135. In relation to genocide and extermination as a crime against humanity, the Appeals Chamber has held that “committing” under Article 6(1) of the Statute, which envisions physical perpetration of a crime, need not only mean physical killing and that other acts can constitute direct participation in the actus reus of the crimes. The question is whether an accused’s conduct “was as much an integral part of the [crimes] as were the killings which it enabled.” In this case, the Trial Chamber found that Munyakazi’s leadership role constituted an integral part of the crimes. This approach is in line with the jurisprudence of the Appeals Chamber.

136. Contrary to Munyakazi’s submissions, his role in the crimes is entirely consistent with the facts of the Seromba and Gacumbitsi cases.[5] Munyakazi fails to appreciate that the Trial Chamber found that he personally participated in the attacks, led the assailants, issued instructions, and, in particular, oversaw key aspects of the crimes, such as the destruction of the door at Shangi parish and the removal of refugees from Mibilizi parish.[6] The Appeals Chamber recalls that it has already rejected Munyakazi’s challenges to the assessment of his alibi, the Prosecution evidence, and his authority.[7] His liability was not based on his prominence or influence alone, but rather on his active involvement in the crimes committed at Shangi and Mibilizi parishes on 29 and 30 April 1994, respectively.

677. A person may be found guilty of the crime specified in Article 2(3)(c) of the Statute if he or she directly and publicly incited the commission of genocide (the material element or actus reus) and had the intent directly and publicly to incite others to commit genocide (the intentional element or mens rea). Such intent in itself presupposes a genocidal intent.[1]

678. The Appeals Chamber considers that a distinction must be made between instigation[2] under Article 6(1) of the Statute and public and direct incitement to commit genocide under Article 2(3)(c) of the Statute. In the first place, instigation under Article 6(1) of the Statute is a mode of responsibility; an accused will incur criminal responsibility only if the instigation in fact substantially contributed to the commission of one of the crimes under Articles 2 to 4 of the Statute. By contrast, direct and public incitement to commit genocide under Article 2(3)(c) is itself a crime, and it is not necessary to demonstrate that it in fact substantially contributed to the commission of acts of genocide.[3] In other words, the crime of direct and public incitement to commit genocide is an inchoate offence, punishable even if no act of genocide has resulted therefrom. This is confirmed by the travaux préparatoires to the Genocide Convention, from which it can be concluded that the drafters of the Convention intended to punish direct and public incitement to commit genocide, even if no act of genocide was committed, the aim being to forestall the occurrence of such acts.[4] The Appeals Chamber further observes — even if this is not decisive for the determination of the state of customary international law in 1994 — that the Statute of the International Criminal Court also appears to provide that an accused incurs criminal responsibility for direct and public incitement to commit genocide, even if this is not followed by acts of genocide.[5]

679. The second difference is that Article 2(3)(c) of the Statute requires that the incitement to commit genocide must have been direct and public, while Article 6(1) does not so require.

11. The Appeals Chamber recalls that the term “new fact” refers to new evidentiary information supporting a fact that was not at issue during the trial or appeal proceedings.[1] The requirement that the fact was not at issue during the proceedings means that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[2] Essentially, the moving party must show that the Chamber did not know about the fact in reaching its decision.[3]

At para. 4, the Appeals Chamber recalled that Trial Chambers exercise discretion in different types of decisions and qualified again those decisions:

4. The Appeals Chamber has held that Trial Chambers exercise discretion in different types of decisions – “such as when imposing sentence, in determining whether provisional release should be granted, in relation to the admissibility of some types of evidence, in evaluating evidence, and (more frequently) in deciding points of practice or procedure.”[1] Deference is afforded to the Trial Chamber’s discretion in these decisions because they “draw[] on the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case, and require[] a complex balancing of intangibles in crafting a case-specific order to properly regulate a highly variable set of trial proceedings.”[2]

See also Pandurević Decision on Provisional Release, para. 4.

