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] […]

The Prosecution submitted that the Trial Chamber defined “civilian” too narrowly by excluding persons hors de combat from the term “civilian” in Article 5 of the Statute. At paragraphs 292-296, the Appeal Chamber noted that the Appeal Judgments of Kordić and Čerkez, Blaškić and Galić applied the definition of civilians contained in Article 50 of Additional Protocol I to crimes against humanity. 

It then quoted the following passages from Blaškić:

Read together, Article 50 of Additional Protocol I and Article 4A of the Third Geneva Convention establish that members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status. Neither can members of organized resistance groups, provided that they are commanded by a person responsible for his subordinates, that they have a fixed distinctive sign recognizable at a distance, that they carry arms openly, and that they conduct their operations in accordance with the laws and customs of war. (para. 110)

[…]

As a result, the specific situation of the victim at the time the crimes are committed may not be determinative of his civilian or non-civilian status.  If he is indeed a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status. (para. 113)

The Appeals Chamber rejected the Prosecution’s assertion that Kordić and Čerkez departed from this principle.  It went on to consider whether the definition of Article 50 of AP I should be applied. 

297. […] the Appeals Chamber recalls that the Tribunal has consistently held, since its first cases, that provisions of the Statute must be interpreted according to the “natural and ordinary meaning in the context in which they occur”, taking into account their object and purpose.[1] In this regard, the Appeals Chamber observes that the definition of civilian found in Article 50(1) of Additional Protocol I accords with the ordinary meaning of the term “civilian” (in English) and “civil” (in French) as persons who are not members of the armed forces.[2] As such, the definition of civilians relied upon by the Prosecution is contrary to the ordinary meaning of the term “civilian.”

The Appeals Chamber concluded that:

302. In light of the above, the Appeals Chamber finds that the definition of civilian contained in Article 50 of Additional Protocol I reflects the definition of civilian for the purpose of applying Article 5 of the Statute and that the Trial Chamber did not err in finding that the term civilian in that context did not include persons hors de combat. This does not, however, answer the second contention raised by the Prosecution, i.e., whether the fact that persons hors de combat are not civilians for the purpose of Article 5 means that only civilians may be victims of crimes against humanity. The Appeals Chamber will turn to this second argument in the next section.

12. The Appeals Chamber agrees that the issue on this appeal is one of statutory interpretation. As was stated by the Appeals Chamber in the Tadić Appeals Decision, the Statute of the Tribunal should be interpreted in light of its object and purpose.[1] Article 1 of the Tribunal’s Statute defines the territorial and temporal jurisdiction of the Tribunal conferring “the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”. The object of the Security Council’s establishment of the Tribunal, as stated in Security Council Resolution 808 (1993), is to bring to an end the reported widespread violations of international humanitarian law, bring to justice the persons responsible for those violations, and contribute to the restoration and maintenance of peace in the territory of the former Yugoslavia. In drafting Article 5 of the Tribunal’s Statute and imposing the additional jurisdictional requirement that crimes against humanity be committed in armed conflict, the Security Council intended to limit the jurisdiction of the Tribunal to those crimes which had some connection to armed conflict in the former Yugoslavia. At the meeting of the Security Council at which the Tribunal’s Statute was adopted, those members that addressed the scope of Article 5 of the Statute made clear their view that it encompassed widespread or systematic criminal acts committed against the civilian population on the territory of the former Yugoslavia during an armed conflict. [2]

13. As expressed in the jurisprudence of the Tribunal, the jurisdictional requirement of Article 5 requires the existence of an armed conflict at the time and place relevant to the indictment, but it does not mandate any material nexus between the acts of the accused and the armed conflict.[3] While this interpretation itself offers little guidance on the meaning of “time and place relevant to the indictment”, the Tribunal’s jurisprudence on the application of Article 5 of the Statute points towards a broad interpretation. For example, there is no requirement that an attack directed against a civilian population be related to the armed conflict. As the Appeals Chamber in the Tadić Appeals Decision held: “The two — ‘the attack on the civilian population’ and the ‘armed conflict’ — must be separate notions, although of course under Article 5 of the Statute the attack on ‘any civilian population’ may be part of an ‘armed conflict”.[4] Likewise, the above mentioned Tadić Appeals Chambers interpretation of the application of international humanitarian law, of which Article 5 is a part, supports a broad interpretation of the jurisdictional requirement that a crime against humanity be committed in armed conflict.

