Discriminatory intent

Notion(s) Filing Case
Appeal Judgement - 01.06.2001 AKAYESU Jean Paul

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.

[1] Tadic Appeal Judgment, para. 288.

[2] [Tadić Appeal Judgement], para. 287 et seq.  Following its review in para. 292, the Appeals Chamber found that  “[t]his warrants the conclusion that customary international law, as it results from the gradual development of international instruments and national case-law into general rules, does not presuppose a discriminatory or persecutory intent for all crimes against humanity”.  In Tadic,  ICTY Appeals Chamber relied, in particular, on the interpretation of the London Agreement of 8 August 1945, the Statute of the International Tribunal for Tokyo, Council Control Law No. 10, the Draft Code of crimes against the peace and security of mankind and the Statute of Rome.

[3] [Tadić Appeal Judgement], para. 297.

[4] In this connection, the Appeals Chamber recalls the finding in Tadic (para. 296): “it is open to the Security Council – subject to respect for peremptory norms of international law (jus cogens) – to adopt definitions of crimes in the Statute which deviate from customary international law [footnotes omitted].  Nevertheless, as a general principle, provisions of the Statute defining the crimes within the jurisdiction of the Tribunal should always be interpreted as reflecting customary international law, unless an intention to depart from customary international law is expressed in the terms of the Statute, or from other authoritative sources”.

[5] Tadic Judgment, footnote 356.

[6] The chapeau refers to discrimination on “national, political, ethnic, racial or religious” grounds while Article 3(h) of the Statute envisages cases of “persecutions on political, racial and religious grounds”. 

Download full document
ICTR Statute Article 3