamber notes that it is well-established that “the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character”.[1] The Appeals Chamber further recalls that “the civilian population need only be predominantly civilian”.[2] […]

569. […] [T]he Appeals Chamber reiterates that “there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be ‘civilians’”,[3] or even be predominantly civilians,[4] provided the acts form part of a widespread or systematic attack directed against a civilian population (the nexus requirement). The population targeted by the attack must be predominantly civilian,[5] but there is no legal requirement that a certain proportion of the victims of the underlying crime be civilians.[6] […]

1103. […] The Appeals Chamber considers that the component pieces of circumstantial evidence on the issue of identification are to be considered in relation to all other pieces of circumstantial evidence bearing on the issue, and not in isolation.[1] Whereas the assessment of an evidentiary factor in a vacuum might fail to establish an essential matter, the weight of all relevant evidence taken together can conclusively prove the same matter beyond reasonable doubt.[2] […]

See also para. 1150.

375. […] The Appeals Chamber recalls that the purpose of expert testimony is to supply specialised knowledge that might assist the trier of fact in understanding the evidence before it, and that in the ordinary case an expert witness offers a view based on specialised knowledge regarding a technical, scientific or otherwise discrete set of ideas or concepts that is expected to fall outside the lay person’s ken.[1] […]