14. The Appeals Chamber does not accept that the jurisdictional requirement of Article 5 requires the Prosecution to establish that an armed conflict existed within the State (or region) of the Former Yugoslavia in which the charged Article 5 crime is alleged to have been committed. There can be situations where an armed conflict is ongoing in one state and ethnic civilians of one of the warring sides, resident in another state, become victims of a widespread and systematic attack in response to that armed conflict. All that is required under Article 5 of the Statute is that the prosecution establish that an armed conflict is sufficiently related to the Article 5 crime with which the accused is charged. While, as previous jurisprudence of this Tribunal has held, there is no need for the Prosecution to establish a material nexus between the acts of the accused and the armed conflict, the Prosecution must establish a connection between the Article 5 crime itself and the armed conflict. Consistently with the object of the purpose of the Tribunal’s Statute, the jurisdictional requirement that Article 5 crimes be committed in armed conflict requires the Prosecution to establish that a widespread or systematic attack against the civilian population was carried out while an armed conflict in Croatia and/or Bosnia and Herzegovina was in progress. Whether the Prosecution can establish this connection in this case with respect to crimes against humanity in Vojvodina is a question of fact to be determined at trial.

15. For the foregoing reasons the Prosecution’s Appeal is allowed and the Trial Chamber’s Impugned Decision is reversed.

41. The Appeals Chamber recalls that once the requirement of a widespread or systematic attack against a civilian population is fulfilled, there must be a nexus between the acts of the accused and the attack itself. The Appeals Chamber considers that, as correctly noted by the Prosecution,[1] the requirement that the acts of an accused must be part of the “attack” against the civilian population does not, however, require that they be committed in the midst of that attack: a crime which is committed before or after the main attack against the civilian population or away from it could still, if sufficiently connected, be part of that attack.[2] Hence, the fact that the crimes committed in Ovčara took place after the widespread and systematic attack against the civilian population of Vukovar cannot in itself be determinative of whether the nexus requirement was met. Such a nexus consists of two elements:

(i) the commission of an act which, by its nature or consequences, is objectively part of the attack; coupled with

(ii) knowledge on the part of the accused that there is an attack on the civilian population and that his act is part thereof.[3]

Thus, to convict an accused of crimes against humanity, it must be proven that his acts were related to a widespread or systematic attack against a civilian population and that he knew that his acts were so related. Such an assessment will be made on a case-by-case basis. For example, having considered the context and circumstances in which an act was committed, an act may be so far removed from the attack that no nexus can be established (so called “isolated act”) and hence cannot qualify as a crime against humanity.[4]

42. In the present case, after reviewing the evidence before it, the Trial Chamber concluded that the perpetrators of the crimes committed against the prisoners in Ovčara selected the individuals based on their involvement in the Croatian armed forces. The Trial Chamber found:

While there may have been a small number of civilians among the 194 identified murder victims charged in the Indictment, in the Chamber’s finding, the perpetrators of the offences against the prisoners at Ovčara on 20/21 November 1991 charged in the Indictment, acted in the understanding that their acts were directed against members of the Croatian forces.”[5]

The Appeals Chamber concurs with the Trial Chamber’s assessment of the evidence in the trial record. The crimes in Ovčara were directed against a specific group of individuals,[6] the victims of the crimes were selected based on their perceived involvement in the Croatian armed forces,[7] and as such treated “differently from the civilian population”.[8] The Prosecution’s arguments that the crimes occurred two days after the fall of Vukovar, that Ovčara was located within the geographical scope of the attack against Vukovar, that the perpetrators of the crimes in Ovčara also participated in the attack against the civilian population in Vukovar, and that the perpetrators of the crimes “harboured intense feeling of animosity towards persons they perceived as enemy forces,[9] do not undermine the Trial Chamber’s findings, unchallenged by the Parties, that the perpetrators of the crimes in Ovčara acted in the understanding that their acts were directed against members of the Croatian armed forces. The fact that they acted in such a way precludes that they intended that their acts form part of the attack against the civilian population of Vukovar and renders their acts so removed from the attack that no nexus can be established.

43. The Appeals Chamber finds that the requirement of a nexus between the acts of the accused and the attack itself was not established and that, in the absence of the required nexus under Article 5 of the Statute between the crimes committed against the prisoners at Ovčara and the widespread or systematic attack against the civilian population of Vukovar, the crimes committed cannot be qualified as crimes against humanity. Thus, even though the Trial Chamber erred in law by adding a requirement that the victims of the underlying crimes under Article 5 of the Statute be civilians, the Appeals Chamber concurs with the Trial Chamber – albeit for different reasons – that the “jurisdictional prerequisites of Article 5 of the Statute have not been established”.[10]

35. Following the Prosecution’s decision not to pursue the second sub-ground of its first ground of appeal,[1] the Trial Chamber’s finding to the effect that the term “civilian” in Article 5 of the Statute has to be interpreted in accordance with Article 50 of Additional Protocol I and therefore does not include combatants or persons hors de combat,[2] remains unchallenged. This finding was based, inter alia, on the Appeals Chamber’s well-established jurisprudence,[3] reiterated in the Martić Appeal Judgement,[4] that the notion of “civilian” under Article 5 of the Statute excludes persons hors de combat. In Blaškić, the Appeals Chamber found:

