326. The Trial Chamber defined the crime of devastation not justified by military necessity (Count 4) as follows: (a) destruction or damage of property on a large scale; (b) the destruction or damage was not justified by military necessity; and (c) the perpetrator acted with the intent to destroy or damage the property or in the knowledge that such destruction or damage was a probable consequence of his acts.[1] The Trial Chamber further determined that the elements of the crime of unlawful attacks on civilian objects (Count 5) were: (a) an attack directed against civilian objects; (b) causing damage to the civilian objects; and (c) conducted with the intent of making the civilian objects the object of the attack.[2] Finally, regarding the crime of destruction of, or willful damage to cultural property (Count 6), the Trial Chamber ruled that an act fulfills the elements of this crime if (a) it has caused damage or destruction to property which constitutes the cultural or spiritual heritage of peoples; (b) the damaged or destroyed property was not used for military purposes at the time when the acts of hostility directed against these objects took place; and (c) the act was carried out with the intent to damage or destroy the property in question.[3] The Appeals Chamber notes that the Trial Chamber’s definitions of the elements of the crimes are not contested by either of the Parties.[4]

[…]

328. The Appeals Chamber holds that the Trial Chamber’s application of the Čelebići test is correct. First, the Appeals Chamber finds that the definition of the crime of unlawful attacks on civilian objects (Count 5) contains a materially distinct element not present in either the crime of devastation not justified by military necessity (Count 4) or the crime of destruction of, or willful damage to cultural property (Count 6): the requirement of proof of an attack directed against civilian objects.[5] Although the commission of the latter two crimes may, as suggested by Strugar, imply an attack, this is not a legal element of either crime, which is the proper focus of the Čelebići test on cumulation.[6] Therefore, the Trial Chamber rightly concluded that Count 5 contains a materially distinct element not present in the two other Counts.

329. Second, the Appeals Chamber agrees with the Trial Judgement that Count 6 is the only one to contain the element that the damage or destruction must have been carried out against property which constitutes the cultural or spiritual heritage of peoples. In this regard, the Trial Chamber followed the approach taken in previous cases, that

[t]he offence of destruction or willful damage to institutions dedicated to religion overlaps to a certain extent with the offence of unlawful attacks on civilian objects except that the object of the offence of destruction or willful damage to institutions dedicated to religion is more specific.[7]

Whereas cultural property is certainly civilian in nature,[8] not every civilian object can qualify as cultural property. Therefore, the Trial Chamber rightly concluded that Count 6 contains a materially distinct element not present in the two other Counts.

330. Third, the Trial Chamber stated that the non-justification by military necessity is only an element of the crime of devastation not justified by military necessity (Count 4). The Appeals Chamber agrees that, in line with previous jurisprudence,[9] the element of the non-justification by military necessity present in the crime of devastation not justified by military necessity (Count 4) is indeed not present in the crime of attack against civilian objects (Count 5). The Appeals Chamber also agrees that military necessity is not an element of the crime of destruction of, or damage to cultural property (Count 6). While the latter’s requirement that the cultural property must not have been used for military purposes may be an element indicating that an object does not make an effective contribution to military action in the sense of Article 52(2) of Additional Protocol I, it does not cover the other aspect of military necessity, namely the definite military advantage that must be offered by the destruction of a military objective. Therefore, the Trial Chamber rightly concluded that military necessity was a materially distinct element distinguishing Count 4 from Counts 5 and 6.

331. Finally, the Appeals Chamber agrees with the Trial Chamber’s finding that Count 4 was the only one requiring proof that the devastation must have occurred on a large scale.

332. In light of the above, the Appeals Chamber finds that the Trial Chamber correctly concluded that the offences charged under Counts 4, 5 and 6 each contain materially distinct elements from one another, but erred in failing to enter cumulative convictions for Counts 4, 5 and 6 of the Indictment against Strugar. The Appeals Chamber revises the Trial Judgement accordingly and enters a conviction under Counts 4 and 5 respectively.