The Appeals Chamber, seized of the question whether the Trial Chamber correctly defined the elements of the crime of extermination, adopted the definition given in the Ntakirutimana Appeal Judgement, in which the ICTR Appeals Chamber held:

522. [T]he Appeals Chamber finds that the crime of extermination requires proof that the accused participated in a widespread or systematic killing or in subjecting a widespread number of people or systematically subjecting a number of people to conditions of living that would inevitably lead to death [actus reus], and that the accused intended by his acts or omissions this result [mens rea].[1]

516. […] Extermination differs from murder in that it requires an element of mass destruction, which is not required for murder.”[2] The Appeals Chamber agrees with the Trial Chamber that the crime of extermination is the act of killing on a large scale.[3] The expressions “on a large scale” or “large number” do not, however, suggest a numerical minimum.[4]

For a full account of the Appeals Chamber’s discussion of the crime of extermination, see paras 252-261.

1026. The Appeals Chamber observes in this respect that in the Kordić and Čerkez Appeal Judgement the ICTY Appeals Chamber found that cumulative convictions are permissible for persecution and other inhumane acts, since each offence has a materially distinct element not contained in the other.[1] Relying on this jurisprudence, the ICTY Appeals Chamber found in the Stakić Appeal Judgement that it was permissible to enter cumulative convictions for extermination and persecution as crimes against humanity on the basis of the same facts. It found that extermination requires proof that the accused caused the death of a large number of people, while persecution requires proof that an act or omission was in fact discriminatory and that the act or omission was committed with specific intent to discriminate.[2] The Appeals Chamber endorses the analysis of the ICTY Appeals Chamber.

1027. According to the foregoing, the Appeals Chamber finds that it is permissible to convict Appellant Barayagwiza cumulatively of both persecution and extermination on the basis of the same facts, Judge Güney dissenting from this finding.

231. It is well-established that a large number of victims is not an element of the crime of genocide. The Appeals Chamber also recalls that, with respect to extermination as a crime against humanity, “a particularly large number of victims can be an aggravating circumstance in relation to the sentence for this crime if the extent of the killings exceeds that required for extermination.” The Appeals Chamber further recalls that extermination is the act of killing on a “large scale”, and that “large scale” does not suggest a strict numerical approach with a minimum number of victims. While extermination as a crime against humanity has been found in relation to the killing of thousands of persons, it has also been found in relation to fewer killings, such as the killings of approximately 60 individuals and less. In the present case, the Trial Chamber found that the attacks on Nyange Church resulted “in the death of approximately 2,000 Tutsi men, women and children.” The Appeals Chamber considers that the extent of the killings at Nyange Church on 15 and 16 April 1994 exceeded that required for extermination, and that the number of victims could therefore be taken into consideration as an aggravating circumstance in the determination of the sentence. The Appeals Chamber accordingly rejects Ndahimana’s contention that the Trial Chamber engaged in impermissible double-counting in considering the number of victims of the attacks on NyangeChurch as an aggravating factor.

146.    With regard to Tolimir’s argument that the killing of the three Žepa leaders was not part of the one murder operation involving the mass killings of the men of Srebrenica, the Appeals Chamber recalls that the actus reus of the crime of extermination is “the act of killing on a large scale”[1] and the mens rea is the intention to kill on a large-scale.[2] It further recalls that the crime of extermination differs from murder in that it requires an element of massiveness, which is not required for murder.[3] The Appeals Chamber has clarified that:

The assessment of “large scale” is made on a case-by-case basis, taking into account the circumstances in which the killings occurred. Relevant factors include, inter alia: the time and place of the killings; the selection of the victims and the manner in which they were targeted; and whether the killings were aimed at the collective group rather than victims in their individual capacity.[4]

147.    The actus reus of the crime of extermination may be established through an aggregation of separate incidents. It is not required that the killings be on a vast scale in a concentrated location over a short period of time.[6] The ICTR Appeals Chamber has, on the other hand, stated that “[a]s a general matter, the element of killing on a large scale cannot be satisfied by a collective consideration of distinct events committed in different locations, in different circumstances, by different perpetrators, and over an extended period of time, i.e. a period of two months”.[7]

See also paras 148-150.