Article 50 of Additional Protocol I to the Geneva Conventions contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law.[5]

Read together, Article 50 of Additional Protocol I and Article 4A of the Third Geneva Convention establish that members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status.[6]

In Kordić and Čerkez, the Appeals Chamber found that “Article 50 of Additional Protocol I contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law”.[7] In Galić, the Appeals Chamber reiterated that “[e]ven hors de combat, however, [combatants] would still be members of the armed forces of a party to the conflict and therefore fall under the category of persons referred to in Article 4(A)(1) of the Third Geneva Convention; as such, they are not civilians in the context of Article 50, paragraph 1, of Additional Protocol I”.[8] The notion of “civilian” under Article 5 of the Statute is defined through the above provisions of the law of armed conflict.[9] Whereas under Article 3 of the Statute the situation of a victim at the time of the offence may be relevant to its status,[10] the notion of “civilian” under Article 5 of the Statute, as correctly noted by the Trial Chamber,[11] is not determined by the position of the victims at the time of the commission of the underlying crime.[12]

36. Pursuant to this jurisprudence and in light of the facts of the case, the Trial Chamber found that the victims were predominantly non-civilians.[13] However, the Appeals Chamber has found that the Trial Chamber erred in law in concluding that, for the purposes of Article 5 of the Statute, the victims of the underlying crime must be civilians, and consequently erroneously creating an additional requirement under Article 5 of the Statute. Accordingly, the Appeals Chamber must determine whether this error has the effect of invalidating the Trial Judgement. To that end and in light of the finding in the Martić Appeal Judgement that “[u]nder Article 5 of the Statute, a person hors de combat may thus be the victim of an act amounting to a crime against humanity, provided that all other necessary conditions are met, in particular that the act in question is part of a widespread or systematic attack against any civilian population”,[14] the Appeals Chamber will assess whether in the instant case all other necessary conditions to enter a conviction for crimes against humanity had been met.

924. The Appeals Chamber considers that, except for extermination,[1] a crime need not be carried out against a multiplicity of victims in order to constitute a crime against humanity. Thus an act directed against a limited number of victims, or even against a single victim, can constitute a crime against humanity, provided it forms part of a widespread or systematic attack against a civilian population.[2]

62. Article 3 of the Statute requires that the crimes be committed “as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.”[1] Hategekimana fails to appreciate that the Trial Chamber did not situate Rugomboka’s murder in the context of a widespread and systematic attack that was limited to Ngoma Commune or Butare Prefecture. Rather, the Trial Chamber found that this killing formed part of “a systematic attack against the civilian population on political grounds” occurring “throughout Rwanda, including various parts of Butare [Prefecture].”[2] In view of this finding, it is immaterial that the Trial Chamber did not point to evidence that there was a widespread and systematic attack specifically in Ngoma Commune or Butare Prefecture as of 7 April 1994.[3] Hategekimana has not challenged on appeal the reasonableness of the Trial Chamber’s finding that this murder related to a systematic attack on political grounds which took place throughout Rwanda.

248. The Appeals Chamber agrees with the Prosecution that there is nothing in Article 5 to suggest that it contains a requirement that crimes against humanity cannot be committed for purely personal motives. The Appeals Chamber agrees that it may be inferred from the words “directed against any civilian population” in Article 5 of the Statute that the acts of the accused must comprise part of a pattern of widespread or systematic crimes directed against a civilian population[1] and that the accused must have known that his acts fit into such a pattern. There is nothing in the Statute, however, which mandates the imposition of a further condition that the acts in question must not be committed for purely personal reasons, except to the extent that this condition is a consequence or a re-statement of the other two conditions mentioned.

249. The Appeals Chamber would also agree with the Prosecution that the words “committed in armed conflict” in Article 5 of the Statute require nothing more than the existence of an armed conflict at the relevant time and place. The Prosecution is, moreover, correct in asserting that the armed conflict requirement is a jurisdictional element, not “a substantive element of the mens rea of crimes against humanity”[2] (i.e., not a legal ingredient of the subjective element of the crime).

250. This distinction is important because, as stated above, if the exclusion of “purely personal” behaviour is understood simply as a re-statement of the two-fold requirement that the acts of the accused form part of a context of mass crimes and that the accused be aware of this fact, then there is nothing objectionable about it; indeed it is a correct statement of the law.  It is only if this phrase is understood as requiring that the motives of the accused (“personal reasons”, in the terminology of the Trial Chamber) not be unrelated to the armed conflict that it is erroneous. Similarly, that phrase is unsound if it is taken to require proof of the accused’s motives, as distinct from the intent to commit the crime and the knowledge of the context into which the crime fits.

