319. Referring to the case-law of the Tribunal, the Trial Chamber defined the constitutive elements of the crime of persecution as follows: “(1) the occurrence of a discriminatory act or omission; (2) a basis for that act or omission founded on race, religion, or politics; and (3) the intent to infringe an individual’s enjoyment of a basic or fundamental right”[1] and, in more general terms, defined persecutions as “the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5”.[2]

320. The Appeals Chamber finds no error in the constitutive elements identified by the Trial Chamber but prefers to adopt the wording of the Krnojelac Appeal Judgement, which was rendered after the delivery of the Trial Judgement in the present case and which it has endorsed in all its recent judgements:

(…) the crime of persecution consists of an act or omission which:

1. discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and
2. was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).[3]

321. The Appeals Chamber also notes that with respect to the actus reus of the crime of persecutions, the Trial Chamber rightly noted that the acts included in the crime of persecution, be they considered in combination or separately, are of the same gravity as the enumerated crimes in Article 5 of the Statute.[4] Kvočka does not in fact contest the standard of gravity but refers to it to show the Trial Chamber’s alleged error. The Appeals Chamber points out that to apply the standard of gravity, the acts must not be considered in isolation, but in context, by looking at their cumulative effect.[5]