10.     […] False testimony has been defined by the Appeals Chamber of the ICTR as “a deliberate offence which requires wilful intent on the part of the perpetrator to mislead the Judge and thus to cause harm”.[1]

27. [...] [T]he Appeals Chamber does not interpret the observation in the ICRC Commentary on the Additional Protocols, that the term “outrages upon personal dignity” refers to acts “aimed at humiliating and ridiculing” the victim,[1] as necessarily supporting a requirement of a specific intent on the part of a perpetrator to humiliate, ridicule or degrade the victims.  The statement seems simply to describe the conduct which the provision seeks to prevent.  The Trial Chamber’s indication that the mens rea of the offence is the “intent to humiliate or ridicule” the victim[2] may therefore impose a requirement that the Prosecution was not obliged to prove and the Appeals Chamber does not, by rejecting this ground of appeal, endorse that particular conclusion.

15. […] The usual meaning of a witness statement in trial proceedings is an account of a person’s knowledge of a crime, which is recorded through due procedure in the course of an investigation into the crime. […]

320.    The offence of unlawful confinement of a civilian, a grave breach of the Geneva Conventions which is recognised under Article 2(g) of the Statute of the Tribunal, is not further defined in the Statute.  As found by the Trial Chamber, however, clear guidance can be found in the provisions of Geneva Convention IV.  The Trial Chamber found that the confinement of civilians during armed conflict may be permissible in limited cases, but will be unlawful if the detaining party does not comply with the provisions of Article 42 of Geneva Convention IV, which states:

The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.

Thus the involuntary confinement of a civilian where the security of the Detaining Power does not make this absolutely necessary will be unlawful.  Further, an initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.[1]  That article provides:

Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose.  If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. 

Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or have been released from internment or assigned residence.  The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.

321.    In its consideration of the law relating to the offence of unlawful confinement, the Trial Chamber also referred to Article 5 of Geneva Convention IV, which imposes certain restrictions on the protections which may be enjoyed by certain individuals under the Convention.[2]  It provides, in relevant part:

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

[…]

In each case, such persons shall nevertheless be treated with humanity, and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.  They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.[3]

This provision reinforces the principle behind Article 42, that restrictions on the rights of civilian protected persons, such as deprivation of their liberty by confinement, are permissible only where there are reasonable grounds to believe that the security of the State is at risk. 

322.    The Appeals Chamber agrees with the Trial Chamber that the exceptional measure of confinement of a civilian will be lawful only in the conditions prescribed by Article 42, and where the provisions of Article 43 are complied with.[4]  Thus the detention or confinement of civilians will be unlawful in the following two circumstances:

(i)       when a civilian or civilians have been detained in contravention of Article 42 of Geneva Convention IV, ie they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary; and

(ii)       where the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified.

See also paragraphs 327, 329.

25. The Appeals Chamber notes that the Trial Chamber convicted Kordić for planning, instigating, and ordering crimes pursuant to Article 7(1) of the Statute.[1] The Trial Chamber’s legal definitions of these modes of responsibility have not been appealed by any of the Parties. However, the Appeals Chamber deems it necessary to set out and clarify the applicable law in relation to these modes of responsibility insofar as it is necessary for its own decision.

26. The actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated.[2] It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.

27. The actus reus of “instigating” means to prompt another person to commit an offence.[3] While it is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused, it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[4]

28. The actus reus of “ordering” means that a person in a position of authority instructs another person to commit an offence.[5] A formal superior-subordinate relationship between the accused and the perpetrator is not required.[6]

29. The mens rea for these modes of responsibility is established if the perpetrator acted with direct intent in relation to his own planning, instigating, or ordering. 

30. In addition, the Appeals Chamber has held that a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute. The Appeals Chamber held that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.[7]

31. A person who plans an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that plan, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to planning. Planning with such awareness has to be regarded as accepting that crime.

32. A person who instigates another person to commit an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that instigation, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to instigating.  Instigating with such awareness has to be regarded as accepting that crime.