251. […] A nexus with the accused’s acts is required, however, only for the attack on “any civilian population”. A nexus between the accused’s acts and the armed conflict is not required, as is instead suggested by the Judgement. The armed conflict requirement is satisfied by proof that there was an armed conflict; that is all that the Statute requires, and in so doing, it requires more than does customary international law.

See also paragraphs 256–270.

The Appeals Chamber concluded:

271. The Trial Chamber correctly recognised that crimes which are unrelated to widespread or systematic attacks on a civilian population should not be prosecuted as crimes against humanity. Crimes against humanity are crimes of a special nature to which a greater degree of moral turpitude attaches than to an ordinary crime. Thus to convict an accused of crimes against humanity, it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related.

272. For the above reasons, however, the Appeals Chamber does not consider it necessary to further require, as a substantive element of mens rea, a nexus between the specific acts allegedly committed by the accused and the armed conflict, or to require proof of the accused’s motives. Consequently, in the opinion of the Appeals Chamber, the requirement that an act must not have been carried out for the purely personal motives of the perpetrator does not form part of the prerequisites necessary for conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal’s Statute.

82. The validity of cumulative convictions in relation to the same conduct, charged as a violation of the laws or customs of war under Article 3 and as a crime against humanity under Article 5 of the Statute, is based on the notion that each crime has a special ingredient not possessed by the other.  Following the reasoning of the Appeals Chamber in the Delalić appeal judgement,[1] the Appeals Chamber notes that, Article 3 requires a close link between the acts of the accused and the armed conflict; this element is not required by Article 5.  On the other hand, Article 5 requires proof that the act occurred as part of a widespread or systematic attack against a civilian population; that element is not required by Article 3.  Thus each Article has an element requiring proof of a fact not required by the other.  As a result, cumulative convictions under both Articles 3 and 5 are permissible.  In such a situation, it is not possible to hold, as is submitted by the cross-appellant, that either offence is a “lesser included offence” of the other.

270.   The Appeals Chamber recalls that the Kunarac et al. Appeal Judgement endorsed the holding of the trial chamber in that case that the accused must have known of the attack against the civilian population and that his acts comprised part of the attack, or at least must have taken the risk that his acts were part thereof.[1] Subsequently, in Blaškić the Appeals Chamber held that what is required is “knowledge on the part of the accused that there is an attack on the civilian population, as well as knowledge that his act is part thereof”.[2]

271.   The dispute between the parties in the present case revolves around the question of whether the Blaškić Appeal Judgement rescinded the ruling in Kunarac et al. with regard to the mens rea chapeau requirement of Article 5 of the Statute. When analysed in the context of the other relevant considerations in the Blaškić Appeal Judgement, it becomes evident that the Appeals Chamber did not intend to depart from its previous holding in Kunarac et al. This is illustrated by the fact that in defining the mens rea of crimes against humanity, the Blaškić Appeal Judgement explicitly referred to paragraph 102 of the Kunarac et al. Appeal Judgement, which in turn cites with approval the mens rea standard adopted by the trial chamber in that case.[3] Such interpretation is further supported by the Appeals Chamber’s subsequent jurisprudence adhering to the “taking the risk” standard endorsed in the Kunarac et al. Appeal Judgement.[4] […]

269. […] [T]he Prosecution did not have to prove the existence of an armed conflict: contrary to Article 5 of the ICTY Statute, Article 3 of the ICTR Statute does not require that the crimes be committed in the context of an armed conflict.[1]  This is an important distinction.

318. A conviction for genocide or complicity in genocide is not impermissibly cumulative with the convictions for crimes against humanity.  A conviction for genocide under Article 2 of the Statute requires proof of an “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”[1]  That is a wholly different legal and factual showing from the finding of a “widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds” that must support a conviction for crimes against humanity.[2]  Upon this basis, the Appeals Chamber has held that convictions for genocide and convictions for crimes against humanity, based on the same facts, are permissible.[3]

141.    With respect to Tolimir’s argument that the Trial Chamber erred in law in applying an incorrect standard to establish the mens rea of extermination by not requiring that the civilian population was the intended target of mass murder,[1] the Appeals Chamber recalls that, as noted by the Trial Chamber,[2] it is well-established that with regard to the victims of the underlying acts of crimes against humanity, “[t]here is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber that requires that individual victims of crimes against humanity be civilians”.[3] The Appeals Chamber has more specifically clarified that:

whereas the civilian status of the victims, the number of civilians, and the proportion of civilians within a civilian population are factors relevant to the determination of whether the chapeau requirement of Article 5 of the Statute that an attack be directed against a “civilian population” is fulfilled, there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be “civilians”.[4]

