Inference of discriminatory intent
| Notion(s) | Filing | Case |
|---|---|---|
| Appeal Judgement - 30.01.2015 |
POPOVIĆ et al. (IT-05-88-A) |
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713. […] [T]he Appeals Chamber observes that when considering whether an accused has the required intent for the crime of persecution, trial chambers are allowed to consider “the general attitude of the alleged perpetrator as demonstrated by his behaviour”.[1] The use of derogatory language in relation to a particular group – even where such usage is commonplace – is one aspect of an accused’s behaviour that may be taken into account, together with other evidence, to determine the existence of discriminatory intent.[2] […] [1] Kvočka et al. Appeal Judgement, para. 460. [2] See, e.g., Kvočka et al. Appeal Judgement, para. 461, finding that the Trial Chamber correctly found that the use of the word “balijas” by the accused Zoran Žigić towards Muslim detainees in the Omarska, Keraterm, and Trnopolje camps supported its conclusion that he had discriminatory intent in maltreating the detainees. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 17.09.2003 |
KRNOJELAC Milorad (IT-97-25-A) |
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184. The Appeals Chamber reiterates that, in law, persecution as a crime against humanity requires evidence of a specific intent to discriminate on political, racial or religious grounds and that it falls to the Prosecution to prove that the relevant acts were committed with the requisite discriminatory intent. The Appeals Chamber may not hold that the discriminatory intent of beatings can be inferred directly from the general discriminatory nature of an attack characterised as a crime against humanity.[1] According to the Appeals Chamber, such a context may not in and of itself evidence discriminatory intent. Even so, the Appeals Chamber takes the view that discriminatory intent may be inferred from such a context as long as, in view of the facts of the case, circumstances surrounding the commission of the alleged acts substantiate the existence of such intent. Circumstances which may be taken into consideration include the operation of the prison (in particular, the systematic nature of the crimes committed against a racial or religious group) and the general attitude of the offence’s alleged perpetrator as seen through his behaviour. [1] It should be noted that not every attack against a civilian population is necessarily discriminatory. Moreover, the discriminatory character is not an constituent element of an attack against a civilian population. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 28.02.2005 |
KVOČKA et al. (IT-98-30/1-A) |
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366. […] discriminatory intent of crimes cannot be inferred directly from the general discriminatory nature of an attack characterized as a crime against humanity. However, the discriminatory intent may be inferred from the context of the attack, provided it is substantiated by the surrounding circumstances of the crime.[1] Accordingly, the Appeals Chamber found in the case Prosecutor v. Krnojelac that, when beatings were inflicted only on the non-Serb detainees in a prison, it was reasonable to conclude that these beatings were committed because of the political or religious affiliation of the victims, and that these acts were committed with the requisite discriminatory intent.[2] In the present case, it appears that almost all the detainees in the camp belonged to the non-Serb group. It was reasonable to conclude that the reason for their detention was their membership in this group and therefore of a discriminatory nature. [1] Krnojelac Appeal Judgement, para. 184. [2] Ibid., para. 186; Kordić and Čerkez Appeal Judgement, para. 950. |
ICTR Statute Article 3(h) ICTY Statute Article 5(h) | |