308. At the outset, the Appeals Chamber notes that the Trial Chamber correctly set out that “[d]eportation and forcible transfer both entail the forcible displacement of persons from the area in which they are lawfully present, without grounds permitted under international law”,[1] adding that international humanitarian law recognises limited circumstances under which the displacement of civilians during armed conflict is allowed.[2] The Trial Chamber was thus clearly aware of the requirement that the forced displacement be “without grounds permitted under international law”. While the Trial Chamber did not explicitly find that the forced displacements in the case at hand were “without grounds permitted under international law”, the Appeals Chamber is not satisfied that this defect of the Trial Judgement invalidates the verdict. Indeed, several sections of the Trial Judgement make clear that the Trial Chamber implicitly found that the forced displacements were “without grounds permitted under international law”, and that they occurred as a direct result of the ”severe living conditions” created by the Serb authorities and forces.[3] The Appeals Chamber agrees: clearly, the forced displacements could not be justified under international law.[4] In fact, Amicus Curiae does not even suggest that they could. These arguments are rejected.

309. […] With regard to the latter, the Appeals Chamber agrees with the statement in the Stakić Trial Judgement that deportation does not require “that a minimum number of individuals must have been forcibly transferred for the perpetrator to incur criminal responsibility” as such a requirement would be “tantamount to negating the protective effect of the prohibition against deportation.”[5] The Appeals Chamber also recalls that, except for extermination, it is not necessary that a crime be carried out against a multiplicity of victims to constitute a crime against humanity: 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 directed against a civilian population.[6] […]

117. The Appeals Chamber accepts the chief thesis of the Trial Chamber that the traditional concept of slavery, as defined in the 1926 Slavery Convention and often referred to as “chattel slavery”,[1] has evolved to encompass various contemporary forms of slavery which are also based on the exercise of any or all of the powers attaching to the right of ownership.  In the case of these various contemporary forms of slavery, the victim is not subject to the exercise of the more extreme rights of ownership associated with “chattel slavery”, but in all cases, as a result of the exercise of any or all of the powers attaching to the right of ownership, there is some destruction of the juridical personality;[2] the destruction is greater in the case of “chattel slavery” but the difference is one of degree. The Appeals Chamber considers that, at the time relevant to the alleged crimes, these contemporary forms of slavery formed part of enslavement as a crime against humanity under customary international law.

118. The Appeals Chamber will however observe that the law does not know of a “right of ownership over a person”.[3] Article 1(1) of the 1926 Slavery Convention speaks more guardedly “of a person over whom any or all of the powers attaching to the right of ownership are exercised.”  That language is to be preferred. 

119. The Appeals Chamber considers that the question whether a particular phenomenon is a form of enslavement will depend on the operation of the factors or indicia of enslavement identified by the Trial Chamber. These factors include the “control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour”.[4] […]

120. […] [T]he Appeals Chamber does not accept the premise that lack of consent is an element of the crime since, in its view, enslavement flows from claimed rights of ownership; accordingly, lack of consent does not have to be proved by the Prosecutor as an element of the crime.  However, consent may be relevant from an evidential point of view as going to the question whether the Prosecutor has established the element of the crime relating to the exercise by the accused of any or all of the powers attaching to the right of ownership.  In this respect, the Appeals Chamber considers that circumstances which render it impossible to express consent may be sufficient to presume the absence of consent. […]

121. […] The Trial Chamber found that the duration of the detention is another factor that can be considered but that its importance will depend on the existence of other indications of enslavement.[5] The Appeals Chamber upholds this finding and observes that the duration of the enslavement is not an element of the crime.  The question turns on the quality of the relationship between the accused and the victim. A number of factors determine that quality.  One of them is the duration of the relationship.  The Appeals Chamber considers that the period of time, which is appropriate, will depend on the particular circumstances of each case.

122. Lastly, as far as the mens rea of the crime of enslavement is concerned, the Appeals Chamber concurs with the Trial Chamber that the required mens rea consists of the intentional exercise of a power attaching to the right of ownership.[6]  It is not required to prove that the accused intended to detain the victims under constant control for a prolonged period of time in order to use them for sexual acts.

123. Aside from the foregoing, the Appeals Chamber considers it appropriate in the circumstances of this case to emphasise the citation by the Trial Chamber of the following excerpt from the Pohl case: [7]

Slavery may exist even without torture.  Slaves may be well fed, well clothed, and comfortably housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful restraint.  We might eliminate all proof of ill-treatment, overlook the starvation, beatings, and other barbarous acts, but the admitted fact of slavery - compulsory uncompensated labour - would still remain.  There is no such thing as benevolent slavery.  Involuntary servitude, even if tempered by humane treatment, is still slavery.