142.    Accordingly, while the establishment of the actus reus of a crime against humanity requires that the crime occur as part of a widespread or systematic attack directed against a civilian population,[5] the victims of the underlying crime do not have to be civilians. The Appeals Chamber thus rejects Tolimir’s argument that the Trial Chamber erred in law by applying an incorrect mens rea standard for extermination when not requiring proof of intent to commit mass murder against civilians. It was sufficient for the Trial Chamber to be satisfied in that regard that the mens rea for the crime of extermination was established on the basis of evidence of the intent to kill on a massive scale as part of a widespread or systematic attack directed against a civilian population.

464.    In the opinion of the Appeals Chamber, except in the case of persecution, a discriminatory intent is not required by international humanitarian law as a legal ingredient for all crimes against humanity[1]. To that extent, the Appeals Chamber endorses the general conclusion and review contained in Tadic, as discussed above.[2]  However, though such is not a requirement for the crime per se, all crimes against humanity, may, in actuality, be committed in the context of a discriminatory attack against a civilian population.  As held in Tadic: “[i]t is true that in most cases, crimes against humanity are waged against civilian populations which have been specifically targeted for national, political, ethnic, racial or religious reasons”.[3]  It is within this context, and in light of the nature of the events in Rwanda (where a civilian population was actually the target of a discriminatory attack), that the Security Council decided to limit the jurisdiction of the Tribunal over crimes against humanity solely to cases where they were committed on discriminatory grounds.  This is to say that the Security Council intended thereby that the Tribunal should not prosecute perpetrators of other possible crimes against humanity.

465.    The Appeals Chamber found that in doing so, the Security Council did not depart from international humanitarian law[4] nor did it change the legal ingredients required under international humanitarian law with respect to crimes against humanity. It limited at the very most the jurisdiction of the Tribunal to a sub-group of such crimes, which in actuality may be committed in a particular situation.  By the same token, the Appeals Chamber notes that ICTY Statute contains in its Article 5 explicitly an express requirement for a nexus with an armed conflict. As held in Tadic, this “creates a narrower sphere of operation than that provided for crimes against humanity under customary international law”.[5]  Here again, by limiting the scope of the article, the Security Council did not, however, intend that the definition contained in ICTY Statute should constitute a departure from customary international law.  In the case at bench, the Tribunal was conferred jurisdiction over crimes against humanity (as they are known in customary international law), but solely “when committed as part of a widespread or systematic attack against any civilian population” on certain discriminatory grounds; the crime in question is the one that falls within such a scope.  Indeed, this narrows the scope of the jurisdiction, which introduces no additional element in the legal ingredients of the crime as these are known in customary international law.

466.    Consequently, apart from this restriction of jurisdiction, such crimes continue to be governed in the usual manner by customary international law, namely that discrimination is not a requirement for the various crimes against humanity, except where persecution is concerned.

467.    The meaning to be collected from Article 3 of the Statute is that even if the accused did not have a discriminatory intent when he committed the act charged against a particular victim, he nevertheless knew that his act could further a discriminatory attack against a civilian population; the attack could even be perpetrated by other persons and the accused could even object to it.  As a result, where it is shown that the accused had knowledge of such objective nexus, the Prosecutor is under no obligation to go forward with a showing that the crime charged was committed against a particular victim with a discriminatory intent. In this connection, the only known exception in customary international law relates to cases of persecutions.

468.    In light of this interpretation and the finding that persecution is the only crime which requires a discriminatory intent, the Appeals Chamber is of the view that any interpretation of the chapeau of Article 3 of the Statute such as would add a requirement for a showing of a discriminatory intent with respect to all crimes against humanity would likely render redundant the express if more succinct reference to discrimination – contained in Article 3 of the Statute (Persecutions), which reference is understood as a requirement of a discriminatory intent.[6]  As is known, one of the basic rules of interpretation requires that a provision or part thereof should not be interpreted in a manner to render it redundant or bereft of any object, unless such a conclusion is inevitable.  One must proceed from the assumption that the lawmakers intended to give some effect to each of the words used.

469.    For the foregoing reasons, the Appeals Chamber considers the present ground of appeal and finds that:

(1)         Article 3 of the Statute does no require that all crimes against humanity enumerated therein be committed with a discriminatory intent.

(2)         Article 3 restricts the jurisdiction of the Tribunal to crimes against humanity committed in a specific situation, that is, “as part of a widespread or systematic attack against any civilian population” on discriminatory grounds.