542. […] Conviction for murder as a crime against humanity and conviction for extermination as a crime against humanity, based on the same set of facts, however, cannot be cumulative.[1] Murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity; each involves killing within the context of a widespread or systematic attack against the civilian population, and the only element that distinguishes these offences is the requirement of the offence of extermination that the killings occur on a mass scale.

530. The actus reus for aiding and abetting the crime of extermination is that the accused carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of that crime. This support must have a substantial effect upon the perpetration of the crime. The requisite mens rea is knowledge that the acts performed by the aider and abettor assist the commission of the crime of extermination committed by the principal. If it is established that the accused provided a weapon to one principal, knowing that the principal will use that weapon to take part with others in a mass killing, as part of a widespread and systematic attack against the civilian population, and if the mass killing in question occurs, the fact that the weapon procured by the accused “only” killed a limited number of persons is irrelevant to determining the accused’s responsibility as an aider and abettor of the crime of extermination.

185. The Appeals Chamber recalls that the crime of extermination is the act of killing on a large scale.[1] The expression “on a large scale” does not, however, suggest a numerical minimum.[2] As a crime against humanity, the act of killing must occur within the context of a widespread or systematic attack against the civilian population on national, political, ethnic, racial, or religious grounds.[3]

416. The Appeals Chamber recalls, however, that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because, whereas extermination requires the materially distinct element that the killings occur on a mass scale, murder does not contain an element materially distinct from extermination.[1] The Trial Chamber therefore erred in law in entering cumulative convictions for murder and extermination as crimes against humanity for the killings in Gisenyi town. Since the offence of extermination contains an additional materially distinct element,[2] which is present in the instant case,[3] the Appeals Chamber concludes that Nsengiyumva’s convictions for extermination entered under Count 6 of the Nsengiyumva Indictment should be upheld while his convictions for murder as a crime against humanity under Count 5 should be vacated.

736. Bagosora did not formally raise any error vis-à-vis his cumulative convictions for murder and extermination as crimes against humanity. However, the Appeals Chamber recalls its holding above in connection with Nsengiyumva’s appeal that cumulative convictions for extermination and murder as crimes against humanity based on the same set of facts are not permissible because murder as a crime against humanity does not contain a materially distinct element from extermination as a crime against humanity.[4] Accordingly, the Appeals Chamber finds, proprio motu, that the Trial Chamber erred in law in convicting Bagosora of both murder and extermination as crimes against humanity based on the same facts. In this context, the Appeals Chamber recalls that the more specific provision should be upheld.[5] Consequently, the Appeals Chamber concludes that Bagosora’s conviction for murder as a crime against humanity under Count 4 of the Bagosora Indictment pursuant to Article 6(3) of the Statute should be reversed, while his conviction for extermination under Count 6 of the Bagosora Indictment should be affirmed.

260. The Appeals Chamber recalls that cumulative convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.[1] An element is materially distinct if it requires proof of a fact that is not required by the other.[2] Applying this well-established principle, the Appeals Chamber recently reiterated that cumulative convictions for extermination and murder as crimes against humanity are not permissible, reasoning that, “whereas extermination requires the materially distinct element that the killings occur on a mass scale, murder does not contain an element materially distinct from extermination”.[3]

261. The Trial Chamber therefore erred in law in entering cumulative convictions for both murder and extermination as crimes against humanity for the killings perpetrated at Nyanza hill and IAMSEA.[4] Since the offence of extermination contains an additional materially distinct element and the conviction under the more specific provision should be retained,[5] the Appeals Chamber concludes that Ntabakuze’s convictions for extermination entered under Count 5 of the Indictment should be upheld, while his convictions for murder as a crime against humanity under Count 4 of the Indictment should be vacated.

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.