The passage speaks of slavery; it applies equally to enslavement.

142. With reference to the Torture Convention [1] and the case-law of the Tribunal and the ICTR, the Trial Chamber adopted a definition based on the following constitutive elements: [2]

(i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental.
(ii) The act or omission must be intentional.
(iii) The act or omission must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.

[…]

144. The Appeals Chamber largely concurs with the Trial Chamber’s definition[3] but wishes to hold the following. 

145. First, the Appeals Chamber wishes to provide further clarification as to the nature of the definition of torture in customary international law as it appears in the Torture Convention, in particular with regard to the participation of a public official or any other person acting in a non-private capacity. Although this point was not raised by the parties, the Appeals Chamber finds that it is important to address this issue in order that no controversy remains about this appeal or its consistency with the jurisprudence of the Tribunal.

146. The definition of the crime of torture, as set out in the Torture Convention, may be considered to reflect customary international law.[4] The Torture Convention was addressed to States and sought to regulate their conduct, and it is only for that purpose and to that extent that the Torture Convention deals with the acts of individuals acting in an official capacity.  Consequently, the requirement set out by the Torture Convention that the crime of torture be committed by an individual acting in an official capacity may be considered as a limitation of the engagement of States; they need prosecute acts of torture only when those acts are committed by “a public official...or any other person acting in a non-private capacity.”  So the Appeals Chamber in the Furundžija case was correct when it said that the definition of torture in the Torture Convention, inclusive of the public official requirement, reflected customary international law.[5] 

147. Furthermore, in the Furundžija Trial Judgement, the Trial Chamber noted that the definition provided in the Torture Convention related to “the purposes of [the] Convention”.[6]  The accused in that case had not acted in a private capacity, but as a member of armed forces during an armed conflict, and he did not question that the definition of torture in the Torture Convention reflected customary international law.  In this context, and with the objectives of the Torture Convention in mind, the Appeals Chamber in the Furundžija case was in a legitimate position to assert that “at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g., as a de facto organ of a State or any other authority-wielding entity”.[7]  This assertion, which is tantamount to a statement that the definition of torture in the Torture Convention reflects customary international law as far as the obligation of States is concerned, must be distinguished from an assertion that this definition wholly reflects customary international law regarding the meaning of the crime of torture generally.

148. The Trial Chamber in the present case was therefore right in taking the position that the public official requirement is not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention. However, the Appeals Chamber notes that the Appellants in the present case did not raise the issue as to whether a person acting in a private capacity could be found guilty of the crime of torture; nor did the Trial Chamber have the benefit of argument on the issue of whether that question was the subject of previous consideration by the Appeals Chamber.

259. The Trial Chamber referred to the case-law of the ICTY and ICTR and adopted the following definition of the crime of murder:

The ICTY and the ICTR have consistently defined the crime of murder as requiring that the death of the victim result from an act or omission of the accused committed with the intent to kill, or with the intent to cause serious bodily harm which the perpetrator should reasonably have known might lead to death.[1]

The Appeals Chamber cannot but agree with the Trial Chamber’s definition, but wishes to clarify the following.

260. In the Krnojelac case, the Trial Chamber rightly stated that proof beyond reasonable doubt that a person was murdered does not necessarily require proof that the dead body of that person has been recovered.[2] The fact of a victim’s death can be inferred circumstantially from all of the evidence presented to the Trial Chamber. All that is required to be established from that evidence is that the only reasonable inference from the evidence is that the victim is dead as a result of acts or omissions of the accused or of one or more persons for whom the accused is criminally responsible.[3]

261. Accordingly, for the crime of murder under Article 3 of the Statute to be established, the Prosecutor bears the onus of proving:

1) the death of a victim taking no active part in the hostilities;

2) that the death was the result of an act or omission of the accused or of one or more persons for whom the accused is criminally responsible;

