The Appellant argued that the vulnerability of the victims is already “subsumed in the overall gravity of the offence” and cannot be considered as an aggravating factor (para. 126).  The Appeals Chamber held the following:

127. While it is correct to say that the civilian status of the population against which the attack is directed is an element of crimes against humanity[1] and that therefore such status cannot be taken into account as an aggravating circumstance,[2] the Appeals Chamber notes that the issue before it is not whether the intrinsic vulnerability of civilians can be taken into account but rather whether there are additional elements amounting to particular circumstances showing that the victims were subjected to a special vulnerability.[3] In the present case, not only had the civilians been disarmed and denied any warning about their fate, but moreover had been deceived by a statement on the Appellant’s behalf into believing they were safe. These facts are not inherent in the population’s civilian status.

Accordingly, the Appeals Chamber accepted the Trial Chamber’s finding that “the exacerbated vulnerability and defencelessness of the victims was an aggravating circumstance.” (para. 128).