394. Extermination as a crime against humanity under Article 3(b) of the Statute is the act of killing on a large scale,[1] committed within the context of a widespread or systematic attack against any civilian population on national, political, ethnic, racial, or religious grounds.[2]

396. The […] Appeals Chamber considers that the Trial Chamber was unreasonable to conclude that the “large scale” requirement for extermination was satisfied based on a collective consideration of events committed in different prefectures, in different circumstances, by different perpetrators, and over a period of two months. Each of the incidents which formed the basis of Nsengiyumva’s convictions presented distinct features and could not be said to constitute one and the same incident.[1] As such, they could not be considered to constitute one and the same crime sharing the same actus reus.

397. The Appeals Chamber notes that the Trial Chamber nonetheless suggested that some of the killings of which the co-Accused were convicted “in themselves” satisfied the requirement of killing on a large scale.[1] However, the Trial Chamber failed to make any factual findings as to whether the killings perpetrated in Gisenyi town on 7 April 1994 met the requisite threshold of having been committed “on a large scale” in themselves.[2] With respect to the killings in Gisenyi town, the Trial Chamber’s findings are limited to stating that “targeted attacks against Tutsis and suspected accomplices” were perpetrated.[3] The Appeals Chamber is concerned that the Trial Chamber did not make any specific findings on this fundamental element of the crime of extermination.

398. Nevertheless, the Appeals Chamber considers that the facts as found by the Trial Chamber and the evidence it relied upon support a finding beyond reasonable doubt that the killings in Gisenyi town were perpetrated on a large scale. The Appeals Chamber notes with respect to the Gisenyi town killings that the Trial Chamber accepted and relied upon Prosecution Witness DO’s evidence that the victims included: a Tutsi teacher and his daughter; Hutus suspected of being accomplices, such as Daniel Rwabijongo, as well as Assoumani Kajanja and his Tutsi wife; Gilbert and another Tutsi man hiding in a compound with him; and a Tutsi woman named Mukabutare and her daughter.[4] Witness DO testified that there were several other groups of assailants apart from the one he was assigned to that were perpetrating parallel killings throughout Gisenyi town at the same time.[5] In the Appeals Chamber’s view, these killings are qualifiable as having occurred on a large scale.

729. […] The Appeals Chamber underscores that the desecration of Prime Minister Uwilingiyimana’s corpse constituted a profound assault on human dignity meriting unreserved condemnation under international law.[1] Such crimes strike at the core of national and human identity. However, the Appeals Chamber finds, Judge Pocar dissenting, that Bagosora was not charged on this basis, and thus cannot be held legally responsible for this act.

Nature:

101. […] The totality of evidence relating to the forcible transfer and the detention and mistreatment in Bratunac town, in particular when coupled with the humanitarian crisis that followed the fall of the Srebrenica enclave, leaves no room for any other reasonable conclusion about the nature of the attack.

Knowledge:

102. Blagojević also submits that the Trial Chamber erred in fact in finding that he was aware of this broader context.[1] His simple denial that he lacked knowledge of the context in which the attack occurred is insufficient to call into question the reasonableness of the Trial Chamber’s findings on this point. As discussed elsewhere in this Judgement, the Trial Chamber reasonably concluded that he was aware, among other things, of the dire humanitarian situation, the forcible transfer, and the detention and mistreatment of thousands of Bosnian Muslim men in Bratunac town, as well as the role played by brigade personnel in these events.[2] Moreover, it was also reasonable for the Trial Chamber to conclude that given his role as a commanding officer of a brigade operating in the area at the time, Blagojević would have had knowledge of the wider context in which his own acts occurred, namely the widespread or systematic attack against the civilian population of Srebrenica. Though the Trial Chamber concluded that he lacked knowledge of the mass murder operation,[3] the events of which he had knowledge, mentioned above, were sufficient to put him on notice of the nature of the attack.

101. In relation to the widespread or systematic nature of the attack, the Appeals Chamber recalls the jurisprudence of the International Tribunal according to which the phrase “widespread” refers to the large-scale nature of the attack and the number of targeted persons, while the phrase “systematic” refers to the organized nature of the acts of violence and the improbability of their random occurrence.[1] Patterns of crimes, in the sense of the non-accidental repetition of similar criminal conduct on a regular basis, are a common expression of such systematic occurrence.[2] Only the attack, not the individual acts of the accused, must be widespread or systematic.[3] The Appeals Chamber underscores that the acts of the accused need only be a part of this attack, and all other conditions being met, a single or limited number of acts on his or her part would qualify as a crime against humanity, unless those acts may be said to be isolated or random.[4]

120. […] The Appeals Chamber agrees that a plan or policy is not a legal element of a crime against humanity, though it may be evidentially relevant in proving that an attack was directed against a civilian population and that it was widespread or systematic.