536. The Appeals Chamber recalls that the actus reus of extermination is “the act of killing on a large scale”.[1] This element of “massiveness” is what distinguishes the crime of extermination from the crime of murder.[2] The mens rea of extermination requires the intention of the perpetrator “to kill on a large scale or to systematically subject a large number of people to conditions of living that would lead to their deaths.”[3]

537. The Appeals Chamber further recalls that “large scale” does not suggest a strict numerical approach with a minimum number of victims.[4] While extermination as a crime against humanity has been found in relation to the killing of thousands,[5] it has also been found in relation to fewer killings. The Appeals Chamber recalls that in Brđanin, the killing of between 68 to 300 individuals “in light of the circumstances in which they occurred, [met] the required threshold of massiveness for the purposes of extermination.”[6] In Stakić, the trial chamber found that the killing of less than 80 individuals “independently would reach the requisite level of massiveness for the purposes of an evaluation under Article 5(b) of the Statute”.[7] In Krajišnik, while the conviction for extermination as a crime against humanity was based on the killing of at least 1,916 individuals, the trial chamber found that the killing of approximately 66 individuals during the Pionirska Street Incident satisfied the element of massiveness.[8] The ICTR and the Special Court for Sierra Leone (“SCSL”) have also found the killing of about 60 individuals and less to be sufficiently large-scale to amount to extermination.[9]

538. The assessment of “large scale” is made on a case-by-case basis, taking into account the circumstances in which the killings occurred.[10] Relevant factors include, inter alia: the time and place of the killings;[11] the selection of the victims and the manner in which they were targeted;[12] and whether the killings were aimed at the collective group rather than victims in their individual capacity.[13] In Krstić, the trial chamber qualified the victimised population and held that:

“extermination” could also, theoretically, be applied to the commission of a crime which is not “widespread” but nonetheless consists in eradicating an entire population […] made up of only a relatively small number of people. In other words, while extermination generally involves a large number of victims, it may be constituted even where the number of victims is limited.[14] […] [T]here must be evidence that a particular population was targeted and that its members were killed or otherwise subjected to conditions of life calculated to bring about the destruction of a numerically significant part of the population.[15]

The Krstić trial chamber also stated that the preparation and organisation of the crime could be considered when determining the actus reus of extermination as a crime against humanity.[16] The International Law Commission articulated that “[e]xtermination is a crime which by its very nature is directed against a group of individuals” and qualified that the individuals do not have to share any common characteristics.[17]

542. The Trial Chamber thus considered the number of victims when assessing whether the element of massiveness was met. It also took into consideration the specific circumstances of the case, such as the type of victims and, with regard to the Pionirska Street Incident, the area of origin of the victims.[18] While these factors may be taken into consideration in the assessment of whether the element of massiveness for extermination is fulfilled, they do not constitute elements of the crime of extermination as a crime against humanity.[19] Therefore, a trial chamber need not address these factors in its assessment. Milan Lukić’s arguments that the Trial Chamber inconsistently considered population density in relation to the Pionirska Street and the Bikavac Incidents therefore fail. Furthermore, as these factors do not constitute elements of the crime of extermination, there is no mens rea requirement in relation to them as suggested by Milan Lukić.

543. When referring to population density regarding the Pionirska Street Incident, the Trial Chamber essentially considered the number of individuals killed in a specific area in relation to the overall population of that area.[20] The Appeals Chamber notes that almost the entire Muslim population of Koritnik perished in the Pionirska Street Incident.[21] In these circumstances, the Trial Chamber reasonably found that the killing of 59 persons amounted to extermination as a crime against humanity. The limited reduction of the number of victims by the Appeals Chamber does not affect this conclusion.[22] Furthermore, the Appeals Chamber finds that using a single village as the reference area was not artificially narrow since Milan Lukić’s conviction rests on one incident which involved victims who were predominately from the same village.[23]

544. The Appeals Chamber further finds that the Trial Chamber did not err in finding that extermination was established in relation to the Bikavac Incident. The Trial Chamber reasonably found that the killing of at least 60 persons was sufficiently large–scale.

