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] […]