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]

53. The Appeals Chamber recalls that it is well established that the principle of distinction requires parties to distinguish at all times “between the civilian population and combatants, between civilian and military objectives, and accordingly direct attacks only against military objectives”.[1] There is an absolute prohibition against the targeting of civilians in customary international law,[2] encompassing indiscriminate attacks.[3] […]

54. There is no requirement that particular areas or zones be designated as civilian or military in nature. Rather, a distinction is to be made between the civilian population and combatants, or between civilian and military objectives. Such distinctions must be made on a case-by-case basis. Further, considering the obligations incumbent upon combatants to distinguish and target exclusively military objectives, the Appeals Chamber finds Milošević’s argument regarding the proportion of civilians present in areas “replete with military objectives”[4] unpersuasive. In fact, Milošević does not even attempt to argue that the civilian victims in Sarajevo were proportional casualties of lawful military attacks launched by the SRK. A general assertion that the attacks were legitimate because they allegedly targeted “military zones” throughout the city is bound to fail.

55. The Appeals Chamber recognizes that some of the language used in paragraphs 896-904 of the Trial Judgement may appear confusing and lead to the conclusion that the Trial Chamber actually accepted Milošević’s approach of defining the status of the “areas”. However, the Appeals Chamber understands the Trial Judgement to have adopted this terminology for the sole purpose of addressing Milošević’s arguments, whereas in reality, the Trial Chamber meant to establish the civilian status of the population targeted in specific incidents.[5]

139. The Appeals Chamber has already found that despite the somewhat confusing language used by the Trial Chamber, it correctly engaged in a case-by-case analysis of the targets and modalities of the attacks, rather than that of “zones”.[6] Therefore, the Appeals Chamber will pursue its analysis on the basis of its understanding that when referring to certain neighbourhoods of Sarajevo, the Trial Chamber meant to establish the civilian status of the population targeted in the attacks that took place there during the Indictment period (and not that of the areas or zones as such).

388. Addressing the more specific issue of intra-Article 5 cumulative convictions, the Kordić and Čerkez Appeal Judgement ruled that a correct application of the Čelebići test required “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.” Based on this reasoning, the Appeals Chamber admitted that convictions for the crimes against humanity of persecution on the one hand, and murder, other inhumane acts and imprisonment on the other hand, could be cumulated, since all of these offences contained “an element that requires proof of a fact not required by the other[s]”.[1]

389. In the instant case, Amicus Curiae alleges that the Kordić and Čerkez Appeal Judgement is an incorrect application of the Čelebići test and should therefore not be used as a precedent. The Appeals Chamber cannot agree with this interpretation. While prior jurisprudence adopted another point of view,[2] in the Kordić and Čerkez Appeal Judgement the Appeals Chamber clearly explained the reasons that warranted the departure from previous cases.[3] Subsequent appeal judgements in the Stakić, Naletilić and Martinović and Nahimana et al. cases confirmed the approach adopted in Kordić and Čerkez.[4] The Appeals Chamber therefore sees no cogent reason to depart from the current jurisprudence with respect to intra-Article 5 cumulative convictions.

390. In the Trial Judgement, the Trial Chamber determined that:

[p]ersecution as a crime against humanity has a materially distinct element from murder as a crime against humanity in that persecution requires proof that an act or omission discriminates in fact, and proof that the act or omission was committed with specific intent to discriminate. Conversely, murder as a crime against humanity requires proof that the accused caused the victim’s death, which is not an element required for proof of persecution. As a result, a cumulative conviction for persecution and murder under Article 5 of the Statute is permissible. The same reasoning applies to extermination, deportation, and forced transfer as an inhumane act.[5]

391. The Appeals Chamber, by majority, Judge Güney dissenting,[6] considers that this is a correct application of the law on cumulative convictions. Therefore, the Trial Chamber did not err in cumulating the conviction for persecution as a crime against humanity with the convictions for the crimes against humanity of murder, extermination, deportation and inhumane acts (forcible transfer). This ground of appeal is dismissed.

83. As pointed out by the Trial Chamber, this requirement is not equivalent to Article 3 of the Statute’s exigency that the acts be closely related to the armed conflict.[1]  As stated by the Trial Chamber, the requirement contained in Article 5 of the Statute is a purely jurisdictional prerequisite which is satisfied by proof that there was an armed conflict and that objectively the acts of the accused are linked geographically as well as temporally with the armed conflict.[2]

90. […] [T]he use of the word “population” does not mean that the entire population of the geographical entity in which the attack is taking place must have been subjected to that attack.[1]  It is sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian “population”, rather than against a limited and randomly selected number of individuals.

91. […] [T]he expression “directed against” is an expression which “specifies that in the context of a crime against humanity the civilian population is the primary object of the attack”.[2]  In order to determine whether the attack may be said to have been so directed, the Trial Chamber will consider, inter alia, the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.  To the extent that the alleged crimes against humanity were committed in the course of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess the nature of the attack and the legality of the acts committed in its midst.