545. Moreover, Milan Lukić’s argument that the Tribunal and the ICTR have ensured that the element of massiveness is maintained at a high level[24] is not supported by either the jurisprudence of the Tribunal or that of the ICTR. This argument is therefore dismissed.

1036. The Appeals Chamber recalls that the mens rea for extermination has been defined as the intention of the perpetrator to: (i) kill on a large scale; or (ii) systematically subject a large number of people to conditions of living that would lead to their deaths.[1] In this regard, the Appeals Chamber recalls that it has consistently held that the elements of the crime of extermination are the same as those required for murder as a crime against humanity, with the difference that extermination is killing on a large scale.[2] As such, the Appeals Chamber considers that the mens rea for extermination to “(i) kill on a large scale” can be met by establishing the mens rea for murder as a crime against humanity – i.e. the intent to: (i) kill the victim; or (ii) wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death[3] – plus the additional intention to do so on a large scale.[4]

2123.            The Appeals Chamber recalls that the actus reus of extermination is the act of killing on a large scale.[1] This is what distinguishes the crime of extermination from the crime of murder.[2] The Appeals Chamber further recalls that “large scale” does not suggest a strict numerical approach with a minimum number of victims.[3] The assessment of “large scale” is made on a case-by-case basis, taking into account the circumstances in which the killings occurred.[4] Relevant factors include, inter alia, the time and place of the killings, the selection of the victims and the manner in which they were targeted, and whether the killings were aimed at the collective group rather than victims in their individual capacity.[5]

2124.            There can be no dispute that, “taken by themselves”, the individual killings of the Tutsi girl and Ruvurajabo at the Hotel Ihuliro roadblock in late April 1994 do not meet the “large scale” requirement. The Appeals Chamber, however, is not persuaded that the Trial Chamber erred in finding that these two killings, taken collectively with the other killings for which Ntahobali was convicted, “occurred on a large scale”.

2125.            In the Bagosora and Nsengiyumva Appeal Judgement, the Appeals Chamber considered 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.”[6] The Appeals Chamber observes that, by contrast, the two killings perpetrated at the Hotel Ihuliro roadblock were perpetrated in the same commune, in similar circumstances, by the same category of perpetrators, and approximately at the same time as the numerous killings perpetrated at the locations near the IRST, at or near the EER, and the killings of Tutsis abducted from the Butare Prefecture Office.[7] For all these events, the Trial Chamber concluded that the victims were all or predominantly of Tutsi ethnicity and were not targeted in their individual capacity but as part of a collective aim to exterminate the Tutsis.[8]

2126.            In the circumstances of this case, the Appeals Chamber finds no error in the Trial Chamber’s collective consideration of the events in relation of which Ntahobali was convicted to find him guilty of extermination as a crime against humanity for the killings perpetrated at the Hotel Ihuliro roadblock and all other killings for which he remains convicted. […]

[…]

3910.            It is unclear whether the individual killing of the eight abducted Tutsi women and girls Witness QAR testified about could be considered to meet the “large scale” requirement.[9] In any event, the Appeals Chamber finds that the Trial Chamber did not err in finding that, taken collectively with the killings perpetrated at Mugombwa Church and Kabuye Hill for which Ndayambaje was also convicted, the killing of the group of abducted women and girls “occurred on a large scale”. The Appeals Chamber observes that the killing of the abducted women and girls was perpetrated in the same commune as the Mugombwa Church massacre and not far from the Kabuye Hill attacks,[10] that Ndayambaje similarly encouraged by his presence or his words the assailants to perpetrate the crimes,[11] and that the victims were not targeted in their individual capacity but as part of a collective aim to exterminate the Tutsis.[12] The instant situation therefore differs from the situation addressed in the Bagosora and Nsengiyumva Appeal Judgement which Ndayambaje relies upon in support of his contention that the “large scale” requirement was not met regarding the killings of the abducted women and girls.[13]

See also para. 3309.