3) the intent of the accused or of the person or persons for whom he is criminally responsible

    a) to kill the victim; or

    b) to wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death.[4]

40. The Appeals Chamber considers that the trial chamber is best placed to determine both the modalities for disclosure of material intended for use in cross-examination and also the amount of time that is sufficient for an accused to prepare his defence based on the specifics of such disclosure.[1] In this case, the Trial Chamber stated its preference for disclosure prior to cross-examination, and, when this did not occur, it assessed any possible prejudice to Kalimanzira.[2] The Appeals Chamber can identify no error in the Trial Chamber’s approach. […]

466. Article 23(2) of the Statute and Rule 98 ter(C) of the Rules provide that a judgement shall be rendered by a “majority of the judges”. Rule 87(A) of the Rules specifies that a majority of judges must be satisfied that guilt has been proved beyond reasonable doubt. In the present case, there was no such majority as only Judge David was satisfied that Sredoje Lukić fulfilled the actus reus and mens rea of aiding and abetting extermination in the Pionirska Street Incident.[1] As set out above, for different reasons neither Judge Van den Wyngaert nor Judge Robinson was satisfied that Sredoje Lukić should be convicted of this offence. Thus, to conclude that the Trial Chamber’s majority findings on Sredoje Lukić’s participation in the murders and on their characterisation as extermination support a finding of guilt would lead to Sredoje Lukić’s conviction, despite the fact that only one Judge was satisfied that all the necessary elements were fulfilled. Such a conclusion is incompatible with the principle that a finding of guilt may be reached only when a majority of the trial chamber is satisfied that guilt has been proved beyond reasonable doubt, as enshrined in Rule 87(A) of the Rules. Thus, the Prosecution has not shown that the Trial Chamber erred in failing to convict Sredoje Lukić for aiding and abetting extermination as a crime against humanity on Pionirska Street. The Prosecution’s first ground of appeal is therefore dismissed.

480. The actus reus of “instigating” implies prompting another person to commit an offence.[1] It is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[2] The mens rea for this mode of responsibility is the intent to instigate another person to commit a crime or at a miminum the awareness of the substantial likelihood that a crime will be committed in the execution of the act or omission instigated.[3]

660. The Appeals Chamber recalls that, for a defendant to be convicted of instigation to commit a crime under Article 6(1) of the Statute, it must be established that the acts charged contributed substantially to the commission of the crime, but they need not be a sine qua non condition for its commission. The Appeals Chamber further recalls that, contrary to what the Appellant appears to contend,[4] the accused does not need to be actually present when the instigated crime is committed.

151.    The Appeals Chamber understands the Trial Chamber’s reasoning to be that, if a doubt exists in the interpretation of a statute, the doubt must be interpreted in favour of the accused. The Trial Chamber considered that “meurtre” is not the same as “killing”.[1] However, having regard to the operative part of Article 2(2) of the Statute, it found that “there is virtually no difference” between the two terms as the term “killing” is linked to the intent to destroy in whole or in part.[2] The Appeals Chamber accepts this view, but states that if the word “virtually” is interpreted in a manner that suggests a difference, though minimal, between the two terms, it would construe them both as referring to intentional but not necessarily premeditated murder, this being, in its view, the meaning to be assigned to the word “meurtre”. […]

356. […] The Appeals Chamber recalls that forcible transfer entails the displacement of persons from the area in which they are lawfully present, without grounds permitted under international law.[1] The requirement that the displacement be forced is not limited to physical force but can be met through the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, or taking advantage of a coercive environment. It is the absence of genuine choice that makes the displacement unlawful. While fear of violence, use of force, or other such circumstances may create an environment where there is no choice but to leave, the determination as to whether a transferred person had a genuine choice is one to be made in the context of a particular case being considered.[2] Displacement may be permitted by international law in certain limited circumstances,[3] provided it is temporary in nature[4] and conducted humanely.[5] Notably, however, displacement is not permissible where the humanitarian crisis that caused the displacement is the result of the accused’s own unlawful activity.[6] In addition, the participation of a non-governmental organization in facilitating displacements does not in and of itself render an otherwise unlawful transfer lawful.[7]