98. […] [N]either the attack nor the acts of the accused needs to be supported by any form of “policy” or “plan”.  There was nothing in the Statute or in customary international law at the time of the alleged acts which required proof of the existence of a plan or policy to commit these crimes.[1]  As indicated above, proof that the attack was directed against a civilian population and that it was widespread or systematic, are legal elements of the crime.  But to prove these elements, it is not necessary to show that they were the result of the existence of a policy or plan.  It may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic (especially the latter) to show that there was in fact a policy or plan, but it may be possible to prove these things by reference to other matters.  Thus, the existence of a policy or plan may be evidentially relevant, but it is not a legal element of the crime.

102. […] [T]he accused must have had the intent to commit the underlying offence or offences with which he is charged, and that he must have known “that there is an attack on the civilian population and that his acts comprise part of that attack, or at least [that he took] the risk that his acts were part of the attack.”[1] This requirement […] does not entail knowledge of the details of the attack.[2]

103. For criminal liability pursuant to Article 5 of the Statute, “the motives of the accused for taking part in the attack are irrelevant and a crime against humanity may be committed for purely personal reasons.”[3] Furthermore, the accused need not share the purpose or goal behind the attack.[4] It is also irrelevant whether the accused intended his acts to be directed against the targeted population or merely against his victim.  It is the attack, not the acts of the accused, which must be directed against the target population and the accused need only know that his acts are part thereof. At most, evidence that he committed the acts for purely personal reasons could be indicative of a rebuttable assumption that he was not aware that his acts were part of that attack.

189. The Appeals Chamber recalls that extermination as a crime against humanity under Article 3(b) of the Statute is the act of killing on a large scale.[1] The Appeals Chamber stresses that in the jurisprudence of both ad hoc Tribunals, the necessary actus reus underlying the crime of extermination consists of any act, omission, or combination thereof which contributes directly or indirectly to the killing of a large number of individuals.[2] Therefore, as the Appeals Chamber has previously considered in the Ndindabahizi Appeal Judgement, for the actus reus of extermination to be fulfilled, it is sufficient that the accused participated in measures indirectly causing death.[3] The Appeals Chamber will therefore now turn to assess whether Athanase Seromba’s acts as established by the Trial Chamber amount to acts underlying the commission of extermination.

190. Notwithstanding the confinement of the Gacumbitsi dictum regarding committing to genocide, the Appeals Chamber, Judge Liu dissenting, can find no reason why its reasoning should not be equally applicable to the crime of extermination. The key question raised by the Gacumbitsi dictum is what other acts can constitute direct participation in the actus reus of the crime. As noted above, the Appeals Chamber is satisfied that the acts of Athanase Seromba set out in the Judgement were sufficient to constitute direct participation in the actus reus of the crime of genocide, and is equally satisfied that the same acts are sufficient to constitute direct participation in the crime of extermination, in line with the Ndindabahizi Appeal Judgement, as discussed above. With respect to Athanase Seromba’s mens rea, the Appeals Chamber is satisfied that the role he played in the events that led to the destruction of the church, his knowledge that such destruction would inevitably result in the death of a large number of Tutsi civilians,[4] as well as his awareness of the widespread and systematic attack against the Tutsi population[5] occurring at the time, all demonstrate that he possessed the required intent to commit extermination. The Appeals Chamber, therefore, finds, Judge Liu dissenting, that the Trial Chamber erred in concluding that Athanase Seromba had not committed extermination as a crime against humanity.[6]

Also see infra on Judge Liu’s Dissenting Opinion.

Paras 589-591: applying the approach in the Kordić and Čerkez Appeal Judgement to cumulative convictions, the Appeals Chamber found that cumulative convictions on the basis of the same acts are permissible in relation to persecutions under Article 5(h) and torture under Article 5(f) of the Statute.

The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of torture under Article 5 of the Statute: the requirements of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. Torture, by contrast, requires proof that the accused caused the severe pain or suffering of an individual, regardless of whether the act or omission causing the harm discriminates in fact or was specifically intended as discriminatory.[1]

299.   The Appeals Chamber recalls that Article 3 of the ICTY Statute sets out a non-exhaustive list of punishable violations of the laws or customs of war, including, inter alia, under Article 3(c), the “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings” (“crime of attacking undefended locales”).[1] The crime of attacking undefended locales is thus one of the violations of the laws or customs of war within the jurisdiction of the ICTY pursuant to Article 3 of the ICTY Statute, which include, for instance, the crimes of murder, terror, unlawfully attacking civilians, or hostage-taking.[2]